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Tuesday, January 22, 2013

Roe v. Wade at 40

Today is the 40th anniversary of Roe v. Wade.  For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating.  I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine.  We could have done, and can do, better. 

In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C.  They'll be joined by tens of thousands of others and, I imagine, ignored by the national media.  But, I wish them the best.  And, I still think John Hart Ely was right.

Posted by Rick Garnett on January 22, 2013 at 10:03 AM in Constitutional thoughts, Rick Garnett | Permalink

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Comments

"marked a set-back for human equality" - care to elaborate?

No, the saddest days were the days when there was a lucrative black market for abortion - where we had incomplete abortions at the hands of non-surgeons who would remove one limb at a time, without anesthesia. We had more human suffering and post-op complications. When a 13-year-old girl was raped and impregnated by her own father there was nothing she could do except be expelled from school and get shipped off to a home for wayward girls while she waited to give birth to a child of rape and incest. We forget this ugly history at our peril. I pray your students reflect upon this history as they march, but I doubt they will.

Posted by: hush | Jan 22, 2013 10:51:52 AM

Do you think 2-5 years in jail for everyone involved is too little, too much, or just right?

----

TEXAS PENAL CODE (1961):

Article 1191: Abortion: If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

Article 1192: Furnishing the Means: Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

Article 1193: Attempt at Abortion: If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

Article 1194: Murder in Producing Abortion: If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.

Article 1195: Destroying Unborn Child: Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.

Article 1196: Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.

Posted by: Brad DeLong | Jan 22, 2013 10:52:07 AM

Brad,

It seems to me that one can easily regret Roe itself -- and its sweeping nature -- without endorsing the details of the 1961 Texas Penal Code. My view is that abortion should be reasonably regulated, and that the category of "reasonable" regulations is bigger than the category of regulations permitted by Roe / Doe.

Hush, I think that Roe is inconsistent with a commitment to the equality of every human person, in that it excludes some human persons from the protections provided by law to others against violence. (Obviously, if I'm wrong about unborn children being human persons, then I'm probably wrong about the equality claim.) I also worry that it has contributed to a lack of respect for the severely disabled, and for those with (say) Down's Syndrome (who are aborted in very large numbers).

Posted by: Rick Garnett | Jan 22, 2013 11:02:54 AM

It seems to me that if you do not want to put the receptionists and the nurses and the doctors at abortion clinics in jail--as you apparently do not--then what you really want is for abortion to be regarded as an evil thing, and for those who might undergo abortions to feel ashamed at the idea.

Here I become puzzled: The world you wish for is largely the world we live in. And marching in Washington calling for the repeal of Planned Parenthood vs. Casey does not seem to me to be the way to move us closer to the world you want to live in.

And when you write of how "Roe is inconsistent with a commitment to the equality of every human person, in that it excludes some human persons from the protections provided by law to others against violence" I become greatly puzzled. Why are you not leading a campaign to outlaw and criminalize IVF? The 70,000 or so successful IVF births this year are the result of something like 200,000 total IVF treatments in which roughly four million human fertilized ova were created and destroyed. The destruction of what you say are 4 million human persons in America through violence in one single year would seem to call for you to lead a massive campaign to outlaw it.

Yet I don't see one. In fact, has there been a sermon preached on the transcendent genocidal evil of IVF at Notre Dame this year?

Yours,

Brad DeLong

Posted by: Brad DeLong | Jan 22, 2013 11:26:48 AM

I hope it's okay if I post here. I'm curious to know what kind of "reasonable restrictions" you have in mind, Rick.

Thanks,
Katha Pollitt

Posted by: Katha Pollitt | Jan 22, 2013 2:06:26 PM

Scott Lemieux provides a counter to some of the "myths" of Roe:

http://www.lawyersgunsmoneyblog.com/2013/01/5-myths-about-roe-v-wade

John Hart Ely later agreed with Planned Parenthood v. Casey, sending a thank you letter of sorts to the justices. He also believed Maher v. Roe and Harris v. McRae was wrongly decided on equal protection grounds. I also am now aware of him being opposed to abortion being legal as policy though -- like loads of people who believe it should be a personal choice even if they themselves think it immoral -- noted his conflicted feelings in that article.

Roe v. Wade allows regulations of abortion. A slew of regulations. Casey expanded the reach somewhat further. The law in Doe v. Bolton allowed abortions in case of various types of birth defects. Like couples who decide not to conceive or use morning after pills if they are genetically likely to have such children, I don't know how much this demeans BORN people with certain conditions. I note in Heller v. Doe, Blackmun took the most respectful position as to their rights.

If you are not "looking for a fight," this is a strange way to do so. If "life" is one's concern, criminalized abortion ala Latin America is a not very useful approach. One approach would be strong protection of contraceptive liberty but some seem to think this is in certain respects a big threat to religious liberty. See the contraception mandate fight.

Roe honors reproductive liberty, including those who don't want to have an abortion or "wrongly" to have a child, even a "wrong sort" of child though it did not technically overrule infamous rulings like Buck v. Bell. Finally, as to religion, religious faiths are all over the place on this issue. Thus, as noted in Able v. Markle, the beliefs of some is not enough to deny women a right to choose.

Posted by: Joe | Jan 22, 2013 2:12:04 PM

'protections provided by law to others against violence'

I'm unaware of other laws that require me to give up my body to ensure the development of others, including one month old embryos.

Andrew Koppelman has a good article on the 13A defense of Roe.

Posted by: Joe | Jan 22, 2013 2:18:55 PM

Rick said: "one can easily regret Roe itself... without endorsing the details of the 1961 Texas Penal Code." True.

Indeed, one can stauchly support a woman's right to choose while still regretting Roe. There are (at least) two questions here: the first concerns the Court's decision and legal analysis, while the second concerns the realization of abortion availability and access.

For example, I have argued that reframing Roe as a property right, rather than a privacy right, might have generated a significantly different outcome. The piece is here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1911452. (Apologies for the self-promotion.)

Posted by: Becca Rausch | Jan 22, 2013 2:32:28 PM

What has had "negative effects on our politics" is the right's refusal to move on.

Posted by: anon | Jan 22, 2013 2:43:43 PM

Katha--

Seems to me that (1) "my view is that abortion should be reasonably regulated, and that the category of 'reasonable' regulations is bigger than the category of regulations permitted by Roe / Doe" fits very, very, very awkwardly with (2) "several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C. They'll be joined by tens of thousands of others and, I imagine, ignored by the national media. But, I wish them the best". A person who wants reasonable regulation of abortion wouldn't say (2). A person who denounces the national media for ignoring the March for Life wouldn't say (1).

So I don't know what game Rick Garnett thinks that he is playing here...

Brad DeLong

Posted by: Brad DeLong | Jan 22, 2013 2:57:20 PM

Brad, I don't know what "game Rick Garnett . . . is playing" either; I don't think I'm playing a game, just sharing a view. And, I don't see the tension you see between (1) and (2) in your comment. The national press *does* tend to ignore and downplay the March (perhaps just because it happens every year); I *am* impressed by the dedication (and the positive, hopeful attitude) of the Notre Dame kids, and I *do* think that the category of "reasonable" regulations is bigger than the category of regulations permitted by Roe / Doe / Casey. I'm not sure why you (appear to) assume and charge bad faith.

Posted by: Rick Garnett | Jan 22, 2013 3:06:46 PM

I do not assume and charge bad faith.

Rather, I look at at what is presented by your post, and I charge great confusion on your part.

You could rebut my charge by stating what, in your view, the "'reasonable regulations' of abortion bigger than the category of regulations permitted by Roe / Doe" are.

The March for Life you praise declares that "55 million of our fellow human beings have lost their lives to abortion... nearly the population of California and New York combined" and embraces the "life principle" that "with respect to a difficult pregnancy, the principle of 'equal care for both the pregnant mother and her preborn child' is well established. Although a pregnant mother and/or her preborn child may die, there is no justification in the law of God or man for the intentional killing of even one innocent born or preborn human in existence at fertilization. NO EXCEPTION! NO COMPROMISE!"

That would appear to extend "reasonable regulations" in your mind to the prohibition of all abortions, even in cases of rape or incest, even in cases of serious risk to the life of the mother. Perhaps your "reasonable regulations" would allow abortion in the case of ectopic pregnancy, perhaps not--it is not clear.

Posted by: Brad DeLong | Jan 22, 2013 3:33:24 PM

Followup to Rick: the way to lower the number of abortions is birth control. But the Catholic church opposes that too. No so-called pro-life organization has a positive position on birth control. To me that suggests that the life of the fertilized egg/embryo/fetus does not capture what religion opposition to abortion is about. If the idea was to prevent abortion, the church would support birth control, realistic sex education, the morning-after pill, and actively promote sterilization for men and women who have all the kids they want. It would look favorably on non-procreative sex acts-- instead they consider them sinful. Along with IVF, as Brad pointed out.
I wonder what those Notre Dame students marching in DC think about all that.



Posted by: Katha Pollitt | Jan 22, 2013 3:41:01 PM

Katha, will all due respect, I do not think your argument works. It is true that the Catholic Church teaches that contraception is not consistent with sexual morality, but that does not mean the "idea" is not to "prevent abortion"; after all, the fact that someone does not think that all means are permissible in pursuit of a desired goal does not mean the person is not in fact committed to the goal.

I am sure that some people -- and some religious people -- oppose abortion for reasons that are not mine (for example, there are people, I assume, who oppose abortion because they fear that abortion rights will liberate women from certain constraining roles or who oppose abortion because they worry that the availability of abortion will result in more people having sex more often). But again, these are not my reasons, and they are not the reasons proposed in Catholic teaching on the matter.

Posted by: Rick Garnett | Jan 22, 2013 3:54:46 PM

Hi Rick, let's leave the birth control issue aside for a bit.
I'd like an answer to my first question. Could you explain what you think reasonable regulations would be?

Posted by: Katha Pollitt | Jan 22, 2013 4:03:12 PM

Rick and I have disagreed about abortion, abortion rights, and abortion politics both publicly and privately. I think it is perfectly appropriate to press him on what restrictions he thinks ought to exist or not. And I think Rick's assumption about the lack of "national media" coverage of the march is ill-defined and in any event inaccurate, and that his later comment offers a sensible reason for the lack of heavy coverage while his main post is far more suggestive about why he thinks there has been too little coverage. So consider this a limited defense, but defense it is. I find it hard to read the phrase "I don't know what game Rick Garnett thinks he is playing here" as just a charge of "great confusion." The natural reading of that phrase is he is intentionally, and perhaps covertly, aiming at something other than the plain text of his statement--which pretty clearly is an open statement of his views, confused or otherwise. I can't speak for Rick's views on IVF, although I assume they are the canonical Catholic views, but if he focuses more on standard abortions than on IVF, it may be that he considers one a more urgent moral wrong than the other. Or it may be because he believes it is more politically expedient to focus on one than the other--in which case it makes sense to press him for his views on IVF, but it hardly makes him a hypocrite, unless one thinks that taking account of what is politically prudent is categorically wrong or hypocritical, in which case God help all of us. (My own view is that scholars should ignore questions of political expediency when they discuss issues, but I'm pretty sure I'm in the minority of scholars on that point.) I disagree with Rick on a variety of issues concerning abortion--although not on the question of whether Roe was a poor piece of legal reasoning; few educated writers on the case think otherwise, although many of us think that is understandably true of most legal opinions on morally controverted issues--but I see no signs of bad faith in his post.

Finally, although I defer to Katha Pollitt's superior knowledge of these issues, and think she is generally right that most pro-life groups are not supporters of birth control, I think her statement that no pro-life groups have a positive position on birth control is overbroad, depending of course on how exactly she defines her terms. The Southern Baptist Convention actively opposes abortion but its official position is not opposed to the use of birth control within marriage. There is diversity within the Jewish community on the question of abortion (or any other question, just about), but I believe there are some sects that oppose abortion but take a more latitudinarian view of birth control.

Posted by: Paul Horwitz | Jan 22, 2013 4:09:17 PM

Brad DeLong is not a lawyer and so can be excused for thinking that the Supreme Court can just pass any law it wants without any regard at all for the Constitution, its text, its history or its commonly understood meaning. Roe was a badly reasoned decision - more of a judicial coup than an judicial decision - and for that reason has remained controversial and vulnerable.

As for what restrictions on abortion are reasonable, I for one would be content to let the legislatures of the various states figure that out.

Posted by: Doug2 | Jan 22, 2013 4:31:19 PM

So, Paul's right (as he usually is) that I should have refrained, in my post, from voicing the complaint about the coverage, because my frustration at the way the mainstream pro-life movement is presented in the national media is a separate issue from my report that, for me, Roe's anniversary is an occasion for regret.

As for a list of the regulations that I think are "reasonable" and warranted but that would probably not be permitted under Roe / Doe / Casey, I was not trying (as I think Brad DeLong was suggesting) hide the ball or play games; I simply don't have a comprehensive list in mind. In a big, diverse, and divided political community like ours, the abortion-law regime that political majorities settled on (and that satisfied constitutional requirements wholly apart from Roe) would, I am sure, not reflect perfectly my own views. That is, even without Roe, I would probably "lose," often. But, I'd make my case for (for example) a more narrow "health" exception to limitations on late-term abortion or (for example) public-education campaigns about Down's Syndrome (in an effort to reduce the abortion rate of fetuses diagnosed with it), and I wouldn't have to worry about whether Justices Kennedy or Kagan agreed with me. As we all know, constitutions take a lot of debates -- or, at least, a lot of outcomes -- out of the realm of ordinary politics. In my view, Roe was wrong to remove as many outcomes as it did from that realm.

Posted by: Rick Garnett | Jan 22, 2013 4:36:30 PM

Hello, Paul. maybe I wasn't specific enough. When I spoke of pro-life organizations I meant activist political organizations, not religious denominations. I meant, for example, National Right to Life, Pro-Life Action League, Priests for Life, American Life League, Feminists for Life, Operation Rescue etc. Groups that would be the opposite number to NARAL or Planned Parenthood or Feminist Majority. So far as I know, these groups are either opposed to birth control or take no stand. A religious denomination, broadly understood to include both clergy and laity, is a different kettle of fish, it's not an activist organization consisting of members who all agree with its goals. Most Catholics favor "artificial" birth control, but the USCCB doesn't.
As for whether Roe is a poor piece of legal reasoning, I disagree that "few educated writers on the subject think otherwise." Ronald Dworkin, Laurence Tribe, Reva Siegel, to name three.

Posted by: Katha Pollitt | Jan 22, 2013 4:52:27 PM

I appreciate your response. On the first point, I am grateful for the clarification. On the second, I'll have to go back and revisit those three and their comments on Roe, although I seem to recall that Dworkin effectively tried to refashion Roe's reasoning on Establishment Clause ground. And, as you know, others have argued that Roe would have been on firmer ground as an Equal Protection decision than a Due Process decision; still others support Roe on due process grounds but are not convinced the decision itself is well reasoned, as a matter of legal reasoning. Since I support abortion rights, certainly political and probably constitutionally, this is not a matter (for me at least) of whether abortion rights in whatever form are a good or a bad thing, but strictly a matter of how good a piece of legal reasoning it is. Again, I am skeptical that legal reasoning itself can take us very far down the path toward resolving controverted issues of public policy, although I'm not opposed to such decisions, just skeptical about them.

Posted by: Paul Horwitz | Jan 22, 2013 5:03:13 PM

I just read Dworkin's Life's Dominion, and he defended Roe there very skilfully.
Are there other SC decisions about which people who support the end result are so critical of the reasoning? A real question.

Posted by: Katha Pollitt | Jan 22, 2013 5:52:05 PM

To answer Katha's last question - a Supreme Court decision that immediately springs to my mind as one in which even those who support the result criticize the reasoning is Plyer v Doe

Posted by: anon | Jan 22, 2013 8:15:26 PM

I agree with Rick insofar as Roe v. Wade was wrongly decided and violates principles of equality.

By recognizing compelling state interests in "potential life" in a woman's body sufficient to override a woman's own fundamental interest in her security of person, bodily integrity and liberty, Roe denies pregnant women with viable fetuses the equal protection of law.

The state is not permitted, nor would it ever be permitted, to deprive men of their liberty and bodily integrity in order to pursue an interest in potential life - the mere suggestion of a scheme to do so would seem grotesque.

The privacy grounds on which Roe was decided makes a mockery of the truly vital interests at stake for women. The question of whether abortion is to be criminal is ultimately a question of whether the state can force someone to continue a pregnancy and give birth against her will under certain circumstances. Roe answered that question "yes", it simply narrowed the circumstances, and as such it reinforced the second class citizen status of pregnant women.

The right decision would have struck the Texas law down on grounds of equal protection, due process, and involuntary servitude.

Posted by: Against Roe | Jan 22, 2013 8:57:00 PM

One question for Rick: if you believe that abortion takes human life, do you support prosecuting women who obtain them for first-degree murder? What causing of the death of a human being could be more premeditated? If you don't support such prosecutions, why not?

Posted by: Kevin Jon Heller | Jan 23, 2013 12:07:00 AM

Followup to that, Rick. If you don't support prosecuting women, as is done, by the way, in many countries where abortion is illegal, what about prosecuting those who perform or assist at abortions? Should they go to prison? When abortion was illegal in the US, it was a very common procedure, performed both by skilled professionals and rank amateurs. Prosecution was rare and capricious. Criminalization's main effect was to make abortion more dangerous.

Do you see that happening again if abortion is criminalized or significantly limited, and are you okay with that? What do you think the effect would be of significantly restricting or banning abortion?

Posted by: Katha Pollitt | Jan 23, 2013 9:04:05 AM

Kevin, one is not morally required or practically well advised to treat all homicides -- even all homicides that are "premeditated" -- the same. And, do you think that abortion does *not* "take human life"? I don't think that's actually in question, is it? The fetus is not not-human; the question is whether the fetus is a person, or a human-who-matters. That is, the question, it seems to me, is whether and to what extent the "human life" in question matters and the weight of the various countervailing interests.

Katha, let me ask you (and feel free to respond off-line, if you'd rather): Is there any circumstance in which, in your view, it should be prohibited by law to perform an abortion? If so, why, in that circumstance, should it be prohibited? (In any event, I would think that any abortion-law regime that was actually enacted would, and should, reflect the realities you mention.)

Posted by: Rick Garnett | Jan 23, 2013 9:24:46 AM

Rick,

Do you think that Texas law quoted above should be understood to be constitutional? What about a state law with 10-year mandatory minimums for women who obtain abortions? What about a state law that tries and sentences girls who are 15 or 16 as adults?

In other words, where and how do you see the federal constitution constraining state actions that punish women who obtain abortions? Historically, our country has had some pretty draconian laws in this area, all duly enacted by state legislatures, and I think it's important to think practically and concretely about what federal constitutional constraints on the states would exist if the Court substituted your vision for it's current abortion law.

Posted by: Anon | Jan 23, 2013 10:32:30 AM

There is an extremely common, and extremely obnoxious, tendency for opponents of abortion rights to act as if it's unreasonable and rude to ask them what sort of restrictions they support and the penalties they think should be in place in their preferred regimes. I'm sad to see Rick play that game here. Rick- you started out saying that the framework in Roe is wrong, and have been asked several times what you'd replace it with. You've avoided answering, but it seems unlikely that you really have no thoughts on the matter. No one expects your final word here, or a completely thought out system, but this dancing around looks pretty silly. If you were making the rules, would any abortions be legal? Would people go to jail for having them? For performing them? For about how long?

Posted by: Matt | Jan 23, 2013 10:57:01 AM

Dworkin's Life's Dominion is well argued imho and he covers the ground in "Freedom's Law" too -- as "The Abortion Myth" by Leslie Cannold shows, in fact, many women have a strong moral commitment, one for many (Dworkwin would say most, defining the terms broadly) having a strong religious component, in making the decision here.

Her thesis is that many find adoption a not acceptable alternative since they are in effect giving up their obligations over the "life" (and many who abort do agree that some form of life is involved; just what sort is again a long standing matter of debate; see, e.g., Stevens' concurring opinion in Webster) involved to others. It is downright immoral in their opinion to do this. Likewise, many feel it is immoral to bring unwanted children in the world in such and such a case. To them, forcing them to do so is immoral. THAT disrespects life.

The primary question is not if "human" life is involved. Let's take the doctrine of ensoulment. The Catholic Church once held that the soul entered the embryo at a certain point & it to my knowledge accepted abortion before this period. In effect, the human "person" only came into full being with the soul. The general public has a rough belief in this sort of thing, often supporting abortion in the first trimester. The Due Process Clause also protects "persons," not "human life," which is partially why IVF is not unconstitutional.

As to "against Roe," as a supporter of Roe, I have no equal belief that if MEN were involved that nine month fetuses could be aborted in any situation. The matter is not w/o concern -- there have been cases where pregnant women have been mistreated in such cases (such as if they opposed caesareans) -- but the general line drawn in Roe was a reasonable one.

Doug2 would you let states determine what is "reasonable" as to other fundamental rights? Was Texas' law "reasonable" in only having a life exception & per the oral argument vaguely having some policy (which seems to violate the letter of the law) to deal with rapes if caught early enough? It was not. In fact, not a single justice wanted to give the states carte blanche here, even Rehnquist agreeing a life exception was necessary, White apparently realizing also a health exception would be.

Posted by: Joe | Jan 23, 2013 11:05:14 AM

Sorry I didn't have a quicker response, Katha; a sudden disappeared tooth filling will do that. Plyler is a great example, I think. I'm not a great list-maker so I'm not sure a ton of examples are springing to mind, but I don't doubt they're out there. Some of the Establishment Clause cases might also fall into this category. And I would note that Roe had two things going for it that were likelier to make that combination of defending the result but being uneasy with the reasoning particularly salient: 1) politically controversial issue and 2) substantive Due Process.

Posted by: Paul Horwitz | Jan 23, 2013 11:10:05 AM

Evidently a lot of people on the internet think that "unconstitutional" is synonymous with "a bad idea". How unfortunate.

Posted by: Anon5 | Jan 23, 2013 12:19:19 PM

I don't agree, Anon5. I think Rick expressed a few normative opinions on what he thinks states' abortion policies ought to be, _and_ he also made some constitutional arguments. People are engaging him in both areas, but I don't see lots of commenters here conflating "unconstitutional" with "bad public policy."

He mentioned that if Roe/Doe/Casey disappeared, any state law still would have to satisfy "constitutional requirements wholly apart from Roe," and of course this is true. Personally, I'm very interested in what federal constitutional limits would then exist, in this counter-factual world, on state abortion restrictions and on penalties for violators. Because there is, of course, a chance that some of the most extreme laws that were in force pre-Roe could be enacted again (or could now be enforceable, to the extent they are still on the books in some states).

I'm interested in whether Rick sees _any_ point where a pregnant woman has a constitutional right to an abortion under equal protection or due process grounds, or under some other theory, assuming the law at issue applied equally to all women in the state.

Posted by: Anon | Jan 23, 2013 1:48:20 PM

I regret being thought "obnoxious" or "silly" by Matt, but I don't feel any need to satisfy demands -- which often have an air, even if they are not so intended, of "gotcha!" attempts -- that I give a thumbs-up, or thumbs-down, to this or that proposed or hypothesized abortion regulation. I said, in my post, that in my view Roe v. Wade was wrongly decided and has had bad effects on our law and politics. It's not a dodge or dance, but actually the case, that -- while it's hardly a secret that I'm anti-abortion -- I do not know, given all the givens (including the reality of deep disagreement on the matter), what the all-things-considered best abortion-regulation-and-funding regime would be. I realize that many -- pro-life and pro-choice -- are confident that they *do* know, but I genuinely don't. But, again, I think it would be better if its shape were less subject -- still subject to some extent, obviously -- to the Supreme Court's "reasoned judgment."

I'm always happy to continue the conversation, via e-mail (with people who use their real names), but I think I've said all I want to say on this thread. [Update: This interview, with my colleague Cathy Kaveny, on the Roe anniversary (and other things) might be of interest: http://religionandpolitics.org/2013/01/23/roe-v-wade-at-40-an-interview-with-legal-scholar-and-theologian-cathleen-kaveny/].

Posted by: Rick Garnett | Jan 23, 2013 2:29:26 PM

The windup:

* “Today is the 40th anniversary of Roe v. Wade… a sad day…”

* “Roe is inconsistent with a commitment to the equality of every human person, in that it excludes some human persons from the protections provided by law to others against violence…”

* “The decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine…”

* “[S]tudents from Notre Dame are leaving… for the March for Life… [to] be joined by tens of thousands of others and, I imagine, ignored by the national media. But I wish them the best.”

The pitch:

* “[A]bortion should be reasonably regulated, and that the category of ‘reasonable’ regulations is bigger than the category of regulations permitted by Roe / Doe…”

* “As for a list of the regulations that I think are ‘reasonable’ and warranted but that would probably not be permitted under Roe / Doe / Casey… I simply don't have a comprehensive list in mind…”

* “I don't feel any need to satisfy demands -- which often have an air, even if they are not so intended, of "gotcha!" attempts -- that I give a thumbs-up, or thumbs-down, to this or that proposed or hypothesized abortion regulation…”

* “I do not know… what the all-things-considered best abortion-regulation-and-funding regime would be…”

* “I’d make my case for (for example) a more narrow ‘health’ exception to limitations on late-term abortion…”

* “I’d make my case for… public-education campaigns about Down's Syndrome (in an effort to reduce the abortion rate of fetuses diagnosed with it)…”

Posted by: Brad DeLong | Jan 23, 2013 5:31:32 PM

One thing above caught my eye, where Katha Pollitt writes, "As for whether Roe is a poor piece of legal reasoning, I disagree that "few educated writers on the subject think otherwise." Ronald Dworkin, Laurence Tribe, Reva Siegel, to name three."


What? Has professor Tribe recanted his earlier criticisms? Didn't he famously equate the legal reasoning in Roe as a "verbal smokescreen" with the substance "nowhere to be found"?

As for others who have politely picked apart the legal bones of the absence of reason in Roe, how about Sunstein (wherever he is now; HLS I guess), Roosevelt over at Penn (well, yeah, he is kinda young, but that doesn't make him wrong necessarily), Dershowitz, and of course Horwitz?

Posted by: concerned_citizen | Jan 29, 2013 6:55:38 PM

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