Sunday, November 02, 2008

Why judicial activism is a red herring in the abortion debate

I still have trouble seeing why pro-lifers want abortion to be a state matter. In the case of gay marriage, social conservatives want an amendment preventing state judges or state legislatures from allowing it. Why not go for that with respect to abortion?

I have trouble seeing Roe as an unjustified instance of judicial activism. The court had to adjudicate between the rights of the pregnant mother and the rights of the fetus. If you think that, since it was the fetuses right to life that was at stake as opposed to the mother's right to privacy, if you think that all fetuses possess this right from the moment of conception, if you believe that the right to life takes precedence over all quality-of-life considerations including the right of privacy, then the only logical thing to fight for is the application of the equal protection clause of the Constitution to life in the womb. Why wimp out and hand it back to the states? Frank??

Of course, the right to life from conception has to be provable. The Roe argument is that that right is in doubt, and hence a right that is in doubt should not take precedence over a right that is not in doubt. I think Roe is right, unless you can establish the right to life beyond reasonable doubt. But if you're pro-life, that's your position, right?

If I am right, judicial activism is a red herring in the abortion controversy. Everyone likes judicial activism when it gets the results we want. We hate it when it gets the wrong results. The SCOTUS had to act, one way or the other. The only question is whether the Court made the right call or not.


Layman said...

Have you read Roe v. Wade?

Because I can't tell that you have from what you have written about it.

Jim Jordan said...

This is like a slow-motion train wreck. Layman, it doesn't appear he's read the history of Roe, nor has he read the opposition's arguments as he hasn't addressed them.

Jim Jordan said...

For the record, here's my response on a previous post that explains the judicial activism as well as the circular reasoning of the Roe debacle. To the right's credit they aren't arguing for dogmatic conservatives to counter dogmatic liberals like Ruth Bader Ginsburg but jurists who will understand their role of interpreting the Constitution. If it's not explicitly in the Constitution, it goes back to the states. But Reppert betrays his brainwashed acceptance of judicial activism here:

"The SCOTUS had to act, one way or the other."

Since when do they have to act?

My questions to VR are: Is the court obligated to rule on every case that comes before it? Do you know what percentage of cases the SCOTUS chooses to rule on average?

Blue Devil Knight said...

Victor has given a perfectly reasonable (and standard) interpretation of the sometimes unclear prose in the ruling. In Section X of the decision:
"Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.

[cut a bunch of kooky philosophy]

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake."

In other words, Texas took too strong of a stance on the question of "life" given that there is reasonable disagreement, and that it unjustifiably impinges on the rights of the mother.

Now, whether they should have taken the case is another issue.

Victor Reppert said...

If the fetus is a person that possesses am overriding right to life from conception, and this can be shown, then it seems inescapable that this is a right that is protected by the constitution, and the equal protection clause applies to this right. If it can't be shown that the fetus has the right to life, then it doesn't look like the standard pro-life position is tenable.

It's a matter of logic, not research.

Victor Reppert said...

The SC had to act, because failing to act would implicitly affirm the rights of the fetus over the rights of the mother.

The "standard interpretation" that BDK refers to is this: that the right of the mother to privacy, of which affirm with some certainty, outweighs the rights of the fetus, about which there is room for disagreement.

Does Roe really say something different? Let's just assume for the sake of argument that this is the argument. It looks like there are two ways to reject the argument: either deny the right of privacy on the grounds that the Constituion doesn't say p-r-i-v-a-c-y, or else to argue that there is a basis for rational consensus that the fetus has a right to life, contrary to what the Court put into a footnote.

If you really think that the fetus possesses a right to life equivalent to that of a three-year-old, then it isn't judicial dogmatism to apply the equal protection clause to fetal life, it is the straightforward logic of the pro-life position.

Victor Reppert said...

It's the right to life of the fetus that makes the abortion issue of great moral concern. It therefore strikes me as a bit weird if the primary legal argument against Roe was an argument concerning the right to privacy, as opposed to the right to life.

Jim Jordan said...

Thanks for posting this, BDK
Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins.
From Section X of the decision.

They need not resolve the difficult decision because, based on Texas' constitution, the decision was already resolved! Thanks, again, BDK.

Most people fail to look too deeply into Roe v. Wade because they here it's "settled law" or that Stare Decisis would be ignored if we retry the case. But the truth is that it's as bad as they say and then some.

VR--It's the right to life of the fetus that makes the abortion issue of great moral concern. It therefore strikes me as a bit weird if the primary legal argument against Roe was an argument concerning the right to privacy, as opposed to the right to life.

Weird? To say the least. The Court actually redefined life, over-ruling the determination of the free people of Texas. They deliberately confused the definition of life while strengthening and stretching the poorly defined "right to privacy". Brutal manipulation to create a new law.

One irony is that Roe's baby was born before this went before the Court. He could have been shown as evidence. He was already a healthy, laughing baby just like the "Eddy" boy we're supposed to save from the fire.

Norma "Roe" McCorvey is now an anti-abortion activist whose goal is to overturn Roe v. Wade.

Blue Devil Knight said...

Jim: wow. You really don't understand the ruling.

First, they are giving a summary of the Texas view, and don't endorse it. They do not attempt to resolve the issue, but note that there are many reasonable people (and religions) that put the time of personhood as late as parturition.

Thus Texas, by taking such a strong legal stance in a case where there is so much room for reasonable doubt, is stacking the decks against the rights of the mother. They effectively say, 'Nice theory Texas, but there are plenty of other reasonable options.'

You and layman are either ignorant or disingenuous (inclusive or).

Layman said...

It's a matter of logic, not research.

Spoken as only a philosopher could justify.

I admit that when I first starting reading your book and your blog, I thought you might have something interesting to say. Boy was I wrong. How disappointing.

Please stop embarrassing yourself and discrediting what good comments you may have about philosophy and religion.

Jim Jordan said...

The Court's role is not to take a consensus of "reasonable" people's opinions and make a ruling. Their role is to interpret laws based on the US Constitution to make sure the state is not in violation. Texas was within it's rights to keep abortion illegal.
The petty swipes at the end of your post don't help your argument. Regards.

Blue Devil Knight said...

Jim: even if you disagree with their ruling, that doesn't mean you are allowed to interpret it any way you want. You both made swipes at Victor's interpretation of the ruling, an interpretation which turns out to be sound.

It is another matter altogether to discuss the merits of the ruling.

You guys are acting worse than creationists. Lord help us.

Jim Jordan said...

Your insults aside, BDK, the ruling was deeply flawed and WILL be revisited one day and be overturned, just as was Lochner (1905, overturned 1937) and Plessy (1896, overturned 1954). Bad decisions never stand in the long run.
Roe is also the most excoriated decision since the Taney court's Dred Scot disaster prior to the Civil War. You might even call it the 20th Century's Dred Scot decision. Not all of its detractors can be disingenuous and ignorant as Creationists as you say.

Victor Reppert said...

Let's go over my central point.

The pro-life case as I have sketched it goes this way.

1) Fetuses are known to be persons from the point of conception.

2) If fetuses are persons from the moment of conception, then the fetus has an overriding right to life from the moment of conception.

3) Therefore, fetuses have an overriding right to life from the moment of conception.

4)If fetuses have a right to life from the moment of conception, then that right is protected by the Constitution.

5) If the fetus has a right to life protected by the Constitution, then by the equal protection clause of the 14th Amendment, their right to life should be protected by the Supreme Court.

5) Therefore, the Supreme Court should protect the right to life and overturn all liberal abortion laws.

How could you possibly complain about this? What are you people objecting to???

Victor Reppert said...

At this point I am not defending Roe. I am arguing that the issue doesn't turn on the question of judicial activism. That's my claim. Your harsh comments about my understanding of the case would be a tad more convincing if you addressed my actual claim.

Jim, you are happy to tout the merits of Democrats for Life. In other words, I think you agree with me that if anything is ever going to get done about abortion, it will have to be something that crosses party lines and stereotypical thinking. One thing that irritates me is that the present, inside-the-box thinking about abortion is that it blames Roe v. Wade on judicial activism. This ties the anti-abortion position to a right-wing theory of jurisprudence that I find questionable.

Due to what I think is a historical accident, right-wingers have embraced the pro-life position by and large, and leftists have gone pro-choice. So long as the right to life depends on right-wing governance, you just aren't going to get anywhere. The political pendulum is going to swing both ways, and right now it probably is going to swing to the left. So long as it's a conservative issue and a Republican issue, the abortion rates are going to stay put.

Suppose I were to create a group called Judicial Activists for Life. How would my arguments go?

People have been touting abortion as a reason to vote in people who invaded a country who didn't attack us and had no WMDs, who have increased the gap between rich and poor, who have engaged in domestic spying and torture, who have supported sweatshops on American soil in which the women who work there are forced to get abortions, and who strike me as not genuine principled conservatives, but rather as prostitutes for large corporations. These are the people who brought us Jack Abramoff and Tom DeLay. These are also people who brought us the "unitary executive" theory which undermines the separation of powers. I am asked to ally myself with people who are far more concerned about corporate bottom lines than they are about fetuses. You may disagree with this description, but that is how I perceive Republican governance. We got the Iraq war and tax cuts for the top 1%. We didn't get an end to abortion.

Nevertheless, I am expected to vote for McCain because of abortion. This is the transcendent issue. Will a McCain presidency save any real fetuses, as opposed to Obama?

Ron said...

Ideally, I admit that the life of unborn children should be protected by the 14th amendment. However, it is a bit odd for someone like Victor who has shown moral ambiguity on this issue to want this to actually happen. Haven't you been saying that when life begins is unclear? A fetuses life is worth less than a three year old child? What Roe did was force a one-size-fits-all policy on the nation. That in itself is bad because under the 10th amendment (which no one pays attention to anymore) such issues are to be left to the states or to the people. Abortions are wrong whether they are condoned by the voters of a state or by the SCOTUS, but the second is doubly injust. If Vic is correct, then shouldn't he support the repeal of Roe even more than someone who believes that the matter should be left up to the states? Pro-lifers want it to go to the states, not because states have the right to kill babies, but because it is tactically easier (and better for the country) if we could debate it out in the state legislatures.

After Dred Scott and the end of slavery, it amazes me that we are still arguing about whether a segment of humans are persons or not.

Victor Reppert said...

Well, then you have to focus on premise 1.

But the equal protection clause of the 14th Amendment seems to render differential state abortion laws unconstitutional.