The Atlantic Monthly | June 2006
The Day After Roe
If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts in the American political landscape not seen since the civil-rights movement—or perhaps even the Civil War
by Jeffrey Rosen
.....
W ith the recent appointment by President Bush of two Supreme Court justices, John G. Roberts Jr. and Samuel A. Alito Jr., interest groups on the left and the right are preparing for the end of Roe v. Wade. Leaders in both camps believe that the demise of Roe may occur sooner rather than later, and they have different scenarios for how the coup de grâce might be delivered. Imagine, for example, that Justice John Paul Stevens, having just turned eighty-six, decides to retire from the Supreme Court in July. President Bush, under pressure to appoint a reliable conservative to mobilize his base for the midterm elections, nominates Judge Edith Jones of Texas, a fire-breathing social conservative who has written that “one may fervently hope” courts will reconsider Roe v. Wade. Outraged Senate Democrats then mount a filibuster, and the Republicans respond with the so-called nuclear option, eliminating the filibuster for judicial nominations by a simple majority vote. Jones is then confirmed along party lines, fifty-five to forty-five. She joins the Court in October, just in time to hear a constitutional challenge to the federal ban on “partial-birth” abortions that the justices have already agreed to review. In June of next year, the Supreme Court hands down its decision. By a 5–4 vote, the justices not only uphold the right of Congress and the states to ban partial-birth abortions, which often occur late in pregnancy, but also overturn Roe v. Wade, thus allowing the states to ban or restrict abortions from the very beginning of pregnancy.
No one except Justice Stevens, of course, knows whether he is inclined to retire, and even if he did, no one knows whether the five votes would emerge to overturn Roe cleanly. (For what it’s worth, I wouldn’t bet on Chief Justice Roberts’s siding unequivocally with the anti-Roe forces.) But serious people on both sides of the abortion divide are girding themselves for the fights in Congress and the state legislatures that they believe will erupt once Roe is finally uprooted. And states like South Dakota are so convinced that Roe’s demise is imminent that they are racing to pass sweeping bans on abortion designed to encourage the Supreme Court to administer the last rites. So let’s assume, for the sake of argument, that the activists are correct and the long-anticipated moment has finally come to pass: Roe v. Wade is no longer on the books. What happens next?
The results might not be what you expect. The day after Roe fell, of course, abortion would be neither legal nor illegal throughout the United States. Instead, the states and Congress would be free to ban, protect, or regulate abortion as they saw fit. But in many of the fifty states, and ultimately in Congress, the overturning of Roe would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War. A careful look at how the pieces of the Rubik’s Cube might begin to turn the day after Roe suggests that access to abortion wouldn’t necessarily become less widely available than it is now; that the Democrats could gain politically, perhaps even seizing the White House and both chambers of Congress; and that, when the dust settles, in five or ten or thirty years, early-term abortions would be protected and late-term ones restricted.
Throughout American history, the Supreme Court, often derided as the least democratic branch of the federal government, has, paradoxically, best maintained its legitimacy when it has functioned as the most democratic branch—that is, when it has deferred to the constitutional views of Congress, the president, and the country as a whole. For all the invective initially generated by Brown v. Board of Education, which outlawed school segregation, the decision was supported by more than half of the country when it was handed down in 1954, a time when southern minorities were blocking Congress from enacting the civil-rights legislation that the public supported. Many of the most famous decisions by the Warren, Burger, and Rehnquist Courts similarly reflected the popular will: a survey of eighty-eight civil-rights and civil-liberties cases between 1953 and 1994 found that, in most instances, the Supreme Court was generally in sync with public opinion. When public opinion opposed a particular rights claim, so, by and large, did the Supreme Court.
Roe v. Wade was an entirely different matter. The Court’s decision, in 1973, to strike down abortion laws in forty-six states and the District of Columbia was high-handed, and represents one of the few times in history that the Court leaped ahead of a national consensus. In every Gallup Poll since soon after Roe was decided, small minorities of Americans—in the 20 percent range on each side—have said that abortion should be always illegal or always legal, while a large majority has said it should be legal under some circumstances and especially at the beginning of pregnancy. Later, the Court continued to ignore popular opinion when it struck down, in the name of Roe, many practices enthusiastically supported by the public, including spousal-notification laws, parental-consent laws, and informed-consent requirements. Critics of Roe v. Wade often compare it to the Dred Scott decision on slavery before the Civil War. In both cases, the Supreme Court overturned political compromises that national majorities supported, provoking dramatic political backlashes.
The Court seemed to align itself better with public opinion when it reaffirmed Roe in the 1992 Planned Parenthood v. Casey decision: abortions that take place before fetal viability (about twenty-four weeks) had to be protected, the Court declared, but those after viability could be restricted. And yet the Court departed from this moderate and widely accepted compromise eight years later, in Stenbergv. Carhart, when it struck down laws in thirty-one states banning partial-birth abortion—laws that are currently supported, according to a recent Gallup Poll, by 70 percent of the American people. If the Court decides to reverse Stenberg next year and to uphold the federal law banning partial-birth abortions, it might still preserve the core protections of Roe v. Wade for choice early in pregnancy. If so, it would express the sentiments of the majority of Americans on abortion far more faithfully than the current White House and Congress are likely to do.
If, on the other hand, the Court does seize the opportunity to overturn Roe, it would at least allow national majorities to eventually make their constitutional views about abortion clear. The Court has served itself well in the past by upholding state and federal laws in the face of uncertainty about the constitutional views of the American people, and by deferring to those of the other branches of government, rather than blindly following the polls. Still, if a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come, and the political landscape could be transformed beyond recognition. What follows is a guide to the battles that might break out in Congress, the states, the White House, and the courts after Roe falls.
I: The States
T he day after Roe, the handful of state abortion bans that were passed before Roe but never formally repealed would arguably spring back to life. According to Clarke Forsythe, of Americans United for Life, there are eleven state laws already on the books that would ban abortion throughout pregnancy without making exceptions for threats to a woman’s health. (Most have narrow exceptions allowing abortion in cases where the life of the mother is seriously threatened; some also include exceptions for rape or incest.) In at least seven of these eleven states (Arkansas, Louisiana, Michigan, Oklahoma, South Dakota, Texas, and Wisconsin), the draconian abortion bans have never been blocked by state courts as violations of state constitutional rights, and therefore could, in theory, be immediately enforced. If the governor or attorney general in any of these states announced an intention to support these miraculously rejuvenated abortion bans, and if state courts agreed that the bans hadn’t been implicitly repealed, abortions might indeed be outlawed in most circumstances.
Even in the most conservative states, however, the overturning of Roe would put any pro-life governor or attorney general in a tight spot. For the truth is that draconian state bans on abortion that failed to provide widely supported exceptions would likely be unpopular with majorities in all the states in question. According to Clyde Wilcox, a Georgetown University professor who has studied public opinion on abortion, there would be majority opposition to any law that failed to include these exceptions, even in the most conservative states. “My guess is that any state that has a total prohibition on abortion—that can’t stand,” Wilcox told me. “If you look at the polls, you’ll never get more than 15 or 20 percent that would ban all abortions. Across the board, around 75 percent are in favor of exceptions for rape, incest, and fetal defect, as well as the life and health of the mother. Even in the most conservative states, that will be over 50 percent.” In other words, there’s less variation among states when it comes to public attitudes about abortion than you might expect. In national Gallup Polls over the last thirty years, two-thirds of Americans have consistently said that abortion should be legal in the first trimester of pregnancy, although in the second trimester, the number plummets to 25 percent, and in the third trimester it falls further, to 10 percent. And since 1973, according to polls conducted by the National Opinion Research Center, overwhelming majorities—between 80 and 90 percent—have said that abortion should be available to a woman if her health is seriously endangered by the pregnancy, or in cases of rape or risk of serious fetal defects. Whether in conservative states like Texas, swing states like Ohio and Pennsylvania, or liberal states like California, public support for access to abortion in cases of rape, fetal defect, and threats to a woman’s health, as well as for restrictions on abortion generally, is overwhelming.
The current abortion drama in South Dakota provides the best predictor of what might happen if a handful of other states try to resurrect old abortion bans, or pass new ones, that fail to include exceptions for rape, incest, and serious threats to a woman’s health. In March, South Dakota became the first state since Roe was decided to pass a law that bans all abortions except when a woman’s life is seriously threatened. The law, which contains no other exceptions, was opposed by many national pro-life organizations, which contended that it went too far. And their misgivings proved to be prescient. As soon as the ink was dry on the South Dakota law, a backlash started to develop. A group called Focus South Dakota began collecting signatures for a recall referendum that seeks to place the abortion ban on the ballot in November, giving the citizens of the state an opportunity to repeal it. That group’s own statewide polls, at least, suggest that the recall referendum has a good chance of succeeding. In its survey of registered South Dakota voters, taken a week after the abortion ban passed, 57 percent said they would vote to repeal the ban, and 33 percent said they would vote to uphold it. According to Jim Robinson, who conducted the poll for Focus South Dakota, these results are entirely consistent with the responses of South Dakota voters over the past two decades. “The number of voters who say abortion shouldn’t be legal under any circumstances has stayed pretty much the same for years, at about 15 percent,” Robinson told me. “You can add another 20 percent who think there should only be an exception for the life of the mother. We’ve known for some time that this sort of ban would be opposed in the state two to one, which is pretty much the same as the national numbers. But because one party is in control here, you have an extreme minority who came to dominate the legislature and drank their own Kool-Aid.”
Since the South Dakota ban passed, the approval rating of the governor, Mike Rounds, has dropped by 12 percentage points, and several state legislators have announced their intention to switch parties from Republican to Democrat. Legislators who voted for the ban, including a few Democrats, already face primary challenges from abortion moderates. Robert Burns, a political-science professor at South Dakota State University, thinks the backlash against the South Dakota law could precipitate a political realignment in the state, helping Democrats in state senate elections as well as influencing the gubernatorial and congressional elections. Burns suggests that Republican pro-choice voters, who had been willing to support pro-life legislators as long as the disagreement seemed symbolic, may desert the party. And if South Dakota–style bans on abortion were imposed in other states, the evidence is that they would be equally unpopular. Polls taken in March by organizations ranging from Pew to Fox News produced similar findings: by about a 59 to 36 percent margin, voters oppose a South Dakota–style ban in their own state. And 62 percent in the Fox News poll said that they supported the right to choose if the pregnancy “risks the mother’s mental health.”
The day after Roe v. Wade falls, members of the pro-life movement will face a choice: Will they heed the lessons of South Dakota and include at least a physical-health exception in any abortion law, or will they doom themselves to political defeat? This choice could split the movement in two, and legislatures in some pro-life states might prefer principled failure to pragmatic accommodation. Not all of the seven states where the pre-Roe abortion bans are lurking have a popular-recall procedure. This means there might be some states where most citizens would oppose the rejuvenated abortion ban but a defiant state legislature would refuse to repeal it. This is a recipe for voter revolt. In other states—such as Michigan and Arkansas—pro-life legislators could try to head off a recall referendum by modifying the resurrected abortion bans to reflect the will of the voters. In the end, few of the seven states that reconsidered their old abortion bans would be likely to settle on laws as extreme as South Dakota’s. After the Supreme Court seemed to be on the verge of overturning Roe, in 1989, in Webster v. Reproductive Health Services, Louisiana introduced a bill that would ban abortion with exceptions for threats to the woman’s life but not for rape or incest. The governor vetoed the bill, and rape and incest exceptions were finally added. But even rape and incest exceptions are too narrow to satisfy voters in most states, who support some kind of health exception as well.
The day after Roe, a handful of states would try not only to revive old abortion bans but also to pass new ones. “The real battles will occur in the red states, and they will be knock-down, drag-out battles,” says the Republican consultant Whit Ayres. In the wake of the South Dakota law, a number of state legislatures (including those in Alabama, Indiana, Georgia, Kentucky, Missouri, Mississippi, Ohio, Oklahoma, Tennessee, and West Virginia) are now considering extreme bills that would make it a crime for doctors to perform abortions unless the life of the mother is threatened, with no other exceptions. The Mississippi ban has already passed the state house of representatives, which added exceptions for rape and incest, and Governor Haley Barbour has pledged to sign it if it passes the state senate. And yet, the day after Roe, even pro-life legislators would have to think twice about passing abortion bans without the health exceptions that a majority of the public clearly favors. These representatives, unable to depend on the bans being struck down by the courts, would face the certainty of a voter rebellion if they defied public sentiment.
In short, the overturning of Roe would put pro-life legislators in an agonizing position: many are inalterably opposed to including an exception for threats to women’s health; they argue that these exceptions have been broadly interpreted by doctors and courts in the past to include psychological as well as physical health, in effect subverting the bans and making abortions available throughout pregnancy. “People in the pro-life movement are opposed to health exceptions in any form,” the pro-life scholar Paul Linton told me. “On the other hand, people will have to consider whether a narrow physical health exception might be a political necessity.” If any of these states now pondering extreme bills did, in fact, pass broad bans without a health exception, they should expect voter insurrections similar to the one now taking shape in South Dakota. By contrast, if health exceptions were included, although abortions might be formally restricted in some states from the beginning of pregnancy—a significant change in the law—elective abortions might, in practice, remain widely available for those who were willing to negotiate the procedural hurdles involved in proving a threat to their mental or physical health.
The day after Roe, of course, there would be just as much mobilization in blue states to protect abortion as there would be in red states to restrict it. Even without Roe v. Wade, according to the Center for Reproductive Rights, a woman’s right to choose would be secure in about twenty-three states. Six of these (California, Connecticut, Maine, Maryland, Nevada, and Washington) already have laws on the books protecting choice throughout pregnancy. In ten others (Alaska, California, Florida, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Tennessee, and West Virginia), state courts have ruled that their state constitutions protect abortion rights broadly throughout pregnancy. And in seven more (Hawaii, Iowa, New Hampshire, New York, Oregon, Vermont, and Wyoming), the political climate is sympathetic to choice, and citizens are likely to demand strong new laws protecting abortion.
The day after Roe, pro-choice activists in the most liberal states would have to be careful not to overreach, to avoid duplicating the errors of their pro-life counterparts in the most conservative states. If, for example, pro-choice activists make clear to state legislators in Iowa that they won’t accept any state law that imposes restrictions on late-term, partial-birth abortions, which are intensely unpopular throughout the country, they may alienate the moderate middle of the electorate. But regardless of potential self-inflicted wounds by Democratic activists, the right to choose in the twenty-three bedrock pro-choice states is likely to remain broadly available throughout pregnancy.
It’s conceivable that a year or two after Roe, as many as a dozen red states would adopt draconian restrictions on abortions throughout pregnancy, while a larger group of more populous blue states would offer the same access to abortion as they do now. What effect would this have on the national abortion rate? “My guess is that no more than a dozen states could sustain a total abortion ban, and these are principally states where virtually no legal abortions are performed today,” says Gerald Rosenberg, a University of Chicago professor who has studied the effects of Roe on abortion rates. “That doesn’t mean that individual lives wouldn’t be severely impacted, but in terms of national numbers, the effect would be small.” For example, if the South Dakota ban survived the overturning of Roe, the national impact would be negligible. In 2000, fewer than 1,000 women obtained abortions in South Dakota, representing one-tenth of 1 percent of all the abortions performed in the United States. That year, there were only two abortion providers in the state, and about 30 percent of South Dakota residents who sought abortions traveled to other states, such as Colorado and Nebraska. If the South Dakota abortion ban took effect, that percentage would certainly rise. But while women in the most conservative states would increasingly travel for abortions in a post-Roe world, the fact is they have been traveling for abortions throughout the three decades Roe has been on the books. In 2000, according to a report by the Guttmacher Institute, a pro-choice research organization, 87 percent of all counties in the United States had no abortion providers, one-third of all American women lived in these counties, and 25 percent of all the women who obtained abortions traveled at least fifty miles to do so. “In the past, the impact of some state restrictions that tried to limit access to abortion was primarily to delay rather than prevent abortions, because women can travel to another state,” Lawrence B. Finer of the Guttmacher Institute told me. “But if more and more states pass such restrictions, it becomes harder to travel, which could have a disproportionate impact on poorer women.”
A dozen state abortion bans might not dramatically change the national abortion rate, but they would dramatically change state and national politics. After Roe, women with disposable incomes would still be able to travel to have an abortion. Poor women, on the other hand, might be forced to seek abortions from illegal local providers. If television footage began to show arrests of illegal abortion doctors, the political framework for the abortion debate would almost certainly be transformed. “With Roe on the books, the focus of the abortion debate has tended to be on issues like partial-birth abortion, which is a huge political winner for Republicans,” says Michael Klarman of the University of Virginia, a scholar of the Court and public opinion. “If you take Roe off the books, the focus will be on poor women in a handful of states trying to get illegal abortions, and these highly salient examples are going to benefit the other side.”
A year or so after Roe, state legislators in a large group of swing states would probably remain undecided about precisely which abortion regulations to adopt. This can only mean they would be consumed by the abortion debate. The extraordinary spectacle of fifty state legislatures fighting over the question of when life begins would rivet the nation and overwhelm the state legislators themselves, many of whom are part-time representatives with little aptitude or inclination for debating the finer points of ontology. “My single biggest concern is that abortion politics will simply dominate state legislatures in many states, even those in which there’s no majority for a criminalization strategy, in ways that will be very unpredictable and will distract policy makers from almost everything else,” says Ed Kilgore of the moderate Democratic Leadership Council. “In swing states, Democrats would be under pressure to sponsor state legislation re-establishing the right to choose, and they’d have to make some hard choices about how extensive to make that. I’ve talked to a few state legislators, and everyone has expressed a sense of horror.”
Indeed, many Democrats would be forced to decide whether to ignore the demands of their pro-choice base and to support the kind of restrictions that both local and national majorities overwhelmingly endorse—such as twenty-four-hour waiting periods and parental- and even spousal- notification provisions. Bills such as the one recently debated in Mississippi requiring that women seeking abortions be offered an opportunity to view a sonogram are also likely to be popular: the pro-life movement has discovered that viewing an ultrasound of the fetus early in pregnancy may change the way some parents think about abortion. (My wife and I are expecting, and having viewed a sonogram of our twin babies at only twelve weeks I can attest to the emotional power of the experience.)
But the moment that voters in swing states began to think that their own right to choose early-term abortions was threatened, state politics could tip decisively in the pro-choice direction. In Virginia, for example, after the U.S. Supreme Court, in 1989, handed down Webster, a decision that suggested Roe v. Wade was within one vote of falling, voters in the next election chose as governor a Democrat, Doug Wilder, because he was pro-choice. In the aftermath of Roe, there might be even more dramatic backlashes in battleground states like Pennsylvania and Ohio, especially if their state legislatures passed more conservative restrictions than the political center supports. In the current U.S. Senate race in Pennsylvania, a pro-life Democrat and a pro-life Republican, Bob Casey and Rick Santorum, are running against each other; in a post-Roe world, however, pro-choice voters who tend to hold their noses and vote for social conservatives might look for pro-choice alternatives. But because of the pressures on both parties to pander to extremists in their bases, exacerbated by the polarizing effects of the Internet, one can envision a scenario in which neither Democrats nor Republicans would prove deft enough, in swing states, to capture the moderate center. In that case, third parties might emerge to step into the centrist void.
As the state electoral maps were thrown into chaos, Congress would come under increasing pressure to intervene. In the late 1960s, as Bill Stuntz of Harvard Law School notes, national opinion shifted after sensationalistic articles appeared in Newsweek and The Saturday Evening Post exaggerating, by at least a factor of ten, the number of deaths from botched illegal abortions. A year or two after Roe, a similarly galvanizing television image might mobilize women in swing states to take to the streets on behalf of the right to choose. “If a young woman who is raped gets pregnant and goes to a downscale abortion provider and dies from the infection, that becomes a huge story,” says Stuntz.
It’s hard to know precisely how soon after the fall of Roe a story about a botched abortion might capture the national imagination. But the moment pro-choice and swing voters perceived that their own right to choose was threatened, there would be increasingly urgent demands for a federal bill protecting the early-term choice that two-thirds of the country supports. If congressional Republicans failed to respond, or insisted on trying to ban early-term abortions instead, their intransigence could set in motion a national backlash that would make the response to Roe v. Wade itself look tame.
II. Congress
I f Roe falls next June, the House and Senate majority leaders will presumably be called to the White House the next day to discuss ways of preventing pro-life representatives and senators from introducing a draconian federal bill to ban abortions in nearly all circumstances. Given the tepid national support for a near or total ban, even among Republicans (only a narrow majority of whom believe that abortion should be illegal in most or all cases), the party leadership understands that an extreme federal ban has the potential to split the Republican coalition at the seams. “Many moderates within the Republican Party, and even some conservatives, bought into the pro-life position when there was no threat Roe would actually be overturned,” says Marshall Wittmann of the Democratic Leadership Council. “I think there are a lot of Republican moderate women and men—especially exurban and suburban women—who would be very queasy about this issue. GOP leaders would fear that they couldn’t hold the coalition together if abortion rights were truly threatened.”
Whether the majority leaders would be inclined or able to enforce party discipline and prevent a sweeping pro-life abortion bill from reaching the Senate and House floors in 2007 is anyone’s guess. As the Terri Schiavo debacle shows, both of the current leaders, Bill Frist and Dennis Hastert, are more concerned with mollifying their base than courting the center, and both have been willing to support socially conservative legislation that a majority of the public opposes. (Last year, in a CBS News poll, 82 percent of Americans said they disapproved of the decision by Congress and the president to intervene in the Schiavo case.) In the Senate, ardent pro-life Republicans, like Sam Brownback of Kansas, might well introduce a sweeping abortion ban, but pro-choice Republicans, like Arlen Specter, the chair of the Senate Judiciary Committee, would presumably prevent the bill from reaching the Senate floor.
If a draconian abortion ban did, however, make it out of the Judiciary Committee, there are a handful of other moderately pro-choice Republicans, such as Olympia Snowe and Lincoln Chafee, who would presumably break ranks to vote against it. Other pragmatic Republicans might try to coalesce around a less extreme abortion restriction that a majority of the Senate and the country could support, such as the Child Custody Protection Act, which has already passed the House and would criminalize the act of helping minors cross state lines to obtain an abortion without first complying with their home states’ mandatory notification law. Other moderately pro-life measures might include expanding the federal law that allows health-care companies to opt out, in certain circumstances, of Medicaid contracts that cover abortion services. Pro-life activists, of course, would be furious at a compromise like the Child Custody Protection Act, but the pragmatists might try to appease them by waving the banner of federalism and claiming that the abortion issue should ultimately be settled in the states. “It’s hard to imagine Congress moving very quickly or reaching a broad consensus on abortion policy,” says Whit Ayres, the Republican consultant. “I think the ultimate decision will be pushed away from the extremes.”
If efforts at compromise failed, however, and a sweeping abortion ban somehow made it to the Senate floor, the Democrats might mount a filibuster (assuming it was still available for ordinary legislation). But whether or not the federal abortion ban progresses very far, the mere threat of its passage might be enough to push the Democrats over the edge in the 2008 elections, helping them to recapture at least the Senate and perhaps even the House. Pro-life voters are currently better mobilized than their pro-choice opponents; surveys have shown that pro-life voters rank a candidate’s position on abortion among their top three concerns, as opposed to pro-choice voters, who rank it substantially lower. But the day after Roe, those priorities would undoubtedly change. Suburban Republican women, a number of whom are fiscally conservative and socially liberal, might switch parties in many states, giving Democrats the margin of victory they need to win the Senate in a country virtually at parity. Virginia, for example, currently has two Republican senators, John Warner and George Allen, but it’s not clear how either would do in a race where swing voters were energized by the issue of choice. (Even the ardently pro-life Allen told Newsweek that he would have vetoed a South Dakota–style law if he were still governor of Virginia, and declared on Meet the Press that the federal government shouldn’t be in the business of passing abortion laws, but should instead leave the issue to the states.) Throughout the South, moderate Democrats in the mode of John Edwards might beat conservative pro-life Republicans in enough states to shift the Senate.
Even in the House, where there are fewer competitive seats due to gerrymandering, the rise of abortion moderates could give the Democrats a fighting chance to gain the seventeen seats necessary to win a majority. “Gerrymandering depends on existing voting patterns holding, and this would change existing voting patterns,” says Bill Stuntz of Harvard Law School. “You have a lot of sixty-forty districts, but if national public opinion on abortion shifted, at some point Democrats would win a lot of seats that Republicans have been winning by more than ten points, just as Republicans did when they took the House in 1994.”
It’s entirely possible, therefore, that if Roe were overturned, both the House and the Senate would be Democratic after the 2008 elections. What would happen next? The moment the new Congress was sworn in after a national election dominated by abortion, Democrats in both chambers would introduce a federal bill to codify the protections of Roe v. Wade. It might look very much like the Freedom of Choice Act, which has languished in Congress for the past decade. That act would protect a woman’s right to choose before fetal viability and allow states to ban abortion after fetal viability, unless the life or health of the mother is threatened. The Freedom of Choice Act was introduced in the Democratic Congress that followed Bill Clinton’s election in 1992 and was defeated in part because pro-choice extremists insisted that it didn’t go far enough in protecting late-term abortions. The more moderate Democrats elected after the overturning of Roe, one hopes, would not make the same mistake. If a Democratic Congress proposed the Freedom of Choice Act, moderate pro-choice Republicans in swing states, like Specter in Pennsylvania, would face tremendous pressure to support it. But even with some Republican support, it’s not certain that a Democratic Congress could muster the sixty votes necessary in the Senate to defeat a Republican filibuster (assuming, once again, that it still exists). NARAL Pro-Choice America estimates that in the current Congress, there are about fifty potentially pro-choice senators, thirty-three of them reliable and seventeen swing votes. Unless the election of 2008 were a Democratic sweep, a Republican minority might still be able to block a federal law protecting early-term abortion, even if a majority of the Senate and the country supported it. Or a Republican president could threaten to veto the Freedom of Choice Act. But if Roe is overturned, there may not be a Republican president.
III. The White House
I f Roe falls in June 2007, abortion will almost certainly become the central issue in the 2008 presidential election. And Republicans are already worrying about the political fallout. “We’d be blown away in the suburbs, and you wouldn’t see another Republican president for twenty years,” a pro-choice Republican congressman recently told Roll Call. Karl Rove has long dodged questions about whether he thinks Roe should be overturned, and Ken Mehlman, the head of the Republican National Committee, has refused to comment on the South Dakota law, making it clear that he’d rather talk about anything else. The fact that Electoral College battleground states, such as Ohio and Pennsylvania, are likely to be facing the fiercest state fights over abortion can’t be good news for the GOP.
Imagine what the effect of Roe’s demise might be on John McCain, the Republican senator who, although undeclared as a presidential candidate, seems, at the moment, to have the best chance of winning a general election. A recent bipartisan national poll found that McCain had a favorable rating from 65 percent of the respondents, as opposed to 46 percent for the Democratic front-runner, Hillary Clinton. Those who positively rated McCain crossed party lines and political ideologies, including 64 percent of conservatives, 67 percent of independents, and 67 percent of liberals. These impressive numbers could evaporate in an instant if Roe is overturned, because McCain is strongly pro-life, and he would have to tack even further to the right to win the Republican primaries in a post-Roe world. The GOP base is already wary of his stand on taxes and campaign finance. “He would stick with the pro-life part of the party, and it would hurt his chances of being elected,” says a former McCain aide. When asked by Newsweek whether he supported the South Dakota ban, McCain was palpably uncomfortable, saying he would support it if it were consistent with his long-standing position that abortion should be banned except in cases of rape and incest and to protect the mother’s life. But this position could cause swing voters, most of whom favor an exception for the mother’s health, to desert McCain in droves: suddenly he would look like a radical conservative rather than a moderate maverick. Without a reliable constituency on the right or the left, McCain’s candidacy might collapse.
Hillary Clinton, on the other hand, would benefit greatly from the demise of Roe. Her liberal credentials on social issues would reassure the Democratic base, which would demand pro-choice orthodoxy in the primaries, but looking toward the general election, Clinton has already begun to position herself as an abortion moderate. In a speech on Roe’s anniversary, last year, she emphasized that abortion is a “sad, even tragic choice to many, many women,” adding that government should “do more to educate and inform and provide assistance so that the choice guaranteed under our Constitution either does not ever have to be exercised or only in very rare circumstances.” (Her husband’s mantra on abortion—“safe, legal, and rare”—was more concise but similarly finessed.) Among Clinton’s potential Democratic primary opponents, perhaps Governor Mark Warner of Virginia would be even better equipped to capture the median voter’s position on abortion in a general election. But except for Rudolph Giuliani, no Republican candidate could plausibly impersonate an abortion centrist, and if Roe fell, Giuliani might have an even harder time than McCain satisfying the base in the Republican primaries.
So there’s a good chance, assuming Roe falls, that there will be a Democrat in the White House by 2009. If Congress, at that point, passed a Freedom of Choice Bill protecting early-term abortions, the president would sign it. And if Republicans attempted a filibuster, they might marginalize their party for decades to come. It’s possible for the president and Congress to resist the wishes of national majorities for a while, but not forever. For nearly forty years, a small group of southern Democratic senators prevented Congress from enacting civil-rights legislation, including anti-lynching laws. Similarly, although there have long been national majorities in favor of gun control, Congress has refused to pass stricter gun-control legislation because the National Rifle Association is better organized and more intensely mobilized than the diffuse, less committed anti-gun majority.
If Roe is overturned, by contrast, the national majority for early-term choice would resolve to vanquish any minority that tried to block its will. Republicans who tried to obstruct a pro-choice federal law supported by Congress, the president, and the public might consign themselves to electoral oblivion, much as the Democrats did before the Civil War. In 1856, after winning the presidency and both chambers of Congress, the pro-slavery majority wing of the Democratic Party destroyed the more moderate minority wing and, ultimately, the party itself, by demanding increasingly sweeping protections for slavery. The moderates, led by Illinois Senator Stephen Douglas, insisted that each state or territory should decide for itself whether to protect slavery or ban it, while the extremists held that the rights of slaveholders had to be preserved, regardless of what local and national majorities wanted. In the Dred Scott case, in 1857, the Supreme Court imposed the views of pro-slavery Southern extremists on the entire country and helped to precipitate a historic political realignment. As a result, Northern Democrats switched parties and became Republicans, and the Democrats failed to win the presidency and Congress again for nearly forty years.
IV. The Courts
O nce Roe is gone, one argument goes, each state would be free to reflect the wishes of local majorities, and the country would quickly reach a democratic equilibrium. But that assumption, as we’ve seen, may be too optimistic. Since the abortion battle will be fought out in the states and in Congress, rather than settled by a national referendum, it’s possible that pro-life and pro-choice extremists could thwart the moderate compromises that national majorities have long supported.
The courts might further complicate the political dynamic in unexpected ways. The day after Roe, activists on both sides would rush to court to challenge state abortion laws, claiming that they violated the state and federal constitutions. It’s not hard to imagine that a rogue judge (in the spirit of Roy Moore, who was unseated as chief justice of Alabama after he defied a federal court order and refused to remove a monument to the Ten Commandments he had installed in the rotunda of the state judicial building) might overturn a state law protecting abortion. A battleground state like Illinois might provide the stage for a memorable act of pro-life judicial activism. The Illinois state legislature declared in 1975 that an “unborn child is a human being from the time of conception,” and it’s easy to envision a conservative Illinois judge invoking this pronouncement as he overthrows an Illinois law protecting early-term abortions.
If a Democratic Congress managed to pass a federal law guaranteeing early-term abortions, and a President Hillary Clinton signed it, it’s possible that conservative activists on the Supreme Court might further inflame national opinion by striking the law down. Those justices who are most intensely committed to federalism believe that Congress, under the Constitution, has limited authority to regulate interstate commerce; they might decide that because abortion is a medical activity rather than a commercial one, Congress has no authority to prevent states from banning it. This would be a brazen act of judicial activism—no less anti-democratic than Roe itself. But the only way to reverse a Supreme Court decision like this would be to ratify a federal constitutional amendment protecting abortion. If the House and Senate were Democratic, it would be very difficult, but perhaps not impossible, to get two-thirds of each chamber to propose a pro-choice constitutional amendment. But persuading three-fourths of the state legislatures to ratify the amendment could take years. As time passed, the frustration of a highly mobilized, pro-choice majority would dramatically increase as it found itself repeatedly thwarted from enacting its wishes into law. “I can imagine a fifty-front war going on for the next thirty years,” says Nancy Northup of the Center for Reproductive Rights. “Be careful what you wish for.”
Nevertheless, at some point after Roe fell, the country would reach some kind of political equipoise on abortion. It’s difficult, in America, to deny the wishes of majorities for too long, and whether it takes years or decades, the state legislatures and Congress will eventually come to reflect the popular will. When the dust settles, most of the state laws may look a lot like the compromise that the Supreme Court finally settled on in the 1992 Casey decision: protecting early-term abortions and restricting late-term ones. If Roe v. Wade hadn’t short-circuited the national political debate about abortion, the state legislatures might have arrived at this compromise on their own more than a decade earlier. But in light of the polarizing backlash that Roe provoked, the Supreme Court today might well move more quickly than our elected representatives to mirror the constitutional views of the moderate majority of Americans. If the Court remains sensitive to the people’s constitutional views, as it has been for most of its history, it may be more than a little hesitant to overturn the core of Roe in the first place.
In the twentieth century, judicial encounters with laws concerning mandatory sterilization and contraception have confirmed the limited ability of courts to challenge deeply felt currents of public opinion. During the first half of the twentieth century, compulsory sterilization of the “mentally defective” was extremely popular, encouraged by the Progressive political and religious leaders of the American eugenics movement. In response to this public enthusiasm, legislatures in sixteen states passed laws, between 1907 and 1913, authorizing the sterilization of “idiots” and “imbeciles.” When lower courts struck down seven of these laws, their decisions had little practical impact, and states passed even more sterilization laws. The Supreme Court upheld these laws in a notorious 1927 opinion by the enthusiastic eugenicist Justice Oliver Wendell Holmes Jr. Despite a 1942 Supreme Court opinion questioning mandatory sterilization, sterilization laws remained on the books through the 1960s, and as recently as 1985 the sterilization of the mentally retarded was allowed in at least nineteen states. In the end, American support for sterilization cooled not because of the courts but because of public antipathy to Hitler’s eugenics policies and, later, accusations during the civil-rights movement that blacks were disproportionately targets of mandatory sterilization. The judicial response to laws restricting contraception followed a similar pattern. In 1965, the Supreme Court, in Griswold v. Connecticut, forced the last holdout state to comply with an overwhelming national consensus when it struck down Connecticut’s law banning the use of contraceptives by married couples, the only law of its kind in the nation still on the books. Because popular support for banning contraception had eroded, the Griswold decision was embraced by Congress, the White House, and the country as a whole.
The great question of American politics is whether this historical pattern of judicial sensitivity to the constitutional views of majorities will continue to hold in the future. In the 1980s and 1990s, partly in response to Roe v. Wade, interest groups arose on the right and left that urged judges to ignore the views of national majorities as a sign of their constitutional virtue. For more than two decades, Republican presidents have looked for Supreme Court nominees who appeared to be pro-life—and then have prayed that they wouldn’t actually overturn Roe. But at some point, it’s possible that the GOP’s luck might run out: Republicans might get too many Court appointment opportunities to prolong this exquisite balancing act, and Roe could indeed fall. At that point, it’s not clear who would represent the views of the moderate majority that the Supreme Court has tried—and often failed—to capture in its abortion cases. But whatever party or movement managed to seize the vital center in a post-Roe world would be likely to dominate American politics for a generation to come.
The URL for this page is http://www.theatlantic.com/doc/200606/roe.
Jeffrey Rosen, a law professor at George Washington University and legal-affairs editor of The New Republic, has written previously for this magazine about John Ashcroft and the legacy of the late Chief Justice William Rehnquist. His latest book, The Most Democratic Branch: How the Courts Serve America, will be published this month by Oxford University Press.
Atlantic Unbound | May 2, 2006
Interviews
After Roe
Jeffrey Rosen, the author of the June cover story, on what Roe v. Wade has done to the country, and what might happen without it
.....
I t is June 2007. In a bitterly contested 5-4 decision, the Supreme Court has just upheld a federal partial-birth abortion ban and struck down the landmark 1973 ruling, Roe v. Wade. The United States Congress and fifty state legislatures are now free to ban, restrict, or protect abortion as they see fit.
The decision sets chaos in motion: the states, Congress, the White House, and the lower courts, which long operated under Roe’s rule, are sent scrambling like bugs under a flipped rock. Legislators rush to regulate abortion with either draconian bans or sweeping protections. Voters revolt. Some politicians continue to cater to their bases, dooming themselves to defeat, while others switch parties—or form new ones.
Such is the scenario imagined by Jeffrey Rosen in “The Day After Roe,” The Atlantic’s cover story for June. To get there, he envisions Justice John Paul Stevens retiring over the summer and Judge Edith Jones—“a fire-breathing social conservative”—filling the vacancy this fall, following a filibuster mounted by the Democrats, which the Republicans rout with the so-called nuclear option. The Court has already said it will hear a constitutional challenge to the federal ban on partial-birth abortions; in Rosen’s scenario, the justices narrowly vote not only to uphold the ban but to overturn Roe. Their decision, he writes, “would probably ignite one of the most explosive political battles since the civil-rights movement, if not the Civil War.”
Rosen argues that it was an unwisely activist Court that in 1973 halted a likely political march toward the sort of compromise on abortion that national majorities supported. The roadblock—Roe—caused a backlash then, and overturning it now would provoke another one, sending the country at least temporarily spiraling into extremes before the march toward compromise could resume its steady, disciplined pace.
If a national referendum were held the day after Roe fell, there’s little doubt that early-term abortions would be protected and that later-term abortions would be restricted. But the U.S. Constitution doesn’t provide for government by referendum. Because of the intricacies of American federalism, and the polarization of American politics exacerbated by Roe itself, the moderate national consensus about abortion might not be reflected in law for years to come.
The Supreme Court, Rosen writes, has “best maintained its legitimacy when it has functioned as the most democratic branch”—reflecting the national consensus on political and legal issues. Its 1992 decision in Planned Parenthood v. Casey seemed to accomplish this, striking a compromise between the protection of early-term abortions and the restriction of late-term ones. With Roe, however, the Court broke that tradition, turning a second-string anonymous surname into the most controversial monosyllable in American political history.
Jeffrey Rosen is a law professor at George Washington University and the legal-affairs editor of The New Republic. A fan of what he calls “justice kitsch”—Supreme Court bobbleheads, for example—he has written previously for The Atlantic on the legacy of the late Chief Justice William Rehnquist, as well as on John Ashcroft. His latest book, The Most Democratic Branch: How the Courts Serve America, will be published by Oxford University Press in June, a month before he and his wife, a bipartisan couple, expect twins.
I spoke with him by phone on April 25, as he was wrapping up the law school semester.
—Sara Lipka
You argue that the Supreme Court best maintains its legitimacy when it defers to popular understanding, but how does the Court gauge such a thing?
In a sense, finding out the popular understanding about constitutional issues is what judges do all the time. Conservative judges who say that the Court should follow the original understanding of the Constitution are asking what the people thought when they ratified the constitutional amendments. Judges who care about the traditions of the people want to know whether popular understandings about the Constitution have shifted dramatically enough to justify a change in constitutional interpretation. So different judges might look in different places. You could look to text, to history, to original understanding. You could see what states are doing.
The court in Roe v. Wade was criticized because it struck down more than thirty state laws restricting abortion from the beginning of pregnancy. It was impossible to argue that there had been a shift in popular understanding by the early 1970s, even though public opinion was moving in a more liberal direction.
Do you think the 1973 court expected Roe to be as controversial as it was?
It didn’t. It’s obvious from Linda Greenhouse’s wonderful new book, Becoming Justice Blackmun, that the Court was completely surprised and blindsided by the reaction to Roe, because the justices had talked primarily to people of their social class. They were living in a very small bubble, and it hadn’t occurred to them to try to imagine what the reaction would be. They thought Roe would be an uncontroversial decision.
They were moved by the fact that all the lower courts to have considered abortion cases had come up with some version of an abortion right, although not one as sweeping as in Roe. The shortsightedness of the justices suggests that courts are actually very bad at predicting public opinion and often get into trouble when they ignore it.
So they were simply out of touch?
Yes. They were prisoners of their own perspective and they also, frankly, weren’t terribly thoughtful or sensitive about the need to try to avoid dramatic public backlashes. Even in the early 1970s, the Court was coming off of the grandiose heights of Warrenism. It had great confidence in its ability to govern the country. It hadn’t learned yet from the experience of the death penalty cases. Public opinion had been moving in favor of the death penalty, and then the Court heavy-handedly struck it down, provoking a backlash that then increased support for the death penalty. The justices had thought they were merely moving in a progressive direction and would be heartily applauded for it.
Two years before Roe the Court upheld a District of Columbia abortion ban in United States v. Vuitch. What happened in between?
The D.C. abortion ban case is a poignant cautionary tale. It was a much more thoughtful and incrementalist holding. It asked whether or not the reform laws that many states were adopting were unnecessarily vague. The conclusion was that they weren’t. Still, it opened the possibility for striking down more extreme laws in the future. What happened, I suppose, had more to do with internal court dynamics, but once Justice Blackmun was given the Roe opinion, he seemed to be determined to write it fairly broadly.
You say in the article that Roe “high-handedly leaped ahead of a national consensus.”
The national consensus about abortion in the early 1970s was—in retrospect, anyway—clear. Large majorities, more than two thirds, supported the right to choose early in pregnancy, but even larger majorities opposed the right to choose later in pregnancy, after fetal viability. The court paid no attention to this stable consensus, but instead struck down restrictions on abortion later in pregnancy that a majority of the country supported, such as informed consent, parental notification requirements, and so forth.
It’s interesting to ask what a more sensitive or modest Roe opinion might have looked like. I suppose that the Court could have tried a compromise, striking down the extreme Texas law that contained no rape and incest exceptions, but upholding the more moderate Georgia law that did contain those exceptions. Even so, that would have involved an awful lot of invalidation. But such a ruling might have been a little bit closer to public opinion—might have provoked less of a backlash. Justice Ginsburg, in her celebrated criticism of Roe, suggested a compromise along those lines. She said that if the Court had merely struck down the most extreme abortion laws, allowing the other ones to stand, then public opinion could have continued to evolve in a more liberal direction.
That sounds like your argument that if Roe hadn’t “short-circuited the national political debate about abortion,” then state legislatures might have arrived at a compromise more reflective of the national consensus. How confident are you about that prediction?
Not very. It’s impossible to be confident with predictions about constitutional futurology. It’s a very dangerous business. My sense is that had the Court not stepped in so heavy-handedly, the nation might have arrived at a compromise earlier—perhaps as early as the late 1970s—like the one the Court eventually settled on with its Casey decision in 1992, namely protecting early-term abortions and restricting later-term abortions.
But history has a way of playing tricks on us. It’s possible that the pro-choice movement might have stalled. After all, only four states had passed therapeutic reforms, which basically made abortion available throughout pregnancy, and some important pro-choice referenda had been defeated in the years right before Roe. So the path in a world without Roe wouldn’t have been clean. There are an awful lot of moving pieces of the puzzle and lots of contingencies and surprises, but overall I do agree with Justice Ginsburg, Alexander Bickel, John Hart Ely, and other pro-choice legal scholars who hold that Roe ultimately harmed the pro-choice movement more than it helped.
With Roe on the books, many new abortion-related laws, some arguably proposed just to goad the courts, have been challenged and overturned. To what extent do you think Roe has created or exacerbated a power struggle between the legislature and the judiciary?
My sense is that Roe has given an excuse to legislatures to stop trying by and large. The states and Congress can pass largely symbolic partial-birth laws that fail to contain health exceptions, because they’re confident that those laws will be struck down. And there’s no attempt to engage in constitutional arguments in the legislature of the kind that used to be common in the late nineteenth and early twentieth centuries. So I worry that legislatures have gotten out of the business of debating issues related to abortion in constitutional and moral terms. If Roe were overturned, I wonder, as many people do, if fifty state legislatures, many of which are made up of part-time representatives, are really equipped to engage in passionate debate about the finer points of ontology.
People who have talked to state legislatures say that this is their worst nightmare. They just can’t imagine how overwhelmed they’d feel, barraged by activists on both sides, underpaid and overworked. There might be a paralysis or breakdown.
In your upcoming book, you call weighing threats to a woman’s health against a viable fetus’s interest in life a “quintessentially legislative judgment.” And in the Solicitor General’s petition to the Supreme Court to hear the case on the federal partial-birth abortion ban, he reminds the Court of Congress’s “nine years of hearings and debates” on abortion. Why do you think legislators are better poised than judges to resolve abortion questions?
At least in theory, legislators are better in tune with public understandings about constitutional and political issues. Public opinion about abortion is so nuanced, complicated, and ultimately moderate that one would hope that legislators could reflect those complicated balances and allow abortion to be protected in the early months but restricted—with various degrees of complicated compromises—in the later months.
But it’s possible that legislators now are so much in the thrall of interest groups’ politics that they’re no longer able to perform that delicate balancing act. Part of the fun of this futuristic scenario that I was invited to play out in the piece is to ask whether now that pro-life and pro-choice groups are pushing their Republican and Democratic legislators to the extremes, you might have situations where state legislatures and Congress are unable to represent the will of the moderate majority, and the judges are somehow better at doing so.
In some ways, that was Justice O’Connor’s legacy. She seemed to have a unique ability to put her finger on the pulse of the median voter with exquisite precision and express it more precisely than Bill Frist or Harry Reid. But that’s why the partial-birth cases to me were so frustrating. It was such an unnecessary stick in the eye of the majority of the American people who support the partial-birth laws quite enthusiastically. And the Court might have, if it had shown a little bit of humility, construed the laws to include some kind of serious health exception and avoided the backlash that ensued.
Do you think there are any sitting justices who show that kind of judicial restraint?
There’s an interesting tabulation of the number of state and federal laws that the justices are willing to strike down done by Thomas Keck in his excellent book The Most Activist Supreme Court in History. Keck notes that the most activist justice on the current court is Anthony Kennedy, who has voted to strike down more state and federal laws than any other justice. The most restrained justices are Breyer and Ginsburg. Ginsburg is most restrained of all. So if there are any justices who are heirs to the tradition of liberal judicial restraint, I think she would be closest to that model.
The strong plurality opinion and withering dissents in the Court’s 1992 Casey decision reflect the justices’ divergent views on how to treat precedent. How do you think the discussion of precedent might play out in the federal partial-birth abortion case, in terms of how its ruling addresses Roe?
That’s the $64,000 question. Chief Justice Roberts, during his confirmation hearings, made clear that he cares a lot about precedent, and many of the other justices do as well. When the Court takes up the partial-birth case next year, it’s most likely that it won’t use the case as an invitation to overturn Roe—unless a series of extraordinary events over the summer brings a new justice to the Court who’s just hell-bent on overturning it by any means necessary.
It’s likely that the Court will have a hard decision on its hands about whether to overturn a precedent decided as recently as 2000. In Casey, the Court set out a bunch of considerations for whether a precedent should be overturned, including whether the country has come to rely on the precedent, whether it’s become unworkable, and other factors like that. It’s a notoriously malleable standard; you could argue it either way. But certainly a justice who is highly skeptical of the precedent as an original matter would find it easy enough to overturn if he or she wished.
Do you think there’s a sense as to whether the protected right to abortion is a common-law precedent or a constitutional precedent?
That’s an interesting distinction. What do you have in mind?
I guess I’m wondering whether people interpret the right to abortion as a constitutional right rather than a court holding.
My sense is yes, that women and men who believe that the right to privacy is sacrosanct see it very much as a constitutional right. This includes not only Democrats, but also many pro-choice Republicans, who might have second thoughts about the G.O.P. if Roe were overturned. Now there may be a category of esoteric law professors and other people who think like me, who distinguish between Roe as a constitutional precedent and as a moral and political one, and who are not so convinced by the constitutional arguments but still think that the right to choose is terribly important as a way of guaranteeing women’s liberty and equality. But my sense is that most people don’t make those fine-grain legal distinctions, instead believing that if a right is really important, then the Constitution should protect it.
You say in the article, parenthetically, that you wouldn’t bet on Chief Justice Roberts siding with the anti-Roe forces. Why not?
I’m very impressed by Chief Justice Roberts on many levels, but especially by his devotion to precedent and to the legitimacy of the Court. He spoke very earnestly and to my mind convincingly in his confirmation hearings about how he sees the role of the chief justice as being one of stewardship—responsible for the legitimacy of the Court and the country as a whole.
I would be surprised if he were radical in any way, if he lightly embraced extremely disruptive arguments that might create broad constitutional backlashes. I’m not betting on any particular outcome either way. But my sense is that he’s a Burkean conservative rather than a libertarian radical and would think long and hard about pulling the trigger if the opportunity arose.
During the Chief Justice’s confirmation process, Senator Joe Biden said t
Two Takes on The Day After Roe
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
Two Takes on The Day After Roe
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
The New Republic Online
WHAT IF ROE IS OVERTURNED?
Half-Life
by Ramesh Ponnuru
Post date: 04.21.06
Issue date: 05.01.06
[ Editor's Note: Click here to read TNR Contributing Editor Cass Sunstein's response to this article. ]
The New Republic's editorial line on abortion has always had the virtue of contrarianism. If Roe v. Wade were ever to topple, this magazine argues, it would be bad news for the pro-life Republicans who hate Roe--and good news for the pro-choice Democrats who have fought to keep it. Once the issue migrates from the courts to the political arena, Republicans would no longer have the luxury of an abortion politics that consists of slogans and symbols and handed-down opinions. Republican politicians would finally be forced either to support new bans on abortion (thus alienating the political middle) or stand down (thus alienating their pro-life base). Either way, the costs for the GOP would be high. At least, that has been the counter-intuitive tnr scenario.
Well, congratulations, tnr. Your argument is no longer so contrarian. Pundits now widely share the opinion that the end of Roe would be "a disaster for the Republican Party," as National Journal's Stuart Taylor Jr. recently put it. Morton Kondracke recently wrote in Roll Call that "Republicans should thank their lucky stars" that the Court is unlikely to revisit Roe. But, before we further enshrine this strain of conventional wisdom, let's consider the shape of a post-Roe world a bit more carefully. The New Republic's theory is, if I can be so bold, a mite too convenient for complacent pro-choicers. The truth is that the public is not as pro-choice as this magazine would like to believe, nor are pro-lifers so tactically inept.
Let's begin with The New Republic's assumptions about public opinion. It has some facts on its side. A large majority supports Roe v. Wade. But the polls on Roe are somewhat misleading. They reflect public hostility to drastic change on abortion policy, as well as public misunderstandings about how drastic reversing Roe would be. Many people think it would automatically ban all abortions nationwide, when it would really only give legislators and voters the power to set abortion policy.
Tnr is on firmer ground in pointing out that most Americans tell pollsters that they believe abortion should generally be permitted in the first trimester. But a very different picture emerges from other polls. Strong majorities think that abortion should be permitted in cases of rape, incest, threats to the mother's life, and severe fetal abnormality. But there aren't clear majorities for any other types of abortion. Indeed, polls have regularly found that small majorities of the public--including small majorities of women--believe that abortions for other reasons should be prohibited. Gallup has also consistently found that a large majority of the public thinks abortion should be either illegal or legal "only in a few circumstances."
I am aware of only one poll that allowed respondents to choose options that included both what one might call the moderate pro-life option (prohibiting abortion with exceptions for rape, incest, and the mother's life) and the moderate pro-choice option (allowing abortion for any reason in the first trimester). This poll was conducted by Richard Wirthlin, who is, admittedly, himself a pro-lifer, in November 2004. He found 55 percent taking either moderate or hard-core pro-life positions, compared with 40 percent on the pro-choice side. If that's in the ballpark, you can expect more support for restrictive laws than the polls tnr likes to cite.
But the post-Roe world is likely to be messier than any poll would predict.Scott J. Ferrell/Congressional Quarterly/NewsCom There are many scenarios to consider. In one, abortion becomes grist for Congress. According to most pundits, this would be the worst outcome for Republicans, the one in which their politically unpalatable choices would be starkest. These pundits imagine the Republican base forcing its congressmen to pursue a maximalist ban on abortion. That is certainly a possibility. Pro-life legislators in South Dakota weren't even willing to wait for Roe to go before trying to ban abortion.
Honesty, however, should compel tnr to admit that pro-choicers have also been known to overreach. It was their insistence, in 1993 and 1994, that the Freedom of Choice Act include public funding of abortion that stymied the legislation. Most pro-lifers, meanwhile, have embraced an incrementalist strategy--pushing for small-bore legislation like the ban on partial-birth abortion rather than a Human Life Amendment to the Constitution--over the last decade.
Maybe, then, it would be Democrats who would be stuck with an uncomfortable calculus: Do they please a liberal base that wants to keep late-term abortions legal or a general public that doesn't? The Supreme Court has required states to allow abortions even late in pregnancy to protect a woman's emotional health. There are very few states--there may be no states--that would enact a similar law. Existing abortion law is sufficiently liberal that the pro-choice side can only lose ground in democratic votes. You can criticize the pro-choice insistence that this issue be kept in the courtroom for any number of reasons, but you can't say it's irrational. In other words, it's not just pro-life politicians whom the Supreme Court has shielded.
But this scenario isn't the most likely outcome. America's federalist system ensures that. With Roe gone, much of the abortion debate would move away from Washington, though it would not leave D.C. entirely. There would still be judicial confirmation battles: Pro-choicers would demand justices who would reinstate Roe, and pro-lifers would fight them. But neither side would likely have enough strength to impose its policy nationally. Some congressmen would seek a compromise for the whole country--requiring all states, for example, to allow first-trimester abortion but to prohibit later abortions. But such compromises would probably fail. Pro-lifers would want to retain the option to pursue more stringent South Dakota-style prohibitions, and pro-choicers would want states like California to preserve looser laws. Other states' rights-minded congressmen would think a federal policy unwise, and some would want to kick the issue back to the states to continue avoiding any responsibility for the issue. The safe bet is for a congressional stalemate.
So most of the action would be in the state legislatures. Either side could overreach in individual state legislatures, but sweeping nationwide change would be off the table. Voters would therefore have less reason for anxiety about Republican anti-abortion zealotry. Neither side's activists would have the incentive that exists today to impose rigorous tests of commitment on presidential candidates. If, after a while, it became clear that the federal courts were going to stay out of abortion policy, pro-lifers would cease to care as much if the Republican nominee disagreed with them. The debate over abortion could become, in this respect, like the one over evolution. Large numbers of Americans are passionate on both sides of the debate, and it flares up in various localities. But there is not much national policy on it, and politicians in Washington don't have to spend much time on it.
Local politicians, meanwhile, would adapt to local conditions. In strongly pro-choice jurisdictions, most Republican politicians would either adopt pro-choice views or temper their pro-life ones. Most Democratic politicians would do the same in strongly pro-life areas. They do this already, of course, but, in a post-Roe world, they would not have to worry as much about the effect of their abortion views on their national ambitions within their parties. It's a near-perfect solution for Republicans: The base would be enthused, since it could more comfortably win discrete policy victories in legislatures. But pro-choice Republicans could more comfortably vote for Republican candidates, especially candidates for federal office.
Thus far, we have been considering the consequences of a straight reversal of Roe. But it's more likely that the Supreme Court would repeal Roe in installments. The current Court might be willing to allow prohibitions on partial-birth abortion, for example. A future Court, with new anti-Roe appointees, might later conclude that its abortion jurisprudence was unworkable and get out of the inherently subjective business of deciding what constitutes an impermissible "undue burden" on the right to abortion.
Judicial gradualism might cause pro-life politicians some short-term political heartburn. The Court would be, for some period of time, poised to strike down Roe without having actually done so. That would maximize fears--on the part of both pro-choice voters and pro-life politicians--of what the consequences of repeal would be. But what's more important is that state legislatures would regain lawmaking authority over abortion bit by bit, probably starting with the ability to impose the most politically popular regulations. In such circumstances, the pro-life movement would hardly lose its fervor and political raison d'être.
This is how the Planned Parenthood v. Casey decision in 1992 played out. Roe was reaffirmed by a five-to-four vote but modestly scaled back. Pro-lifers, who had expected a reversal of Roe, were demoralized, and pro-choicers were galvanized. Since then, however, pro-lifers have used the increased room to maneuver provided by Casey to put pro-choicers on the defensive. It's because of Casey that most states have enacted informed-consent laws, for example.
Pro-lifers who are incrementalist in strategy and moderate in tone would, in short, be positioned to do quite well after Roe fell, and the Republican Party would have enough flexibility to prosper. The theory that pro-lifers would be dealt a stunning setback by the realization of their fondest goal is interestingly counterintuitive, and it has become a shibboleth for sophisticated pundits. But it's probably wrong.
Ramesh Ponnuru , a senior editor at National Review, is the author of The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.
Copyright 2006, The New Republic
http://www.tnr.com/doc.mhtml?i=20060501&s=ponnuru050106
WHAT IF ROE IS OVERTURNED?
Half-Life
by Ramesh Ponnuru
Post date: 04.21.06
Issue date: 05.01.06
[ Editor's Note: Click here to read TNR Contributing Editor Cass Sunstein's response to this article. ]
The New Republic's editorial line on abortion has always had the virtue of contrarianism. If Roe v. Wade were ever to topple, this magazine argues, it would be bad news for the pro-life Republicans who hate Roe--and good news for the pro-choice Democrats who have fought to keep it. Once the issue migrates from the courts to the political arena, Republicans would no longer have the luxury of an abortion politics that consists of slogans and symbols and handed-down opinions. Republican politicians would finally be forced either to support new bans on abortion (thus alienating the political middle) or stand down (thus alienating their pro-life base). Either way, the costs for the GOP would be high. At least, that has been the counter-intuitive tnr scenario.
Well, congratulations, tnr. Your argument is no longer so contrarian. Pundits now widely share the opinion that the end of Roe would be "a disaster for the Republican Party," as National Journal's Stuart Taylor Jr. recently put it. Morton Kondracke recently wrote in Roll Call that "Republicans should thank their lucky stars" that the Court is unlikely to revisit Roe. But, before we further enshrine this strain of conventional wisdom, let's consider the shape of a post-Roe world a bit more carefully. The New Republic's theory is, if I can be so bold, a mite too convenient for complacent pro-choicers. The truth is that the public is not as pro-choice as this magazine would like to believe, nor are pro-lifers so tactically inept.
Let's begin with The New Republic's assumptions about public opinion. It has some facts on its side. A large majority supports Roe v. Wade. But the polls on Roe are somewhat misleading. They reflect public hostility to drastic change on abortion policy, as well as public misunderstandings about how drastic reversing Roe would be. Many people think it would automatically ban all abortions nationwide, when it would really only give legislators and voters the power to set abortion policy.
Tnr is on firmer ground in pointing out that most Americans tell pollsters that they believe abortion should generally be permitted in the first trimester. But a very different picture emerges from other polls. Strong majorities think that abortion should be permitted in cases of rape, incest, threats to the mother's life, and severe fetal abnormality. But there aren't clear majorities for any other types of abortion. Indeed, polls have regularly found that small majorities of the public--including small majorities of women--believe that abortions for other reasons should be prohibited. Gallup has also consistently found that a large majority of the public thinks abortion should be either illegal or legal "only in a few circumstances."
I am aware of only one poll that allowed respondents to choose options that included both what one might call the moderate pro-life option (prohibiting abortion with exceptions for rape, incest, and the mother's life) and the moderate pro-choice option (allowing abortion for any reason in the first trimester). This poll was conducted by Richard Wirthlin, who is, admittedly, himself a pro-lifer, in November 2004. He found 55 percent taking either moderate or hard-core pro-life positions, compared with 40 percent on the pro-choice side. If that's in the ballpark, you can expect more support for restrictive laws than the polls tnr likes to cite.
But the post-Roe world is likely to be messier than any poll would predict.Scott J. Ferrell/Congressional Quarterly/NewsCom There are many scenarios to consider. In one, abortion becomes grist for Congress. According to most pundits, this would be the worst outcome for Republicans, the one in which their politically unpalatable choices would be starkest. These pundits imagine the Republican base forcing its congressmen to pursue a maximalist ban on abortion. That is certainly a possibility. Pro-life legislators in South Dakota weren't even willing to wait for Roe to go before trying to ban abortion.
Honesty, however, should compel tnr to admit that pro-choicers have also been known to overreach. It was their insistence, in 1993 and 1994, that the Freedom of Choice Act include public funding of abortion that stymied the legislation. Most pro-lifers, meanwhile, have embraced an incrementalist strategy--pushing for small-bore legislation like the ban on partial-birth abortion rather than a Human Life Amendment to the Constitution--over the last decade.
Maybe, then, it would be Democrats who would be stuck with an uncomfortable calculus: Do they please a liberal base that wants to keep late-term abortions legal or a general public that doesn't? The Supreme Court has required states to allow abortions even late in pregnancy to protect a woman's emotional health. There are very few states--there may be no states--that would enact a similar law. Existing abortion law is sufficiently liberal that the pro-choice side can only lose ground in democratic votes. You can criticize the pro-choice insistence that this issue be kept in the courtroom for any number of reasons, but you can't say it's irrational. In other words, it's not just pro-life politicians whom the Supreme Court has shielded.
But this scenario isn't the most likely outcome. America's federalist system ensures that. With Roe gone, much of the abortion debate would move away from Washington, though it would not leave D.C. entirely. There would still be judicial confirmation battles: Pro-choicers would demand justices who would reinstate Roe, and pro-lifers would fight them. But neither side would likely have enough strength to impose its policy nationally. Some congressmen would seek a compromise for the whole country--requiring all states, for example, to allow first-trimester abortion but to prohibit later abortions. But such compromises would probably fail. Pro-lifers would want to retain the option to pursue more stringent South Dakota-style prohibitions, and pro-choicers would want states like California to preserve looser laws. Other states' rights-minded congressmen would think a federal policy unwise, and some would want to kick the issue back to the states to continue avoiding any responsibility for the issue. The safe bet is for a congressional stalemate.
So most of the action would be in the state legislatures. Either side could overreach in individual state legislatures, but sweeping nationwide change would be off the table. Voters would therefore have less reason for anxiety about Republican anti-abortion zealotry. Neither side's activists would have the incentive that exists today to impose rigorous tests of commitment on presidential candidates. If, after a while, it became clear that the federal courts were going to stay out of abortion policy, pro-lifers would cease to care as much if the Republican nominee disagreed with them. The debate over abortion could become, in this respect, like the one over evolution. Large numbers of Americans are passionate on both sides of the debate, and it flares up in various localities. But there is not much national policy on it, and politicians in Washington don't have to spend much time on it.
Local politicians, meanwhile, would adapt to local conditions. In strongly pro-choice jurisdictions, most Republican politicians would either adopt pro-choice views or temper their pro-life ones. Most Democratic politicians would do the same in strongly pro-life areas. They do this already, of course, but, in a post-Roe world, they would not have to worry as much about the effect of their abortion views on their national ambitions within their parties. It's a near-perfect solution for Republicans: The base would be enthused, since it could more comfortably win discrete policy victories in legislatures. But pro-choice Republicans could more comfortably vote for Republican candidates, especially candidates for federal office.
Thus far, we have been considering the consequences of a straight reversal of Roe. But it's more likely that the Supreme Court would repeal Roe in installments. The current Court might be willing to allow prohibitions on partial-birth abortion, for example. A future Court, with new anti-Roe appointees, might later conclude that its abortion jurisprudence was unworkable and get out of the inherently subjective business of deciding what constitutes an impermissible "undue burden" on the right to abortion.
Judicial gradualism might cause pro-life politicians some short-term political heartburn. The Court would be, for some period of time, poised to strike down Roe without having actually done so. That would maximize fears--on the part of both pro-choice voters and pro-life politicians--of what the consequences of repeal would be. But what's more important is that state legislatures would regain lawmaking authority over abortion bit by bit, probably starting with the ability to impose the most politically popular regulations. In such circumstances, the pro-life movement would hardly lose its fervor and political raison d'être.
This is how the Planned Parenthood v. Casey decision in 1992 played out. Roe was reaffirmed by a five-to-four vote but modestly scaled back. Pro-lifers, who had expected a reversal of Roe, were demoralized, and pro-choicers were galvanized. Since then, however, pro-lifers have used the increased room to maneuver provided by Casey to put pro-choicers on the defensive. It's because of Casey that most states have enacted informed-consent laws, for example.
Pro-lifers who are incrementalist in strategy and moderate in tone would, in short, be positioned to do quite well after Roe fell, and the Republican Party would have enough flexibility to prosper. The theory that pro-lifers would be dealt a stunning setback by the realization of their fondest goal is interestingly counterintuitive, and it has become a shibboleth for sophisticated pundits. But it's probably wrong.
Ramesh Ponnuru , a senior editor at National Review, is the author of The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life.
Copyright 2006, The New Republic
http://www.tnr.com/doc.mhtml?i=20060501&s=ponnuru050106
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Brendan
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:As many as are interested in the topic and might not have had the opportunity to catch both publications. Something must be in the air . . .Ralph wrote:I do wonder how many CMGers read articles of the length of those above.
Pollen. Which causes germination. Which is something remotely related to abortion.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
And it's getting tiring. It would be nice to just find a simple solution already.Corlyss_D wrote:Tsk, tsk! It's one of the eternal monuments of American political bumping and grinding.Brendan wrote:Speaking for myself, I was waiting for your reply to check if I should bother. Roe v Wade doesn't much matter Down Under anyway.
How about abortion on demand for the first three or four months, then no abortions unless the life of the mother is at risk. Period.
When I'm king of the world.
"If this is coffee, please bring me some tea; but if this is tea, please bring me some coffee." - Abraham Lincoln
"Although prepared for martyrdom, I preferred that it be postponed." - Winston Churchill
"Before I refuse to take your questions, I have an opening statement." - Ronald Reagan
http://www.davidstuff.com/political/wmdquotes.htm
http://www.youtube.com/watch?v=2pbp0hur ... re=related
"Although prepared for martyrdom, I preferred that it be postponed." - Winston Churchill
"Before I refuse to take your questions, I have an opening statement." - Ronald Reagan
http://www.davidstuff.com/political/wmdquotes.htm
http://www.youtube.com/watch?v=2pbp0hur ... re=related
-
jbuck919
- Military Band Specialist
- Posts: 26856
- Joined: Wed Jan 28, 2004 10:15 pm
- Location: Stony Creek, New York
It will never be that simple, as I'm sure you know. If you are going to put a period to it, one possibiltiy is that it is not a human being before it is separated from the mother, and it is one afterward. That is also not a totally satisfactory solution in philosophical terms, but like marriage and democracy, it is less awful than anything anyone else anyone has ever dreamed up.Barry Z wrote:And it's getting tiring. It would be nice to just find a simple solution already.Corlyss_D wrote:Tsk, tsk! It's one of the eternal monuments of American political bumping and grinding.Brendan wrote:Speaking for myself, I was waiting for your reply to check if I should bother. Roe v Wade doesn't much matter Down Under anyway.
How about abortion on demand for the first three or four months, then no abortions unless the life of the mother is at risk. Period.
When I'm king of the world.
There's nothing remarkable about it. All one has to do is hit the right keys at the right time and the instrument plays itself.
-- Johann Sebastian Bach
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
I think that will be the eventual model, if and when Roe is ever overturned. It's a very sensible approach, IMO.Barry Z wrote:And it's getting tiring. It would be nice to just find a simple solution already.
How about abortion on demand for the first three or four months, then no abortions unless the life of the mother is at risk. Period.
When I'm king of the world.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:jbuck919 wrote:one possibiltiy is that it is not a human being before it is separated from the mother, and it is one afterward.
{{{{{shudder}}}}} Incredibly sloppy for someone so meticulous in his thought, John.
John is paraphrasing what is essentially the law today.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
Okay. Find me some decision that says a fetus isn't "human" just because it has no rights the law need recognize.Ralph wrote:*****Corlyss_D wrote:jbuck919 wrote:one possibiltiy is that it is not a human being before it is separated from the mother, and it is one afterward.
{{{{{shudder}}}}} Incredibly sloppy for someone so meticulous in his thought, John.
John is paraphrasing what is essentially the law today.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:Okay. Find me some decision that says a fetus isn't "human" just because it has no rights the law need recognize.Ralph wrote:*****Corlyss_D wrote:jbuck919 wrote:one possibiltiy is that it is not a human being before it is separated from the mother, and it is one afterward.
{{{{{shudder}}}}} Incredibly sloppy for someone so meticulous in his thought, John.
John is paraphrasing what is essentially the law today.
Every state's laws treat a fetus as a non-person for purposes of inheritance and tort law. Roe acknowledges that the Court can not determine when life begins although the standard of viability, which emerges later, does indirectly do that.
In most states the unlawful killing of a fetusa is an abortional homicide, not a murder of a person. Several states purport that a fetus IS a person for homicide purposes but the penalties are different than for the death of a person born alive.
The Supreme Court has never defined a fetus as a human being.
Obviously ant-abortion people consider a fetus to be a human being as do the dogmas of some religions.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
You don't have to be religious. You just have to ask yourself, "Is this a pig or a dog or nematode?" This silly business about it not being "human" is just sloppy thinking. "Personhood" is a legal concept. "Human" is not.Ralph wrote: Obviously ant-abortion people consider a fetus to be a human being as do the dogmas of some religions.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:You don't have to be religious. You just have to ask yourself, "Is this a pig or a dog or nematode?" This silly business about it not being "human" is just sloppy thinking. "Personhood" is a legal concept. "Human" is not.Ralph wrote: Obviously ant-abortion people consider a fetus to be a human being as do the dogmas of some religions.
Maybe for you. A fetus will never be a "human" for me and for an awful lot of other folks.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
How could it possibly be anything BUT human? The parents weren't some other species. Is it so threatening to you to acknowledge that, whatever you might do with it, it is still biologically of the human species? Talk about ideological blindness! You're right up there with Bryan!Ralph wrote:Maybe for you. A fetus will never be a "human" for me and for an awful lot of other folks.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:How could it possibly be anything BUT human? The parents weren't some other species. Is it so threatening to you to acknowledge that, whatever you might do with it, it is still biologically of the human species? Talk about ideological blindness! You're right up there with Bryan!Ralph wrote:Maybe for you. A fetus will never be a "human" for me and for an awful lot of other folks.
It's not threatening to me at all. I would have no problem with abortion taking place after viability. For me a "human being" is or was someone born alive. Of course a fetus will, in the normal course of events, be born and be a human being.
By your logic a fetus is a human being at the instant of conception - a belief shared by many which I respect. But it isn't mine.
And it's well-known that human females have been and are occasionally impregnated by alien species so I wouldn't assume the "father" is necessarily human.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
jbuck919
- Military Band Specialist
- Posts: 26856
- Joined: Wed Jan 28, 2004 10:15 pm
- Location: Stony Creek, New York
I am not going to attempt to speak for Ralph, who may have something completely different in mind, but a human being is a developmental proposition. The Catholic Church in the strictness of its official teaching claims that the amorphous zygote that exists in the short period after conception is already human. Actually, the ignorant ancients (including St. Thomas Aquinas) had a better idea when they suggested--for the wrong reason--that there was something called "quickening." The problem is that they wanted to determine exactly when it occurred so we could be sure of not destroying a being with an immortal soul. This dualistic way of thinking is not comfortable for many modern people, even though it is still of the essence of much religious belief.
The fact that we cannot exactly demarcate a point where something stops being a non-viable fetus and starts being a baby, and that in fact that point changes case by case as well as over time as medicine advances, is something we just have to live with. Nobody (except the people who run organized religions, especially Catholicism) said life was free of morally ambiguous situations. This one is not a justification for forcing a woman to carry to term any baby whatsoever because we are giving the putative "baby" the benefit of the doubt over the moral certainty of the autonomy of the adult human female.
I have to imagine that as long as there is the loophole that an abortion, even a later-term one, is allowed if the mother's life is endangered will be what finally saves the situation if we have to carry this benighted process to its gruesome conclusion. A certain albeit tiny number of healthy mothers go full term with no apparent complications and still die because of childbirth. All the physician has to do is say there is a chance the mother might die, and that will be that. Assuming we have enough courageous physicians to make it happen that way.
The fact that we cannot exactly demarcate a point where something stops being a non-viable fetus and starts being a baby, and that in fact that point changes case by case as well as over time as medicine advances, is something we just have to live with. Nobody (except the people who run organized religions, especially Catholicism) said life was free of morally ambiguous situations. This one is not a justification for forcing a woman to carry to term any baby whatsoever because we are giving the putative "baby" the benefit of the doubt over the moral certainty of the autonomy of the adult human female.
I have to imagine that as long as there is the loophole that an abortion, even a later-term one, is allowed if the mother's life is endangered will be what finally saves the situation if we have to carry this benighted process to its gruesome conclusion. A certain albeit tiny number of healthy mothers go full term with no apparent complications and still die because of childbirth. All the physician has to do is say there is a chance the mother might die, and that will be that. Assuming we have enough courageous physicians to make it happen that way.
There's nothing remarkable about it. All one has to do is hit the right keys at the right time and the instrument plays itself.
-- Johann Sebastian Bach
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
Forget the "being!"I have no emotional committment to what happens to a fetus. I would rather it were born alive to loving parents, but, hey! that's not my decision and I would not substitute my judgment for that of those who face such decisions.Ralph wrote:By your logic a fetus is a human being at the instant of conception - a belief shared by many which I respect.
My main concern is with the terminology: if it, whatever it is, is the result of sex between two human beings, it is human. Not calling it human because of a committment to abortion is like the old Lincoln saw about calling a dog's tail a leg: it don't make it so. Refusing to call a human fetus "human" don't make it not human. To claim it isn't "human" is to be guilty of sloppy thinking.
Last edited by Corlyss_D on Fri May 05, 2006 3:15 pm, edited 1 time in total.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
Both you and Ralph are thinking too hard about this. My threshold is a lot lower than "is it alive?" or "can it be aborted?" My issue is Biology 101: regardless of when it was conceived, or how long it gestates, or whether it's aborted or carried to term, it is still human because it can't be anything else, Ralph's aliens notwithstanding.jbuck919 wrote:I am not going to attempt to speak for Ralph, who may have something completely different in mind, but a human being is a developmental proposition. The Catholic Church in the strictness of its official teaching claims that the amorphous zygote that exists in the short period after conception is already human. Actually, the ignorant ancients (including St. Thomas Aquinas) had a better idea when they suggested--for the wrong reason--that there was something called "quickening." The problem is that they wanted to determine exactly when it occurred so we could be sure of not destroying a being with an immortal soul. This dualistic way of thinking is not comfortable for many modern people, even though it is still of the essence of much religious belief.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:Forget the "being!"I have no emotional committment to what happens to a fetus. I would rather it were born alive to loving parents, but, hey! that's not my decision and I would not substitute my judgment for that of those who face such decisions.Ralph wrote:By your logic a fetus is a human being at the instant of conception - a belief shared by many which I respect.
My main concern is with the terminology: if it, whatever it is, is the result of sex between two human beings, it is human. Not calling it human because of a committment to abortion is like the old Lincoln saw about calling a dog's tail a leg: it don't make it so. Refusing to call a human fetus "human" don't make it not human. To claim it isn't "human" is to be guilty of sloppy thinking.
Is a fetus conceived by artificial insemination through an unknown donor a human? You always bring up the filthy sex angle that underlies most pregnancies.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
Okay. Now you're having me on. Why would it not be?Ralph wrote:Is a fetus conceived by artificial insemination through an unknown donor a human?
I have to do something to liven up these political discussions. The namecalling and rants and brawls just doesn't do it for me . . . .You always bring up the filthy sex angle that underlies most pregnancies.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
jbuck919
- Military Band Specialist
- Posts: 26856
- Joined: Wed Jan 28, 2004 10:15 pm
- Location: Stony Creek, New York
Nobody is denying that a zygote of the species Homo Sapiens is not going to mature to be a jellyfish.Corlyss_D wrote:
Both you and Ralph are thinking too hard about this. My threshold is a lot lower than "is it alive?" or "can it be aborted?" My issue is Biology 101: regardless of when it was conceived, or how long it gestates, or whether it's aborted or carried to term, it is still human because it can't be anything else, Ralph's aliens notwithstanding.
There's nothing remarkable about it. All one has to do is hit the right keys at the right time and the instrument plays itself.
-- Johann Sebastian Bach
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
That's all I'm saying. People commonly say "it isn't human," when what they mean is "it is not a legal entity possessed of certain rights." It grates on me when they misuse the term. Worse than profanity.jbuck919 wrote:Nobody is denying that a zygote of the species Homo Sapiens is not going to mature to be a jellyfish.Corlyss_D wrote:
Both you and Ralph are thinking too hard about this. My threshold is a lot lower than "is it alive?" or "can it be aborted?" My issue is Biology 101: regardless of when it was conceived, or how long it gestates, or whether it's aborted or carried to term, it is still human because it can't be anything else, Ralph's aliens notwithstanding.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:Both you and Ralph are thinking too hard about this. My threshold is a lot lower than "is it alive?" or "can it be aborted?" My issue is Biology 101: regardless of when it was conceived, or how long it gestates, or whether it's aborted or carried to term, it is still human because it can't be anything else, Ralph's aliens notwithstanding.jbuck919 wrote:I am not going to attempt to speak for Ralph, who may have something completely different in mind, but a human being is a developmental proposition. The Catholic Church in the strictness of its official teaching claims that the amorphous zygote that exists in the short period after conception is already human. Actually, the ignorant ancients (including St. Thomas Aquinas) had a better idea when they suggested--for the wrong reason--that there was something called "quickening." The problem is that they wanted to determine exactly when it occurred so we could be sure of not destroying a being with an immortal soul. This dualistic way of thinking is not comfortable for many modern people, even though it is still of the essence of much religious belief.
You dismiss the aliens at your own peril.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
-
Corlyss_D
- Site Administrator
- Posts: 27613
- Joined: Fri Mar 25, 2005 2:25 am
- Location: The Great State of Utah
- Contact:
While I had read the Ponnuru article before I posted it, I hadn't had a chance to read the Rosen article until this PM. I must say I am in practically total agreement with Rosen on his speculations about the scene after Roe.
And I have to say too that I am delighted that he has bothered to collect in one place the recent polling data on how Americans feel about abortion. It more than confirms what I have been telling you SNAGs for the last 2 years at least: you pro-abortion folks have won the debate.
And I have to say too that I am delighted that he has bothered to collect in one place the recent polling data on how Americans feel about abortion. It more than confirms what I have been telling you SNAGs for the last 2 years at least: you pro-abortion folks have won the debate.
Corlyss
Contessa d'EM, a carbon-based life form
Contessa d'EM, a carbon-based life form
-
Ralph
- Dittersdorf Specialist & CMG NY Host
- Posts: 20990
- Joined: Fri Mar 25, 2005 6:54 am
- Location: Paradise on Earth, New York, NY
*****Corlyss_D wrote:While I had read the Ponnuru article before I posted it, I hadn't had a chance to read the Rosen article until this PM. I must say I am in practically total agreement with Rosen on his speculations about the scene after Roe.
And I have to say too that I am delighted that he has bothered to collect in one place the recent polling data on how Americans feel about abortion. It more than confirms what I have been telling you SNAGs for the last 2 years at least: you pro-abortion folks have won the debate.
I don't know anyone who is pro-abortion. I'm pro-choice. I don't care what decision a woman makes so long as the state doesn't control her option.
"Only two things are infinite, the universe and human stupidity, and I'm not sure about the former."
Albert Einstein
Who is online
Users browsing this forum: No registered users and 5 guests