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Ginsburg and the Timing of Roe

[ 8 ] February 17, 2012 |

Irin Carmon’s column on Ruth Bader Ginsburg and the potentially pioneering brief Nixon’s Solicitor General Erwin “why should a mere woman get a law school space that properly belongs to a man?” Griswold prevented her from presenting to the Court is very much worth reading.

Long-time readers will know this, but I should say that I think that Ginsburg’s frequently made argument that the Court should have waited until it had a basis to decide Roe on equal protection grounds is wrong. First of all, I don’t believe in the Roe-backlash argument. And second — and, here, I agree 100% with Gerald Rosenberg — I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does. What the Court says has much less impact on the protection of rights than the substantive conclusions it reaches.

So, yes, on one level it’s unfortunate that Roe almost exclusively focuses on the rights of doctors, and on the level of discourse the much greater attention paid to the rights of women in the plurality, Blackmun, and Stevens opinions in Casey is a substantial improvement. But the thing is, whatever it said Roe did far more to actually protect the rights of women than Casey did. Under Roe, for example, Virginia’s mandatory rape provision would be plainly unconstitutional, while under Casey it is very likely to be upheld by both lower federal courts and the Supreme Court should it get that far. In theory, given the arbitrary nature and disparate impact of most abortion regulations the “undue burden” standard could provide a fairly robust protection of reproductive freedom. But as the Court actually defined it — especially when it upheld mandatory waiting periods — in practice it allows states and the federal government to do almost anything as long as they don’t ban pre-viability abortions outright. The fact that Casey pays more rhetorical attention to women’s rights is really a pretty hollow consolation.   I understand what Ginsburg means when she says in Carhart II that the Court wasn’t taking Casey seriously, and that’s the right argument to make in context, but another way of looking at it is that Kennedy was taking Casey all too seriously.

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  1. rea says:

    I think and hope your wrong about the future of the Virginia law, for reasons that have nothing directly to do with Roe, Casey, or their progeny. The government does not have the power to order women raped. Requiring a woman to allow herself to undergo vaginal penetration for nonmedical reasons is a denial of due process.

    • R Johnston says:

      You’d think that even a judge who thinks that the state can ban abortion would look askance at the state allowing abortion contingent on women submitting to rape by their doctors.

      If this law is upheld then it’s time for civil war. Rape is not an acceptable tool for the government to employ.

  2. Anonymous says:

    This may not be the right place for this comment, but I haven’t really seen anything about this – have there been any statements or official reactions from doctors (groups or individuals) about this law? I would assume they’re opposed to it for obvious reasons, but have any said publicly they won’t comply with it?

  3. David Kaib says:

    I think this assumes the Supreme Court plays a role in educating the public that I don’t think that it does.

    I’m a little confused about this. Unless I missed something, nothing in the article suggests the mechanism that Ginsberg is talking about is public opinion.

  4. [...] the decision would have been more broadly accepted had it rested on equal protection grounds is almost certainly wrong.  The public evaluates decisions based on results, not reasoning, and essentially nobody without a [...]

  5. [...] the decision would have been more broadly accepted had it rested on equal protection grounds is almost certainly wrong. The public evaluates decisions based on results, not reasoning, and essentially nobody without a [...]

  6. [...] that a probity changed too quick with a Roe v. Wade decision. Scott Lemieux, among others, has argued that she’s wrong here, and we consider he has a improved of a [...]

  7. […] readers will know that I’ve critizied this theory in both shorter form and interminable form. But I’d like to focus in particular on the particular problem with the […]

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