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February 24, 2006 09:00 AM UTC
36 Comments
I think that there’s a pretty good chance that if the SD Supreme Court overturns this law that the US Supreme Court may deny cert altogether.
Roe has been in place for 30+ years and it will not be overturned in one fell swoop. A full frontal assault like this is doomed to failure, a better strategy, imo, is too continue chipping away at the edges of Roe/Casey.
I’m not sure if that’s what’ll happen Three Blind Mice. All it takes to grant a Writ of Certiorari is four Justices and you can be pretty sure that Scalia, Thomas, and Alito will grant Cert. That leaves either Roberts or Kennedy and I wouldn’t be surprised if one of them does as well.
I think overturning Roe v Wade is the best thing that could happen for the Democratic party – http://thielen.typepad.com/politics/2005/08/overturn_roe_vs.html
– dave
The legislature is jumping the gun.
To repeat: Roe v. Wade is as safe as a babe in her mother’s womb.
I’m with 3bm and kevin. This isn’t one vote early, it’s at least two. Assuming Roberts is not a bald-faced liar, he meant what he said about Roe being “settled law.” But like threeblind mice, I think an assault on Casey, focusing on parental notification for minors and/or spousal notification, might succeed. Likewise a ban on 3rd trimester abortions, which is perfectly congruent with Roe’s original 3-trimester test, might well succeed. Nibbling around the edges on Roe is one thing. But I agree the court might not even grant cert and if Kennedy or Roberts did provide the fourth vote, it would be because they wanted to squash the south dakota law.
Roe v. Wade will probably never be outright overturned. It will instead suffer the death of a thousand cuts – in fact this is already happening. I don’t know if the Supremes are ready to go all the way to “illegal except to save the life of the mother.” I suspect the process will be more gradual.
States are already allowed to put limitations on abortion so long as they are not an “undue burden.” I foresee a gradual redefinition of what comprises an undue burden. Perhaps it will only be an undue burden if death or organ failure result . . .
Very good points Liberal, and well written too.
Very good points Liberal, and well written too.
Thadius – I don’t think that Alito is a definite for cert on this issue at all.
just imho of course
and yes, I am an attorney
I always thought Voyageur was a reasonable guy
and yes Emma, a peripherial attack as we have seen for awhile is the way Roe will be brought down.
Just for perspective:
I’m a Pro-Choice Irish Catholic, on that account I am Pro-Choice but personally oppossed to abortion.
As an attorney I believe that the Roe decision is pretty awful – very poorly reasoned, and the judicial fictions that it relies on make it very easy to undercut.
Overturn Roe vs. Wade
Let me start off by saying I’m a liberal. I’ve donated to MoveOn.org (not recently), walked precincts, taking my daughters, to help get out the vote, and am glad to see Howard Dean as chairman of the party. I also
Fools! It is not about abortion, it has never been about abortion. It has always been about undermining the independence of the federal judiciary by setting up laws which deliberately violate the guidelines established by Roe and then when the courts strike the bogus law down, the right wingers scream “activitist judges.” The argument which the right wingers are making is that “something” like abortion rights are “too important” to be left to “unelected judges” and should be subjected to the “will of the people.”
This states rights argument dominated legal discussion in the 50’s andd the 60’s and was used by the South to justify segregation and Jim Crow. You know, the South, the home of Bush, Rowe, Owens, etc. Ask yourself when were the schools in Texas desegregated? Just about the time ole Barbie Bush sent her babies off to boarding school in the East.
The real odd couple is Mike Rosen and Al Sharpton, both of whom argue that the activist judge argument is not about Roe, it is about Brown v. Board of Education.
The right wing is poised to take a civil right, (the individual right to privacy, guaranteed by the federal constitution, protected by federal marshals) and make it a states’right, subject to the whim of the mob.
Finally, the payback which has been plotted for fifty-six years.
It was the Constitution, Stupid!
Next time you feel such a rabid attack of male PMS, Dwyer, sit down, take a midol, and wait until the feeling passes. Otherwise, you’ll spew more imbecility like you just did. There’s not a coherent thought in the whole post.
You may well be right,( although not quite about everything.)
What was incoherent about what I said? Are you a member of the right wing and disagree with my assessment? The Republican strategy on how to win power through using abortion as a “wedge” issue was explained to me back in 1996: Something about advancing the TOTAL conservative agenda. Do not the Republicans consistently pass anti-abortion laws which consistently fail to pass constitutional muster? Don’t the Republicans consistenly blame “activist” judges for enjoining these laws? Did not Mike Rosen (Goggle him) write an article saying that “judicial activism” began with Brown, et.al.? Were not the Texas Public Schools segregated? Didn’t Barbara Bush send her babies back east to private boarding school? And using some kind of brilliant strategy didn’t the Republican in ten years, consolidate political control of first, the Congress, then the White House and now the Supreme Court? And, if Roe is overturned, doesn’t that take a civil right and turn it into a “state’s right” issue. I am more coherent and logical in review than even I thought I was. And, what in h…, is midol?
If you think that what you wrote is coherent, you’re the only one that does, Dwyer. For openers, please cite the section of the constitution that establishes a “right of privacy.” Second, why do you think a state right isn’t a civil right? Read the 9th and tenth amendments, dummy. I don’t have to be a member of the right wing to disagree with your assessments. I just have to have an IQ in double digits. I know you’re trying to be far left, but in truth, you’re just babbling pillar to post. And ask any woman, if you know any, that is, what midol is for. Even Mike Rosen knows that, and lord knows, he doesn’t know much!
Dwyer – two points
1) There is no right to privacy in the constitution and “finding one” is very dangerous – see http://thielen.typepad.com/politics/2005/08/what_right_to_p.html
2) Not only is Roe vs Wade bad law, but it mainly benefits the right wing – see http://thielen.typepad.com/politics/2005/08/overturn_roe_vs.html
And I do have to agree with DoTheMath, nothing you said made any sense. I’m not saying that I disagree with your points, I’m saying I have no idea what your logic was.
– dave
What’s Midol? Are you a foreigner?
What’s Midol? Are you a foreigner?
As my t-shirt says….”Never trust anything that bleeds for five days and doesn’t die!”…….
Dave, thanks for the comment. I think I am making sense, but I am not convincing “cooler heads.” Let me try again. Back in 1953, there were state laws which mandated segregation in public schools and public transportation and public accomodations; mandated protestant prayer in public schools, outlawed abortion and the sale of any birth control devices; prohibited disabled kids from attending public schools; and otherwise mandated discrimination based on sex and race; and other laws which basically left the definition of “due process” and “equal protection of the law ” up to the individual states. In the South, what kept the public segregation (Jim Crow to you foreigners) going were states laws which basically disenfranchised the “Negro” and so he/she couldn’t vote to change these laws.
In 1954, in Brown v. Board of Education, Topeka, the Supreme Court said that “separate but equal” was inherently unconstitutional and that ruling started the rollback of all the state laws mandating segregation. It was a bloody, brutual fight.
Federal troops went into the South to enforce federal law which had overturned state law. The South never forgot and the kids who heard their parents curse “activitist judges” are now running the country. (Hence, the Barb Bush reference)
During the next fifty years, the Supreme Court consistently overturned state laws which restricted the right of the individual and found, instead, that the Constitution granted civil rights to the individual which could not be restricted by state laws.
Dave, I said yours was a “cooler head” not a “brighter one.” There is a right to privacy in the Constitution. The Supreme Court declared that right in 1966 in Griswald v. Conn. You may not like that and you may say that it is dangerous. But it is there.
Law trumps opinion.
Of course, Roe is lousy law and it contains the seeds of its own destruction and with it, potentially the whole body of constitutional law which has been developed over the last fifty years. Roe says that there without “consensus” there is no civil right. When it is overturned, the matter of abortion goes back to the states. A civil right, the federally protected right of a woman to choose an abortion, will be NO more. Instead, states will rule.
I believe that this will become the basis for returning all kinds of individual civil rights back to the states. School prayer, discrimination based on whatever, voting rights, all of that could go by the wayside. Civil rights protect the individual from the exercise of power, be it state, corporate or some form of majority. That is why this is about the constitution, not abortion.
My arguments are coherent, that is why they are not being refuted, rather the attack is personal.
As for you, Becky, you’re being baited. Of course I know what midol is. It is loaded with caffeine and we used to bum it when we had to cram for exams in constitutional law and had run out of that other old time remedy, NoDoz.
Dwyer,
You’re obviously educated….but you’re still an idiot. You hide behind a pseudo-intellectual fraud of an argument, but the worst part is your bullying!!! Just a punk!!!!
Your arguments aren’t even close to being coherent, dwyer, though your third round did better than your first two babbling rants. If I were you, I’d stick to wearing “no war for oil” tee-shirts as you jump into your 14mpg SUV to drive to anti-war rallies. Constitutional law seems well over your head.
Actually, Dwyer, the case is Griswold v. Connecticut, 381 U.S. 470 (1965), not griswald.
It established a limited MARITAL right to privacy in the so-called “penumbra” of the 14th amendment.
here’s a link to a decent little background summary of the cases leading up to Roe.
http://members.aol.com/abtrbng/conlaw.htm
DoTheMath, thanks for the correction on the citation. Too much Nodoz, on my part.
I am describing a scenario which, I believe, can lead to the disassembling of civil rights. I don’t understand the failure to deal with the arguments I offered. Name calling is not a counter argument. Nor does it scare me away or even hurt my feelings.
Perhaps the midol is working.
You didn’t offer any argument, Dwyer. Just a generalized paranoia that Republicans, who are evil in all things, are going to undo the work of Democrats, who are just and righteous in all things. You have no arguments to counter. And there is no countering paranoia.
After Casey v. Planned Parenthood (or vice versa, check me on this), in which the Supreme Court reaffirmed the basic civil right to an abortion in the first trimester, and the right to an abortion in the second and third trimester if a woman’s life or health were endangered, the legal remedy for those who believed in fetal right to life, would have been to pursue a Human Life Amendment. Indeed, that was part of the agenda on which Republicans took control of the House in 1994. Since that time, numerous versions of a HLA have been introduced in the House and Senate, but the Republicans have never voted on even holding hearings on an HLA. No Republican in twelve years has ever had to vote to ban abortion. It was explained to me that Republicans feared that if such a vote were required, it could cost a member or a senator his office. Therefore, the strategy was to marginally vote to restrict abortion, never to force a vote to outlaw it. The federal legislation restricting abortion always was enjoined because it never met constitutional muster. So no woman, Republican, Democratic or Independent, has ever been denied an abortion because of a vote of a Republican. (Now the Hyde Amendment back in the late 70’s, prohibited any federal funding for abortion which did have a negative impact on accessiblity.)
Using this strategy, the Republicans have gained almost complete power at the federal level and are now in a position to move forward on dissassembling what is being called the work of “activitist judges” over the last fifty years. What Republicans are promoting now, is not an overruling of Roe based on a new finding that a person exists from conception forward and on that basis, abortion is banned, but rather a finding that the Court should not have ruled in the first place because this is basically a states’ rights issue. The argument, as I am hearing it, is that the Court should overturn Roe and return the matter to the states. That would not protect fetal life in all cases, quite the contrary, the states would be free to determine when and how to regulate abortion, or the taking of fetal life. So what is now a civil right to abortion, federally protected, would become a matter for the states to determine.
My argument is that this takes a civil right out of the constitution and could set up the precedent for taking other civil rights out of the constitution and making them a matter, not of constitutionally protected individual rights, but a matter of mere state law.
As distasteful as I find the personal attacks, I welcomed the opportunity to state my arguments four (five?) times today. I think the issue is critical. From my value perspective, the constitution is the proper place to protect civil rights. I would welcome either side pursing a constitutional amendment to protect what they perceive as a civil right: Either an amendment to protect an absolute right to abortion or an amendment to protect the right to life from conception forward. What I loath is the cowardly way of deciding that there is no role for the Constitution of the United States and its protectors, the independent federal judiciary, in such incredibly important matters.
Dwyer – you are mixing several unrelated arguments into one ball of mud. Lets try to break it out.
The civil rights cases were very well grounded in law, the 14th and 15th amendments as well as numerous laws passed by the radical republicans during reconstruction. The actions of the judges in the civil rights era was not discovering new rights, it was enforcing clear law.
Every other civil right you listed above except abortion is also covered in the constitution. Freedom of speech and seperation of church & state are both explicitly stated in the bill of rights.
Where you then veer way off track is your statement that the right to an abortion is enshrined in the constitution. It’s not. Any good lawyer will tell you Roe v Wade was veyr badly reasoned.
And the danger of Roe v Wade is that it set a precedent that 5 unelected individuals could make law and do so for decisions that clearly belong in the political sphere. In that sense, Roe v Wade is comparable to the Dred Scott decision.
Yes, you are right in one sense that the law is whatever the supreme court says it is. On the flip side, if the supreme court does decide issues like this, then we no longer live in a democracy but instead a very restricted for of a republic.
I believe abortion should be legal. But I believe even more strongly in the U.S. being a democracy and therefore I hope Roe v Wade is overturned as bad law and judges interpret the law rather than create it.
Because I would hate to see Scalia, etc. shoving their laws down our throats once they have 5 votes willing to enforce their worldview on all of us.
– dave (who uses his real name & email address)
No where in your long, whining, conspiracy theory, dwyer, did I see you mentioning the key role of the Masons in driving the conspiracy. Conspiracy theories ALWAYS involve the masons, what, you didn’t see Nicolas Cage movie. And Opus Dei! You forgot Opus Dei!
If you’re going to be a rambling idiot, for gawd’s sakes, follow the rules!
Your whining boils down to this: Any time you can get five judges to agree with you, you can create a new constitutional right. But people who disagree with you have no right to try to get five judges to overturn your spurious new rights.
David Thielen is dead right to cite the Dred Scott decision, a woeful exercise in judicial activism if there ever was one. Even Rehnquist lacerated that in his book. You would have loved it if you’d been around at the time.
So what is it, Dave? Overturn Roe because it is “bad law?”
Overturn Roe because it legtimatizes abortion?” Get rid of the Supreme Court because we should live in a “democracy” and there are no rights except what the majority say? The Constitution should be like the Bible, everyone can read it and interpert it according to their own conscience? There should be no independent judiciary? Now, finally, I am confused.
The Constitution, unlike the Bible, carries within it, its own remedy. The answer to a bad decision by the Supreme Court is to change the law by passing a Constitutional amendment. Either side could do that. Neither side has.
What overturned the Dred Scott decision was the 13th, 14th and 15th amendments to the US constitution.
Hi;
Ok, clear concise questions and therefore I owe you answers.
> Overturn Roe because it is “bad law?”
Yes details here.
> Overturn Roe because it legtimatizes abortion?”
Absolutely not (see previous).
> Get rid of the Supreme Court because we should live in a “democracy” and there are no rights except what the majority say?
Absolutely not. However the court should interpret the law, not create it. I think the Kelo decision is a great example of the court saying it is not clear if that action is prohibited and since the legislature can act to change it, leave it to the legislative branch.
> The Constitution should be like the Bible, everyone can read it and interpert it according to their own conscience?
Well in one sense yes. We can each have our own opinion as to what the 2nd amendment means for example. But in another sense no, it is the job of the courts to interpret it.
> There should be no independent judiciary?
Absolutely we must have an independent judiciary. I believe that is one of the strongest foundations of our system here.
But the judiciary has a responsibility to interpret the law to the best of their ability. And that includes not letting their personal philosophy influence their decisions.
And it absolutely requires that judges not find rights just because they think it is a good right that people should have. Interpretation, not creation of laws.
As I said in the beginning, it is not about abortion, it is about the Constitution. So Dave, let us agree to disagree on the most fundamental issue of this bad law. You argue ( and I read the links) that abortion is a political issue and should be decided by the legislatures. I argue that it is a fundamental individual right issue, either the fundamental right to privacy or the fundamental right to life. In either case, the decisions belong in the relm of Constitution, not the political process. The ultimate remedy to a bad Supreme Court decision is a constitutional amendment.
As for the rest of your statements. I disagree with YOUR interpretation. In Brown v. Board, et.al., the Supreme Court overturned Plessey v. Fergeson and found, based on new sociological evidence, that “separation is never equal.” The Civil Rights revolution was based on the Supreme Court reinterpreting existing law in the light of new evidence. The criticism, then, was that they were “making” new law.
You can assert that the Court “should” do this and “can’t” do that and it makes no difference. The Supreme Court is as it is. That is the heart of its independence and our constitutional fundation. Threatening its independence threatens the country.
Now, the strategy which the Republicans had deployed, so brilliantly, was to pretend to be for a so-called “right to life;”
To use the grusome descriptions of abortion procedure to repulse and rally it so-called base and to successfully win elelctions, with the increasingly vague promise of stopping the procedure.
Now, that the Republicans are in power, they are not acting to protect this so-called “Right to life,” but, rather to overturn Roe to return the issue to the indiviudal states; with ABSOLUTELY no guarantee that feti will have any better chances.
But, such a move could, and this is my argument, not my assertion, weaken the Court and its ability to define and protect the rights of those who are not white, male and Republican.
I am done with this.
You boys are making a whole lot out of a simple issue. The fact is, now, a majority of Justices correctly see that Griswold is weak, and that a LOT of supposed “settled law” – e.g., privacy, separation of church & state, among good examples – is crap.
Watch for this frontal assault to reexamine contrived, faulty bases for privacy and for Roe to eventually be tossed.
To quote Al Gore, “Abortion is arguably the taking of human life.” The right to life trumps a made-up right of privacy.
As sociological evidence (which is always subjective) was critical in earlier cases, technology (as in “LOOK! Hey, it really IS a baby with a mind of its own!”) will mandate the necessary reexamination of any issues required to overturn the license to murder.
And “Dwyer” while I don’t claim to be as smart and educated as your liberal white @$$, the fact that unborn babies are safer with this thing in the hands of the states is irrefutable.
To cite just the most obvious of your self-contraditions, dwyer:
“The answer to a bad decision by the Supreme Court is to change the law by passing a Constitutional amendment.”
Then you go on, correctly, to say that that Brown vs. Board of Education reversed Plessy v. Ferguson.
So, I can only conclude you’re against Brown, on the grounds that it reversed Plessy rather than requiring a constitutional amendment?
No, the truth is that when you get a liberal majority to pass a ruling, whether Roe or Brown,
you THEN say conservatives can only overturn it by a constutitional amendment. But a liberal ruling overturning a conservative one, i.e., Brown overturning Plessy, is just great for you.
Are you a flaming hypocrite or just a fool too dumb to avoid falling over your own contradictions?
I don’t see a problem with dwyer’s logic. If the Supremes continue to see Roe as settled law – and they are likely to continue to do so until/unless Republicans can replace one of the 5 remaining pro-Roe justices – then the only valid solution is through the Constitutional Amendment process.
Furthermore, I think we can all agree that FDR’s attempt to stuff the court – as a political move – was contrary to the purposes of the court as an independent body. The political pressure being brought to bear for “conservative” justices is to my mind only slightly less obnoxious, and is definitely in the “political” realm that dwyer was contemplating.
I didn’t read anything into dwyer’s statement that said he was against the SCOTUS overturning Roe based on actual evidence, but AFAIK no significant new evidence has been discovered since Roe that would alter that decision. Bringing political and/or religious changes to the court as a means of overturning the decision is not, for the good of the country, a Good Thing.
I wouldn’t expect you to see anything wrong with rank hypocrisy, PR. Liberals can invent rights with 5-4 votes, which then become unassailable precedents that conservatives can only overturn by constitutional amendments? But appointing a conservative who might vote to overturn a liberal decision is just so wrong? Hypocrisy to the Nth degree.