Today's SCOTUS Decision: Bad News and Better News
Today's 5-4 Supreme Court decision validating Congress' ban on so-called partial-birth abortions is obviously a setback for the reproductive rights of women, and a victory for those who want to roll them back. But the highly convoluted majority opinion, as reflected in the remarkably clear concurring and dissenting opinions, may make a broader attack on abortion rights harder in the long run, making the next appointment or two to the Court even more critical.
To make a long story short, the majority opinion (as brilliantly exposed in Justice Ginsburg's dissent) went to inordinate and irrational lengths to reconcile the decision with the Court's precedents, most obviously Stenberg (which struck down state "partial-birth" bans), Casey (which solidified a "health exception" to any permittable abortion restrictions), and Roe itself. Clearly the replacement of O'Conner by Alito made this result possible. But the failure of Alito and Roberts to join the concurring opinion by Thomas and Scalia calling for a reversal of all these precedents means that a further change in the Court will probably be necessary to produce a more fundamental shift in the constitutional law of abortion rights. And that's one of many reasons why Democrats need to win the presidency in 2008.
To step back from the substantive questions for a moment, Gonzales v. Carhart produced a much more meaningful set of opinions than we've seen in a while, particularly during the period when the self-admitted judicial legislator Sandra Day O'Conner often ruled the Court, and a vast and confusing array of concurring and dissenting opinions were typical in big and close decisions.
Ginsburg's opinion for the four dissenters is a model of comprehensive clarity, nailing the majority opinion (penned by that perennial abortion rights weathervane, Anthony Kennedy) for its stealth attacks on the Court's precedents, especially the health exception, the viability standard for scrutiny of abortion restrictions, and the treatment of evidence about the "medical necessity" of various abortion methods.
And the incredibly succinct Thomas-Scalia concurrence, which simply and directly attacks Roe, also challenges the majority to come out of the closet and reverse abortion rights.
There's no question that the majority opinion erodes some of the underpinnings of how the federal courts have applied Roe and Casey. And it opens the door to further abortion restrictions.
But on the basics, this decision may prove to be a pyrrhic victory for the anti-choice forces. Every time the Roberts Court validates a technical and largely marginal exception to abortion rights by claiming to respect abortion rights, it will become more difficult to overturn those rights altogether. If, however, a Republican replaces Bush in 2008, and gets another chance to reshape the Court, then I have no doubt future appointees will find a way to get the job done.



Comments (212)
I have one question: why the fuck didn't the plaintiffs, especially Planned Parenthood, argue that the federal government was not authorized to pass this legislation under the interstate commerce clause? Their failure to argue that point basically gave Thomas a free pass to vote how he really wanted on this without having to worry about being inconsistent. Truely, it is a talent of judges in our system to vote however they want regardless of the law and their previously expressed opinions, but there is no reason to make it easy for them to do it.
What people need to understand--what they should have understood and what they need to keep in mind from here on out is that abortion rights are about limited government. While the the word "abortion" does not appear in the Constitution, the word "liberty" does, and the federal government has not been granted the power to legislate on abortion.
The pro-choice lobby needs to get their shit together, and this loss is just one more example of their incompetence.
April 18, 2007 12:41 PM | Reply | Permalink
The most sickening part of the decision to both myself and my female life partner was the majority's allowing the ban to stand without any "life and health" provision. We have both read of occasional cases where absent the performance of a so-called partial birth abortion the mother would have died. These cases may be rare, even very rare. The majority in this decision had best hope so.
Some day, somewhere, a woman is going to die because the performance of a late term abortion is a Federal crime. That death will rest on the majority just as certainly as if they had jointly pulled a trigger.
April 18, 2007 12:58 PM | Reply | Permalink
Well, look at it this way. I am sure judges and politicians know much more about medical issues than doctors, so I'm sure this will all turn out fine.
I hope you're right, Ed, about finding some silver lining. Right now, I take no consolation in seeing Roberts and Alito as just "a little bit" anti-abortion, and not the full-out "strict constructionists" that Scalia and Thomas are.
The final score was still 5-4. The anti-choice side is now emboldened, and there will be more challenges and more anti-choice legislation.
This is not even about the horribleness of this particular procedure, but all about being one step closer to criminalizing abortion outright, and sending women once again to back alleys.
Elections may have consequences, but so does keeping your powder dry.
Dissent Protects Democracy.
April 18, 2007 1:02 PM | Reply | Permalink
I think the reason why the court didn't invalidate the statute under the Interstate Commerce Clause is because that ICC has become basically meaningless. Over the years, courts have broadened the tests as to what is and is not interstate commerce to the point that basically anything can be governed by Congress using its ICC powers.
Your point about Thomas is well-taken, given that he tends to take a more restrictive interpretation of the ICC than the other justices, but I can imagine him concocting a hypothetical where someone crosses a state border to get an abortion. Boom! ICC applies. I can't imagine him doing otherwise, here, given his strong and vocal opposition to choice.
April 18, 2007 1:03 PM | Reply | Permalink
"concocting a hypothetical where someone crosses a state border to get an abortion"
In some sparsely-populated states, abortions are made so problematic that going out of state may be the rule rather than the exception, and sometimes crossing a state border has other advantages.
No "concoction" necessary, in this case.
April 18, 2007 1:09 PM | Reply | Permalink
According to NPR, Alito and Roberts included comments that they are prepared to overturn Roe v Wade. Are these the same two who claimed that they could NOT answer any questions about Roe during their vetting hearings because it would compromise their ability to be open-minded if the case came up to the Supreme Court?
Yes, I believe it is the same two. So, are they liars, or just liars? Is there any punishment (read impeachment) for a Justice who lied under oath to get his life-time appointment?
What more can they get away with? If Bush gets to put another flunky in we're all doomed. And frankly I am pissed as hell at the "lady" who retired when she saw this coming!
Jan
April 18, 2007 1:17 PM | Reply | Permalink
In his concurrance, Justice Thomas states that "in my view, the Court's abortion jurisprudence... has no basis in the Constitution."
Isn't that somewhat at odds with his Confirmation testimony before the Senate, where he essentially said that he had no views on abortion at all?
Just wondering, if a SC Justice writes opinions that make his Confirmation testimony appear to be patently false, is there a remedy?
-Dave Adams-
April 18, 2007 1:21 PM | Reply | Permalink
Not really. Over time, a number of Justices, dubious appointments as they might have seemed, grew in the job. Given that, it's possible that someone went onto the Court without a formed opinion, but evolved one over time. Justices have changed positions over time. How you'd prove what Thomas actually thought at the time of confirmation seems an impossibility.
That being said, impeachment is a theoretical possibility. Fortas was probably the closest, and resigned.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
April 18, 2007 1:32 PM | Reply | Permalink
In a word: no.
Lying at confirmation hearings is just one of the many ways that conservatives have upended longstanding norms in how the government is supposed to work.
April 18, 2007 1:37 PM | Reply | Permalink
Well the solution here is for Congress to repeal the law that was just affirmed by the Court. Expecting the Supreme Court alone to preserve the United States while the other two branches actively work to destroy it is obviously not working, cf. Habeus Corpus etc.
April 18, 2007 1:41 PM | Reply | Permalink
Isn't it interesting to view the work of Roberts and Alito, both of whom during their confirmation hearings swore on a stack of bibles taller than they were that they were True Believers in the judicial philosophy of "stare decisis" and that they would never ever revisit "settled law."
Like most "movement conservatives" (they may be a movement, but they're NOT "conservative"),they're willing to "do what's necessary" to achieve the goal, including lie to your face with a smile.
Anyone who trusts one of these scumballs farther than they can be seen with one's eyes closed deserves what they get. Every Democrat who voted to confirm these bastards should be forced to explain themselves.
And then there are the "progressive" halfwits who voted for Ralph Nader because "there's no difference at all between Democrats and Republicans." There's a special place in Hell reserved for these fools.
April 18, 2007 1:42 PM | Reply | Permalink
Spelling: It's Sandra Day O'Connor (not O'Conner)
April 18, 2007 1:58 PM | Reply | Permalink
debcoop
You could not be more wrong about Roberts' "moderation".
The crucial part of the decision was when Kennedy said that this law should not have been facially challenged and therefore it should not have been enjoined in its entirety in 2003. In essence the law shuld have gone into effect in 2003 when it was passed.
Why is that crucial? Because it means that all others restrictive, but not facially total bans on abortion, will be allowed to go into effect and the legal challenges would only be after the fact of harm ensuing to a particular woman or class of women. This allows individual states, though thankfully not something this Democratic congress would do, to pass one seemingly innocuous restriction, after another and it goes into effect immediately and according to this ruling, should not be enjoined in its entirety.
Then it can be litigated in court only in individual as applied exceptions. This SCOTUS seems to be saying that this law should have gone into effect in 2003 and execptions should be only as applied
This is the formula that Roberts crafted in the New Hampshire parental notification ruling in Ayotte. Uphold the awful law and then come up with one or a few, individual
exceptions that deal with the pr problems .
As bad as Alito is and choosing him was , the real danger here is Roberts' intelligence, craftiness and seeming moderation as he crafts restrictions so there will be nothing left to the right to choice and I suspet many other areas of law we care about.
It will be hard to find direct and easily mobilized against rulings by the Roberts court.
He didn't join the Scalia opiniion beause it would have telelgraphed his hand and there is no need to unduly alarm the American public. He is going to be more successful at overturning deades of progressive jurisprudence by upholding awful laws, carving out one narrow exception after another and having folks like you say that this wasn't so bad after all.
The other worst thing in light of the politicization of US Attorneys is the the enforcement mechanism is through the discretion of US Attorneys. So it might be regional,but I would assume that the US Attorneys will be under pressure to bring cases...and the question will be how far afoul of the actual language and the theroretical restriction to just this procedure will they be willing to go or be pushed to go by DOJ.
This is bad and saying it's not doesn't make it not so.
April 18, 2007 2:00 PM | Reply | Permalink
Every Dem Senator should take the position that if you don't answer those questions, you are not getting their vote. The way it works now is just stupid.
April 18, 2007 2:17 PM | Reply | Permalink
Not enough votes. GOP filibuster.
April 18, 2007 2:17 PM | Reply | Permalink
I'm not a lawyer, but debcoop's rather different interpretation rings true to me.
April 18, 2007 2:18 PM | Reply | Permalink
J. McCutchen
The anti-abortion vote has been a mobilizer for the religious right and a very effective one. Until today, there has never been a real threat to Roe.
Now there is. If the pro-choice movement cannot mobilize on these facts, then they might as well give it up
April 18, 2007 2:39 PM | Reply | Permalink
debcoop:
You might have noticed that the first phrase in my post was "bad news," so I plead innocent to the charge that I'm somehow saying it wasn't.
But even according to the logic of your own comment, which assumes (which is reasonable) that Roberts is privately determined to overturn Roe, the covert approach he and Alito have adopted in this decision, and the incremental method of reversing abortion rights you suggest, will take a lot of time, a lot of cases, and a lot of crabwise judicial reasoning. That is, indeed, a "silver lining," as compared to a frontal assault on reproductive rights, if only because it affords defenders of those rights plenty of time and opportunity to mobilize opposition, and future Democratic presidents the chance to reshape the Court.
Ed Kilgore
April 18, 2007 2:59 PM | Reply | Permalink
IANAL, either, so I can’t argue the judicial merits or DEmerits of this case.
I AM a woman, though, already through my childbearing years when Roe v. Wade was decided. My babies were wanted, planned for and safely delivered, but I saw women die because of problems that developed during their pregnancies, and I saw a lot of so-called “Thalidomide babies” born because mothers who’d been prescribed this drug for morning sickness couldn’t afford to go abroad for abortions. (A woman named Sherri Finkbine, who obtained a legal abortion in Sweden, was the lone exception, as far as I can recall — and she was excoriated by the righteous and some in the press for her “immorality.”)
It absolutely infuriates me that not only can half the people in this country cavalierly contemplate turning back the hard-won progress we’ve made toward equality for women, but the final decision should be in the hands of a group of largely male, well-to-do, people professing to be Christians who somehow missed out on learning compassion and the ability to think through a variety of situations!
April 18, 2007 3:08 PM | Reply | Permalink
The one to impeach is Scalia. He ignored obvious conflicts of interest and continued to sit on cases. But, can't we wait until Bush is gone?
April 18, 2007 3:15 PM | Reply | Permalink
I really really really dislike this opinion and think it's a horrible thing. But yes, I think it is a fake win for the pro-lifers. This really isn't about 'life' at all (as I discussed here). They made a big point about how it wasn't really going to lessen the number of abortions because so many other procedures that they explicitly say are not included in the ban ARE available. And it perversly actually reinforces the point that a fetus in a womb is part of the mother and a distinct state of being from a baby outside of the womb- for true pro-lifers, the denial of this distinction is at the heart of their philosophy.
I'm wondering about the as-applied challenge comment by Kennedy myself. I've guessed several things- maybe it's a signal to stop granting injunctions. Maybe it's a signal that, given the right as-applied challenge, he'd 'swing the other way,' so to speak. Maybe it was thrown in as a sop to Thomas or Scalia, who can get on their high horses about these things. Maybe it was a signal that the Plaintiffs didn't do a good job explaining the circumstances under which an intact D&E would be preferable, instead focusing too much on the vagueness prong. Maybe they're getting antsy about all the as-applied challenges- after all, they really are supposed to be a very high standard. Of course, all this uncertainty is the perfect reason why a rambling paragraph is never a good idea in a SCOTUS opinion- and maybe it was just judicial rambling from a relatively new clerk (when the case was argued) who felt the need to expound on the proof needed for a facial challenge to an unnecessary degree.
April 18, 2007 3:21 PM | Reply | Permalink
its a horrible opinion, but there it is.
we knew the right to abortion was fragile and now finally here is the decision that imposes Congress's moral judgment as the final say in private medical matters concerning the health of a woman.
this echoes Congressional meddling in the Schiavo families private tragedy.
America will, I hope, demonstrate their repugnance of this decision and the narrow minded authoritarian thinking that drives it.
April 18, 2007 3:53 PM | Reply | Permalink
debcoop
From my decades of activism on this issue I know that to make abortion unavailable to the vast majority of women in this country, overturning Roe is not necessary. This Pandora's box that the court has opened, will unleash enough legislation to make overturning Roe almost moot. And if they are smart this may be enough for them to do. And Roberts is smart.
Please go read Jack Balkin's interpretation at his Balkinization blog. He lays out the some of the dangers in the Roberts tack on this decision.
But having been an activist in the this movement for decades, and intimately involved for a long time with policy about this... let me say that I think the anti choice folks are ready with lots of legislation that will be introduced in many different states of the union. Remember the inability to facially challenge means this laws will go into effect. Then either individual women or a small class of women then get to challege in their particular circumstance. The logistical and financial challenge on the prochoice side is enormous. And the gain is relaltively small.
And frankly it has always been acknowleldged by our side that the most mobilizing thing that could happen for our side would be to overturn Roe directly and frontally. The effect on races for the White House and Congress would be enormous, though given what Roberts has wrought, undoing it would mean replacing one of the 5 who voted to uphold this ban.
I quote Jack Balkin
http://balkin.blogspot.com/
"If the Court applied the Salerno (my interjection...Salerno says laws are challenged as applied not enjoined in their entirety) rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted."
That is the danger... the right to an abortion ends not with a mobilizing bang, but with a whimper that too many moderate minded people are lead into believing is not an immediate danger.
The crucial vote in the Senate was confirming Roberts...because this method he has chosen will be applied subtly and cleverly by him to many other classes of cases other than Roe. We are in for a brave new world. Every moderate thought Roberts would be okay. He's the most dangerous one, because he is so persuasive.
April 18, 2007 5:34 PM | Reply | Permalink
they are only lying to the extent that Ruth bader Ginsburg lied in her similar position to refuse to answer such questions that may come before the court.
i dont believe any of them "lied".
April 18, 2007 6:24 PM | Reply | Permalink
They won't care. Ever see the movie (or read the book) "The Cardinal"? In it the priest has to make the decision as to whether or not to allow his sister, pregnant out of wedlock, to die or crush the baby's head and allow his sister to live and the baby to die. Of course he makes the decision to allow his sister to die, considered to be quite the noble sacrifice by the priest, even though he's not the one who's dead. Naturally, this scene accomplishes two admonishments to women - first, that if you get pregnant without being married, you'll probably die, and secondly, even a celibate priest living in the Vatican can make better decisions than any woman.
April 18, 2007 6:28 PM | Reply | Permalink
in the vein of John Edwards, i want to "channel" the unborn, those vast minions, potential voters:
"can you hear me? consider for a moment my interests."
April 18, 2007 6:29 PM | Reply | Permalink
the above rhetoric is designed to make you forget that there is such a procedure nowadays as a Cesarean Section for those situations when a pregnant woman's health or life is in danger, at such a late stage as would fall under the rubric of this banned procedure, intact dilation and extraction if you prefer.
(also, some cesareans are even performed based on *gasp* the health or life of the baby.)
April 18, 2007 6:35 PM | Reply | Permalink
The simplicity of Ginsberg's dissent seemed to be written for the average person, not law journals.
April 18, 2007 7:19 PM | Reply | Permalink
The reason I say they lied is because they testified under oath during their vetting hearings that, to offer their thoughts on a subject such as Roe would prevent them from having an open mind if a case came to them on the Supreme Court.
Now they are saying, specifically about Roe, )which is NOT the case they recently decided) how they would act if it comes to the Supreme Court.
What has changed? The only change is that NOW they have the very same life-time jobs that they were trying to get. They lied and said that they would not do what they just did to GET those jobs.
Ruth Bader Ginsberg also refused to answer, but she has not since declared what her decision would be if such a case came to the Supreme Court. There is a difference.
Jan
April 18, 2007 8:00 PM | Reply | Permalink
Cesarean Section is MAJOR adominal surgery...! Have you had one?
Late term abortion DOWN THE BIRTH CANAL is sometimes - even in an emergency - in the best interests of the woman *gasp* health and wellbeing.
But now our unqualified SCOTUS has taken away that intact dilation and extraction decision away from the doctor, away from the best interest of the woman.
Personally, I have a HUGE problem with that. Having a bloody great scar down my front isn't really going to do for me.
April 18, 2007 8:07 PM | Reply | Permalink
I can't quote Digby's entire essay on this subject,, but here is a portion:
You should read the rest if you can bear to get through it.
sPh
April 18, 2007 8:19 PM | Reply | Permalink
I love the moral relativism of the right. "If I can claim the other guy did it, then its okay. My moral floor is whatever I imagine the other guys immoral conduct is."
ROTFL
April 18, 2007 8:21 PM | Reply | Permalink
A possible beneficial effect will be to give a jolt to feminism by opening the eyes of those who have regarded it as passe because its battles had been won.
April 18, 2007 9:21 PM | Reply | Permalink
You're absolutely right. I've argued for years that Pro-Choice has allowed the debate to shift to unstable ground. It not about when life begins or a woman's control of her own body in some abstract/feminist sense--but fundamental issues of liberty and control of the means of production. (Men don't control their own bodies when they get drafted into the military.) The question is: When does the government assume the right to nationalize a woman's womb? And, that is what this is about. The state declares the right to force a woman's body to bring a fetus to term. She no longer controls her own means of production and (in order to avoid charges of negligence) must continue to dedicate her own economic wherewithall to the fetus against her will. Try this out the next time you're in a discussion with pro-lifers and watch their jaws hit the floor.
April 19, 2007 7:03 AM | Reply | Permalink
I don't usually get into the abortion debates because it's not a strong issue for me. I see points on both sides of the debate and believe middle ground is available far more often than either side is willing to admit.
That said, I'm as annoyed by pro-choicers calling the other side anti-choice as I am by pro-lifers calling the other side anti-life. Clearly those who identify themselves as "pro-life" are not against choice per se. They are against a specific choice - the choice to have an abortion. As such, anti-abortion is a perfectly legitimate term if you feel you must label them anti-something.
In short, I believe that using the term "anti-choice" (or "anti-life") is antithetical to having a productive conversation about the issues surrounding abortion and, as such, should be discouraged.
April 19, 2007 8:16 AM | Reply | Permalink
I first saw "The Cardinal" when I was in the third grade and attending a Catholic school. When the "partial birth abortion" debate started, it was the first thing I thought about.
Incidentally, that's not something that would have happened in most cases. The life of the mother is an acceptable exception to the prohibition against abortion in the Church. But come on! The little hussy had the effrontery to fall in love with a nonCatholic man who refused to bring up their then-non-existent children in the Faith!
Getting back to the decision, it's an extremely bad one. Unfortunately, I think the supporters of it were able to make the late-term abortion debate about women deciding arbitrarily while Junior was hurtling down the birth canal that they no longer wanted to have a baby and having the doctor smash the skull when it emerged. I tried to explain to people that this was actually about babies who were so deformed that they could not live outside the uterus for more than a few minutes and whose birth might not allow the mother to ever have another baby. I mean, why should a woman be forced to do that? It's one thing for the woman to choose that, but how does the state have the right to choose it for her?
Thank you, Ralph Nader.
April 19, 2007 8:21 AM | Reply | Permalink
This decision means women will experience injury, illness, infertility, and death. No one can argue with that.
April 19, 2007 8:29 AM | Reply | Permalink
As humans interested in survival, we're all pro-life. As a matter of fact, most pro-choice people I know are really more pro-(decent) life then those who have co-opted the name. What this debate really comes down to is choice, and so pro- and anti-choice are the most appropriate terms.
Here's the thing- to be anti-choice isn't just about being against one decision on a particular issue. As a matter of fact, many pro-choice people, myself included, are actually spiritually and philosophically anti-abortion. Being anti-choice is about being against a woman's right to determine her destiny and/or believing that this destiny has already been set in stone and should be controlled by others. Having a child is a life-changing event, and can even be a life-ending event in some instances.
Anti-abortion and anti-choice are two different concepts. This opinon is, on its face, anti-choice, not anti-abortion. In fact, it explicitly finds that there is no undue burden on the right to an abortion, and that the number of abortions will stay where they are because of the availability of other methods. What it does is uphold a law that was based solely on the discomfort that the (mostly men in) Congress felt about a particular choice made by a woman and her doctor. The law, and now the opinion, are all about limiting choice.
April 19, 2007 8:37 AM | Reply | Permalink
That's how you are defining another group, and that's not productive. I'm not arguing against your position, merely how you choose to define another group's beliefs. Why label them "anti-choice"? How is that not inflammatory? How is that productive? Couldn't you be labeled "anti-choice" if you are against someone's ability to choose to kill another individual? Why does their position on this one choice (we are all for the ability to make choices on some matters and to restrict choices on other matters) make the term "anti-choice" accurate?
The law, and now the opinion, are about limiting choice as that choice involves abortion. Again, I'm not disagreeing with your position on the issue. I'm disagreeing with the language that some people use to frame the issue because I feel that language to be counter-productive. It polarizes and does not help the debate. For those not already "in the choir" it makes you seem unwilling to even consider the other side's opinion.
No one wants to eliminate your ability to choose which shoes to wear this morning (and, no, this is not meant to trivialize the choice to have an abortion). No one wants to grant you the ability to choose to rob a liquor store. The term "pro-choice" is about the ability to choose an abortion if that choice is right for you. If you identify with that label, then that's fine. The term "pro-life" is about protecting the life of the fetus (many pro-lifers are fine with other lives ending, and many are not). That's the label they choose to identify with. Using the term "anti-choice" to label this group is inaccurate (of course, no succinct label will be entirely accurate) and, more importantly, counter-productive.
April 19, 2007 8:51 AM | Reply | Permalink
nonsense. there is no issue of moral floor. none of these three in question lied.
if you can believe it, ones personal views on abortion can differ from how a justice views the body of jurisprudence on abortion.
i dont feel either the conservative or the progressive justices lied.
*but it sure is easy to attack.
April 19, 2007 9:28 AM | Reply | Permalink
i disagree with the second paragraph above.
it seems that a cesarean section is the emergency procedure of choice when the life of the mother is at risk -after viability.
and speaking of major abdominal surgery...pregnancy is no walk in the park. birth is no walk in the park. DNC is not the answer to Cesarean problems, but Cesarean procedures are the appropriate and medical answer to health and risk issues during a pregnancy.
Intact dilation and extraction is wholly elective. prove otherwise.
April 19, 2007 9:58 AM | Reply | Permalink
"it seems"... obviously you don't know, neither do I, as each case is obviously unique to the medical situation.
So your: "Intact dilation and extraction is wholly elective." is your opinion and not fact.
April 19, 2007 11:11 AM | Reply | Permalink
I would just suggest that the new restrictions on the commerce clause power announced in Lopez and Morrison are not broad enough to encompass this legislation. Thomas wrote in one of those two cases, I forget which, that "commerce" under the constitution meant the transport of goods for sale. Commerce among the states meant the transport of goods from one state to another. Thus, regulation of anything other than that sort of transportation is beyond the power of Congress.
But he is just the most egregious example. If they are serious about their doctrines, we can use those doctrines to help ourselves.
April 19, 2007 11:12 AM | Reply | Permalink
JC Chasezbian is a troll and I wouldn't waste any more time responding to him/her.
April 19, 2007 11:14 AM | Reply | Permalink
That's the point, Ben. It's not an argument--the issues are intractable and cannot be resolved by argument. We're not trying to convince the people on the other side of the debate. Both sides are trying to convince everyone else in the country. If you're undecided, you need to know that "pro-lifers" are anti-choice. We have to make sure that the undecided people in this country understand what the other side stands for. And the other side is doing the same to us.
April 19, 2007 11:18 AM | Reply | Permalink
If you're undecided, then mislabeling the other side as "anti-choice" will tend to push them farther from your side and not pull them closer to your side because it will be seen (correctly, IMO) as intellectually dishonest. Most "undecided" people are actually more likely to be more middle-of-the-road in the sense that they think there are appropriate restrictions that can be placed on abortions. If a person who is middle-of-the-road feels you are labeling them as "anti-choice" then you are likely to cause them to stop listening to you.
Bama Belle said we're all pro-life. Well, guess what - by the same logic, we're all pro-choice, too. Everyone believes that some choices should be allowed - just as everyone believes that some choices should not.
That's my point. You need to realize that pro-lifers are no more anti-choice (in a generic sense) than you are. Everyone (including you, I'm sure) believes that some choices should not be allowed. The question is whether or not the choice to have an abortion should be allowed. Labeling them "anti-abortion-choice" is accurate. Labeling them "anti-choice" is inaccurate and inflammatory (just as labeling you "anti-life" is inaccurate and inflammatory).
April 19, 2007 11:42 AM | Reply | Permalink
You're assuming that people who are undecided have the time and energy to extensively research both positions and become fully informed judges of the arguments. That's not how it works. People are busy, and they're not going to read everything just to make this sort of decision. There is nothing wrong with using effective short-hand descriptions to describe your opponents. In any case, as you have admitted in your first post above, anti-abortion activists are in fact anti-choice becuase they are against this particular choice. You can accept that resolution of the problem if you want, or you can accept that we're fighting a battle for the minds of the undecided and we ought to do our best to convince them through acceptable means. This is an acceptable means. We're not trying to reach across our divisions and come to some general consensus. We're trying to win.
For the past 20 years, the right has been using terms equivalent to "anti-choice" to misdescribe our positions, and that is a big part of why we have been losing so many elections. George Lackoff doesn't deserve all the credit he gets, but he is right about framing issues. Yes, we want to describe the other side in the terms that makes it as easy as possible for us to defeat them.
And no, "pro-lifers" are more "anti-choice" than I am. They do not want to stop this particular choice. What they want is to stop you from controlling all your own reproductive choices. To pro-lifers, sex is bad, STDs and pregnancy are punishments for those choices. Let me ask you this:
Do you believe that the state should be able to prohibit a parent from teaching their child a foreign language?
Do you believe that parents should be able to choose whether to send their children to a private school?
Do you believe that a state may forcibly sterilize criminal convicts?
Do you believe that a state may restrict the sale of or the use of condoms?
Abortion is at the center of these rights. It is about what the government can and cannot regulate. It is about whether the government can tell you to have a child and how to raise that child. It is a fundamental freedom. People who are against abortion are against choice.
If I have to label people in an "inflammatory" manner so that I can make that point without having to argue it every single time, then I'll use those labels. And so should you.
April 19, 2007 12:06 PM | Reply | Permalink
Only in the same way that you're "anti-life" because you're against preserving the life of a fetus over preserving a woman's choice to abort that fetus. That doesn't seem very accurate to you, does it? Your "anti-choice" label seems similarly inaccurate to those of us who are not firmly in one camp or the either.
So, is there nothing wrong with them labeling you as anti-life? If that's how you feel, then at least your position is consistent. I'll still disagree (with both statements), but I'll find no problems in your consistency and will happily respect your difference in opinion.
That is patently inaccurate. It's just as bad as saying that because some pro-choicers are also pro-abortion all pro-choicers are pro-abortion. Most pro-lifers are in favor of sex, I'm quite sure, and I'm reasonably certain that most pro-lifers do not believe that STDs and pregancy are "punishments" for "those choices". Are there some pro-lifers who feel this way? Sure. Are they among the most vocal? Probably.
Again, making such a patently inaccurate claim tends to push middle-of-the-road types away from your position and not pull them towards it.
The thing is, to those of us in the middle, you're not making the point you think you're making. You're making the point that you will resort to inaccurate labels to convince others of the validity of your statement. You're making the point that you do not respect the intelligence of your audience. That's the point that I get out of that label, at least, and I'm one of the middle-of-the-roaders myself.
I'm sure "the choir" thinks you're absolutely correct - but they're not the ones you should be trying to influence.
Perhaps the problem is that I'm an "INTJ" and cannot understand the need to resort to emotionally-laden arguments. I will readily acknowledge that many others are influenced by emotionally-laden arguments, but I'm not sure if you can easily predict how they will be influenced by them.
April 19, 2007 12:19 PM | Reply | Permalink
Well, it's come to the blockquotes. Ok.
Ben, this isn't about fairness. It isn't about being nice or treating the other side with respect. In fact, I have absolutely no respect for more anti-choice advocates. And they don't have any respect for us. Start looking at the right wing sites around the internet. Pro-choice people will be repeatedly called "pro-abortion" and "pro-death". The fact that you are apparently unaware of these things is exactly why we need to use these labels: people as political citizens do not operate with complete information. The way you sell your message is equally important to what your message is.
Actually, it is about fairness in one specific way. The other side fights dirty by using labels that misdescribe us. They do it because the misdecriptions carry moral weight and connotations that make our positions appear unpalatable. I want the fight to be level to be equal. In order for the fight to be fair, we need to be operating on the same rules as the other side. The rules include using specific frames that make their positions look bad, because their positions are bad. Thus, I refuse to make the fight unfair--to unbalance it in favor of our opponents just so that you or I can feel better about the terms we're using.
Ben, I can only conclude that you're a wingnut in disguise, pretending to be moderate in order to argue with lefties, or you are incredibly naive. Using the term "anti-choice" is making precisely the argument I want it to make. If people had the time to analyze the accuracy of labels, George Bush would not be president right now. We also wouldn't have terms like "tax relief" and "up or down vote" ingrained in our consciousness. It's not a question of emotional arguments. It's just a question of language. The language we use to describe an issue carry with them assumptions that will determine whether a particular resolution of the issue is acceptable.
If you want us to stop using the term "anti-choice" then the people on the other side need to stop using the term "pro-life." The issue is whether someone should be allowed to destroy a fetus in order to terminate a pregnancy. When you say "pro-life" the implication is that the other side is in favor of destroying life. If the other side is in favor destroying life, then the fetus must be alive. And if the fetus is alive, then it must have a right to life. If it has a right to life, then you ought to be pro-life. It's circular, but that's the way it works. People use terms that reinforce their positions, because that is how you convince others that you are correct.
I wouldn't put too much stock in internet questionaires that determine your personality type.
April 19, 2007 1:03 PM | Reply | Permalink
If you expect to influence the "moderates", then you should at least have respect for them. If not, then what's your purpose?
I thought I've made it perfectly clear that I'm aware of how the other side characterizes you. I feel like you're specifically disrespecting me by suggesting otherwise.
Absolutely. That's been my point all along.
Perhaps I'm guilty of being too idealistic, but I firmly believe in not sinking to the level of one's protagonists.
Then I can only conclude that you suffer from a lack of imagination. ;) I'm 36 years old, an atheist/agnostic, and have a very strong background in the sciences. I'm no "wingnut" - in disguise or otherwise, and I take exception to the idea that I'm "incredibly naive". As far as being a "moderate", that's probably a reasonable description, but I'm definitely more liberal than conservative.
I would think "pro-fetus" is a reasonable compromise, but then you would have to agree to be labeled as "pro-abortion-choice" (or some equally descriptive term), since that's specifically the choice you're arguing for. Personally, I think that allowing groups to self identify however they choose is reasonable, but that trying to externally force labels on those groups (as "both" sides do) is counter-productive and even more polarizing than it needs to be.
Alas, perhaps it's just a sign of the times. This conversation is leaving me quite jaded, but I imagine I'll shake it off.
April 19, 2007 1:26 PM | Reply | Permalink
You must love losing.
April 19, 2007 1:31 PM | Reply | Permalink
I'd prefer to lose a battle than to enjoy a Pyrrhic victory.
There's an old expression: "You catch more flies with honey than vinegar." I believe that you're more likely to influence a moderate by sounding reasonable than by sounding shrill. Let the other side be the voice of intolerance while you be the voice of reason.
Maybe I have too much faith in the intelligence of the electorate, however. It wouldn't be the first time.
April 19, 2007 1:39 PM | Reply | Permalink
I tell you what, ben. I, for one, am tired of hearing Frank Luntz GOP-funded language frame the terms of every single debate in this country. Especially so-called moral/cultural issues.
So I am going to continue to use language that I feel works for me, and works to more accurately describe the other side of this debate. (I don't accept your premise that "anti-choice" is too broad -- everyone knows exactly what choice we're talking about here, clearly, it's abortion.)
So, you're basically saying, the two choices I have to describe my political opponents in this specific area are:
- Pro-life, or
- Anti-abortion
Frank Luntz would love you.
Dissent Protects Democracy.
April 19, 2007 1:41 PM | Reply | Permalink
That's not my premise. My premise is that (a) "anti-choice" is no less broad than "pro-life" as everyone knows exactly what life we're talking about here, clearly, it's the fetus, and (b) "anti-choice" is unnecessarily inflammatory.
I sincerely doubt that, but it seems you've made my point better than I can. Rather than accurately describe your opponents, you seem to prefer to recast them in the worst light possible. Isn't it more important to make sure you're describing your own position clearly than to try to misrepresent your opponent's position? Similarly, it's your opponent's job to accurately present his/her position.
When you sink to the lowest common denominator of your opponents (and remember you have more than one), then you encourage those of your opponents who have not done likewise to do so now. It's a race to the bottom, and a race that I think is not worth "winning".
April 19, 2007 1:52 PM | Reply | Permalink
Language is key in this discussion. I get frustrated with what I regard as "have you quit beating your wife" phrasing about an "unborn child." Jerry Falwell, a person I am amazed to have said something sensible, once summed up the abortion controversy rather nicely. He suggested that neither side wanted to kill humans, but that the group in favor of permitting abortions did not believe a fetus was human, and he would pray that they be guided otherwise.
I cannot answer a question about an unborn child, because my medical and ethical experience leads me to believe that a child exists only after birth. Before that, a fetus is an assemblage of cells, no more human than a skin cell that contains the genetic information to create a complete human, if only we knew how to convince its genome to express in the appropriate manner.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
April 19, 2007 2:18 PM | Reply | Permalink
?
April 19, 2007 2:27 PM | Reply | Permalink
I agree completely about language being important - as is civility, if you want to have any chance of having any positive impact in a conversation. For that reason, I try to avoid the phrase "unborn child" as I know to some it is a very loaded phrase. Fetus is perfectly accurate and is actually more precise, IMO. (I'll sometimes use the phrase "unborn child", however, to refer to a child that is never born as opposed to a child that is yet to be born and never in the context of an abortion debate if I can help it.)
A zygote and a blastocyte definitely qualify as "an assemblage of cells", but I'm not certain that this is necessarily true of a fetus. It might be, but I'm quite certain that this is not a question that medical science is close to answering. It does seem quite clear that there is nothing magical about passing through the birth canal that makes a fetus "human". Unfortunately, there is no clean line that can be found anywhere in the development from zygote to fetus to child other than passing through the birth canal. The best that medical science can do, IMO, is to describe when neurons begin to form in the fetal brain. IIRC, that's at about 21-22 weeks.
April 19, 2007 2:29 PM | Reply | Permalink
None of that is borne out by empirical evidence. I have great faith in the electorate, but it's not because I believe them to be intelligent.
In any case, these aren't pyrrhic victories. The claim that it is suggests that it is more important to be civil and polite than to ensure that our fundamental rights are protected. I will trade civility for rights any day.
April 19, 2007 2:35 PM | Reply | Permalink
"anti-choice" is unnecessarily inflammatory.
I don't think you have any evidence of this. I would love to see you produce some.
April 19, 2007 3:22 PM | Reply | Permalink
Is "pro-life" any more accurate and any less inflammatory than "anti-choice"? Is "anti-abortion"?
You seem to be drawing arbitrary distinctions around these words. To me, someone who calls themselves pro-life, and yet is single-mindedly focused on abortion, and would require, for example, a woman who is raped to carry that baby to birth...well, that's inflammatory and offensive to me.
Let me rephrase my response, by drawing out the problem with your entire argument:
Liberals are also anti-abortion.
Dissent Protects Democracy.
April 19, 2007 3:30 PM | Reply | Permalink
Since you are obsessed with semantics, let me reject the word "moderate" on the issue of abortion. This is an issue about life and it is an issue about choice. I agree that "choice" doesn't adequately describe the issue but it is not an entirely dishonest word either. It acknowledges that decision is unavoidable. "Moderate" is dishonest. You are never a little bit pregnant and the fetus is either born or it is not.
What "moderate" tends to mean in practice is that middle class "moderate" suburbanites get to have abortions but young, poor, vulnerable and rural women do not. There is nothing moderate about that kind of policy choice.
April 19, 2007 3:49 PM | Reply | Permalink
Fact not fiction.
Your argument about nomenclature nevertheless has some validity, Ben.
Just for clarity, I propose "slavery" for your side and "anti-slavery" for liberals.
Always glad to help out.
Best, Terry
April 20, 2007 1:25 AM | Reply | Permalink
I think there is a continuum of increasing personhood from conception to newborn. The abortion debate it seems to me is whether the value of that personhood ever reaches the point where it overrides a woman’s desire not to give birth.
Those who argue that a fetus just before birth is no more valuable than a bunch of cancer cells and suddenly valuable enough to be protected by sever criminal sanctions right after birth, undermine their position. Better to argue that even the value of the life of a newborn does not override the desire of a woman not to give birth.
April 20, 2007 4:55 AM | Reply | Permalink
That's not my understanding. The Catholic faith places the 'newlife' as the priority over the mother, who is deemed as having had an opportunity for life. I recall this being the dominant protocol in Catholic hospitals. As a child my mother almost died during childbirth and what I remember most vividly as a girlchild was that the physician came out and told my father that he could not save both, and they asked which would he like for him to save. My dad said 'my mom'...had he chosen otherwise that would have been her fate as well. This was most startling to me, to know that my spouse would have that type of power over my life once I was pregnant. My dad when he repeated the story always said he chose my mom, because he did not want to raise 5 kids by himself. I often wondered if he had no children or only one child that was a daughter and the infant was a son, would they have been raised motherless.
The larger issue here though is that the Catholic faith does not value a female's life. This is consistent with the majority opinion as they are all primarilyCatholics, who made no exception on the basis of health for the female to live.
Women in this country do not have to simply fear it is a life or death decision when it comes to abortion but the act of childbirth is as well.
Men want control of our uterus!! And if they cannot have it, they will kill us in pursuit of acquiring that absolute power.
April 20, 2007 5:14 AM | Reply | Permalink
There certainly is a moderate position on abortion. How about unrestricted abortion on demand during the first trimester only. That is somewhere between no abortion after conception and unrestricted abortion of a fully formed fetus just before birth.
Women have an adequate opportunity to make a choice and those who think a fully formed fetus is the equivalent of a baby can prevent its killing.
April 20, 2007 5:17 AM | Reply | Permalink
Those who argue that a fetus just before birth is no more valuable than a bunch of cancer cells
Yes, I fully condemn those who think an abortion is appropriate, like, the day before a woman should give birth.
Why didn't you also comment here that liberals love abortions, too? And we support abortion-on-demand?You know, while you're pulling out all the strawmen and all...
Our obligation is to define the liberty of all, not to mandate our own moral code. -- SCOTUS that was....
April 20, 2007 5:19 AM | Reply | Permalink
I have to agree with Ben on this.
As soon as I hear "anti-choice" I know I am dealing with a zealot that cannot be reasoned with and I tune them out.
April 20, 2007 5:24 AM | Reply | Permalink
There are times when it might be appropriate to sacrifice one's principles for the sake of the greater good. However, if you do that too easily then they're not really one's principles. I would suggest that civility and politeness are important principles to adhere to, and that it actually makes "victory" more difficult to achieve by sacrificing these principles than less difficult.
I do not believe people are rationally choosing to abandon these principles for the sake of ensuring fundamental rights but that they are being emotionally blinded by the "other" side into making the disastrous choice to abandon these principles. In other words, I think that when you label the other side "anti-choice" you are actually helping them more than you are hurting them, by turning those who might otherwise be influenced by your arguments against you.
Don't let them dictate how civil you will be.
April 20, 2007 5:34 AM | Reply | Permalink
I must point out that being of the opinion that there is not a right to an abortion guaranteed in the constitution does not necessarily mean that one is opposed to legal abortions.
Is Thomas really opposed to “choice” or is he merely being true to his interpretation of the constitution or both?
April 20, 2007 5:36 AM | Reply | Permalink
If you really believe this, then you have allowed your emotions to blind you to the truth. As others have pointed out, one "moderate" position is that there are times when an abortion is an appropriate choice and times when it is now. Your definition of "moderate" is 10x more offensive than the use of the term "anti-choice" that I was (politely) debating earlier.
It makes it seem like you're actually pro-life and trying to parody the pro-choice platform. If you're not trying to parody the pro-choice platform, then you really need to realize that your arguments would make excellent "cannon fodder" for the pro-life movement. Are you even trying to help or have you given up completely?
April 20, 2007 5:40 AM | Reply | Permalink
If you think ignorance is a strong position from which to wage this war, then those arguments will be incredibly helpful.
I'm really amazed at the number of people posting in this thread who don't seem to realize that they're allowing the actions of a minority to dictate how they perceive the majority. You're allowing them to win the war by persisting in such falsehoods.
April 20, 2007 5:44 AM | Reply | Permalink
That isn't moderate at all.
You can't possibly get more extreme than demanding a woman give up her life or health rather than having an abortion. How do you justify the demand for delivery of a monstrosity that may live for only a few days in extreme pain? What about a young girl raped by her father?
This isn't moderation. It is upper class entitlement. Those with the funds will not be denied.
Best, Terry
April 20, 2007 5:46 AM | Reply | Permalink
And I would love to see you produce any evidence that it helps even one iota. It makes you feel better to say it, but you're helping the other side more then your hurting them when you make such an argument, as you encourage those who are undecided to ignore whatever insightful arguments you do have to make.
Here's one piece of evidence, however: I'm a "moderate", and I find that it turns me off from your argument. Being in the sciences, I also know many other moderates who feel likewise.
April 20, 2007 5:50 AM | Reply | Permalink
Benhocking,
If you have a position, why not state it plainly instead of deriding others taking a principled stand?
I have stated my position as plainly as I could.
The government has no business dictating to women on religious grounds. It is particularly repugnant to have decisions on abortion made on the basis of funding.
What lies do you think I am perpetrating? Just say it. Then we can discuss it.
Best, Terry
April 20, 2007 5:54 AM | Reply | Permalink
Liberals exist only to the same degree that ideal gases exist. They are prototypes, not real people. If you toe the entire "liberal" line (whatever that might be) to the absolute level, then you're probably not doing much thinking for yourself. (And all of this is true for "conservatives" as well.) That said, I am predominantly liberal.
Your simple way of describing the world glosses over entire regions of nuance, and these nuances are important to a lot of people.
"Pro-life" is not any more accurate than "anti-choice", but it is a label that people apply to themselves. One could argue that certain derogatory terms for race are no less "accurate" than more polite terms. However, they are offensive and should therefore not be used. Communication is not just about the accuracy of ones terms - communication is also about convincing people of the validity of your ideas. Offending people is typically (but not always) ineffective.
"Pro-choice" is also no less accurate than "anti-life". Just as with the "pro-life"/"anti-choice" labels, it is generally understood that the choice in question is the choice to have an abortion and the life in question is the life of the fetus. Some people value the life of the fetus over the choice of the woman and others value the choice of the woman over the life of the fetus. Just as you would rightly argue (presumably) that you do value the life of the fetus, but you value the choice of the woman more, I think it's quite rational for you to believe that at least some people who identify as "pro-life" do value the choice of the woman but value the life of the fetus more.
I hope that makes sense and that you actually care, because I'm beginning to suspect that I'm greatly wasting my time