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June 29, 2005

Judicial Fiat is Fine

I'm with Scott Lemieux on this one, Roe v. Wade is not the problem. Liberals, I think, are fairly desperate for some sort of rational explanation able to account for the conservative movement's all-consuming fury over this decision and their ability to channel it into a focused and highly effective strategy of judicial intimidation and lawmaker litmus tests. That Roe enraged them by being a major policy change (or codification, depending on how you look at it) instituted through judicial fiat makes sense to us because it plays into an outrage we could, conceivably, share.

Unfortunately, our security blanket has a bunch of holes. I doubt a single anti-choice warrior ever sat up and thought, "Abortion's one murderous practice, but what really galls me is the shoddy and undemocratic methods used to wedge it into the constitution." Rather, there's simply a surprisingly powerful belief that blastocysts are full-blown people and to abort one is murder. Moreover, this plays into a deep discomfort with the current social environment, gender equality, the sexual revolution, and a variety of other bits of cultural evolution that large swaths of the country would like reversed.

Now, there's a perfectly good argument to be made that Roe, in its way, hurt liberals by letting us relax over the issue. If we'd spent the past few decades massing pro-choice armadas and pursuing privacy laws with the sort of single-minded zeal usually associated with certain sorts of autism, we might have a stronger movement today. But that's neither here nor there, really, and the question is what to do tomorrow, not how things could've looked different yesterday.

June 29, 2005 in Politics of Choice | Permalink


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I say let the Scalias and Thomases have their way, overturn Roe v. Wade, and sit back and watch the horrendous backlash against the religious right's robbery of reproductive rights take shape.

Right now, we're arguing on the margins of the debate in Congress -- late-term abortion, parental notification laws -- and these are not that politically favorable for the Democrats. But once the issue becomes abortion itself, watch the Republicans backtrack their way to minorities in both houses of Congress.

Posted by: J. Puckett | Jun 30, 2005 2:03:34 AM

Although the origins of the rightist's war on abortion are somewhat obscure, I think abortion was further down the attack list in the early days, as you hint in this phrase "deep discomfort with the current social environment, gender equality, the sexual revolution, and a variety of other bits of cultural evolution ". I guess you could say that the initial skirmish was the repeal of prohibition, but the rage wasn't general until the condoms and abortion issues came to the fore.

Initially, the attack was on birth control (condoms) decided in the Connecticut case prior to Rowe v Wade. The right didn't want anything that suggested free sex without marriage and conception.

Yes, the right fought abortion state by state, and were losing in the more liberal states [it would be interesting to know which states had legalized condoms and/or abortion prior to Rove - a research project].

Their rage was losing in SCOTUS on the right to sexual privacy in the CT case, and then losing again on abortion. They expected to win the war with both of these in the courts after losing battles in the states, via state legislation or state court decisions.

The real war, from the beginning, was over sexual matters as personal privacy concerns made legal by laws and then courts, instead of societal norms that they could turn into coercive laws.

The right wants to refight the battles, but they lost the war a long time ago. Losing Rowe would be a tactical loss (and a PR nightmare) for the left, but there is NO WAY society is going to let the religious right determine matters of sexual freedom - that is, as long as we don't fall victim to a totalitarian right takeover of the nation.

I'd fight for Rove until the end because women should control their own body, but if we lose that battle and control reverts to the states that isn't the end of the world for the left, but it will be the beginning of the end for the religious right because they can't win the ultimate war. That genie isn't going back in the bottle.

Posted by: JimPortlandOR | Jun 30, 2005 3:39:32 AM

With some more thought, I'd trace the religious right's rage on sex stuff even further back than I stated:

Possible Precursors to the right's rage on sex:

- abolition of slavery, by Constitutional amendments forced by end of the War between the States.
- women's suffrage allowed, by Constitutional amendment
- end of prohibition of alcohol, by Constitutional amendment
- end of anti-miscegenation laws, by state laws and SCOTUS

Posted by: JimPortlandOR | Jun 30, 2005 3:54:13 AM

Notice that Jim's last comment showed that all of these were decided in a democratic fashion and not by the decision of the Supreme Court.....yes, even slavery has an amendment.
Want to enshrine abortion as a constitutional right? Do it the correct way, the method designed for change, and you wouldn't have to always look over your shoulder whining about the right.

Posted by: Robert Zimmerman | Jun 30, 2005 8:55:25 AM

"Unfortunately, our security blanket has a bunch of holes. I doubt a single anti-choice warrior ever sat up and thought, "Abortion's one murderous practice, but what really galls me is the shoddy and undemocratic methods used to wedge it into the constitution." Rather, there's simply a surprisingly powerful belief that blastocysts are full-blown people and to abort one is murder. "

I don't follow this. Why is believing the right is enraged because of the manner of the decision a "security blanket"? I would find it a lot more comforting to believe it was genuine moral outrage - after all, no non-religious and few religious people outside the US think blastocysts are really "full blown people", because it's a spectacularly stupid idea unless you believe in a divine soul, and still a pretty stupid idea if you do. Consequently any law banning abortion of blastocysts (and before Mr Dylan starts, I know most abortions aren't of blastocysts) would be a clear violation of the first amendment. As it is, the argument in Roe vs Wade that abortion of non-blastocysts is a constitutional right is much shakier (I still think it is, but my point is that it's less easy to defend).

Posted by: Ginger Yellow | Jun 30, 2005 9:13:00 AM

"Rather, there's simply a surprisingly powerful belief that blastocysts are full-blown people and to abort one is murder."

Only there isn't. How many elected "pro-lifers" don't make an incest or rape exception for abortion? Very few.

Please square for me, then, why it's "pro-life" for the vast majority of these folks to argue: "it's bad for women to kill babies, but it's okay for them to murder a baby if its father was a rapist."

This only makes sense if abortion is about controlling women's behavior--pregnancy as punishment for sex. Because, you know, sluts gotta get what they brought upon themselves! Otherwise, how can it possibly be okay to kill babies because of something their father did, however morally repgnant? Should we now argue that it's OK to kill the children of convicted murderers?

I can respectfully disagree with those who argue the "no abortion--with the only exception if the mother is definitely gonna die," position. There's at least a position there that fundamentally comes from their perception of the fetus and its rights as such. I disagree with this perception, but at least it's about something.

But the positon held by the VAST MAJORITY of so-called pro-lifers simply isn't about the babies, and that's made perfectly clear by the whole "oh, except if she was raped!" clause. I can't believe you're falling for their bullshit.

Posted by: theorajones | Jun 30, 2005 10:55:37 AM

As the West Wing said, sure there's a basic majority for choice, but those who disagree will devote their entire lives and all their money to defeating you...

Posted by: Ezra | Jun 30, 2005 11:29:15 AM

How is liberal demobilization on the issue "neither here nor there"? Roe had the effect of making a large pro-choice swath of the public vote on other issues because abortion was perceived as safely protected, while it let large numbers of Republican pols off the hook of actually having to substantiate their vaguely pro-life persuasions through advocacy of (unpopular) anti-abortion measures. That seems rather, well, significant.

Posted by: Sam Rosenfeld | Jun 30, 2005 11:44:05 AM

Indeed, but it's neither here nor there for a post arguing that judicial fiat is not the prime reason for conservative anger on abortion. If it wasn't important, I wouldn't have gone off on a tangent about it, but it also isn't the point.

Posted by: Ezra | Jun 30, 2005 11:52:25 AM

Hey Ezra,

If you are arguing that there is a "basic majority for choice", why would you not push for a constitutional amendment and put this issue to rest as we have slavery, women's suffrage and other social issues?

Posted by: Robert Zimmerman | Jun 30, 2005 11:59:30 AM

Because unlike the right, I don't assume that every social change I want and can find supportive polling data for should be enshrined into the constitution.

Posted by: Ezra | Jun 30, 2005 12:08:25 PM

Jim--4 states (and D.C.) decriminalized abortion, and 9 other states made changes to their laws before Roe, but the change had bascially stopped dead by 1971. (It is true, of course, that abortion didn't become a significant issue until 1967--but it was the fact that a few states changed their laws, not Roe, that was the key turning point.) Contraception was legal everywhere, and was only illegal in 2 states when Griswold struck the laws down in 1965.

Ezra--I've written about this before, but I respectfully disagree with you and Sam that Roe de-mobilized pro-choicers. Abortion was the one issue Clinton never sold out on--what does that tell you? I think it would be more plausible to argue that abortion has been *too much* of a priority in Democratic politics (not saying I agree with that, but it's plausible), and I don't think that Roe has had the effect of making supporters of reproductive rights complacent. Since Reagan was elected it's been well known that Roe was vulnerable.

Posted by: Scott Lemieux | Jun 30, 2005 12:23:00 PM

The problem with Roe isn't that it's a judicial fiat; the problem with Roe is that it's a very badly written decision. Therefore, no matter how right the policy in it is, it's very hard to defend, because it's full of inconsistencies and pulls alot of it's arguments out of its ass. There have been other judicial fiats(e.g. Brown v. Board of Ed.) that aren't hard to defend because they were well written decisions. However, most legal scholars have a hard time defending Roe, and subsequently, winning over the public on it, precisely because it's such a bad decision.

Posted by: BJ Chavez | Jun 30, 2005 12:26:38 PM

BJ -- I just don't think the public cares about the quality of the judicial decision, it's the actual act they despise.

Scott -- Maybe so, and you're certainly right that there's been no total demobilization. But the fact remains that there was simply less for pro-choicers to do. The right could get started on a long journey to change the courts ad reverse the decision, the best we could do is fight their efforts on the margins and context Supreme Court nominations when they come up. I think that's created, if not a complacence, then a movement with less desperation behind it, and thus less energy.

Posted by: Ezra | Jun 30, 2005 12:30:22 PM

Whoops--link to my extended argument here.

It's possible there's some effect there, but again, it's worth noting that when the rubber hit the road in the Bork nomination--which, if it succeeded, buries Roe--it was defenders of abortion rights who had the energy. You are probably right overall about the right being *more* egaged (and enraged) by these issues overall, but I think that's just ienvitable; losers have higher stakes than winners when an issue remains hotly contested. But I don't think that winning *through the courts* has a lot to do with that.

Posted by: Scott Lemieux | Jun 30, 2005 12:40:40 PM

BJ--Ezra is right about Roe and legal reasoning. It's true that it was a weakly written majority opinion, but there's overwhelming evidence that the public doesn't care about reasoning; it cares about outcomes. It should be noted as well that at the time Brown was *not* seen as a well-written opinion. Indeed, a huge literature developed among legal academics who were tortured because they liked the outcome but thought the opinion was indefensible. Brown was become legitimate because of the outcome, not the reasoning.

(I should note as well that my argument about countermobilization does not, in itself, justify any judicial opinion as being correctly decided. I think it applied equally to Bush v. Gore or Dred Scott or any number of other decisions that I deplore.)

Posted by: Scott Lemieux | Jun 30, 2005 12:45:55 PM

I just don't think the public cares about the quality of the judicial decision, it's the actual act they despise.

Its recently come to my attention that there is a large swath of the public that still sincerely believe Iraq had something to do with 9/11. Soooooo, I'd say you have something there. The 'Public' isn't smart enough to know/remember/care about those pesky 'details.'

Posted by: Adrock | Jun 30, 2005 1:01:47 PM


I think you hit the nail on the head when you ask what do we do tomorrow. The past already happened and we can't change it. Our goal should be to try to find the common ground that exists between the two camps and foster a dialogue that removes some of the extreme emotions involved on both sides. I think the trick is to use those emotions to create the space necessary for dialog. My take is this: our first response when someone raises the topic should be, "Banning abortion won't make it go away." This is true. All a ban will do is drive it back underground where it will be done with no safe guards for the woman. Now this is a very difficult reality to deal with. I'm not particulary fond of abortion (particuarly as "birth control"), but nor do I want to see the back-alley/coat hanger type rear it's ugly head again. It is my understanding that it was this concern in particular that drove most of the pro-choice movement in the early days and helped build a constituancy for choice. Since then, people have become accustomed to the present practice, post Roe, and have forgotten how it was in the past. Reconnecting the debate to this argument would do a world of good. This is a highly emotional argument and would go a long way to countering the highly emotional anti-abortion argument (abortion = murder). By meeting emotion with emotion you create a space where both sides can try to find common ground. Neither of us really like to see abortions done, but in light of the fact that a ban will do little good, and likely considerable harm, where do we go from here? My answer is to work on the ways in which we can reduce the number of abortions by other means, by promoting the social conditions which convince women that it is worthwhile to have the child. These run the gammut from economic (e.g. you are less likely to want an abortion if you can afford the kid) to societal (e.g. lessening the stigma of single motherhood) to educational (e.g. better family planning, better sex ed, better explaination of the the consequences of both having a child and aborting one) to legal (e.g. parental notification laws, third term bans). The key is getting the other side to understand what our real beef with a ban is--it won't achieve what they want. However, by working together, we can find common ground that can achieve both our goals.

What do you guys think?

Posted by: Mike Foulk | Jun 30, 2005 2:03:55 PM

I don't assume that every social change I want and can find supportive polling data for should be enshrined into the constitution.

That would make sense if you didn't contend that it is a consitutional right.

Posted by: Robert Zimmerman | Jun 30, 2005 2:18:50 PM

Except that the weakness of the decision is one of the places where it's getting attacked, and that is one of the arguments that's hardest to defend against. I, personally, would rather take on the "abortion is murder" crowd, than the "Roe reads rights into the Constitution that were never there crowd". The former you can easily associate with the Dobson crowd, and dismiss as a gut reaction--which is one of the reasons that the outcry over Lawrence v. Texas has been relatively low. The latter arguement is something a frothing radical can take, and come off sounding perfectly reasonable, e.g. "It's not that I want to control a women's body, but really, where in the consititution does it say there's a right to abortion? I'm just for limited governement". This entire argument is the reason we don't have the libertarians on our side here--it's essentially a judo flip that frames an act keeping the government out of our lives into the ultimate of act of judicial intrusion.
And for that reason, I feel that Roe really needs to be replaced by a judicial fiat that can be supported by common and constitutional law.

Posted by: BJ Chavez | Jun 30, 2005 3:00:18 PM

RZ: I refer you to Article IX of the Bill of Rights.

BJ: You might rather take on the former, but the latter aren't doing the damage. If they weren't being driven by an angry, gut level movement, they'd have no power. As Scott says, Brown wasn't well-liked either, it only became "good law" once the concept backing it won.

Posted by: Ezra | Jun 30, 2005 4:13:41 PM

I believe that the latter are doing damage by swaying moderates and libetarians who might otherwise be siding with us on the personal liberty issue. My point is that Roe is so badly reasoned that it persuades those who would naturally be with us to side against us. The god squad will never be convinced. They believe abortion is a mortal sin. The moderates on the other hand, I believe at least, tend to be swayed to the fundie's side with the rule of law argument, and we are hard pressed to win them back when Roe itself is a fairly indefensible decision.

Posted by: BJ Chavez | Jun 30, 2005 4:43:52 PM

RZ: I refer you to Article IX of the Bill of Rights.

Great...Your method is working so well for us.
Maybe we can fight over this issue another 30 years or so. Here's the real reason for not clarifying this "right" via an amendment. You don't have the votes.
After watching the left throw every other institution and tradition under the bus to promote their agenda, am I supposed to believe that they choose not promote an amendment because of form?

Oh, heart be still.

Posted by: Robert Zimmerman | Jun 30, 2005 4:46:28 PM

RZ: What is this? Is it an argument? I can't figure out your point here. You guys want an amendment against gay marriage, an amendment against flag burning, and, indeed, Bush said he'd support an amendment against abortion. How's that going for you?

Posted by: Ezra | Jun 30, 2005 5:22:44 PM

Of *COURSE* I would like to see an amendment....one way or the other.
You don't understand my position at all. I wish this issue to be settled. I have not argued for or against abortion. I simply want consistency of law...and clarity.
Just settle it so that we can "MoveOn".

Posted by: Robert Zimmerman | Jun 30, 2005 6:20:28 PM

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