« Law School Reunions | Main | What does . . . , Part IV »

Monday, October 24, 2005

What has one got to do with the other?, Part III

In response to my earlier post, Rick makes a provocative point.  He writes:

It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.  It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong.  I would hope that all those who believe -- as I do -- that abortion is wrong and that Roe was wrong would also want an anti-Roe Justice to have reasons for her position other than "abortion is wrong."  What do you think, Hillel?

If I understand correctly, Rick's response consists of two moves: 

  1. There is obviously a correlation between one's position on Roe and one's position on abortion, at least (but probably not only) if one is against abortion.  That is, it is reasonable to assume that one who is against abortion is also against Roe.  Therefore, once we learn that Miers favored an amendment banning abortion, we can have some confidence that she would also vote to overturn Roe.
  2. Although this correlation exists, we also ought to assume that one's position against Roe is purely jurisprudential and from a different source than her opposition to abortion generally.

Do I have that right, Rick?

I have no beef with the first point, since it seems plainly correct.  But the second point is more troublesome.  There's no reason to believe that Miers has any jurisprudential views on Roe apart from her political/religious instincts.  Would she overturn Roe based on a commitment to majoritarianism?  Federalism?  Original intent?  Original meaning?  Contextualism?  Or perhaps she believes that a fetus is a person, and that it is therefore entitled to equal protection and due process, which abortion denies it?  Does she have any Casey-like positions on the value of precedent?  Has she thought about the Equal Protection and Establishment Clause arguments in favor of abortion rights?  We have no clue what she thinks about these questions.  Worse, we don't have any evidence that she has even thought them.

Further, and more important in the context of my original post, I don't for a moment believe that the majority of the people who are interpreting these signals ("she favored a constitutional amendment, so she must want to overturn Roe") have put much thought into these questions either.  Many of them oppose Roe simply because they believe that abortion is wrong.  And that's the very same thing they accuse liberals of, except in the reverse.

Let me see if I can put it another way.  Many liberals argue that abortion rights must be in the Constitution, because it is simply fundamental that a woman has control over her body and her procreative rights.  That kind of reasoning is, of course, question-begging and basically backwards.  And many conservatives rightly (no pun intended, unless you think that's funny, in which case, pun intended) call these liberals on it.  But don't many conservatives make precisely the same mistake?  Don't many start with the proposition that abortion is fundamentally and morally wrong, and therefore it can't possibly be protected by the Constitution?  And isn't that the same mistake?

In the end, I think that the signal is probably a reasonable one--someone who wants to amend the Constitution to ban abortion is also likely to overturn Roe if given the chance--but I don't think most people are making the distinction that you are between the political question and the jurisprudential one.  Am I wrong?

Now to turn the tables a bit on you, Rick, with a question from left field:

I agree that many liberals who support abortion rights conflate the policy issue with the jurisprudential one.  But don't you think that many conservatives who oppose abortion often conflate the moral question with the legal one?  That is, just as liberals should be careful to note that whether abortion rights are good is different from whether Roe is good (or properly reasoned or properly decided), so too conservatives should be careful to note that the question of whether abortion is immoral or bad is different from the question of whether it ought to be legal?  And don't you think that these questions are often conflated on the right, Rick?  (Anyone else can please feel free to chime in, of course.)

Posted by Hillel Levin on October 24, 2005 at 10:21 AM in Hillel Levin | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference What has one got to do with the other?, Part III:


I find it hard to believe in this day and age that males are still talking about it in such quite frankly inhumane legalistic terms.

Your arguments and perspective would sincerely benefit from one of you actually talked to a women about their experiences. It seems to me that this is just a simply intellectual argument aobut the in's and out of finer law points.

do you have any idea what it feels like for a woman to abort. the emotional pain and upset. To some women its like pulling teeth, to others its a huge emotional journey and a burden that they carry with them for the rest of their life.

So please guys don't you there sit there - pontificating on the finer points of law, without any understanding of the emotional impact of it on women's lives.

You don't have a clue. There is no intellectual debate around it. The law is quite frankly so bloomin prehistoric its unbelievable. You clever guys shound NOT be wasting your time intellectualising it. You should be better spending your time on making it right for women to have children without men. Because at the end of the day you guys rule the world, but you can't take the care or the responsibility to have sex without a condom.

I would also like to ask how many of you who contribute to this column have actually had sex outside of marriage, have had affairs, have many of you had got women pregnant, and then dumped them.

Civil rights??!!!!!!!!!!!!!!!!!!!!!

Posted by: christine | Oct 24, 2005 6:04:48 PM

I don't consider myself much of a conservative, but I do have strong feelings about the morality of abortion (i.e., I think it is morally wrong in most cases), and I do think that the right tends to conflate the morality question with the legal question.

In other words, while law does have its root in a value system, which might perhaps be just another way of saying law is rooted in morality, I do agree with Hillel that the question of whether or not abortion is morally right or wrong is different from the question of whether or not it should be legal. And I think the right has a definite tendency to ignore or to fail to perceive this difference.

I believe abortion is morally wrong in most cases, but I tend to believe it must be legal -- at the very least in some cases. And I think that many of those on the right do not realize that there are many of us on the left who are anti-abortion -- who would love to see the numbers of abortions decrease dramatically -- we just don't think that legislating against it is necessarily the way to go. (Pro-choice does not mean pro-abortion!)

I think many lefties make this distinction between the morality and the legality of abortion, and many righties do not; moreover, I think many righties fail to recognize the lefties ability to make the distinction, perhaps because the righties can't make it themselves.

In other words, because many righties fail to differentiate, they then project that failure to differentiate onto the left, and they then demonize the left, accusing it of supporting an "immoral" position.

We have conservatives to blame for the fact that the whole abortion debate bends most often toward questions of morality instead of (more useful and productive) questions of civil rights and legality. Don't we?

Posted by: Jason | Oct 24, 2005 11:03:20 AM

The comments to this entry are closed.