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Wednesday, January 22, 2014

In Which I Concur With RBG In Part, Dissent In Part

TPM:

"Roe isn't really about the woman's choice, is it?" the Clinton-appointed justice said last May at the University of Chicago Law School. "It's about the doctor's freedom to practice ... it wasn't woman-centered, it was physician-centered."

Her pique is that the Roe opinion, written by Justice Harry Blackmun, relies on a "right of privacy" under the 4th Amendment and emphasizes the right of physicians to practice medicine as they see fit. She prefers that abortion rights be recognized under the equal protection clause of the 14th Amendment, based on the view that having a child should be a woman's choice.

Ginsburg has also said that the ruling damaged the growing movement for abortion rights by going "too far, too fast" and catalyzing the conservative pro-life community, which considersRoe a monumental act of judicial overreach.

I like her logic regarding the decision's basis.  I do not agree with her on "too far, too fast."  People were dying in back alleys, equal protection was denied, and I'm not sure we should ever limit ourselves in a fight for justice because we fear backlash.

The Court did what's right, with the tools it had at the time.  It's up to the political process, including energized activists on our side, to safeguard reproductive rights no matter how catalyzed the opposition has become.

ntodd

PS--Lemieux's arguments for your consideration.

January 22, 2014 in Constitution, Schmonstitution, Soaking In Patriarchy | Permalink

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Comments

I would defend her "too far, too fast" comment by arguing that Roe was decided on a "penumbral" right of privacy which is largely defended by legal scholars on the basis of the outcome it produced, not on the reasoning that deduced the right.

Roe has always, in other words, been considered a very weak case legally. Frankly, I've been surprised for some time that it's lasted as long as it has. That persistence supports your point about when and how to do justice.

Had Roe been rooted in the 14th Amendment and Ginsburg's legal analysis, I think it would have fared better and been more enduring, and far less subject to the diminutions step by step that it has suffered. No one at the most recent case about the MA limits on how close one can get to a clinic were talking about the woman's rights, were they?

With Ginsburg's reasoning in place since '73, they might not have had a choice about ignoring that.

Posted by: Rmj | Jan 22, 2014 12:27:38 PM

I *like* the penumbral logic of Griswold!

Posted by: NTodd | Jan 22, 2014 3:00:29 PM

"Roe has always, in other words, been considered a very weak case legally." - Rmj

Tools available. Time of decision. Yes, it is that simple.

Sarah Weddington said instead, in her book A Question of Choice (I don't have my copy in front of me, so I can't quote), that the Roe decision was fragile, that other, more radically conservative times and a more conservative SCOTUS would doubtless lead to its overturn, and that women (and those who support their rights) need to pursue state-level solutions... not that those have worked out very well today.

I suppose one could have waited for the perfect time to make the perfect legal ruling for a perfect outcome. But I've worked as a contractor for Planned Parenthood, and I understand... as apparently you do not... that such a long wait would have resulted in the needless deaths of literally thousands of women.

One does what one can, when one can, with the tools one has: one has no other choice.

Posted by: Steve Bates | Jan 22, 2014 7:00:56 PM

I suppose one could have waited for the perfect time to make the perfect legal ruling for a perfect outcome. But I've worked as a contractor for Planned Parenthood, and I understand... as apparently you do not... that such a long wait would have resulted in the needless deaths of literally thousands of women.

Don't make assumptions you can't prove.

You know nothing about me, and your background is irrelevant to this argument. My argument is that Roe is not well grounded in law, and Ginsburg's argument is that it would have been better grounded in the 14th Amendment. Which was available in 1973, as was the legal tools from which she constructs her analysis.

And none of which means Roe should never have been decided, nor that it should not have allowed abortions to be legal.

There were, in other words, better choices; outcomes matter, but so do legal opinions.

At which point I would tell you I'm a lawyer, but that doesn't really matter either; except that I know what I'm talking about...."as apparently you do not...."

Posted by: Rmj | Jan 22, 2014 10:30:24 PM

Rmj, what, exactly, do you know of my contract work for Planned Parenthood? Nothing, right? Then how are you able to judge its relevancy to the issue at hand? Speaking of making assumptions...

Posted by: Steve Bates | Jan 22, 2014 10:49:49 PM

Be friends, you English fools, be friends: we have
French quarrels enow, if you could tell how to reckon.

Posted by: NTodd | Jan 23, 2014 7:33:16 AM

Rmj, what, exactly, do you know of my contract work for Planned Parenthood? Nothing, right? Then how are you able to judge its relevancy to the issue at hand? Speaking of making assumptions...

Contract work for Planned Parenthood's got squat to do with Constitutional analysis of law.

Next time, don't make it personal. Don't start nothin', won't be nothin'.

Posted by: Rmj | Jan 23, 2014 8:08:07 AM

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