Roe v The Constitution
Published January 02, 2005
George Will published an especially interesting column today carefully distinguishing the difference between the issue of the judicial wisdom of the Roe decision as distinctly different from the issue of legal abortion.
He cast the column in the form of a proposed speech for President Bush. He began the speech with a conciliatory gesture with which I disagree vehemently, and which nicely encapsulates just the main type of way in which I sometimes find myself diverging from Mr Will's usually wise analysis. "On the other hand, the orderly development of constitutional law requires that justices be generally disposed to respect precedents, even dubious ones, if they have been repeatedly reaffirmed for decades." So we should accept bad, injurious and unconstitutional law simply because they've been doing it that way for 20 or 30 years? That is SO wrong.
On the other hand, Will makes a particularly sharp demonstration of the purely legally arbitrary nature of the Roe decision, one of the plainest and most perfect demonstrations of the legal absurdity of Roe ever:
Notice the language of 'trimesters.' How is that demarcation grounded in the text, structure or previous construings of the Constitution? Ask yourself: What would constitutional law pertaining to abortion be if the number of months in the gestation of an infant were a prime number — say, seven or eleven? That the court spun different degrees of abortion rights from the fact that nine is divisible by three reveals that whatever the court was doing was not constitutional reasoning.
In short then, opposing the Roe decision is NOT equivalent to opposing legal abortion. Nor will the inevitable and just overturning of this ridiculous excuse for a legal opinion make abortion illegal. It will just kick the issue back down to the state level where it belongs.
- Roe v The Constitution
- Published: January 02, 2005
- Type:
- Section: Politics
- Filed Under: Books: Politics and Affairs, Politics: Law and Rights
- Writer: Al Barger
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The question is, does Congress have any constitutional power to do so?
The answer is NO. When the court goes so far as to overturn their own institutional decision making on the issue in Roe, it's unlikely that they'll let Congress just move in. They have no more right than the Supreme Court to make abortion law.
And how would they even TRY to make a case that there are significant interstate commerce issues with abortion?
Besides which, the overturning of Roe will likely be one of the hardest political hits the Republicans take in this generation. Republicans and conservative types have been able to make pro-life postures all day and night, which could be discounted by many because Roe had made those postures pretty much purely symbolic.
Let's see what those pro-life Republicans do with majorities in most legislatures- and the ball back in their court.
Congress has the power to amend the Constitution in order to overturn Roe, but not the votes. The "Right to Life" amendment could not pass Congress, let alone 2/3s of the states.
I agree with Mr Barger. Uncompromising (un-nuanced) support for Roe has forced Democrats to also support late-term abortions, which are very unpopular with the electorate. Meanwhile Roe shields Republican legislators, state and national, from taking any difficult positions on the issue. It is not a difficult political calculation for Republican legislators to oppose late-term abortions. Without Roe, their choices would be much harder to make.
I believe the Dems could make the first move. If they gave up their support for later-term abortions, they could appeal to more of the electorate on this issue, but they are not likely do so out of fear of antagonizing the feminist lobby groups.
Some of them are starting to count the cost of their party's extreme position.
That the court spun different degrees of abortion rights from the fact that nine is divisible by three reveals that whatever the court was doing was not constitutional reasoning.
What was the constitutional reasoning behind "three fifths", and what makes that reasoning so special?
They have no more right than the Supreme Court to make abortion law.
That's nonsense, Al. Of course they have more of a right -- they're a legislature, remember? Making law is what they do. If the Court were to overrule Roe and couch its decision in terms of majoritarianism without pushing the federalism angle, it would give Congress a green light (or at least a yellow light) to legislate on the issue.
As I say, the commerce justification would be tough but it's not impossible. For most of the twentieth century, Congress hung all sorts of non-economic legislation on the Commerce Clause and, until the Lopez decision, the Court never uttered a peep. The playing field is different now but, like I say, they might not even need the commerce power to get an anti-abortion law through. Section 5 of the Fourteenth Amendment is a much stronger weapon.
I completely agree about the demise of Roe being a disaster for Republicans, though. No matter what the GOP does in the aftermath, it loses votes.
Since the real-life results of Roe have been moderate and generally felicitous all the way around politically, it isn't going to change even if the constitutional grounding is less granitic than some might like. A woman's right to bodily privacy is hardly the only right derived from the Constitution via interpretation
The math (pseudo-math?) in this real-life issue, reminds me of the 1924 Russian sci-fi novel "We" by Yevgeny Zamyatin - worthy of a full review itself. One quote should suffice to illustrate the futility of comparing people to equations and thirds of numbers
"I am completely bewildered. Yesterday, at the very moment when I thought that everything was already disentangled, that all the X's were found, new unknown quantities appeared in my equation."
"Of course, it's clear: in order to determine the true value of a function it is necessary to take it to its ultimate limit ... Hence, if we designate love as 'L' and death as 'D,' then L = f(D). In other words, love and death --- yes, exactly, exactly."
"Every equation, every formula in the surface world has its corresponding curve or body. But for irrational formulas, for my square root of -1, we know of no corresponding bodies, we have never seen them ... But the horror of it is that these invisible bodies exist ..."
Babies are like those 'invisible bodies'. Enough women from Asia/ the Middle East will tell you that if you legislate away their rights, backdoor/backroom abortions multiply, forming a new, complex equation of life and death.
Since the real-life results of Roe have been moderate and generally felicitous all the way around politically, it isn't going to change
If the Court boots the issue back to the people, the religious nuts are going to demand action. I can easily imagine Falwell and company issuing the following ultimatum to Bush and the Repubs: "If you don't pass a federal anti-abortion law, we stay home in 2008." Of course, if Bush responds and the GOP rams a law through, then all of the centrist Democrats who voted for Bush this time will head back to the left. Either way, disaster. But I wouldn't be so sure they'll side with you and stick with the status quo. Their hands might be forced.
I can see that on the electoral end NC, but the Court does still have the appointive buffer, and the electorate as a whole has consistently favored access to some form of legal abortion and I believe the Court is sensitive to that.
I agree also that the absolute right to abortion position is as alienating to the majority as the absolute prohibition position
RE: comment #4 The 3/5ths number is absolutely written in the Constitution, which was ratified by the states. Of course this 3/5s of a person business was a very bad thing, but it wasn't simply made up by the nine members of the court.
Re: comment #5 they have more of a right
No they don't. Being a legislature does not mean that they get to make up just whatever kind of laws they want about whatever they want. They have very strictly limited areas of jurisdiction laid out in the Constitution, and there's nothing in the Constitution anywhere near to giving them authority to make laws about abortion anymore than there's anything giving the Supreme Court the right to make up abortion laws.
there's nothing in the Constitution anywhere near to giving them authority to make laws about abortion
I say again: Section 5.
RE: comment #4 The 3/5ths number is absolutely written in the Constitution, which was ratified by the states. Of course this 3/5s of a person business was a very bad thing, but it wasn't simply made up by the nine members of the court.
You didn't answer the question. What makes a number that was made up for the Constitution any less arbitrary than a number made up for a Supreme Court decision?
The 3/5s number was just as arbitrary, but it was arrived at legitimately by process. The authors of the Constitution were starting out with a blank piece of paper and going from there. To make all the arbitrary things they came up with legitimate, they had to ratify them through the elected legislatures of all the states.
The Supreme Court works on different principles. As the principle non-elective body of the government, they are supposedly strictly limited to the interpretation and arbitration of the work of the other branches, all limited by the original legal charter for all the branches- the US Constitution. They don't get to make up numbers, just to interpret them.
Perhaps the 3/5ths decision was influenced by language (by definition, it's a fetus only after 18 weeks; prior to that, it's an embryo or blastocyst.)
This is a tough issue, in part because neither major party can claim 100% alliance of their members with their official position.
There are plenty of Republicans who agree (quietly, perhaps, and in the privacy of the voting booth) with Roe vs Wade.
DrPat, the 3/5s number was a compromise number agreed on in the original drafting of the Constitution. It was that Negroes would count as 3/5s of a person for purposes of the census, and apportionment of congressional delegates. (Indians didn't count at all.)
States with lots of lots of slaves wanted them counted in the census so that they would get more influence in the Congress. Other states said that since they couldn't vote and were indeed considered mere property, they shouldn't count in the census at all. Counting them as 3/5s was the ugly compromise.
Sorry, Al, I meant to write 3/9ths... (as in the first trimester).
I read the editorial by Will, though, and I agree to disagree (with you) in his proposed conciliatory gesture.
Does that count?
You disagree with me? Are you a communist, sir? Perhaps a few months at Gitmo would improve your thinking.
It was needful to explain the 3/5s thing anyway, since it had become a focal point in the discussion.
LOL! Yep, along with you I disagreed with George Will's proposed conciliatory gesture. There, that's what I meant to say.
I can only plead Monday in my defense.
All right then, DrPat, I guess we take your name off The List.
In tremolo: Ooh! Is it a good list? or a bad list?
I've never been to Cuba... (wistfully)
Alright Mr. Smarty Pants, you're now on Double Secret Probation.
Add your comment, speak your mind
(Or ping: http://blogcritics.org/mt/tb/23853)
Not necessarily. If abortion is put back in play, social conservatives will want the Republican majorities in the House and Senate to pre-empt the blue states by prohibiting it nationwide. The question is, does Congress have any constitutional power to do so?
There are only two options as far as I can see. One is the commerce power, but whether the Court would be willing to take an expansive view of the Commerce Clause so soon after its decision in U.S. v. Lopez is iffy. The other, better option is Section 5 of the Fourteenth Amendment. Congress could take the position that a federal anti-abortion law is necessary to prevent unborn children from being deprived of life without due process of law per Section 1. The Court has taken a dim view of this power too in recent years (see City of Boerne v. Flores) but a coast-to-coast abortion ban will sweeten the pot for its socially conservative members.