xtcian

I thought Roe v. Wade was actually based on issues of privacy? At any rate, I've heard that Roe was a terrible legal decision before, and it's probably true. I think that the Supreme Court, as a body that is appointed for life and therefore free (hopefully) from political pressure, should do more than simply render "yes or no" verdicts, and should help to shape the law to some extent.

As for abortion, I'm liger-ish as well, at least when it comes to personal feelings. I mean, there's something to be said about the absolute sanctity of life, and there really isn't a clear demarcation of when that life begins, scientifically speaking. In fact, advances in technology keep pushing it back.

But ultimately, when it comes to voting, I'm totally pro-choice. I'm sort of a utilitarian at heart, and as awful as this sounds to the pro-lifers in my circle of friends, I just find that the feelings and happiness of a non-aware proto-human doesn't really compare to the feelings and happiness of already existing humans.

I think that what I would ideally like to see is more sex ed and more personal responsibility among people so that unwanted pregnancies were drastically reduced. Perhaps medicine will give us a pill at some point that both men and women can take once a year with zero side effects that will prevent conception 100%. But I do think the option needs to be there.

This post was a tad long (not judging! just sayin') but I found it interesting toward the end especially. I have so many questions about big government vs. state government, the true role of the judiciary, etc. that I can't really comment, just say that I'm glad you raised the issue(s) because now I'm thinking about them (again).

Am I dreaming, or was there not an interval before Roe v. Wade when New York state allowed abortions by physicians, but the neighboring state of Connecticut did not? We lived in CT until I was just over 14, and I seem to recall hearing whispers about girls going to NY for abortions.

Now, just look at this civil (so far) discussion! Thank you.

Interesting discussion.

If anyone is curious, according to many on the left, the most egregious example of "judicial activism" in modern history was Bush v. Gore in 2000.

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/sctsuicide.html

(By the way -- Against abortion? Don't have one. Sorry, couldn't resist. Please resume the civil discussion.)

If you don't make an argument based solely on emotion, how do you expect to get people excited? Maybe a few half-truths (the number 94 mean anything to you?). You also didn't demonize the opposition.

How can I practice constraint when you make a clearly thought out and level-headed group of statements. It's almost as if you were in a REAL debate.

Dean, I understand where you're coming from. But the Supreme Court really wouldn't be doing its job if it simply gave "yes" or "no" answers as to whether given laws are constitutional. Part of its job is to explain WHY a given law is not kosher, so as to provide guidance to legislators in how to fix the problem. Granted, it is a fine line between explaining the flaws in the old law and actually rewriting that law. Indeed, the Roe v. Wade decision arguably reflects the Supreme Court stepping over that line and providing too much guidance. But just giving a "yes" or "no" answer would have created confusion and more stabs in the dark by state legislatures.

I think you also gloss over the important role of constitutional rights in the federalism debate. Every citizen of the U.S. enjoys certain basic rights under the Constitution that the states cannot trample. The Supreme Court had already recognized a constitutional right to privacy years before it issued the Roe v. Wade decision. (Even Sarah Palin said she believed in this right -- assuming she actually understood the question. Sorry for the partisan digression.) Now, you can disagree whether such a right to privacy actually exists, or whether a right to choose an abortion legitimately falls within such a privacy right. But it perhaps oversimplifies things just to say that the states should decide the issue, just like they decide about driver's licenses and workers' comp.

I do not envy Supreme Court justices for having to write these opinions. It is very difficult stuff. And one also needs to keep in mind that many of the foundations of "judicial activism" are decisions by Republican appointees in the 1950s through the early 1970s. These were not decisions by wing-nuts. They were decisions by middle-of-the-road judges who were doing their best to decide hard issues.

I want to read it again before I comment, but I want to say that this post was very, very well written and in the spirit of the blog. Good job, Dean!!!

Awesome post.

By the way, I would also like to chime in to praise Dean's effort to change the tone and raise the level of the discourse. Things have gotten awfully heated in the political arena lately, and that's harmful both to the country and to the mental health of blog commenters.

Thanks for today’s post, Dean. I’ll try to remain as respectful and measured in my response as you have in your post.

First, let me say that I am strongly pro-choice. I do not believe the government (whether federal or state) should have the right to dictate what a women can do with her own body. It’s that simple for me – a potential future person’s rights do not in any way trump or impinge upon the rights and privacy of the woman carrying it.

Now, as for when life begins – I don’t think the question is phrased to be relevant to the discussion of abortion. Life literally begins at conception, but the real question is – when does this fertilized egg count as a PERSON?

Until the fertilized egg can be considered a person, it can’t (or shouldn’t) be given human rights. And I don’t think we can consider a fetus to be a person until it is an independent entity from its mother.

So, when does the fetus becomes independent from the mother? This happens some time before birth, once it reaches viability. I work with premature infants and know this to be true. So I understand placing a limitation on late-term abortion because at that point you are terminating a viable fetus.

Regardless of viability though, I would certainly hope that a woman carrying a fetus would consider adoption rather than abortion. I certainly would if I were personally making such a decision. But I strongly feel that government intrusion into a woman’s body is a very bad idea.

Now, on to federalism. I’m generally not a big fan of states’ rights on the big issues. I understand that there are differences between states, but I don’t think we need to have completely different laws from state to state on something as important as abortion. I don’t think it is a states’ rights issue, as I think a woman’s right to have control over her own body is too important to leave up to the states to determine independently. I believe the federal government needs to ensure that legalized abortion is a right extended to women in all states.

As for judicial activism, I agree that in principle it is a bad idea, since the three branches of government each has its own powers and limitations for a reason. When one branch starts trying to assume the powers of another branch (are you listening, Bush Administration?), the balance of power shifts and things can go wrong. However, I agree with Ehren that the Supreme Court can and should do more than simply vote yes or no on an important case before them, and can help shape the law. I’m not saying they should rewrite the law, but if the law is unclear or controversial enough that the case went to the Supreme Court, then it clearly needs interpretation or revision, and I think it is appropriate for the SC to fill that role.

The Miranda example might be one in which the SC overstepped its bounds, but I don’t think the same of abortion. Not at all. First, a disclaimer – I am not a legal expert by any means, and don’t know the case well enough to comment on any specifics… but I will certainly weigh in with my opinions anyway. :)

It seems to me that if the SC came to two important conclusions:
- banning abortion was unconstitutional because it violated a woman’s Constitutional right to privacy (with which I strongly agree),
- the 14th Amendment does not apply to fetuses, as they are not born persons.
I’m sure there’s more to it, but from these conclusions, it was within the court’s right to ban abortions throughout the country without concerning itself with states’ rights, because Constitutional rights were involved. Constitutional rights trump states’ rights.

I also agree with Ehren about the feelings and happiness of a “non-aware proto-human” vs. those of “already existing humans”.

I’m off to read Anon’s link about Bush vs. Gore. Should be interesting.

Nice job, Dean. Nice job, commenters.

Is it just me, or is it getting to the point that if you don't have a law degree, you aren't properly equipped to enter the debate beyond going with your gut?

dean, to echo the chorus, great post! it's terrific for you to argue this side of the abortion debate. but as a many-headed monster, i think the legal nuances are just a tiny slice of what riles the country.

and, one of my biggest questions about our legal system, (and to our medical system, as a psych student), is what protections do we have in place when public climate dictates something as legal or illegal when it should be a basic right? the whole civil rights movement falls under this umbrella. our founding fathers had their own prevailing views on what made up a "man" (3/5 of a man, a slave, a woman, etc)...and i wager it was more a biproduct of the times than what was "best" for humanity and progress as a whole. these are slippery slopes, i know, but you get the gist.

similarly, there have been medical trends which called out things like hysteria as a disorder, when really the diagnosis was the result of lack of "enlightenment" and real scientific understanding combined with a convenient way to uphold civil views on outspoken women, for example. the DSM, which is the bible of the mental health field, is amended every few years, and it's fascinating to see what gets added as an illness and what gets struck down.

to this end, i deeply believe that when it comes to a woman's body and the process of bearing a child, the right to decisions belong between a woman, her doctor, and her god. full stop. and, occasionally, we need a legal system which knows when it has been carrying out tainted process.

sigh.

OK, so this is probably a return to partisan hackery, but it is damned funny...

http://www.youtube.com/watch?v=7DIc8jdra0o

Off topic but wanted to share this with the Heels fans:

http://projects.newsobserver.com/under_the_dome/castellanos_name_drops_dean_smith

"GOP political consultant Alex Castellanos, a UNC-Chapel Hill grad, was analyzing John McCain's debate performance on CNN Tuesday night, when he made a reference that most Carolina grads would get.

"You don't run the four corners offense when you're behind," Castellanos said.

Four corners offense was a strategy developed by Coach Dean Smith at UNC in the early 1960s. It was essentially a way to slow down and hold the ball to run down the clock."

Thank you for this post. When I read your statement about absolutists, I was like BINGO! I almost stopped reading this blog because of the absolutists opinions. That irritates me the most. Across the board, not just about politics. Passion is great and greatness comes from it, but the blindness to just see for a second another person's opinion closes your mind. Anyways, great job, very interesting to read.

i find it interesting that you selected this issue to discuss because it's the issue i think conservatives are the most unwilling to find common ground on.

and a question - do you really think that the right to privacy does not exist in the constitution?

kjf: First, I love you. Second, your first sentence is almost so ironic in its wording that it contradicts itself. I won't comment further.

I never said and never will say that the right to privacy does or does not exist. My column purposefully and explicitly stayed away from the underlying possible merits (or possible lack thereof) of the Roe decision.

My goal was to show liberal bomb-throwers that there is a way for a conservative to express a position on this blog in a fashion that does not invite vitriol. Based on the prior commenters, I'd say that I did so. No one has issued a fatwa (sp?) against me . . . yet.

With that in mind, I see myself kinda like Anthony Michael Hall at the end of the The Breakfast Club. When he finishes the letter to the principal, he gives himself a little "atta boy" knock on his own shoulder. That's me.

uhhh....please explain the irony.....and i love you too!

Application of the text of the Constitution, statutes, and the common law to a set of facts is now beneath the Superior Beings on U.S. Supreme Court. Not long ago I read that that the Supreme Court has become our own "House of Lords." I could not agree more.

These nine men and women cite to any source, without boundary or limit, to justify their own personal judgments. Many legislators and executives are content to have a judicial branch that helps to control the people. If the courts have to flout the Constitution and flaunt their own wisdom and moral superiority, so be it.

Best line of the day is the comparison to Anthony Michael Hall's "atta boy" knock on the shoulder. I can see Dean doing that, too.

And now I can't get that Simple Minds song out of my head, "Don't You Forget About Me . . . "

Dean:

Your post is really good. But, cases like Loving v. Virgina and Brown v. Board also obliterated state differences and were likely characterized as judicial activism at the time.

Can someone quote me where in the Constitution the right to privacy is set out?

The Judicial Activism argument is, in my opinion, bogus, and here's why:

Judges have a unique freedom in our system of government. They can, by themselves, decide what's right and wrong in law. That means they can decide wrong things, but the beauty of the system is that until a case reaches the Supreme Court, a judge's discernment is not final. This system weeds out a lot (aruguably most) of bad precedent before it can do substantial damage.

And if the Supreme Court gets it wrong, Congress can overrule them by legislating new law -- as long as their new law is constitutional. And if enough of the country agrees that something currently considered unconstitutional should be in the Constitution, there's a procedure for that as well. That's how we got Prohibition -- even though the courts had no trouble finding a basic right to get blotto, enough of the country disagreed to change the law of the land.

I am strongly pro-choice, and we don't need to iterate all the reasons why. But we have to look at why people are against Abortion -- ultimately, it's a religious issue. Pro-Life people see life beginning at conception, and go so far as to worry about fertilize ova -- that are otherwise medical waste -- being used in research.

If someone thinks that the developmental equivalent of an Amoeba deserves human rights, there's no way to convince them that woman should have the right to decide whether to carry a child.

But since the Pro-Life argument is essentially a religious one, I don't see how it can be a legal question that they can win, because they are asking the government to impose their religious beliefs on people that do not share them. Look at it that way, and Roe V. Wade seems not just the right decision, but the enduring law of the land. It will take a constitutional amendment to change that, and I can't see that ever happening.

The Pro-Life movement is on the wrong side of this argument with respect to the Constitution. Blaming the Judges for the decision they rendered and saying they somehow overstepped their bounds is a red herring. They did their job, and if you disagree with their decision, there is a complete set of remedies available to those committed to change settled case law.

But I don't think the support is there for a Life Amendment. And the worst of it is that if a Life Amendment passed, it might reduce abortion but never eliminate it. Mostly, it would make Canada and Mexico more popular as vacation spots, and increase the number who women who die from complications of illegal abortions.

TJ - re: right to privacy in the constitution -

http://topics.law.cornell.edu/wex/personal_autonomy

and i am still scratching my head as to why my earlier comment was ironic. maybe me just dumb but me no understand.

kjf, I believe that the irony of your statement in Dean's eyes lay in your assertion that conservatives (and, by inference, conservatives ONLY) are unwilling to find common ground on this issue. One could rephrase the statement to say, "If it weren't for the closed-mindedness of conservatives, we could have an open and honest dialogue about the issue of abortion." Dean's point was that both sides pretty consistently engage in name-calling and blame, as opposed to discussing the issues on their merits, and I believe that he felt that your characterization of conservatives being the problem flew in the face of what he was trying to do with his post.

Just trying to explain what I think Dean thought! I appreciate the way he handled this post, though I agree with the responses of Curtis, Scott M., and Kent on this issue.

re: irony

in my original post i was simply commenting to dean that i thought it was INTERESTING that he selected this issue because i think it is such a fall on the sword issue for conservatives and i just don't see it as being that sort of issue for liberals anymore as other issues have displaced it as a liberal deal breaker.

i don't think that conservatives are the ONLY ones who are unwilling to find compromise on the issue and acknowledge that there are strong opinions on both sides. but if you ranked all the issues in terms of the inflexibility of each sides position with respect to that issue i do believe that abortion would be ranked #1 on the conservative side.

in support of my position i would point out that john mccain could not choose certain people for his VP (tom ridge among others) because their pro choice position would be the kiss of death with conservatives. on the dem side barack obama reached out to pro life democrats by inviting bob casey to speak at the convention - in stark contrast to how his father was treated by bill clinton. casey has said that he sees obama as willing to find common ground on this issue. in addition, the democratic platform includes language supporting alternatives to abortion to try to bridge the gap with pro lifers. further, some time ago hillary clinton got alot of heat for stating that she thought there was common ground on this issue. (the point here being that the dems are trying to at least APPEAR flexible on this issue so it has fallen down on the list of deal breaking issues)

so to repeat, my comments were just that i thought it was an interesting (and gutsy) choice for you to pick that issue. that's all, nothing more than that, irony free. atta boy!

hey i want ago at saying why politics don't work full stop ......I want a stab in the dark belly of that.

"TJ - re: right to privacy in the constitution -

"http://topics.law.cornell.edu/wex/personal_autonomy"

"The Supreme Court first recognized an independent right of privacy within the 'penumbra' (fringe area) of the Bill of Rights"

"Penumbra"? That's just silly. Either it's in the Constitution or it's not. It's a double-edged sword: Once they started finding "penumbrae," the courts turned it around on us and made up all sorts of stuff to NARROW our rights and expanded the power of government. Exactly what the Constitution was supposed to prevent. Blecch.