Supreme Court showdown

Monday, March 06, 2006
The Indystar has an article, entitled Abortion-ban idea divides Hoosier State.

51% oppose it. I understand the desire to take the issue back to the people, but I think Republicans will find that most people will not support an outright ban. It may well be that the Supreme Court will have to decide.

52 comments:

Knucklehead said...

I think you are completely correct, Terrye. The anti-abortion folks should limit their advocacy to securing such items as parental notification and the very late term varieties. As far as I can tell women overwhelmingly believe abortion should be legally available within some small restrictions.

terrye said...

knuck:

Many women fear the old days.

MeaninglessHotAir said...

Maybe I'm wrong, but I believe there are very few "Republicans" calling for an outright ban on abortion. I think what most of them are calling for is for it to become something once again subject to the legislative process, rather than the imperial judiciary. The idea that "Republicans" are calling for a total ban on abortion is right up with the idea that they're going to pull all the tubes out of hospital patients and turf all the old folks out on the street--ludicrous Democratic demaguogery in other words.

terrye said...

MHA:

You might be right, but here in Indiana there has been a lot of talk of a ban. It has not come up for a vote in the State House yet and my guess would be a compromise of some kind.

It just depends how dedicated they are.

Syl said...

I agree. Glenn had a good post on this over the weekend and I agree with him. Especially the part where he talks about unmarried pregnant teens.

Anyway, it's not Bush nor Iraq that will lose at least the House for REPs this fall, it will be this issue.

Syl said...

MHA

I think it's too late to send this issue back to the states. Way too late. I understand the principle, but this is water under the bridge.

And the perception is certainly there that coneservatives want to ban abortion---sending it back to the states is just cover for it.

Otherwise why be so vociferous about it.

RvW will never be overturned.

Rick Ballard said...

"And the perception is certainly there that coneservatives want to ban abortion"

Yeah and you can sure tell that it's true - why look at this poll of evangelicals Dang near half of them say that abortion is "nearly always immoral."

Buncha absolutists.

Trust the meme - it never lies.

Knucklehead said...

Terrye,

Fearing the old days doesn't make the fear particularly rational. Even if the political impossibility of an outright ban on abortion somehow came to pass women would still have it within their reach to avoid unwanted pregnancies without even considering abstinence. It would, of course, require making "choices" before hand and insisting on better behavior from men, but the range of choices available today is vastly more than those available in the filthy room and rusty coathanger days of "yesterday".

The issues are still argued about as if it is 1970 rather than 2006. That's the part of the abortion "debate" that irks the heck out of me. That's true also, BTW, of the general "social welfare" debate. It is forever mired in the last generation when the nature of the problem to be solved and the tools available to solve it have changed enormously.

Rick Ballard said...

Knuck,

I just saw an article the other day that said that Dem strategists are advising that Dems shouldn't participate in the proposed SS bipartisan committee. Gotta keep caping the geezers with the "mean Republicans will cut your benefits". Kinda boring after thirty years but hey, if you've never had an original idea (and the Dems show no evidence that they have), stick with what worked in '76.

ambisinistral said...

This is a stupid move by the far right. They can kiss a lot of cross-over voters goodbye if they pushing these types of Bills.

flenser said...

If the people of South Dakota want to place severe restrictions on abortion, I can't see that it is anyone else's business.

If they do not want to place severe restrictions on abortion, then they can elect different people to their state house.

How is any of this a matter for the courts again?

flenser said...

ambi

Why exactly are cross-over voters so scared of being allowed to vote on issues?

JB said...

Glenn Reynolds likes to accuse others of "fair-weather federalism", which makes his complaints on this issue particularly interesting.

States' rights, baby. Gotta love 'em.

Rick Ballard said...

JB,

What's going to be funny is when the appropriate compromise is reached and the vast majority says - "hey, I can live with that."

Libertinarians like Reynolds are in a very peculiar place - kinda funny to watch the silly putty principles in action.

Syl said...

Why should we even want to vote on making abortion legal when it already is?

All the conservatives hope to do is make it illegal in certain states because they can't make it illegal across the country.

States rights is just their transparent cover for doing so. Period. Hopefully the SC will never again indulge in such activism, but what has happened in the past is a done deal. Erode around the edges but the core issue will not be changed.

The issues are still argued about as if it is 1970 rather than 2006.

Tell that to the stem cell researchers. Tell that to those advocating birth control. Oh heck, ask The Corner what they think. Seems like they're back in the '70's themselves.

Rick Ballard said...

"Why should we even want to vote on making abortion legal when it already is?"

How much lawmaking are you willing to cede to the courts? Do you wish to live under judicial fiat? Whatever an appointed magistrate says is the law, is the law?

Interesting POV but it wouldn't be a place where I would want to live. Look at the poll numbers that Terrye referenced and those that I referenced. Legislators will come to a correct conclusion. As they should.

flenser said...

It's strange how people who can talk such a good game about spreading democracy abroad are terrified that it might crop up here in the US.

JB said...

Also, what I see in regard to RvW is a sort of exceptionalism. Well, it's "settled", for some reason. Exactly why it and nothing else is (property rights, gun rights, the death penalty, etc.) is never persuasively explained.

The states can override Kelo. Why not RvW?

Seneca the Younger said...

How much lawmaking are you willing to cede to the courts? Do you wish to live under judicial fiat? Whatever an appointed magistrate says is the law, is the law?

And this was different exactly how? And when?

If you make it the standard that the courts cant restrict, alter, or even void things passed by the Legislature, then the whole notion of having a judiciary to figure out these issues is meaningless. Or, seen the other way, if the Judiciary can ever act to modify the actions of the Legislative (or the Executive) then there will inevitably be times when the Judiciary overrules the Legislative, and thereby "legislate from the bench."

Roe v Wade may not be long-settled law, but after 225 years Marbury v Madison certainly is.

terrye said...

seneca:

I think there are folks out there that have not got that message.

I am just saying people need to be careful here. Perceptions matter.

Rick Ballard said...

StY,

The difference lies in the discovery of "new" law. There is a distinct difference between discerning correct application of existing law and discovery. When the court determines that it will move by yards rather than inches - what is to keep it from ells and miles?

I've no problem with inch by inch change - just jurisprudential leaps and bounds. It's a tide, not the crest of a wave caused by a storm surge.

And it certainly pays attention to election returns, which it is doing today. Like it or not.

Syl said...

flenser

It's strange how people who can talk such a good game about spreading democracy abroad are terrified that it might crop up here in the US.

Nonsense.

What is democratic about letting someone else vote on what is a matter between me, my family, husband, doctor, and minister?

terrye said...

Well obviously if 55% of the populations wants to enslave 45% they can not, even if they control the votes in the state legislature.

We all have inalienable rights. The debate tends to center around just what they are. There is nothing undemocratic about that debate.

Rick Ballard said...

What is democratic about presenting me with a bill for the for the unintentional consequences of the exercise of a "right" not enumerated? To say "this is private" would be wondrous could a bond be posted for all unanticpated costs.

"If I want to smoke dope in my own home - what harm does it do?"

"If I wish to download childporn, why shouldn't I be able to."

"If I want to marry my Great Dane, why shouldn't she be recognized by law as my partner?"

Is there an end to "privacy" and if so - could you tell me where it lies? For your bedroom lies within the commonweal and unless you can bond all unanticipated societal consequences arising from behavior there it is more public than you might wish.

"Yes, your honor, I murdered my wife in the bedroom, but so what? She told me that was what she wanted. She consented - that's all you need to know."

It gets pretty silly, pretty fast.

Seneca the Younger said...

Rick, the thing is that I can't see any way to identify when the Court is finding "new" law. Certainly George Wallace and Robert Byrd thought Brown v Board of Education was "new law" --- although the "Radical Republicans" of the post-Civil War period wouldn't have thought so. And while the "penumbras" argument of Griswold v Connecticut seems foolishly phrased, I'd sure think the Ninth Amendment argument seemed pretty good. Would it have been "new law" to argue that the right to privacy was one of the unenumerated rights reserved to the people?

I don't know.

But without a decision procedure of some sort to tell me when "new law" doesn't just mean "I don't like the decision", it's hard to see how that standard could be applied.

terrye said...

Rick:

If Republicans want to lose their majority, there is no better way to do than to tell a woman that there is no difference between her having the right to terminate a pregnancy and her having the right to marry her dog.

I am just telling you. A lot of people, and not all of them are in NOW do believe that Americans have a right to privacy. In fact I heard Chief Justice Roberts say that himself. So be careful with that.

ambisinistral said...

The fact is center trusts neither the far left or the far right.

If you think trying to ram through anti-abortion laws at the State level is going to win the Republican Party votes you're dreaming.

flenser said...

Well obviously if 55% of the populations wants to enslave 45% they can not, even if they control the votes in the state legislature.

Well, obviously, they can. You probably mean to say that in your opinion, they should not. But that is a very different thing.

The majority can do whatever they want, and in the long term, they do. The believers in "individual freedom" such as Madison and Jefferson succesfully held the majority at bay for a long time, but eventualy the majority enforced their own views at gunpoint. The Civil War was simply the majority enforcing their own view on the South.

Segregation in the South was ended in the same way. The majority decided it was time to end it, and they did.

Undemocratic nonsense like Roe cannot stand forever, and it will not.

Rick Ballard said...

StY,

I agree. It's impossible to discern until it pushes beyond where the electorate will allow it to go. Griswold is one of those places. It has nothing whatsoever to do with a particular behavior - it has to do with the inarticulate plebiscite determining that a societal confine has been breached. It's been forty years since Griswold and it's taken that amount of time for the plebescite to say "Hey, that's not liberty, that's license." You pay for a license and you pay for it because there are costs associated with the issuance for which society must be recompensed. I feel that the Court decided correctly in B v B because it holds a fundamental - equality before God and law. For me, the decision remains undetermined wrt Griswold because there is no fundamental right involved and the total cost is yet to be measured. It's up to the polity to determine the final cost and the ultimate value of the decision. Griswold is illogical where Brown possessed inherent logic.

I'm just glad I'm not a justice.

Ambi,

The muscle isn't in the middle. "Swing, undecided, centrist" are synonyms for 'loser'. This is a mid-term and there won't be a major change based upon this type of issue. This is just 'scare' garbage that will play very little wrt results.

Name the Senate seat that hinges on the subject.

flenser said...

Seneca

Would it have been "new law" to argue that the right to privacy was one of the unenumerated rights reserved to the people?

Well, yes, since it was not an "enumerated" or existing law.

And if "the people" had been allowed to make that a law, then I would have no objection.

But the judges made "new law" when they decided to take it upon themselves to take rights reserved to the people and write them into the law books in the fashion which they thought best. That function is supposedly reserved to legislatures and to the people. After all, they are (supposedly) the peoples rights, not the courts.

Appearently some people think its fine for judges to make laws, but get very nervous at the thought that "the people" may do so, as we are seeing right here.

That goes back to the question I brought up many months ago; what entitles judges to make law?

loner said...

It's been forty years since Griswold and it's taken that amount of time for the plebescite to say "Hey, that's not liberty, that's license."

I don't think so.

Rick Ballard said...

Loner,

Tides turn, the winds change.

It's always the plebiscite with the final say unless fundamentals are involved. What's the fundamental wrt Griswold?

Fresh Air said...

Roe was truly an abomination. Not only was it bad law, but, as Glenn Reynolds pointed out, the short-circuiting of the abortion debate by the SCOTUS ensured that the scab could never heal.

Regardless of how one feels about abortion (I am ambivalent), the habit certain liberal judges and justices have of reading "rights" into the Constitution in order to support pet causes is pernicious and carries with it unintended consequences that can be far-reaching indeed. We shouldn't enshrine nonsense merely because it's been around for a long time.

From a practical standpoint, however, the correct thing for Republicans to do now that South Dakota has acted is...nothing. Wait three years for this thing to make its way to the Supremes and see whether it passes muster. After that bracing splash of cold or hot water, then the legislatures can get busy and figure out what to do.

But not until then. It would solve nothing--unless you are aware of a state that has over 50 percent conservatives but has a Democrat majority legislature.

loner said...

Rick,

The fundamental is liberty and my disagreement with you is that when it comes to Griswold I don't think the tide hasn't turned in the direction you seem to think it has.

terrye said...

flenser:

So the Constitution is a sham? The rights it says are ours are just an illusion that any mob can do away with at anytime.

So much for democracy.

Alan said...

MeaninglessHotAir, you are wrong. Practically every "conservative" pundit is crying for the outlaw of all abortions. You should stop to listen to what they are saying. The problem is most people don't take it seriously and do not realize what is happening to the GOP because of it.

The Shiavo mess should have been a wake up call. Pundits like Rush Limbaugh, Sean Hannity, Laura Ingraham, et al have been pandering to the pro-life fringe for years and Republicans have been giving the issue lip service to placate that fringe. But because of the pundits it's become mainstream in the GOP. Pro-life/Anti-abortionists have been elected to office all over the nation by Republicans who think they aren't serious. Barry Goldwater warned this was happening. And Recently former Senator Jack Danforth wrote an article in the Washington Post saying the same thing--for which Rush Limbaugh tagged him a Liberal.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/01/AR2006020102393_pf.html

This is serious and it will destroy the GOP's majority. The only thing keeping the GOP in place is the War on Terror. But when this issue, abortion, starts to hit home the War on Terror will matter much less.

Rick Ballard said...

"This is serious and it will destroy the GOP's majority."

No. This is silly MSM meme crap. The new SCOTUS is going to be much like the old SCOTUS and the abortion plank in the Rep platform will remain unchcanged.

Both the poll Terrye cited and (more importantly) the one I cited do not show sufficient public sentiment to do more than attempt to better control late term abortions. When the question is split down to that spefic area then there is sufficient support to pass a laws. The rest is just gas.

As I mentioned - go find the Senate seat at risk due to the current incumbent's stand on abortion. In every case you'll find pols who carefully adjusted their "principles" whether for or against to match polling. It's as much a sham as SS reform.

Loner - Griswold won't be revisited in my lifetime - I know that. That doesn't mean it was rightly decided. The Warren Court (IMO) simply invented too much and overeached quite badly.

I do take some small vicious pleasure in thinking that Miranda and a couple of their 4th Amendment idiocies were causative in setting the stage for 3-strikes and mandatory sentencing. Not all unintended consequences are negative.

Alan said...

I don't disagree with the poll numbers you posted. I agree; the majority of the nation doesn't want to outlaw abortion. My point is the GOP office holders don't share the majority's view. They want to inject government control over reproductive rights. They want to inject government control over "end of life" decisions. Don't let the meme blind you. South Dakota just outlawed abortion. The elected officials who did this actually want abortion outlawed. This is going to hit home and people are going to vote against this almighty government idiocy. The only way to stop it is to vote against the pro-life candidates. And most of them have that 'R' next to their name.

Rick Ballard said...

Gee, Alan - post the name and statements by the GOPers you're talking about so we can discuss each one.

You do have recent statements by Congressmen or Senators or the President - right?

loner said...

Rick,

Whether or not it was rightly decided, the odds that Griswold will be overturned while there is a United States of America governed under the Constitution which took effect on March 4, 1789 are so negligible as to be practically non-existent.

Alan said...

Rick,

IMO, you are an example of a Republican voter who is pluggin' his ears when the GOP candidates are telling you they're pro-life. Anyway, I don't feel like doing a Google search to further prove what the South Dakota state government already proved. Just keep believing what you believe and watch the GOP lose its majority.

terrye said...

I know a lot of folks who do not want their teenage daughters getting aborions without their knowledge but that does not mean they want abortion outlawed altogether, and it certainly does not mean they think Griswold was wrongly decided.

Most people consider the idea that a state could legally outlaw the sale of birth control to be completely insane and if Republicans continue to hold up that dumb law as if it makes some kind of sense and should have stood, it will cost them.

Most people do believe in a right to privacy, and that includes a lot of people who believe life begins at conception.

Rick Ballard said...

Terrye,

What you have outlined is very close to how I imagine it will all play out politically. I'm just a Republican - not all Republicans. Shoot, I'd eat a hat if 1 out 10 Reps or Dems knew Griswold from Genghis Khan, let alone be able to articulate an opinion as to whether it was decided correctly.

Watch what happens in Indiana - which will be nothing. No grand proposals becoming actual legislation - just a bit of yammering for the yokels on either side. Bush has already disowned the South Dakota act as having gone too far.

I believe that you're correct in saying "Most people do believe in a right to privacy", too, but that doesn't put it in the constitution. It takes an amendment to do that - not "discovery" by judges.

Alan said...

Yeah, Bush disowned the SD ban because it went too far...it didn't allow for rape. (insert eyeroll)

Keep your ears plugged--these candidates don't really mean they're pro-life when they say they're pro-life.

Seneca the Younger said...

Flenser, you're argument is essentially that the 9th and 10th Amendments are vacuous: if they only protect unenumerated rights that are enumerated in a statute, then they don't do anything.

I agree with loner re Griswold --- remember that Griswold was specifically that the government doesn't have the right to forbid you from purchasing or possessing condoms and other contraceptives.

Rick, re "privacy", what you're doing is setting up exactly a situation in which a court has to "make" law. I agree that the right to privacy probably doesn't include a right to murder your wife. But what about a case where your wife is dying in agony and you choose to end life support? What about a case where she's dying in agony and you kiss her goodbye before she takes The Black Capsule? Or a case in which you're having an argument and you let her drive away while crying hysterically, and she has a fatal car crash?

There's no way laws made by Man can be set up as perfect arbiters for any possible situation; every time a Court has to make a decision, they're effectively "making law". We even recognize this in our system, by the appeal to precedent.

So I end up asking again: what's the procedure by which you can show me, with certainty, what is "making law" and what is simply "interpreting existing law"?

Rick Ballard said...

StY,

I can't. You're right but I would say that I believe that law is simply codified custom and that when judges reach beyond custom they have exceeded their mandate.

It's a "I know it when I see it" type of thing which does not respond to logical interpretation. I hold that the Warren Court moved far too fast and did not take into account the total knowable costs of many of their decisions. They were "hurrying" society - and I would argue that the hurry was occasioned by an acceptance of the "historical inevitability" of some of the decisions that they made. The ordnance involved in Griswold was crap. It needed to be changed and that's what the legislature is for. Inventing a penumbra wasn't helpful.

I believe that the proof of my thesis will be provided when R v W is returned to the states - you will not see a ban on abortions enacted that will affect very many people at all. You will see a control on late term abortions which will affect very few.

I wish I were better able to articulate this but I'm not. I return to the premise that law should remain with the people until they provide absolute proof that they are incompetent to manage it. I've seen no such proof.

flenser said...
This comment has been removed by a blog administrator.
flenser said...

Flenser, you're argument is essentially that the 9th and 10th Amendments are vacuous:

Your proposal that the Ninth is properly read as something like "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the Court." would seem to do an excellent job of making the amendment vacuous.

If instead one reads it as describing rights as being retained by the people, then not only are you following the actual text, but it also allows "the people" to make such corrections and adjustments as they deem neccessary. And it has the added benifit of not elevating the SC into a sort of permanent constitutional convention, unlike your proposal.

In other words, the Ninth exists to try to prevent the government from pulling exectly the kind of thing it did with Roe; taking the rights of the people and usurping them to itself.

We are currently in the insane situation where the most sacrosanct "right" in the Constitution is (a) not in the Constitution and (b) not adjustable by legislation. This is in marked contrast to such pedestrian matters as free speech, which the court is comfortable seeing abridged. But once you decide the text does not matter, you tend to end up in some strange places.

When the SC mints new rights, it is quite explicitly making new law. The same applies when it decides to downgrade old rights. No one can seriously argue with a straight face that Roe did not make new law, and new constitutional law at that.


if they only protect unenumerated rights that are enumerated in a statute, then they don't do anything.

Not true. For one thing, they allow the people to make such statutes as they deem appropriate. That is, they allow the people to make something a legal right, or not, as they see fit. And to place such restrictions on rights as they deem neccessary. None of which they can do when the SC appropriates the peoples role to itself.

Seneca the Younger said...

It's a "I know it when I see it" type of thing which does not respond to logical interpretation.

How is that distinguished from "I want it the way I want it, so there!"

I believe that the proof of my thesis will be provided when R v W is returned to the states - you will not see a ban on abortions enacted that will affect very many people at all.

Wouldn't that be a proof that the Court has not gotten vedry far away from the population?

Seneca the Younger said...

Your proposal that the Ninth is properly read as something like "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the Court." would seem to do an excellent job of making the amendment vacuous.

And, had I argued that, you'd be right. Luckily, that's your straw man, so I won't have to defend it.

This one, though, is pretty silly on the face: the Constitution isn't a list of suggestions of what Government might do, it's a statement of the things that it's allowed to do. Hamilton and some of the other Federalists weren't happy with the idea of even having a Bill of Rights, because they thought that would imply those were the only restrictions on the Government's power. (Does the Court aopply this consistently? not nearly enough, viz a reading of "navigable waters" that includes the snow melt dripping off my balcony.) But unless you are adopting exactly that position, your interpretation just doesn't fit with anything like the original intent.

As for the rest, tell me how to tell when it's "new" law that doesn't also lead to making new law every time the court decides a controversy that involves conflict among rights. That's the real problem: if we're trying to talk about this rationally, then there has to be a rational way to define this.

flenser said...

Luckily, that's your straw man, so I won't have to defend it.

Lucky for you, you manage to avoid ever stating any clear position, then claim other people are unfairly attributing positions to you. If you refuse to define yourself don’t act surprised when others do it for you.


If you can explain how what you are saying here is different from saying that unenmunerated rights are held by the courts, then I’d really like to see it. But I’m not holding my breath.

the Constitution isn't a list of suggestions of what Government might do, it's a statement of the things that it's allowed to do.

Exactly. And one of the things it is not allowed to do is alter the Constitution on its own initiative, adding and subtracting rights as it sees fit. What part of that don't you understand?


As for the rest, tell me how to tell when it's "new" law that doesn't also lead to making new law every time the court decides a controversy that involves conflict among rights. That's the real problem: if we're trying to talk about this rationally, then there has to be a rational way to define this.

If on Monday there is no Constitutional right to do X, and on Tuesday there is a Constitutional right to do X, and a lawful Constitutional amendment was not passed in the interval, than we can safely say that the Court has made new law. Can you concede that much? Roe was not a compromise aimed at resolving a conflict or controversy between different rights. There was no right to abortion before Roe. There was not even a "right" on which such a right could be based. The Court pretty much conceeded as much when they engaged in all that flim-flam about enamations and penumbras.



How is that distinguished from "I want it the way I want it, so there!"


In light of what you keep trying to argue here, this seems to be carrying hypocrisy to intolerable levels.

flenser said...

Where is it written that the role of the courts is to resolve conflict between rights, or that it's judgement in such conflicts is sounder than that of other branches of government, or of the people?

It is, of course, the role of the courts to try to resolve conflicts between laws. But in the case of unemumerated rights, by definition no law exists.

There are those who think that there exists a Platonic "Law", which the mere people and their representatives cannot properly apprehend, but which can be grasped by judges. In this scheme of things the fact that the people have never gotten around to passing a law on a matter is inconsequential. True laws exists regardless of whether or not some mere statute was written, and it is considered appropriate for judges to correct the peoples oversight if neccessary.

Not that I am suggesting anyone here holds such a view, of course. It's pretty tough to get some people to come clean on what they think.