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Whatever you think of abortion itself – why <i>Roe</i> and <i>Casey</i> were terrible decisions in the legal sense — 19 Comments

1. Abortion was legal in California in 1969, well before Roe, when I was a surgery resident doing a rotation on GYN. I am pro-choice, having seen too many botched abortions before the law changed in California. Still there has to be some sense about it and the present case involves a sensible restriction. To see the Governor of Virginia, a pediatric neurologist of all things, discuss delivering a term newborn and then deciding to kill it is grotesque.

2. “Rule of law is only necessary for the right side of the political spectrum.”

   And when the Right side decides
   Rule of law’s an ass only fools ride
   That’s when the sword will decide.

   January 6th was 11 months ago. – 0 people have been charged with insurrection.- 0 police officers were killed by J6 defendants. – 14,000 hours of video footage remains under lock and key by DOJ. Those are the facts. Not my opinion. Facts.— Cernovich (@Cernovich) December 2, 2021

3. Back when I was (briefly) in law school, I wanted to see what all the fuss was about, so I looked up the Roe opinion at the library. It was the most egregious example of motivated reasoning I’ve ever seen, and I say that as someone who roughly agrees with the decision (although it should be a state legislative issue).

4. Well, if you’re in favor of abortion, your ethics are probably based on the principle that “the end justifies the means” to begin with.

5. I’ve got a biography of former US Supreme Court Justice Byron “Whizzer” White. One of the things that the biographer noted is that Justice White had no trouble recognizing precedents, and was willing to incorporate even majority opinions that he had voted against into the opinions that he wrote.

   But there was one very glaring exception, and that exception was Roe v. Wade. He utterly disagreed with the reasoning in that opinion, and never – not even once – cited it in a later opinion.

   That case is bad law, and always has been. It’s unfortunate that so much emotion is wrapped up in it.

6. I was in law school taking constitutional law when Roe was decided. We read the opinion, and even though most of us liked the result, we could not make any sense of the reasoning.

   It is important to know that SCOTUS fixed the problem in Casey when they adopted an explicit substantive due process argument.

   If the phrase substantive due process sounds like an oxymoron, you are right it is. Nonetheless, it has a long history dating back to the nineteenth Century. Basically it is a vehicle through which the court reserves the right to review the substance of laws, not just the procedures, through which laws are enforced.

   The idea has been used in several eras. In the nineteenth and early twentieth centuries it was used to strike down state laws on economic subjects like employment (the Lochner case). It was held in ill repute by “progressive” jurists.

   In the late 20th century the doctrine was revived as the basis of the Court’s sexual jurisprudence. Conservatives think it is just as pernicious now as it has ever been.

   Some them, most notably Randy Barnett who has just published a book on the subject want to get rid of substantive due process and replace it with privileges and immunities.

   How that helps, is beyond me.

7. “I am pro-choice, having seen too many botched abortions before the law changed in California.” Mike K

   Yes, slaughter of innocents should be done as cleanly and quickly as possible. It’s the humane thing to do. sarc/off

   The argument can be made that, absent the life of the mother or rape or incest… a botched abortion in which the mother suffers the same fate that she freely intended to impose upon an innocent life is simply instant justice.

   I base that upon the reciprocal principle that in the unjust taking of a life, the perpetrator has voluntarily forfeited their own right to life. A right unjustly denied to others, cannot be claimed for oneself.

   The cognitive dysfunction among advocates of abortion is that if the pregnancy is welcome, it’s a baby. But if unwelcome, it’s no more than a piece of trash.

8. So many people seem to think that overturning Roe v Wade would outlaw abortion. I rarely see anybody point out that all that overturning the decision would do would be to return the question to the states — and most states, I believe, would continue to allow some form of abortion. I may be wrong but I believe that the case currently before the Court merely asks whether a law CAN prohibit abortion after a certain point. It does not seek to REQUIRE prohibition after that point. If Roe were overturned — and, from an honest Constitutional standpoint, it certainly should be — all that would happen is that states would be freed to enact the laws their constituents want. In 2021 I think most states, perhaps excluding some of the reddest ones, would as a matter of politics alone, if not ideology, allow something.

   When I was in law school — in the late 1970s and early ’80s — my Con Law professor HATED Roe. Many students thought he was therefore anti-abortion, anti-feminism and to be vilified. I was in doubt about him at first — though I never had doubts about abortion as a personal matter, knew I couldn’t do it, and couldn’t see it as limited to the question of one person’s bodily autonomy when, no matter how I looked at it, I couldn’t figure out how anybody managed to deny that more than one human being’s bodily autonomy was involved. But as the year went on and my legal analysis skills grew, I slowly began to realize that my professor was not thinking in an outcome-determinative manner and, in the final analysis, did not base his opinion of Roe on whether abortion should be legal or not. He was thinking about how the Constitution should be analyzed and what law ought to be and how laws should be established and decided. A lightbulb went on in my head, and that light has kept glowing ever since.

   I wish more writings on this question made this clear. So many people seem to think that this is a last-ditch backs-against-the-wall defense of women’s reproductive rights. It isn’t. Not in 2021 — though of course it suits the media’s fear-gets-us-clicks-so-everything-is-Armageddon mindset to pretend that it is. All reversal of Roe would do would be to put the question back into the political theater, where it ought to be, where both pro-life and pro-abortion voices would get to speak, where nobody would be silenced and the outcome would depend, at least to some degree, on the will of the voters in that particular state. Why is that so catastrophic?

   Never mind, I know.

9. Geoffrey Britain:

   Even many religions that are against abortion do not consider it the equivalent of murder. One can be against abortion without seeing it that way, and without shrugging at the death of a desperate pregnant woman who resorts to it.

   Just to take one example, there’s Judaism:

   While all major Jewish religious movements allow (or even encourage) abortion in order to save the life or health of a pregnant woman, authorities differ on when and whether it is permitted in other cases…

   The ancient Jewish historian Philo taught that the term “harm” refers exclusively to the child, and whether a fine is imposed or capital punishment depends on whether the fetus has sufficiently formed. According to Rashi and other Talmudic commentators, the term “harm” refers only to the mother, and traditionally, unless the mother was harmed too, only a fine was imposed for causing a miscarriage.

   In mainstream rabbinic Judaism, the Biblical verse is one of several key texts that substantiate the later rabbinic prohibition on most cases of abortion. However it is not considered murder since “Jewish law does not consider a fetus to be alive.” The verse shows “that the fetus is not a person. The primary concern is the well-being of the person who was injured.” …

   Most Rabbinic interpretations even insist on abortion in order to the save the pregnant woman’s life. The fetus is viewed as valuable, but as less than fully human. “The existing life takes precedence over the potential life.” Judaism puts saving a life above almost any other consideration, and it is clear which is regarded as the living person in case of pregnancy…

   Rabbinic Judaism does not regard the fetus as a full human being. While deliberately killing a day-old baby is murder, according to the Mishnah, a fetus is not covered by this rule. In the reading of Biblical homicide laws, rabbinic sages argue that homicide concerns an animate human being (nefesh adam from Lev. 24:17) alone, not an embryo… because the embryo is not a person (lav nefesh hu). An embryo is not deemed a fully viable person (bar kayyama), but rather a being of “doubtful viability”. Hence, for instance, Jewish mourning rites do not apply to an unborn child. The status of the embryo is also indicated by its treatment as “an appendage of its mother” for such matters as ownership, maternal conversion and purity law. In even more evocative language, the Talmud states in a passage on priestly rules that the fetus “is considered to be mere water” until its 40th day. Elsewhere, the Talmud speaks of a “moment of determination” and a “moment of creation” in regard to different stages of the fetus. Rashi explains that the moment of creation is when bones and arteries begin to form and in other places he says that the “moment of creation” is at the 40th day.

   Modern scholars draw a sharp contrast between the theologies behind Jewish and Catholic opposition to abortion. After favorably reviewing Christian opposition to abortion, Immanuel Jakobovits writes: “In Jewish law, the right to destroy a human fruit before birth is entirely unrelated to theological considerations. Neither the question of the entry of the soul before birth nor the claim to salvation after death have any practical bearing on the subject.” Although halakhic regulations works strenuously to protect the unborn child, he says that “none of these regulations necessarily prove that the foetus enjoys human inviolability.” In contrast to the neo-Platonic and Christian approach, moreover, Talmudic thought does not “make any legal distinction between formed and unformed foetuses,” after the 40th day. Feldman, likewise, is emphatically comparative, saying: “… while Christianity’s position on abortion has raised the moral level of western civilization in this regard and has succeeded in sensitizing humanity to a greater reverence for life, it is obviously comprised, at the same time, of theological postulates which the Jewish community can not share.” Feldman also points out that Talmudic debate over whether the soul achieves immortality upon conception, or at a far later stage, has little bearing on halakhic protections for the fetus because, absent a doctrine of original sin, “abortion would not interfere with the immortal rights or destiny of the foetus.”

   The fetus is valued, however:

   In halakha, just as the principle of pikuach nefesh allows violating nearly all laws in order to save a human life, many laws may be violated in order to save the life of a fetus. Shabbat must be violated to save the life of a fetus. A pregnant woman who develops a ravenous hunger must be fed even on Yom Kippur to prevent loss of life; later authorities debate whether the situation describes involves danger to the fetus, mother, or both.

10. Mrs Whatsit:

    If we were to interview 100 random people I believe the vast majority (certainly of Democrats and probably even of Republicans) would say that overturning Roe would mean abortion would be illegal. The press and the left have hammered that false idea home, and since most people don’t really understand law, that’s the impression most people have anyway. But it is no accident, because that’s the idea the left wishes to push.

11. The argument can be made that, absent the life of the mother or rape or incest… a botched abortion in which the mother suffers the same fate that she freely intended to impose upon an innocent life is simply instant justice.

    I can tell without asking that you have never seen such a case. One case I remember the “father” was a UCLA medical student. He had injected liquid soap into his girlfriend’s uterus. I wrote to UCLA suggesting he be expelled.

12. Shee-it! Over 60 million innocents who would have been (? were) US citizens have been murdered by the “pro-choice” crowd thanks to Roe. To be pro-choice is to be wrong, terribly morally wrong, especially for a physician like Mike K. You swore the Hippocratic oath and its ban on abortion, did you not, Mike?
    Aw shucks, you didn’t mean it; it was just part of a graduation ceremony, right?

    The demographic implications of Roe are huge. It is in part why the population gap has been filled by Haitians, Hondurans, Guatemalans, West Africans and some Middle Easterners.

    Now we whites have to listen to the constant drone of “White Supremacy” day after day. I hate to have to point out that White Europeans and their US descendants have yielded 99.99% of everything we hold valuable in this life, material, intellectual, and spiritual, commencing over two thousand years ago.

    I have yet to learn of a scroll found in Africa detailing the issues of goodness and virtue as Aristotle did in Greece circa 350BC.

13. Cicero –

    New doctors aren’t required to swear the Hippocratic Oath anymore. Instead, they’re allowed to come up with something feel-good. And from what I’ve heard, most do.

14. Bookworm is very pessimistic.
    https://www.bookwormroom.com/2021/12/01/i-think-we-already-know-the-outcome-on-the-challenge-to-roe-v-wade/

    If you scan the internet, you’ll see a number of headlines stating that the Supreme Court is hearing oral argument today in Dobbs v. Jackson Women’s Health Organization, the case out of Mississippi that challenges Roe v. Wade. I’m completely disinterested because I’m certain that the outcome is pre-determined: Roe v. Wade will be upheld.

    Why do I say that? Certainly not because it rests on a firm legal principle. Penumbras of emanations or emanations of penumbras do not create a federal right to abortion. The Constitution and the history of abortion in America before Roe v. Wade make it unequivocally clear that abortion is not a constitutional right; it is, instead, a matter that belongs to the individual states. Roe v. Wade is horribly written, but its folding, spindling, and mutilating of constitutional concepts, especially the 10th Amendment, is patently clear. (And by the way, whenever you’re reading a turgid, boring, complex, confusing, obfuscatory Supreme Court decision, it’s dishonest.)

    She got that parenthetical right.

    The reason I say this is twofold. First, there’s my theory — which is repeatedly borne out by the behavior of the Supreme Court justices involved — that Roberts, Barrett, and Kavanaugh are all compromised. I have no proof whatsoever of this other than the fact that, on matters of minor importance, they’re rather consistently conservative while, on matters of importance to the left, enough of them will side with the leftist justices to achieve the preferred leftist outcome. Robertson [sic] used to hold that role by himself. He now has a rotating group of people to help him by coming to the left’s rescue if need be.

    And on what grounds might they be compromised? I’ve assumed it revolves around their children. Rumor had it when Robertson was confirmed that his children’s adoption might have been shady. As for Barrett and Kavanaugh, I keep imagining some deep state operative showing up at their doors with pictures of the kids in hand, saying something along the lines of “Nice little family you’ve got here. It would be a shame if something happened to it.”

    For that reason — that is, the justices’ pattern and practice, combined with my paranoid suspicions — I’m pretty certain we’ll get a 5-4 majority reaffirming Roe, with two of the “conservative” justices joining in.

    Another reason for my certainty about the inevitable decision affirming Roe v. Wade is that I read somewhere (and I can’t remember where), that there’s a concern among the justices that, if Roe goes, then Obergefell (which found a constitutional basis for same-sex marriage) goes too. That’s correct. Obergefell rests firmly on Roe.

    The members of the Supreme Court know that, if Roe goes and Obergefell is threatened, the riots last year will look like picnics as Marxists and anarchists again take to the streets (because that’s what they do), only this time they’ll be joined by rampaging gays and suburban women. We know that the justices, rather than doing the right thing, will always do the preferred thing (a) to keep the peace and (b) to keep the Deep State and its voters happy. Heck, Sen. Jeanne Shaheen (D — Violenceville) threatened a revolution if leftists don’t get their preferred outcome.

    That’s the Democrat world. Conservatives “parade” through the Capitol and it’s an insurrection requiring mass arrests, extreme penalties, and Maoist struggle sessions in the courtroom. A Democrat senator threatens a revolution and everyone nods sagely.

    Neo: “Rule of law is only necessary for the right side of the political spectrum.”

    So yeah, I’ll be beyond surprised if the Supreme Court lays a finger on Roe v. Wade.

    This is one of those situations in which I hope I’m wrong. I seldom am, though, when I suspect the worst of our institutions.

    UPDATE: I know that Kavanaugh and Barrett asked conservative seeming questions. I still don’t think they’ll go through with voting conservatively. But again, I’ll be happy if I’m wrong.

15. AesopFan re: Bookworm’s post.
    I hate to admit it, because it’s not the America I grew up in – or thought I did – but I agree with every word.
    Now I find myself remembering an old joke; ‘It’s not paranoia if they really are out to get you.’

16. AesopFan: thanks for the quote from Bookworm and especially for giving Neo the cite to the legal analysis/argument of the “grievous error” of Roe/Casey. I found it to be compelling. It seems clear that in those cases the Supremes sold out the Constitution to get the desired result. The decision about abortion laws belongs not with nine unaccountable people in the highest federal court, but with the legislators of each state who must answer to their electorate. That’s just how the system works. The subject matter of the case —the (IMHO insoluble) moral conundrum of which of two innocent parties should be forced to suffer an unavoidable cost— is so fraught with emotion that it obscures the Constitutional debate. But you can’t run a legal system on emotion. Not well; and not long.

    So here we are. I hope Bookworm is wrong but I expect she’s right.

17. The quote from Bookworm also illustrates why bad decisions – such as Roe – are so dangerous. Not only is it effectively made up law, legislated from the bench. But Bookworm also cites a prominent subsequent decision whose legal basis rests entirely on a nonsensical decision. And you know it’s only a matter of time before cases rely on Obergefell to justify themselves – assuming that there aren’t some already – meaning that those opinions will create a third tier of cases that rest on non-existent foundations, followed by a fourth tier, etc…

    As painful as it might be, tearing off the band-aid of Roe is probably the best decision, as it will avert much worse pain later on. Whether that will happen, or whether the Supreme Court will punt the decision down the road for a later court to struggle over, is, of course, anyone’s guess.

18. @ Molly Brown > “Now I find myself remembering an old joke”

    And its corollary, for paranoid multi-persons: “They’re out to get all of us.”

    BTW, there is a classic sf short-story making quite imaginative use of that particular psychiatric disorder, but if I gave you the title it would spoil the punch-line for you.

19. We ought to set up a bingo game with the justices and their possible votes, and see who has the winning card next spring.

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