Horologium

July 09, 2002
Demogoguery pays off

Columbia Law School recently did a survey of Americans on the constitution, and one of the results was very interesting. Of the five true/false questions, three were answered correctly by a majority of the respondents, and one correctly by a plurality. The fifth question, however, was incorrectly answered by 57% of the respondents, and a further 11% were unsure of the answer. The question?

If the Supreme Court were to overrule Roe v. Wade, abortion would be illegal throughout the United States.

(If you are unsure, the answer to this statement is false.)

NARAL and NOW have done an excellent job of demogoguing this issue, since a majority believe that Roe v. Wade is the only thing separating us from coat hangers in the alley. The only thing that this decision has accomplished is to federalize yet another issue that should by covered under the tenth amendment (the forgotten amendment in the bill of rights), or perhaps under the ninth amendment (the other forgotten amendment).

(Link courtesy of Magically|Delicious.)

posted on July 09, 2002 05:00 AM

Comments:

Didn't the court use 9th Amendment logic in its ruling in Roe v. Wade?

posted by Cal Ulmann on July 9, 2002 11:16 AM

In a sense, yes. The Roe Court paid lip service to the Ninth as support for finding a new, unenumerated right (and rightly so, that's what it's for) but that doesn't really have anything to do with the substance of the ruling. The ruling builds of Justice Harlan's dissent in Poe v. Ulman (resurrecting Substantive Due Process) and the line of cases that adopted its reasoning (selling of condoms cases mainly) to find that the Third (no quartering of federal troops in people's homes), Fourth (no unreasonable searches), and Fifth (right to remain silent) imply a right to privacy.

If that were all Roe said, no-one would argue with it. The problem only arises in that Roe finds this right includes the right to terminate a pregnancy in the first trimester, something the Framers would surely have found abominable.

However, Roe isn't the controlling law anymore anyway. It was too restrictive, you see - giving the government's "interest" in protecting the choild primacy in the third trimester. It was also too easy to administer - the only ambiguity was when in the second trimester the state's interest began to outweigh the woman's.

The current governing case is Casey v. Planned Parenthood which prohibits laws which place an "undue burden" on the exercise of the 'right' to an abortion (a nicely vague phrase that leaves it up to judges to decide on a case-by-case basis what is and is not an undue burden).

Sorry this is so long, Timekeeper. Couldn't help myself.

posted by The Dodd on July 9, 2002 02:42 PM

No problem, Dodd. Your explanation is a lot better than what I originally posted.

FWIW, I am a lukewarm supporter of the pro-choice position. I find abortion barbaric and disgusting, but I will never have to deal with the consequences of pregnancy (on a first hand basis, at least). Most of the arguments against abortion are based on religious grounds, which seems to violate the vaunted "separation of church and state" interpretation.

posted by Timekeeper on July 9, 2002 03:42 PM

I cannot agree that the religious motives of many pro-lifers means that their arguments necessarily impact the First Amendment vis-a-vis regulating or banning abortion. This is, fundamentally, a philosophical debate between people who believe life begins at conception and people who believe it begins at, for lack of a better term, physiological independence. If one believes the former (as I do), then banning abortion is no different than banning murder. If the latter, then leaving the state out of it (I will leave aside the ways in which pro-choicers stray from being willing to regulate abortion the same as all other "ordinary medical procedures") is the right choice.

Our criminal laws against murder do not implicate church-state concerns, why should abortion?

That said, your original point is 100% correct: All Roe did was to decree that state laws which banned all abortions outright are unconstitutional. If Roe were overturned, abortion would be am issue settled purely by the states, which, frankly, is how it should be, if only on federalist grounds.

posted by The Dodd on July 9, 2002 05:25 PM