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More on Roe and the Law

[ 21 ] January 22, 2013 |

I have a piece up at the Prospect looking at how abortion law has evolved in the post-Roe period. To expand on a couple points:

  • I wrote a little bit recently about John Hart Ely’s “representation-reinforcement” theory of judicial review.  Ely, of course, is most famous in conservative circles as “eventheliberal John Hart Ely, who thought Roe was wrong.”     The thing is, I think Ely was wrong — Roe does, in fact, fit in very well with the Warren Court’s representation-reinforcement theory.   The Texas law struck down in Roe — like most of the statutes is struck down — was passed before women had the franchise, and women remained grossly underrepresented in state legislatures in 1973 (or, for that matter, 2013.)    Moreover, as with Griswold arbitrary, selective enforcement was a crucial reason why laws that banned abortion were able to stay on the books.    Ely didn’t seem to take discrimination against women as seriously as he took discrimination against African-Americans, but once you get beyond that Roe was very much of a piece with the great Warren Court cases.
  • To respond to some of the discussion here, I could perhaps add a sixth myth: “Republicans have never wanted Roe overturned.”  There is a grain of truth to the myth — the existence of Roe does provide political benefits for some Republicans, and I doubt that reversing Roe v. Wade was a high personal priority for either Reagan or the first Bush.  Nonetheless, to say that Roe was never real danger vastly underestimates the contingency involved. Had Reagan nominated Bork while Republicans still controlled the Senate, Roe would have been overruled by 1992.  And Souter — whose nomination was an odd fluke based on strange politics within the Bush administration — certainly wasn’t appointed because he supported a right to privacy.   Roe‘s survival has involved a lot of luck, and given that internal Republican politics means that there will never be another Souter, this luck is unlikely to continue if a Republican president picks Kennedy’s replacement.

Comments (21)

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  1. rea says:

    As someone who writes briefs for a living, I don’t have a lot of patience with theories that purport to explain what was going on in the judges’ heads, as opposed to in their holdings.

  2. sapient says:

    Moreover, as with Griswold arbitrary, selective enforcement was a crucial reason why laws that banned abortion were able to stay on the books.

    Isn’t this the whole problem with the kind of prosecutorial discretion that people were complaining wasn’t exercised in the case of Aaron Swartz? In fact, in order for bad laws to be tested, they have to be enforced. It is only then, when there is some amount of outrage over a law’s injustice as it is applied, that it can be improved.

    Not that there isn’t room for prosecutorial discretion under some circumstances (as when a law was broken by mistake, or by an incompetent, or some other extenuating circumstance).

  3. Usually when prosecutorial discretion is applied it is a decision to not prosecute because the proof is weak. That’s a good reason– prosecuting a weak case is a poor use of resources, and the prosecution may be more punitive than a successful prosecution would be. In cases where there may be mitigating circumstances prosecutors mostly tend to put it to the grand jury, but not press hard.

    • sapient says:

      I don’t practice criminal law, but the reason I said what I did is because of several instances I know about where charges against the defendants were dropped: young people who clearly weren’t going to be joyriding or shoplifting again; old people who were facing senility and having their keys taken away; ignorant people who didn’t realize that they had certain obligations to the government, etc. These were cases where further “trouble” was unlikely, and were dropped “in the interests of justice” with the added provision that if the prosecutor ever saw these people again, they’d be in serious trouble.

  4. Sebastian H says:

    Another myth is that statistics on “roe” make any sense if you don’t ask good questions. Polls on restricting abortion more than roe and its progeny allow consistently score well above majority levels. The general consensus appears to be something like unfettered first trimester, very limited second trimester, almost no third trimester. That consensus is nearly always lied about by both sides of the argument. NARAL trumpets large majorities who are allegedly pro choice because they don’t want to touch the first trimester. Pro life groups trumpet enormous majorities who are allegedly pro life because they think current laws should be more restrictive. Both pretend that these polls mean the majority supports their decidedly radical positions.

    Another myth: no woman would seek a late term abortion except out of medical necessity. The Gosnell infanticide trials suggest that in a small clinic there may have been hundreds of such women. (The grand jury lamented that the statute of limitations was so short as to allow many of the evidenced cases to go uncharged).

    • Murc says:

      Polls on restricting abortion more than roe and its progeny allow consistently score well above majority levels. The general consensus appears to be something like unfettered first trimester, very limited second trimester, almost no third trimester.

      The second sentence contradicts the first. You say that polls on restricting abortion more than Roe allows score strong majorities, and then you turn around and say what the general consensus is by… describing what is, essentially, Roe.

      Another myth: no woman would seek a late term abortion except out of medical necessity.

      I don’t know that this belief is widespread enough to be a myth.

      Perhaps you are thinking of the position that the number of women seeking a late-term abortion for nonmedical reasons is very, very small, so small that crafting national policy based on it might be unwise?

      • Scott Lemieux says:

        The second sentence contradicts the first. You say that polls on restricting abortion more than Roe allows score strong majorities, and then you turn around and say what the general consensus is by… describing what is, essentially, Roe.

        Yup, and I’ll also add what I said in my piece — if it absolutely crucial for some reason to have abortions performed in the first rather than the early second trimester, than you should oppose any of the regulations approved by Casey.

    • sapient says:

      Fortunately, polls and Roe and what actually happens are all sympatico. First trimester is abortion at will, second trimester mostly is about amniocentesis, third trimester is rarely allowed unless the health of the mother (or mortally ill fetus) is at stake. In other words, popular opinion on abortion is facilitated by Roe, for the most part.

      Good for Justice Blackmun.

  5. Sebastian H says:

    (Preemptive clarification) Gosnell charges. While virtually everyone connected to him has pled guilty, his trial has not begun yet. The incredibly damning grand jury report is at http://www.phila.gov/districtattorney/PDFs/GrandJuryWomensMedical.pdf

    See especially 99-119. Ending with “While the evidence before the Grand Jury supports only a limited number of murder charges, it is without challenge that Kermit Gosnell, under the pretext of providing medical care, routinely killed viable babies and irreparably damaged women. At least two of his patients, he also killed.”

    • sapient says:

      And he’s on trial. Get it? Roe didn’t allow Gosnell.

      • Sebastian H says:

        His case belies the idea that 3rd term abortions for non medical reasons are rare enough to be ignored. He didn’t abort fully viable fetuses on himself. He ran one single clinic in Pennsylvania

        • Scott Lemieux says:

          Roe allows third trimester abortions for non-medical reasons to be prohibited, so I’m not sure what your point is. Also, one doctor does not in fact prove that the procedures aren’t “rare.”

        • rea says:

          So, what, Sebastian–is your point that third trimester abortions ought to be banned in every instance, because one doctor was abusing the practice? Or do you agree that 3rd trimester abortions for the life or health of the mother, or where the fetus isn’t viable, are legitimate? I suspect your position is the former . . .

    • JMP says:

      Yes, that is incredibly damning to the anti-choice movement that has created the ridiculous restrictions on womens’ rights in Pennsylvania and lead to the desired result of the return of back-alley butchers.

      • Scott Lemieux says:

        This too. Pennsylvania has long been a pioneer in arbitrary abortion regulations, so it’s doubly unclear what Sebastian thinks this proves.

        • JMP says:

          I really don’t get how the anti-choicers keep pointing to the Gosnell case as if it somehow helps their cause. Um, his dangerous unhealthy practice existed because of Pennsylvania’s restrictive laws, and is the very model of the potentially deadly abortion provider they want to force all non-rich women to have to turn to.

          • Sebastian H says:

            Read the pertinent sections of the report. It is crystal clear that other abortion providers didn’t want to report on him, and that the state didn’t investigate because the governor was afraid that would interfere with the right to choose. Trying to evade pro choice political responsibility for decisions like that isn’t honest. But I’ll assume you’re just ignorant about the case.

        • BarrY says:

          In addition, this is a grand jury report, as in ‘indict a ham sandwich’.

          • Sebastian H says:

            You clearly didn’t even open it. The grand jury report meticulously goes over enormous amounts of evidence. This is absolutely not an indict a ham sandwich report.

  6. Joe says:

    To give Ely some credit, he opposed the Medicaid cases (btw, Maher v. Roe was 6-3) and later agreed with Casey as precedent. The fact Texas’ law was old is a bit weak — that would mean more recent laws (like a CT law passed after a lower court struck an older one down — see Abele v. Markle) would be okay under that logic.

    Prof. Amar also had this “pre-19A” argument, and it is a bit weak. The “grossly underrepresented” argument is stronger, though taken to its logical conclusion, it would do more than the Warren CT was willing to do. To be clear, I read his “Crying Wolf” article. I think it’s weak. But, suggesting he was weak on women’s rights seems a bit unfair. What did he think of Reed v. Reed et. al. in his book? He also long before it became that popular supported the rights of gays under his principles.

    Anyway, though he had an alternate route for which basically only White was willing to go, eventheliberal thought the main rationale in Griswold was wrong. He thought Roe expanded the sin of substantive due process. A ‘grossly underrepresented’ approach might have worked logically, but like the discrimination by gender approach, it simply was not possible given the status of the law. The approach that was didn’t appeal to him, so it is not surprising he disliked the opinion though later on he supported upholding it in Casey, writing a letter to the plurality to thank them.

  7. [...] provide a sixth. And, of course, if Bork gets confirmed Roe would have been overruled in 1992. (As I’ve mentioned before, this is the problem with the too-clever-by-half argument you hear sometimes that Republican [...]

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