popper wrote:...Following are comments from a few legal experts and a few legal commentators who are/were sympathetic to the abortion cause. They eviscerate the decision consistent with my original post. I don’t think there’s a conservative among them PIF. Let me know if you need more examples.
“[I]t is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result. This is not surprising. As a constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.” — Kermit Roosevelt, University of Pennsylvania law professor
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” — Laurence H. Tribe, Harvard law professor
“As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose. … Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the … years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” — Edward Lazarus, former clerk to Justice Harry Blackmun
“Judges have no special competence, qualifications, or mandate to decide between equally compelling moral claims (as in the abortion controversy). … [C]lear governing constitutional principles … are not present [in Roe].” — Alan Dershowitz, Harvard law professor
“Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference.” — William Saletan, Slate columnist, writing in Legal Affairs
“Although I am pro-choice, I was taught in law school, and still believe, that Roe v. Wade is a muddle of bad reasoning and an authentic example of judicial overreaching.” — Michael Kinsley, columnist, writing in the Washington Post.
“Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the Court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”— Ruth Bader Ginsburg, Associate Justice of the U.S. Supreme Court
'What is frightening about Roe is that this super-protected right,'' Professor Ely wrote in the Yale Law Journal in 1973, ''is not inferable from the language of the Constitution...
First off, I apologize for the cranky tone of the post to which you are responding. Give me a pass on it please!
I don't in the slightest disagree w/ the sources you cite (if I can be said to have any standing to "disagree" -- or even to agree -- with so august a group). I'm not sure you'll find, looking back, that I even said I was in accord with the conclusion of the ruling, i.e. that I'm "pro-choice" (tho, for the record, I am).
That doesn't mean I have any reason to be impressed by Alexandra DeSanctis' impersonation of someone analyzing something dispassionately -- when, as a moment's research revealed, she's on the subject for a totally different set of reasons. Her issues are, if I can choose a word for her, "moral." & the absolutism of her morality strikes me as fairly typical (on any side of any subject) for someone her age.
That's one reason why I suggested you might want to read about the history of abortion. Many many significant areas of human activity have quite a short history of being addressed by the law. In this case, for most of human history (literally 1000s of years), until the professionalization & "scientization" of medicine starting about 150 years ago (which is, obviously, a very good thing overall), women ran this entire part of the human drama on their own. Neither doctors nor in general any men at all had much to do with pregnancy (after setting things in motion, that is!), birth, decisions to end pregnancy, etc.
This stuff was all thought to be "women's business," & any individual instance was thought to be the business of the woman or women involved. The entire sphere was, in that sense, private. Formal social institutions like "the law" had almost no part in it. Women dealt with midwives, not doctors (women not men). Doctors didn't deliver babies. Well, for one thing, there were very few doctors.
When the modern world hit, formal structures & male control began to take over these areas traditionally controlled by women. For example, the law invaded this realm. Whether the constitutional reasoning of Roe v. Wade is sound or not has little to do with what is, in essence, an attempt by women to reclaim power over their own bodies.
They'll win that fight, no question. Why? B/c they have the vote these days. I can assure you there were a lot of happy people in the legislative branch when Roe v. Wade was decided -- whether they said so or not -- b/c the issue had been put somewhere where they wouldn't have to be responsible for it!
But now we're talking about something different from the Supreme Court. I'm not interested in talking about women's right to control their bodies here. Nor about abortion. Nor about whether an unborn fetus is "a person" -- or a "family member" as A. DeS. puts it. Nor do I think Roe v. Wade is an example of SC Justices wanting to rewrite the Constitution.
I'll be a lot more interested in how the court rules on the last many years of redistricting intentionally to deprive some people's votes of their impact. That's coming up. Or about the decision that made it possible for corporations to influence elections directly, etc.
Everyone doesn't want to conserve habits and institutions that work well PIF. There are millions of Americans for example that want to do away with the electoral college. If you think about it, you can come up with many other things that have worked well in the past that people want to eliminate.
