« Home | 52 » | Thomas Speaks at UALR, Has Beverage » | Bush v Gore: Get Over It » | Justices at the State of the Union » | Another Crack at McCain-Feingold » | Milwaukee Magazine on Judicial Conflicts of Interest » | People Drive Me Insane » | Roggensack on Judicial Independence » | Supreme Conflict » | FedSoc Student Symposium » 

Friday, February 02, 2007 

Rethinking Roe

How Appealing recently linked to this article in the Yale Daily News entitled "Roe backers shouldn't focus on Constitution." Author Roger Low has some interesting things to say about abortion rights, the Supreme Court, and the politics of the whole situation.

After describing a Roe celebration week at Yale, Low (a supporter of legalized abortion) brings up his major gripe...
Ever since Justice Harry Blackmun wrote his landmark decision in Roe, the national women'’s equality movement has seized on the case as one of the century's most important benchmarks for social progress. There's just one small problem: Blackmun's Roe v. Wade opinion is a constitutional disaster.
Low then makes many of the same criticisms of the Roe opinion that academics, liberal and conservative alike, have made in the past. I still remember the day in Con Law during my first year of law school when my fairly liberal professor ripped the opinion to shreds. There were shocked looks on the faces of more than a few of my fellow students.

Low focuses on how damaging Roe and its progeny have been to Supreme Court politics...
The Supreme Court's 1973 decision has been terrific for pregnant woman, and slightly less so for our national judiciary. The sudden willingness of the Supreme Court to illegalize abortion based on a new interpretation of the Constitution has been a driving factor in converting Supreme Court nominations into the polarizing partisan slugfests they have become.
That's very true. It's a position that I have held for a long time. Here, I'm going to quote myself...
Abortion jurisprudence has poisoned our federal judiciary. Until this issue is purged from the courts and put back into the hands of the public, every Supreme Court confirmation hearing will be about Roe and little else.
Low's article is great up to this point. It says nothing new, but it's a well-crafted statement. Then he gets very thought provoking...
My question is this: Why are we on the pro-choice side of the battle so determined to win this fight in the courts? Why are we determined to fight our battle on constitutional grounds, exactly where we are weakest?
It's rare in this day and age to see this kind of intellectual honesty. He continues...
Rather than hide behind Blackmun's convoluted logic and let the opponents of abortion use "elitist judges" as a punching bag and red herring with which to distract people from the real issues, why not try to win this fight the good old-fashioned way - through democratic elections? The best plausible rationale for using courts - that the rights of a minority are under siege - is hard to swallow when you consider that half of the voting population lacks a Y chromosome.
Low closes by saying that the pro-choice side can win the argument through the democratic process. If that is true, why wouldn't more pro-choice folks support his position?

I think that there are a few possibilities here. It is possible that Low is wrong, or at least, not as right as he thinks he is. In the past, there has been broad public support for restrictions on abortions that haven't survived the Roe/Casey gauntlet in the courts. Low's compatriots see this as proof that the public at large doesn't share their expansive view of abortion rights.

It is possible that Low's compatriots just don't want to risk even the possibility that legislatures would restrict abortions. Remember that the country is not homogeneous. A legislature in Massachusetts would enact different abortion restrictions than a legislature in Alabama. Maybe that is what Low's compatriots fear.

It is also possible that the current Constitutional framework is simply the easiest road to take. The right is already there, the Court is still at least one vote away from greatly upsetting the Roe/Casey framework, and judging by the leakers running for the Republican nomination, Hillary Clinton will be putting Judge Berzon on the Supreme Court ASAP. Why would pro-choice supporters want to duke it out in 50 state legislatures to get what they already have? Those are just the possibilities that occurred to me in the short time I thought about Low's questions.

Edit Comment

About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
  • E-mail Me
My profile