Roe v. Wade Still Standing

[LaWood]

Roe v. Wade...34 Years and Holding

Decided January 22, 1973

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.
http://www.tourolaw.edu/patch/Roe/

[Hogeye]

State laws against abortion are bad, but Roe v Wade was a terrible decision which vastly increased the power of the central government. Some people are willing to ignore despicable means if they get the end they want - a very short-sighted attitude. If the central govt has the power to prohibit state laws against abortion, it has the power to prohibit states from allowing abortion. It would truly be poetic justice if the fundie politicos made all abortion illegal using the power and precedent that short-sighted "liberals" handed them on a silver platter.

Ideally, the central govt would have no position on abortion, leaving it up localities/states, and the localities would all allow the women to choose for themselves. Better than the statist quo, but more realistically, the central govt would leave it up to the states, will some/most states allowing abortion. Then the women in the anti-choice states could at least go to another state to have an abortion.

The Roe v Wade decision was, of course, politically decided - the 14th amendment says absolutely nothing about privacy, contrary to the claim from the ruling cited in the post above. But naturally States tend to interpret their Constitutions in favor of more power to themselves. What do you expect? The gist of the 14th amendment is:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

No reference to privacy at all, nor any hint in the case that states did not use "due process" when they abrogated women's right of self-ownership.

Bottom line: Roe v Wade was a naked power grab by the central state. People accepted it because of their short-sighted naive belief that the govt rulers would always favor their point of view, and that good ends justify vile means.

[Barbara Fitzpatrick]

Prior to Roe v. Wade I really didn't notice the states/localities allowing women to choose for themselves. If they had, Roe v. Wade wouldn't have come up.

I'm for women having the choice on two counts. One - women are putting their lives - physical and economic - on the line with every pregnancy. That should be a choice. Two - being unwanted is an evil that tends to lead to at least emotional and frequently physical abuse - and creates unbalanced (at best) citizens. I do not wish that on anyone, much less an innocent baby. If she doesn't want a baby, she shouldn't have one. If there was an absolutely infallible method of preventing unwanted pregnancies, I wouldn't worry about legal abortion so much - but there isn't. (And fundies, don't say "abstinance" because rape may be a choice for the male, but it isn't for the female - and 25% of rapes lead to pregnancy.)

[Hogeye]

We agree that women should have a choice.

What we disagree about is the means for achieving it. You seem to have a "by any means necessary" approach. You don't seem to mind using means that increase authoritarian power, endanger liberty in all areas, and indeed may even backfire on the abortion issue. I, on the other hand, believe that the means must be consistent with the ends. That is the only way to make freedom sustainable, not to mention moral.

Now the historical question: How many states allowed abortion before Roe v Wade? According to the Wikipedia article (admittedly a questionable source), 13 states plus WashingtonDC allowed abortions in 1972, the year before Roe v Wade. Not only that, the trend was for more and more states to legalize it.

After the Revolutionary War, there were virtually no laws against abortion. The political suppression of abortion started in the 1860s, with the rise of the progressive movement - anti-alcohol, anti-sex, anti-Papist, they were the real start of the use central govt police power to enforce your morality groups so pervasive today.

From States probe limits of abortion policy

Gradually, other states made minimal changes to their 19th century abortion laws, but most continued to allow the procedure only in life-threatening situations. As a result, hundreds of thousands of women resorted to illegal, self-induced – and sometimes deadly – abortions. 

The American Law Institute (ALI), a group of lawyers, scholars and jurists, began to call for abortion reform in 1962, urging states to permit abortion when a woman’s health was at risk, in cases of rape or incest, or if the fetus had a severe defect.

In 1967, California became the first state to adopt ALI’s model law, and by 1972, Arkansas, Colorado, Delaware, Florida, Georgia, Kansas, Maryland, New Mexico, North Carolina, Oregon, South Carolina and Virginia had followed.

In 1970, four states -- Alaska, Hawaii, New York and Washington -- adopted the most liberal laws in the country, allowing a woman to have an abortion whenever she and her doctor decided it was needed.

I might add that for California, Arkansas, and the 12 others, even though the law did not explicity give women choice, in practice they did have choice since any unwanted pregnancy could be construed by doctor and patient as a health risk. Ask Dr. Harrison, Fayetteville's long-time abortion doc. I know it from personal experience.

We can speculate that, without Roe v Wade, most states today would probably allow abortion, just as most state would allow contraception without federal interference. Centralizing the decision with Roe v Wade gave the central govt massive power over people and their bodies, for the temporary gain of slightly speeding the acceptance of abortion choice. The damage of such centralized authority can easily be seen in the federalization of law enforcement, the barbaric federal drug prohibition, the highest incarceration rate in the world, and so on. Like I said, if the fundies manage to outlaw abortion, it will be largely the fault of those short-sighted "liberals" who gladly created that power through Roe v Wade.

[Barbara Fitzpatrick]

Hogeye, you and I will never agree on the federal system. I come from Texas, one of the 37 states where abortion was outlawed - felony for the doctor and the woman. Rich women went were it was legal. All having it legal in NY or CA meant was they didn't have to fly so far. Everybody else was stuck with having the for-whatever-reason-unwanted baby, "defrocked" doctors, and "do-it-yourself methods (which have the unfortunately potential side effect of being fatal - as does pregnancy itself). That's a REAL "one law for the rich, another for everybody else" situation.

I believe there are certain things that need to be centralized for the benefit of the whole country. Access to medical care, including abortions, is one of those things.

[Hogeye]

Do you acknowledge that it could go the other way - that the centralized power you seem to trust so much may outlaw abortion? Then the whole US would be like Texas was, instead of poor Texans having to go to Texarkana, they'll have to go to Canada or Mexico. (Oops, the centralized govt has recently declared that you must have a govt passport to travel even there!)

[Barbara Fitzpatrick]

Of course it could go the other way. That's why people who pay attention are having fits about the Military Commissions Act that does away with habeas corpus on presidential whim. There is always the potential for the power elite to abuse power, that's why the checks and balances were written into the constitution and guarantees into the bill of rights. Unfortunately, the 106-108th congresses didn't follow their constitutionally mandated duties to maintain those checks and balances - and why the 110th is trying to get them back.

What will happen if it does "go the other way" and abortion becomes illegal in America is pretty much what was happening pre-1960s - rich women will go to countries where it is legal and poor women will have illegal abortions - and maternal mortality stats will reflect America as a "3rd world nation".

[Hogeye]

Barbara, if Row v. Wade was overturned and abortion was up to the individual states, what would be your prediction (for 10 years later) on how many states would allow abortion?

[Doug]

Barbara, if Row v. Wade was overturned and abortion was up to the individual states, what would be your prediction (for 10 years later) on how many states would allow abortion?

DOUG
Here's a good guess, from USA Today:



Here.

[Barbara Fitzpatrick]

You got it, Doug - and a century's work in civil rights for women to be done over again. Don't forget the drive to make it a crime to cross state lines to get one. Not that such a law would stop the rich, but the poor - illegal abortions and a significant rise in the deaths caused by them. It wouldn't be so important if women could always choose whether or not to get pregnant in the first place, and if modern science had "conquered" birth defects, and if we had a social system that took care of children after they get here - but that's not the way it is. Real life sometimes makes abortion the lesser of evils - and the woman bearing the child and the responsibility for the child should be the one making the decision. period.

[Doug]

It wouldn't be so important if women could always choose whether or not to get pregnant in the first place, and if modern science had "conquered" birth defects, and if we had a social system that took care of children after they get here - but that's not the way it is.

DOUG
And many of the same bastards trying to limit a woman's right to choose whether to have an abortion are also the same ones LYING to teens about the effectiveness of condoms and other info about contraception.

And we all know that the "abstinence only" programs just don't work, and in fact put teens at risk because they denigrate condom use.

[Hogeye]

That seems like a reasonable prediction, Doug - less than half the states would "significantly restrict abortion access." And in the longer run, due to the incentives we would expect more states liberalizing. This seems much better than the Roe v. Wade winner-take-all centralized power approach. And it doesn't have the general effect of increasing the power of the central State to do other mischief.

Barbara, you needn't worry that the repeal of Row v. Wade would represent "a century's work in civil rights for women to be done over again." Any "progress" based on central government force rather that attitudes and culture is counterfeit if not downright dangerous. If your "reform" requires authoritarian means, then it's not really reform - it's simply an attempt at coercive social engineering.

[Doug]

That seems like a reasonable prediction, Doug - less than half the states would "significantly restrict abortion access." And in the longer run, due to the incentives we would expect more states liberalizing. This seems much better than the Roe v. Wade winner-take-all centralized power approach. And it doesn't have the general effect of increasing the power of the central State to do other mischief.

DOUG
That's a pretty poor slippery slope argument. "Other mischief"? In the long run, we would NOT expect alleged "incentives" or "market forces" to change the views of the religious right. Market forces are routinely trumped by religious forces.

Barbara, you needn't worry that the repeal of Row v. Wade would represent "a century's work in civil rights for women to be done over again." Any "progress" based on central government force rather that attitudes and culture is counterfeit if not downright dangerous. If your "reform" requires authoritarian means, then it's not really reform - it's simply an attempt at coercive social engineering.

DOUG
Guaranteeing people a right that the majority believes is due them (as with the right to an abortion) is not social engineering. Barbara is right. If Rowe v Wade is overturned, states with abortion bans would simply allow the richt to do what the poor cannot.

[Hogeye]

Giving the State coercive power enables it to act coercively in the future. Obviously. Even a cursory glance at US history shows the ratcheting up of power effect.

Market forces do ameliorate religious fanaticism, by making those who would enforce thier beliefs pay the cost of that enforcement. Clearly if people who want to outlaw abortion (or pot, or gay marriage) had to pay the costs of such enforcement rather than shove the costs onto the general public, there would be much less support. It's easy to say "outlaw it" when it costs nothing to you, but harder if you have to pay $500/year. The government monopoly destroys this type of incentive by socializing the costs of enforcement.

It through the use of the political means that the fundies threaten us most - getting winner-take-all laws passed. And ironically, it was liberal statists who handed them that power through decisions like Brown v. Board of Education and Roe v. Wade - decisions which centralized power in the US State. Such short-sighted power transfers are bound to backfire once "your guys" are no longer in power. To paraphrase your banner: Facism has come to America; liberals provided its weapons.

Barbara is right. If Rowe v Wade is overturned, states with abortion bans would simply allow the rich to do what the poor cannot.

I agree with that, too. But the question here is whether abortion rights are better supported by promoting winner-take-all central government decision-making, or by pluralistic decentralized decision-making. I prefer the latter, and have been pointing out the dangers to liberty of the former.

[Dardedar]

That seems like a reasonable prediction, Doug - less than half the states would "significantly restrict abortion access."

DAR
Amazing. The chart gives 49.6% for "likely to significantly restrict abortion" with 15.7% in the middle group. If you split the difference on the "in the middle" group (7.85%) and add half of it to the restrict group you get 57.4%.

And in the longer run, due to the incentives we would expect more states liberalizing. This seems much better than the Roe v. Wade winner-take-all centralized power approach.

DAR
57% of the population has significant restriction of abortion and this is better than Roe v Wade? I don't think so.

If your "reform" requires authoritarian means, then it's not really reform - it's simply an attempt at coercive social engineering.

DAR
Tell that to a black person who doesn't have to ride on the back of the bus or drink from a different fountain. Much of the civil right reforms were accomplished by authoritarian means. Sometimes "coercive social engineering" is just what bigots and religious nutbars need.

D.

[Barbara Fitzpatrick]

I guess you could call laws against murder, assault and battery, and theft "social engineering" because the wealthy can afford their own body guards and the rest of us can't. Same logic.

[Hogeye]

Hogeye> That seems like a reasonable prediction, Doug - less than half the states would "significantly restrict abortion access."

Darrel> Amazing. The chart gives 49.6% for "likely to significantly restrict abortion" with 15.7% in the middle group. If you split the difference on the "in the middle" group (7.85%) and add half of it to the restrict group you get 57.4%.

But only the first group is "significantly restrict abortion access." And, I hope you'll agree, 49.6% is less than half. Nothing amazing about that.

Hogeye> And in the longer run, due to the incentives we would expect more states liberalizing. This seems much better than the Roe v. Wade winner-take-all centralized power approach.

Darrel> 57% of the population has significant restriction of abortion and this is better than Roe v Wade? I don't think so.

As the chart clearly shows, initially less than 50% of the states are "likely to significantly restrict abortion." What about the long run? Since enforcing anti-abortion laws is expensive in terms of law enforcement, productiveness of doctors, charity/welfare costs of unwanted children, and so on, we might expect a long-term liberalization of such restrictive laws. Think of the analogy with alcohol or pot prohibition or blue laws. Just as states have moved away from alcohol prohibition and blue laws, and there is an increasing number of states liberalizing marijuana laws, I think we would see a similar trend for restrictive abortion laws.

Remember, Roe v. Wade is a winner-take-all thing. Again you assume (naively IMO) that your guys will always maintain power. But what if the other side takes your winner-take-all rope and hangs you with it by outlawing abortion? The decision is this:

1) Give the central State the decision-making power. It may do right or it may do wrong.

or

2) Have a decentralized decision-making process. Generally, some will choose rightly and some will choose wrongly.

It is clear to me that #2 is better for liberty. Also, it is more versatile, better at error-correction, and allows diversity of opinion. Your blind faith in State is amazing to me - especially since you are a freethinker.

Hogeye> If your "reform" requires authoritarian means, then it's not really reform - it's simply an attempt at coercive social engineering.

Darrel> Tell that to a black person who doesn't have to ride on the back of the bus or drink from a different fountain. Much of the civil right reforms were accomplished by authoritarian means.

Columbus fallacy (If it hadn't been for Colombus, America would never have been discovered.) If you investigate history, you'll find that race reforms were already well underway using voluntary means. It is not clear whether government force helped, or simply prolonged racial animosity. But that's another thread.

I guess you could call laws against murder, assault and battery, and theft "social engineering"...

Bad examples, since virtually all societies have outlawed those things without centralization, and often with non-statist polycentric legal systems. Doubly bad example since murder, assault and battery, and theft are covered under decentralized state (provincial) law rather than federal law. (Except in a few special cases, like murdering a federal agent.) Murders and robberies are tried in state court, not federal court.

"Social engineering" generally refers, not to defense or rectification of aggression, but to imposing (non-aggression-related) values on others. As Lysander Spooner put it, "A vice is not a crime."

[Dardedar]

And, I hope you'll agree, 49.6% is less than half. Nothing amazing about that.

DAR
No, it is amazing. I have always been interested in people and their delusions, usually religious delusions. The USA Today article is obviously an educated guesstimate and that you (because of a .4% shortage) would discard the 15% in the middle and round to the "less than half" category rather than "the half" just shows how consistently devoted you are to being less than forthright as you constantly attempt to spin the data. It's so childish. I can't imagine it fools anyone so I don't know why you bother.

As the chart clearly shows, initially less than 50% of the states are "likely to significantly restrict abortion."

DAR
Thank goodness it is less than half that will severely restrict abortion. 49.6%. If actually half of the population was going to have abortion access severely restricted, that would be more serious.

Remember, Roe v. Wade is a winner-take-all thing.

DAR
Right. Freedom for women won the day and I see no reason whatsoever to throw that freedom out the window and replace it with half of the women (oops, less than half) having to suffer under severe abortion restriction. The abortion genie is out of the bottle and I very much doubt that the anti-choicers will ever be putting it back in. All they can do is make it difficult for the poor and uneducated. Or under your decentralized scheme, we can have the country go to war again over this largely settled issue and make millions of women (and doctors) go back to the old ways. It's not even a close call.

The decision is this:
1) Give the central State the decision-making power. It may do right or it may do wrong.
or
2) Have a decentralized decision-making process. Generally, some will choose rightly and some will choose wrongly.

It is clear to me that #2 is better for liberty.

DAR
It's not clear at all. Women enjoy much more liberty now and probably for all time, under the current system. To take 147 million women (plus probably half of the 47 million in the middle category) and take away their hard won liberty is not better for liberty.

Also, it is more versatile,

DAR
Right, it allows some areas to have slavery, lynchings and human sacrifice. Humans are very versatile when it comes to oppressing minorites. I am glad the State has stepped in and guarranteed a certain bar, a level of civil liberty that the nation will not tolerate to be breached. Some issues provide more freedom for more people when dealt with at the national level.

better at error-correction, and allows diversity of opinion.

DAR
In talking about taking away a woman's right to control her body one is not taking away an "opinion" or increasing a diversity of opinion. I just took my immigration test today (perfect score, well, six easy questions) and one of the questions involved the fact that diversity of opinion is a right guarranteed by The State. It's right there in the constitution.

Your blind faith in State is amazing to me - especially since you are a freethinker.

DAR
My belief that some issues afford more freedom and civil liberty for more people when dealt at the federal level is not based upon a "blind faith in State" but rather reason and observation as I have carefully explained above.

D.

[Hogeye]

The blind faith comes in with your believing that the State rulers will always see it your way on every issue. You've been lucky so far on the abortion issue, but seen the highest incarceration rate in the world on the drug prohibition issue, and worldwide aggression, mass murder, and occupations of foreign countries on the military intervention issue. But hey, winner-takes-all is wonderful you say, so you have no complaint.

The rationale for your choosing the give the central State the decision-making power means is flawed. You assume only the good outcome. If we can choose outcomes, I choose the decentralized decision-making means with every state opting for choice. But of course, specifying your preferred outcome begs the question of means, so is illegitimate.

Slavery, which you bring up, is a good example of winner-take-all decision-making. The US State used to support slavery via the Fugitive Slave Act, Dred Scott decision, allowing "bounty hunters" to kidnap slaves anywhere in the US, etc. The winner-take-all decision subsidized slavery for many years. (As Frederick Douglas noted, the Anchilles' heel of slavery is runaways.) Then a new winner-take-all decision caused a massively bloody war when virtually all the rest of the world achieved the end of slavery by peaceful means - mostly compensated emancipation. Everyone from De Toqueville to Jefferson Davis admitted that slavery was on the way out; the objective conditions (in Marxian terminology) were against slavery.

You seem blissfully unaware of the "slippery slope" of centralized power. If the central government can say "yea" or "nay" about abortion, it can say it about torture, war, domestic spying, and anything else.

[Dardedar]

The blind faith comes in with your believing that the State rulers will always see it your way on every issue.

DAR
But I don't remotely believe "that the State rulers will always see it your way on every issue." Not even close.

You assume only the good outcome.

DAR
But I don't assume only the good outcome. The Drug war is a bad outcome.
Do have anything besides straw?

You seem blissfully unaware of the "slippery slope" of centralized power.

DAR
There is no slippery slope with decentralized power? I guess all of the bad areas slip quite quickly to the bottom of the slope, as with the Roe v. Wade example, so it's a really quick slippery slope.

If the central government can say "yea" or "nay" about abortion, it can say it about torture, war, domestic spying, and anything else.

DAR
Bush will be gone soon and if you listen to C-Span you will hear each day the Demo majorities in the house and senate arguing to change and draw attention to these problems largely Bush created problems regarding torture, war and domestic spying.

D.