I’m frankly baffled by Ilya Somin’s claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial. Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court’s personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich. At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas’s commitment to grand theory, so this strikes me as unlikely in any case.
The only other chance, then, would be if some of the Court’s liberals would act as unprincipled hacks; I don’t think there’s any reason to assume that, as they’ve been entirely consistent on Commerce cases. (Certainly, Stevens’ and Ginsburg’s brief questions at oral argument–which seemed to be much more about tweaking conservatives than about advancing a position–aren’t good evidence.) Similarly, the fact that Scalia joined Thomas’s concurrence means nothing, since it didn’t advance any position on the merits. Thomas, as far as I can tell, is the only likely vote to strike, and there’s no chance at all that there would be five.
This blogger picked the Cleveland Indians to win the AL Central. He did this despite the fact that they were going to be using Joe Borowski as a closer and were managed by Eric Wedge. Lawyers, Guns & Money regrets this egregious error.
It may not come as a shock that I agree with Matt’s conclusion that Roe was correctly decided on the merits. (For those who haven’t seen it, I lay out a three-part case for Roe here, here, and here.) Matt makes another important point about the pro-choice anti-Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide “cultural issues”:
The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it’s weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I’m of the opinion that this institution isn’t a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There’s no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America’s actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.
Like Matt, I am skeptical of judicial supremacy as a normative matter, and I certainly don’t believe that it’s necessary for liberal democracy. But Roe has to be evaluated within the set of institutions the United States actually has, not the one some analysts wish we had. (Moreover, it should be noted that given the Madisionian legislative framework abandoning judicial review would not create reliably more “majoritarian” outcomes.) Liberals shouldn’t unilaterally disarm. And within this framework, Roe is a logical application of long-standing precedents that prevents bad legislation that is often arbitrary in form and in application, and it should be defended vigorously.
Great point here by Brad Plumer. It’s hard to take Harry Reid’s criticism of the Supreme Court’s appalling decision yesterday seriously given that he voted for it in the first place. It’s a dismaying abrogation of responsibility to score cynical political points by voting for legislation that is not only bad but arbitrary and hope that the Courts will bail you out. (One can say something similar about George Bush signing campaign finance legislation he believed to be unconstitutional.) Not only because the courts have significant discretion that may cause the tactic to blow up in your face, but because it’s inherently wrong. All political branches are bound by the Constitution, and the legislators should not pass (and Presidents should not sign) legislation they consider unconstitutional.
For some reason, the forced pregnancy lobby doesn’t understand the well-established contrarian analysis that upholding arbitrary abortion regulations is actually a good thing for reproductive freedom:
Elated and emboldened, anti-abortion activists in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hopes of building on their victory Wednesday at the Supreme Court.
By a 5-4 vote, the justices upheld a federal ban on a procedure critics call “partial-birth abortion,” which involves partially delivering the fetus, then crushing its skull. The ruling included strong language asserting the state’s “legitimate, substantial interest in preserving and promoting fetal life.”
Advocates on both sides of the abortion debate predicted the ruling would spur a flood of legislation.
“We’re moving beyond putting roadblocks in front of abortions to actually prohibiting them,” said Troy Newman, president of Operation Rescue, a national anti-abortion group based in Wichita, Kan. “This swings the door wide open.”
He and other strategists said they hope to introduce legislation in a number of states that would:
– Ban all abortion of viable fetuses, unless the mother’s life is endangered.
– Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.
– Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they might become suicidal after the procedure.
– Lengthen waiting periods so women must reflect on such counseling for several days before obtaining the abortion.
Wait–some people think that the Supreme Court permitting wider state latitude to regulate abortion (for some classes of women) makes the greater regulation of abortion more likely? That doesn’t seem very logical! Hopefully Ben Wittes will talk some sense to these people.
As an antidote against the inevitable chorus of fake moderates arguing that today’s abortion case is no big deal, four things to keep in mind as you ponder today’s decision:
- Don’t take assertions by the Court about whether they’re overturning precedents or not at face value. What matters is the substance of the ruling, not how the Court characterizes past precedents. (The Court went out of its way to avoid saying that they were overturning Plessy in Brown, and then applied it as if it meant exactly that.) Moreover, the Roberts/Alito strategy of quietly gutting precedents–epitomized in this case–is much worse for those who oppose their legal goals than the Thomas/Scalia willingness to overturn precedents directly and honestly. The result of this type of case is a sharp restriction in the reproductive freedom of women without the political benefits of an outright reversal.
- Making it much harder to successfully strike an abortion statute on facial grounds, as the Court has just done, may seem like a mere technicality but is a big deal. I explain why here. Not only will this change in the standard applied by Casey make litigation to protect a woman’s reproductive freedom much more expensive and difficult, but it will have the perverse effect of making the fact that abortion regulations almost invariably have much more impact on poor, rural women an argument in their favor.
- The next time someone claims that overturning Roe would “send the issue back to the states,” make sure to point out that they don’t have any idea what the hell they’re talking about.
- And finally, let’s also remember the underlying gender assumptions of those who support the power of the states and the federal government. Ann has already noted this powerful passage in Justice Ginsburg’s brilliant dissent: “Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’ Because of women’s fragile emotional state and because of the bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution ideas that have long since been discredited.” Given Alito’s assumption that the state has the same interest in regulating married adult women as it has in regulating children, that he would vote to uphold this ban isn’t exactly shocking.
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As Bean notes below, the Supreme Court has upheld the Federal “Partial Birth” abortion ban, which as I have argued in detail was 1)inevitable with Alito’s appointment to the Court and 2)very bad. It was, I suppose, inevitable that it would come down while I’m on the road, and I therefore haven’t finished reading the decision yet. In the meantime, I note that almost everything that needs to be said about the constitutionality of these laws was said by Justice Stevens in his concurrence in Stenberg v. Carhart, which the Court (despite its disingenuous claims to be following precedent) effectively overrules today:
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U. S. Const., Amdt. 14.
Upholding ludicrously arbitrary legislation that puts women’s health at risk without furthering any legitimate state interest, while signalling that the “undue burden” standard will be interpreted to uphold virtually any abortion regulation short of a ban sets an extremely dangerous precedent. I’ll have more later.
That’s about 1.9 million more hits than I expected the blog to get. Thanks to all of our readers and to all the bloggers who have supported us.
Glenn Reynolds: “If Bush and Cheney were really evil, they’d both resign and stick the Democrats with a Pelosi Presidency for the next two years. The Democratic Party would never recover.” After all, Congress is less popular than Bush.
v. reality: “So people like the Democratic congress better than they like the Republican one. 44/54 is also considerably better than the 35/62 approve/disapprove split Bush gets. Indeed, fully 49 percent of respondents say they strongly disapprove “of the way George W. Bush is handling his job as president” — Bush Derangement Syndrome has gone mainstream. Nancy Pelosi, however, is much more popular than either Bush or Congress generically — earning a 53/35 approve/disapprove split. Ever since she became the top House Democrat, the DC press corps has been insisting that Pelosi is an unpopular figure whose bad for the Democrats. This because she’s the most robustly liberal person we’ve seen in high elected office in over ten years. The evidence, however, doesn’t bare this theory out. In the spring of 1995, Newt Gingrich’s approval numbers were in the thirties.”
To follow up on Matt and Atrios, Radley Balko asks his readers if they’ve heard of James Giles. Giles, like the three men in the Duke rape case, was falsely accused of rape. Unlike the Duke men, however, he didn’t have the money to hire top-flight legal counsel and didn’t benefit from attracting opportunistic attention from powerful conservative statists with a strong commitment to opposing “political correctness.” As a result, Giles “served 10 years in prison, as well as an additional 14 years on probation and as a registered sex offender” before being exonerated by DNA evidence. Despite having faced much more dire consequences, Giles’ case has attracted a fraction of the attention.
The point is not that the Duke case was not an injustice, or that it didn’t merit attention. Privileged white guys also deserve equal treatment under the law, and prosecutorial abuse is always bad. But despite the attempts of people like Walter Olson to draw grossly inappropriate analogies between these defendants and the Scottsboro boys, it’s also worth noting that there are cases of prosecutorial abuse that, because they happen to people with fewer resources and less social status, have much worse consequences and yet somehow fail to interest many people screaming about the Duke case because there’s no chance to rail against left-wing academics. It would be nice if the people upset about the Duke case will start contributing to the ACLU, supporting increased funding for public defenders offices, loosening recent restrictions on habeas suits, looking carefully at the drug war, etc. But I’m not holding my breath.
[Also at TAPPED.]
Why? I don’t bear any animosity towards Kerry, and I don’t think his campaign was quite the disaster it’s sometimes portrayed as, but, really, give it up.
You may have heard the shocking news that state-funded moralizing adults telling teenagers not to have sex do not, in fact, prevent teenagers from having sex. Interestingly, several states–not all of them liberal and coastal–have started to turn down the abjectly useless federal funding they’re being offered:
In an emerging revolt against abstinence-only sex education, states are turning down millions of dollars in federal grants, unwilling to accept White House dictates that the money be used for classes focused almost exclusively on teaching chastity.
In Ohio, Gov. Ted Strickland said that regardless of the state’s sluggish economic picture, he simply did not see the point in taking part in the controversial State Abstinence Education Grant program anymore.
Five other states — Wisconsin, Connecticut, Rhode Island, Montana and New Jersey — already have dropped the program or plan to do so by year’s end. The program is managed by a unit of the U.S. Department of Heath and Human Services.
And, really, what possible reason is there to take the money, when it can’t be used for any useful purpose, and might take up time from students actually learning something of value? I also enjoyed this quote from an administration hack:
“This report confirms that these interventions are not like vaccines,” said Harry Wilson, associate commissioner of the Family and Youth Services Bureau at the federal Administration for Children and Families. “You can’t expect one dose in middle school, or a small dose, to be protective all throughout the youth’s high school career.”
The fact that all evidence demonstrates that these programs–contrary to the repeated assertions of the administration–are a complete waste of time and money just shows that we need to put more time and resources behind them! Ah, fiscal conservatism.