Friday, December 19, 2014

Talking About Abortion Part II

by Eric Segall

A few months ago I started writing an essay suggesting that women's rights organizations and other groups supporting the right of women to terminate their pregnancies should engage in civil disobedience. I was going to urge them to occupy state houses where anti-abortion legislation has passed or was being considered and to confront so called "abortion counselors" at family planning clinics with large numbers of counter-protestors. My motivation for the piece stemmed from desperation over the current state of abortion politics in America.

But the piece wouldn't hunt. I couldn't find the right words or reasons to advocate such a strong stance. My fear was that such measures would just further incense those opposed to abortion rights, leading to more laws and more violence.

So I started writing another piece about how both sides of the abortion debate should try hard to listen to and understand the other side’s arguments. I suggested we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides).

I eventually published the piece on this blog and have since thought long and hard about both the final essay and the comments I received from trusted friends and colleagues before I finished the essay. I think there is something important to learn from the feedback I received.

One of my colleagues, who has been very supportive of my essay and op-ed writing even when he disagrees with my perspective, thought I should not publish the piece at all (he is, for lack of a better label, a pro-choice liberal). He said that “as someone who believes most things can be resolved in our society through deliberative, constructive dialogue, I have a small list of what I would call ‘intractable’ social conflicts that are not susceptible to honest dialogue. Abortion is on that list. Yes, everyone agrees we should talk, but you can’t talk if the parties are operating from a completely different set of facts ….”

Many of the comments that appeared on this blog after the essay was published echoed a similar theme.

Another friend, a conservative woman (but in favor of Roe) in her seventies, did not like the essay at all. She said: “I think your position is untenable. Most people either accept the need for abortion or are fundamentally opposed. I don’t think empathy and an open mind can be called up. I think respect for the laws and personal autonomy is what should be emphasized.”

A nationally known conservative said: “when I first picked up your essay, I was expecting that overturning Roe v. Wade would be one of your points on which everyone ought to be able to agree. That’s surely the key to working out this issue.” He also said that “if something like this is ever going to work, the reader ought not to be clear on where the author generally stands on the issue. Given the battle of semantics, that’s a difficult task for anyone to achieve. But no reader will come away from your piece thinking that you might be opposed to abortion.”

And, another colleague had this to say: “I agree that it would be helpful to have a more constructive/productive discussion between the two sides, but it’s hard to see how you don’t inevitably reach an impasse in a substantive discussion. At some level, it is hard to compromise when fundamental moral beliefs are at play, which is why the larger debate probably has to be about where we place decision-making power (vs. what the fundamentally “right” decision is). So maybe getting both sides to focus more on the process (vs. where that process should ultimately lead) might be a helpful way to move forward.”

These, and many other similar comments from other readers, suggest that maybe we need to stop trying to convince one another on the ultimate morality or not of terminating pregnancies and more on how we should structure the conversation as a matter of process. This is not inconsistent with the idea I expressed in my first essay that, maybe, just maybe, those who think abortion should be an almost absolute right (at least prior to viability or sentience) and those who think it should be almost always forbidden (except maybe in cases of rape, incest or when the life of the woman is threatened), can agree to disagree on the underlying merits but try to have constructive dialogue about who gets to decide and under what broad rules. I think I agree with my conservative friend that Roe and Casey may have to be scuttled before such a meaningful dialogue can take place.

 A nationally known intellectual figure suggested to me that most people who strongly oppose abortion do so on religious grounds and people can’t talk about religion. That may be true and may also be why abortion is so hard to talk about. So, perhaps the conversation does need to turn back to who gets to decide the question. If that is true, maybe the courts do need to step away, which will place ultimate and final responsibility with elected leaders.

Many of those in favor of abortion rights will label that “unilateral disarmament” but I am not so sure. If the courts do step away, those who favor women having the right to choose for themselves the morality or not of abortion may, in the long run, be pleasantly surprised by the results. But that, alas, is a discussion for another day.


Michael C. Dorf said...

I find much good sense here but I disagree with two key points.

First, the abortion debate already focuses mostly where Professor Segall says it should: namely, on "where we place decision-making power." Many people who are pro-choice (including me) say that the law cannot legitimately compel women to continue an unwanted pregnancy despite the fact that choosing an abortion will sometimes be immoral. That is why the position is called pro-choice rather than something like abortion-is-an-act-with-no-moral-consequences. Conversely, people who are pro-life say that while our law often allows people to make moral mistakes, the stakes of abortion are too high to allow women to make the moral mistake of choosing abortion.

Second, I think it wrong to attribute the stalemate over abortion to the Supreme Court. De jure segregation was morally divisive when the Supreme Court decided Brown. It isn't today, even though the Court didn't get out of the business of deciding race cases. The Court will very likely recognize a right to same-sex marriage soon; its decision will be somewhat divisive; then ten years later no one will understand why it was. Abortion in America remains divisive for a variety of social and religious reasons. As Lucinda Finley argues very persuasively in her chapter in my book Constitutional Law Stories, that was true before Roe, and it would remain true if the Court were to overrule Roe. There may be first-order reasons of political theory why one would oppose robust judicial review, but controversy in courts is largely an epiphenomenon of controversy in the social world.

Joe said...

"I was expecting that overturning Roe v. Wade would be one of your points on which everyone ought to be able to agree."

Sounds like an ought v. is problem.

I welcome the discussion & do think many are willing to discuss it. At the very least, if law professors and such can't discuss touchy topics, who in the heck will?

"A nationally known intellectual figure suggested to me that most people who strongly oppose abortion do so on religious grounds and people can’t talk about religion."

The recently deceased Ronald Dworkin in his book on this issue and other places suggested this is largely a religious freedom issue. I tend to agree. The differences split on deep debates we have with strong religious components though for some it might not be purely "religious."

Along with other things, realizing the complications, it is why I'm with Prof. Dorf -- this is something that should generally be left to the individual.

Eric Segall said...

I think Mike (and Linda Greenhouse and Reva Siegel in their work) underestimate the importance of Roe to the conservative movements of the 1970's and 1980's. Roe energized the New Right, the Federalist Society, and various far right groups and still does. Remember Roe struck down the laws of over 45 states "in one fell swoop " as Justice Ginsburg has said. We (the left) are still paying a very heavy price.

Michael C. Dorf said...

I just don't think there's good evidence for that claim--even though it is made very frequently. Both Finley and Greenhouse/Siegel (as well as Tribe in Abortion: The Clash of Absolutes) plotted anti-abortion activism before and after Roe: It's a smooth curve, with non discontinuity at 1973 or thereafter.

Cody Fenwick said...

Thanks for the post, Eric.

I have to say, I'm a bit unclear on what you're trying to do in these posts that isn't already being done in the conversation.You seem to be talking about the formal requirements of a discussion on this topic, but that, it seems to me, is what people are almost always talking about with regards to abortion.

I think one of the main problems is that many people lack the interest or skills to have a thoughtful dialogue about moral issues. And obviously, a lot of this these ideas are tied up in religion, and many people don't know how to talk about that. This is where, if anywhere, the progress will come on this issue.

Without progress on the substantive issue, I think real progress on the state of the dialogue is intractable. The one requirement most people seem to be agreeing on is that the disagreements should proceed non-violently (despite many viewing abortion as inherently violent). Obviously there have been exceptions, but these are widely derided. This is promising, to my mind.

Unknown said...

If, and I stress "if", there is to be a change in the terms of the debate, one possible way of doing so is to frame the discussion in terms of securing rights. While it may sound like what We already have, I shall elaborate for this particular form of looking at the securing of rights often seems absent.

Currently, at age 67-ish, One has a right to collect Social Security payments, provided other requirements have been met.

At 65, One has a right to participate in Medicare.

At 35, One has a right to be elected President/Vice-President.

At 30, One has a right to be elected federal Senator.

At 25, One has a right to be elected a federal Representative. (Note: On these last three, I do know One only need reach these ages by the time of taking office; I merely approximate for illustration sake.)

At 25, One has a right in a number of cases to access any sort of "trust fund" account set up for Them, typically without restriction.

At 21, One has a right to drink alcohol in many states.

At 18, One cannot be denied the right to vote because of age. (Note: A handful of jurisdictions allow for lower ages but that's beside the general point.)

At 18, One has a right to enter into binding contracts, a right to withdraw from high school, a right to purchase tobacco products, and a right to donate blood or other organs without a Parent's permission.

In ~3/4 of the states, One has a right to consent to having sex at age 16.

At 16, One also has a right to obtain employment.

The right to operate a motor vehicle varies from state to state but is general secured by the state around age 16-17.

At various ages across the country, One has the right to become an "emancipated Minor", depending, in part, upon One's mental and/or physical development.

In each of these examples, the law protects a particular right at either a certain age or development stage. The question then becomes, "At what age or development stage should the law protect the right of a Human Being with its own DNA from being killed without said Human Being's consent, even if that protection requires an otherwise third-party bodily imposition?"

Note: If I were to guess, I would say thinking along these lines is where Justice Kennedy was heading when writing the plurality decision in Casey v. Planned Parenthood.

David Ricardo said...

I find it amazing the some, not all and maybe not any of the individuals who have written on this posting do not seem to understand what overturning Roe will mean. It will not mean an end to abortion rights and will not be the panacea that anti-abortion rights groups content.

Overturning Roe will have two major effects, one immediate and one long term. The immediate effect will be that the nation returns to a situation where abortion is legal in some states, allowed in some circumstances in some states and completely proscribed in some states. The result will be that women of proper means will have the ability to travel to pro-abortion rights states to obtain legal abortions and that women who do not have the resources to travel to those states will be forced to carry unwanted or unviable pregnancies to terms or seek illegal abortions, often with tragic consequences for themselves and their child.

The long term effect will be that after Roe is overturned (and guess what people, it will be barring some major change in the national electorate. Abortion rights hang by the thread of a single Justice) anti-abortion rights groups would now shift their focus to a national ban on abortions. It appears under current legal doctrine that this can only be done by constitutional amendment, and the anti-abortion rights groups will pursue that course. But they will also pursue a course of passing a national law banning abortions, and work to see that a Supreme Court is seated that will uphold that law. So the battle over abortion rights will continue, and difficult as it to believe, it will probably become more bitter, more nasty and more divisive than the current debate.

However the post is correct in one aspect, we do need to talk about religion. And what we need to say is that those religions and those religious who oppose the availability and use of contraception and family planning are the one of the major causes, if not the major cause of non-therapeutic abortions. And until those institutions and individuals change their positions, until they acknowledge that even if contraception and family planning activities are a sin an abortion due to an unwanted pregnancy is an even greater sin, abortions will continue regardless of their legal status. And that is truly a national tragedy.

Eric Segall said...

David said the result of overturning Roe "will be that women of proper means will have the ability to travel to pro-abortion rights states to obtain legal abortions and that women who do not have the resources to travel to those states will be forced to carry unwanted or unviable pregnancies to terms or seek illegal abortions, often with tragic consequences for themselves and their child." This is very much the case today. There is one clinic in Mississippi, 1 in South Dakota, etc. And it is going to get worse.

James Longfellow said...

The best response to Eric's post is the one written today at the Volokh Conspiracy about "fair weather Federalists". Eric writes, "maybe the courts do need to step away, which will place ultimate and final responsibility with elected leaders." So what about Winsdor or DOMA? Are electoral politics fine for deciding abortion but not gay rights? Where are the parameters?

I don't mean to suggest that one can't draw a distinction between DOMA and Roe from a constitutional perspective. What I mean to say, however, is that if a public controversy as meaningful as abortion should be placed with Congress that weakens the political case for gay rights to be decided in the courts.

The question "who gets to decide?" in relation to abortion can't be divorced from the question of who gets to decide in other areas of public controversy. So is Eric's support for placing events in the hands of "elected leaders" a fair weather claim?

Sam Rickless said...

There is no way to make progress on this issue until most pro-lifers recognize that much of what they say is self-contradictory. About this, Dworkin is right on the money. On the one hand, (P1) they say that a fetus from the moment of conception has a right to life. On the other hand, they say (P2) that abortion should be permitted in cases of rape, incest, life-threatening pregnancy, and, sometimes, the likelihood of serious birth defects. But, by P1, a fetus that results from rape or incest, or a fetus in the case of a pregnancy that is threatening the mother's life, has the right not to be killed. And by P2, aborting a pregnancy in such cases is permissible. This is a straightforward contradiction.

Some (honest) pro-lifers see the problem, bite the bullet, and argue for the proscription of ALL abortions, no exceptions permitted. These people are intellectually consistent, but also crazy and fringe.

The rest need to be brought to understand that they themselves don't REALLY believe that a fetus has a right to life from the moment of conception. They don't mourn the loss of embryos. They accept the existence of exceptions to the anti-abortion rule. They don't treat women who have abortions as murderers. And so on.

Prolifers are making an intellectual mistake. They are confused about their own beliefs. If they don't recognize this, no progress is possible.

Once they do, most of them won't go the crazy fringe route. And now a real discussion can take place. And what will happen in that discussion is the eventual recognition that fetuses gradually acquire the capacities that eventually endow them with the right to life, that late in pregnancy a fetus is either a person or very close to being a person, but not so early in pregnancy (which explains why there is much greater concern about late-term abortion than there is about the morning-after pill or early term abortion).

The result of all this is a regime that will resemble Roe in many respects (though it won't be identical to Roe, because viability would not be the relevant dividing line).

If we do not have this conversation, then the politics of abortion will never get unstuck.

Joe said...

Prof. Scott Lemieux, including citing a "greater length article," has written much on this topic, including the affect on Roe on anti-abortion politics.

The last point brings to mind the often forgotten Doe v. Bolton case. The usual accounts point to the Texas lawyers (Roe v. Wade) providing something of a bad argument. But, Dorothy Beasley for Georgia (Doe v. Bolton) provided a better defense. Ironically, she also showed up in the Furman v. Georgia (death penalty) case, which she a bit sarcastically referenced in her argument.

She is still open to criticism (since she relied too much on the "personhood" of fetuses and their "9A rights" etc.) but provided something of a reasonable defense of exceptions -- the "life" of the unborn is a strong but not complete compelling interest. The cases of rape, severe health of the woman and fetal deformity would provide countervailing interests.

This would not please strong opponents but would meet the "moderate" anti-choice position. Few truly think embryos and fetuses are complete persons.

A problem here is that the logical position are somewhat broad open-ended exceptions like "health" that in practice will be greatly debated & conveniently will likely often seem right when you are involved.

And, the lines would be somewhat arbitrary -- why isn't the long extended burdens on health that nine months of pregnancy, e.g., alone enough? In practice, the matter was delegated to doctors or those with the means to go where they could get one. So, e.g., even the Texas advocate noted in passing that there was some sort of unofficial rule for rape victims, even though the law didn't have a rape exception.

Ultimately, the woman should decide on her own. But, the pre-1973 Georgia approach suggests a way to respect unborn "life" without supporting a complete ban.

Eric Segall said...

James said, "So is Eric's support for placing events in the hands of "elected leaders" a fair weather claim?" My book argues for a Thayer like deference in virtually all cases (outside the 4th, 5th, 6th, and 8th Amendments which I argue are different). I am against Roe, Sullivan, Heller, Citizens United, the federalism cases, and most First Amendment cases that don't involve prior restraints or core political speech. I agree with Brown b/c it is a clear textual violation and I am on the fence as a constitutional matter about Windsor. I may be wrong but I think I am reasonably consistent.

David Ricardo said...

If Mr. Segall is “on the fence” about Windsor can he tell us if he is also “on the fence” about Loving, and if not how he distinguishes the two? Would his position involve the myth of conservative Justices, including Scalia who claim that the 14th Amendment textually bars racial discrimination when of course it textually does not.

James Longfellow said...

Sam Rickles writes, "Prolifers are making an intellectual mistake. They are confused about their own beliefs. If they don't recognize this, no progress is possible."

I suppose that is one possibility. There is another possibility and it is the one I happen to believe. I don't think pro-lifers are confused at all; I think they are lying. They are engaging in a political subterfuge. Banning all abortions is not crazy and fringe, it's the ultimate goal. Yet pro-lifers are not so stupid as to think they can get there all in one lurch. They understand there needs to be a process of cultural conditioning. So they play nice, don't look too extreme, and know that most people won't think more than one move ahead in the chess match.

I said it in the last post Eric made on this topic and I'll it again. I think that people like Eric and Sam misunderstand the nature of the men whom they are dealing with. There aren't any heart-felt conservatives who are moderates. There are only conservatives who will play at moderation until they can get what they really want.

Sam Rickless said...

James: Very rarely is it possible to make any headway in intellectual or political discussion by calling your opponents liars, especially when it isn't true. Sure, some conservatives are out to ban all abortions, even in the typical exception cases. But I believe that they are a minority. In Gallup polls going back to 1975, around 50-55% of folks said that they thought abortion should be legal only under certain circumstances. Only about 15-20% believe in a complete ban. The problem is that the 50% or so who think that abortion should be legal in cases like rape and incest and so on are intellectually inconsistent. This is where discussion needs to take place.

The belief that fetuses are persons is based on religious assumptions about life and ensoulment. These are firmly held beliefs, and I think it is insulting to people of faith to think that they are lying. The problem is that these assumptions do not mesh well with people's ordinary moral opinions. They really don't think that women who have abortions or doctors who perform them, at least early on in the pregnancy, should be treated as murderers (or accessories to murder). This is because they recognize that early term fetuses really aren't persons endowed with the right to life. But it's very difficult for them to give up the belief that the fetus is a person from the moment of conception, because that appears to them as a religiously grounded axiom.

It was easy to make headway when combating strong religious assumptions about contraception being a sin against God, because one should be fruitful and multiply. It's much harder to make headway against religious assumptions about fetuses because there are pictures of fetuses that make them look like tiny human beings, and so on.

Shag from Brookline said...

Mike's comment:

"Second, I think it wrong to attribute the stalemate over abortion to the Supreme Court. De jure segregation was morally divisive when the Supreme Court decided Brown. It isn't today, even though the Court didn't get out of the business of deciding race cases."

calls for an off-abortion (I am pro-choice "all the way down") comment.

Few directly challenge Brown today. But there are no-so-subtle indirect challenges by means of direct challenges of much of what Brown has spawned. I was in my final year of law school when Brown came down ("all the way down"?). I vividly recall the resistance to Brown as the civil rights movement followed. In my not-so-humble opinion, I strongly believe that the originalism movement - as well as the formation of the Federalist Society - was a reaction to the Warren Court. Brown was the foundation on which the Warren Court was built, recognizing individual rights. Originalism doesn't directly attack Brown. In fact, some originalists use back bending twisted logic in efforts to "prove" that originalism supports Brown. But originalism relies upon evolving theories that take us back to the 1787 Constitution in its salad days of supporting slavery and the rights of slaveowners. Today de facto segregation is immorally divisive and the conservatives on the current Court contribute to this. As for the Federalist Society (that perhaps should have more accurately been called the "Anti-Federalist Society"), current members may not have been around back in the days of Brown and following. But perhaps an examination in more depth of the Society's formation (closely following the originalism movement) may be quite revealing in this regard.

As to abortion, as a male I would not want to force a woman to do anything about her body that she does not want to do. I would hope that females would reciprocally look upon males.

Eric Segall said...

Re: Shag's comments. I am not sure our country is better off b/c of Brown. The case had and has great symbolic impact but formal desegregation would have happened anyway and maybe more efficiently. In 1963, there were almost no desegregated schools in 12 Southern States and who knows what would have happened had the movement been a political one instead of a judicial one.I'm not saying Brown should have come out the other way but maybe the Court should have waited until the political movement behind desegregation had strengthened. Certainly, Brown has not been a success by modern standards given that in most states we still have (in practice) mostly segregated schools.

David Ricardo said...

Exactly how was Brown not a success when measured by the appropriate standard.? That standard is not that schools were desegregated, but that de jure segregation in schools was determined to be unconstitutional. Today as it has been for many decades de jure segregation in schools is unlawful and non-existent. Furthermore Brown provided the basis for a number of subsequent rulings that promoted racial equality. It also served as the impetus for the civil rights legislation of the 1960’s and to a great extent created the political climate that made those laws possible. By any measure Brown has been a towering, monumental success.

If Mr. Segall’s standard of judicial success is that Brown should have ended racial prejudice or resulted in an integrated society or kept middle class families of all races from leaving the decaying inner cities or prevented prejudiced parents from withdrawing their children from public schools to send them to all white or mostly white private schools then he has an incorrect understanding of what Constitutional law can do.

As for his comment that maybe Brown should have been delayed until the political climate was more receptive, that philosophy is highly offensive. It suggests that basic rights are not an inherent part of the Constitution but that they depend upon the politics of the situation and can be suspended when the politics call for it.

I suggest he convey his thoughts to those African Americans still alive who lived through the degradation of racism, who suffered both economic and emotional harm from what was then lawful segregation and who by the time of Brown had already waited 90 years for this nation to start to implement one its founding principles, justice for all. As one who grew up in a segregated South and heard the well meaning so-called liberals tell African Americans even after Brown that their time had not yet come and that they had to continue to endure prejudice one can only recoil in horror.

Sam Rickless said...

I agree wholeheartedly with David Ricardo. Well said.

egarber said...

A few random questions for prof Segall, so I can understand the boundaries of his model:

1. Do you think privacy is a substantive constitutional right?

2. Do you think substantive due process should be eliminated as a method for judicial review?

3. Any concerns about stare decisis in the context of Roe?

4. Is the 9th Amendment effectively an ink blot? What does it mean in practice?

Shag from Brookline said...

I had hoped for a response from Mike as my comment was directed at him. But consider Eric Segall's response via his hindsight crystal ball:

"The case [Brown v. Bd. of Educ.] had and has great symbolic impact but formal desegregation would have happened anyway and maybe more efficiently."

is nothing more than myopic guessing. Brown did not specifically overrule Plessy v. Fergusson, as Brown's focus was on ending segregation de jure variety) in public schools. The movement generated by Brown in civil rights was much more than symbolic as Congress in the mid '60s passed the Civil Rights Act and the Voting rights Act. Brown did not end segregated schools de facto. But in certain venues there were - and continue - improvements. David's response lays out in some detail what Brown spawned.

So far there has been no response to that part of my comment touching on originalism and the Federalist Society. Perhaps it is too far off-topic as this post of Eric's is about abortion. (To reiterate from my earlier comment, I am pro-choice.) America did not become post-racial as a result of the election of Obama in 2008. The GOP in Congress reacted not as a traditional opposition party but as an obstructionist party from day one of Obama's Administration. (Recall what Sen. Mitch Mconnell said about his goal of limiting Obama to one term.) This continued into Obama's second term. (McConnell was not successful in his goal.) The conservatives on the Court did their part in thwarting civil rights gains that Brown had spawned.

Let me go back in time to my public school days back in Boston in the late '30s, '40s where I learned of the Republican Party of Lincoln and the history of the Civil War and its aftermath. I recently read an extensive article (somewhere in my piles) pointing out that the Republican Party ceased being the party of Lincoln during the post Civil War expansion of newly created states to further empower the Republican Party via the undemocratic Senate and during "The Gilded Age." But in my public school days the Republican Party was still described as the Party of Lincoln.

Now let's jump ahead to the 2014 midterms results, giving Republicans control of both the Senate and the House. It seems that the former slave states, once of Democrats about the time of Brown, are now the base of the current Republican Party. Could some of this be attributable to the forecast of upcoming demographic changes that seem to put fear in older white male voters in the former slave states?

Another indicator that America is not yet post- racial is the Ferguson, MO tragic shooting by a white police officer of an unarmed black man. Perhaps over time America can get beyond the new Brown v. Ferguson as it did with Plessy v. Ferguson, even before the changing demographics kick in.

Back on topic, let me adapt an expanded (but modified) quote from Eric's comment:

" I am not sure our country is better off b/c of [Roe.] The case had and has great symbolic impact but formal [pro-choice] would have happened anyway and maybe more efficiently."

as I gaze into my very own hindsight crystal ball. Of course, I'd be guessing. Maybe Eric can demonstrate (with evidence) he was not with respect to Brown. As David emphasized, de facto is significantly different from de jure segregation. Brown was a foot in the door, which is still open.

Joe said...

"formal [pro-choice] would have happened anyway and maybe more efficiently"

Not shown, particularly on a national level. The best criticism to me is the scope of the opinion, but we weren't in the time of minimialism in '73. One of various things factoring in.

As Prof. Lemeiux and others show, "anyway" is very open to debate here, especially in certain areas of the country. I assume w/o the Civil War, e.g., slavery might have "anyway" ended eventually in the South too. Given the rate of change (it took a veto to override an anti-abortion law in NY), what was the span here in places like Texas? Meanwhile, what of the women involved?

I share in general the sentiments of David Ricardo's strong comment as well. I would add that the USSC is part of our system, not the only system possible, and only part of it at that. This in part is what I think when some argue, e.g., the USSC is acting too slow in regard to SSM.

I welcome the debate all the same. In the midst of today's horrible police shooting news, some rational debate, even if I disagree strongly with some viewpoints, is a balm.

Shag from Brookline said...

Early in my career (perhaps in '57 or '58) I was asked to look into MA law on abortion, which was being considered for a girl in her late teens whose home state had very strict rules virtually prohibiting abortion My research strongly suggested that in MA at the time abortion was mainly a medical decision concerning the health, physical and/or mental, of the female and/or the fetus; that the practice was to get two physicians to agree upon this. (I never since have dealt with the subject, until a few years later my wife insisted I meet her at her OB/Gyn's office as a second heartbeat was detected. I went there and the purpose for the meeting which was called by the doctor was to discuss whether we wished to abort her pregnancy because of the discovery of twins as crucial dates were approaching if aborting was our desire. My wife and I had never talked about this before, except that we were both pro-choice. We looked at each other and because my wife's health was good dismissed any such suggestion. We already had two children and we got two more to love. My career was going well, but most importantly to me was my wife's health and I would have gone along with whatever choice she wanted.)

Getting back to my legal assignment, once I determined that in MA it was (back then, at least) a medical decision, I then was concerned with a potential conspiracy charge on evading the laws of the young girl's home state. As I recall, there was no significant law on the subject at the time, so I rejected this concern.

With respect to Joe's comment on my adapted quote of Eric Segall, I did not disclose my "guess" but it would be "BULLS**T!" especially since 50 states can - and do - have varying rules on abortion even with Roe and its progeny [no pun intended]. Roe was necessary.

James Longfellow said...

The debate that has followed I think bears out my initial comment that "The question 'who gets to decide?' in relation to abortion can't be divorced from the question of who gets to decide in other areas of public controversy." How one views judicial involvement in abortion will vary based upon the opinion one holds about judicial deference generally.

David and Joe comments reflect a common understanding among politically liberal people that SCOTUS has generally--though not uniformly--been on the side on liberal social values over the last eighty or so years. To these people judicial restraint or judicial deference tends to be code talk for undermining or backtracking on liberal values such as abortion, race, same-sex marriage, the death penalty and so on. They might not always like what SCOTUS has to say but more often than not when core values are at stake SCOTUS has been the leader and not the follower.

One can't divorce the question of who gets to decide from the question being decided. People tend to gravitate towards the decision maker that tells them what they want to hear. Few people--and Eric might be one of them--genuinely are committed to a process "come what may" and irrespective of the results being produced by the process. So when it comes to placing more trust in "elected leaders" many liberals question why they should trust a branch of government that hasn't served them especially well.

Eric Segall said...

To the extent people on the left want a strong Supreme Court and think it either has been or can be a strong ally, I couldn't disagree more. Without Plessy and the Civil Rights Cases, it is possible Brown wouldn't have been necessary. Why would we expect generally rich, ivy league educated, elite lawyers whose job it is to look backwards and who have to be appointed by the President and confirmed by the Senate to be a good friend of the left or more accurately of progressives? I'd trade Dred Scott, the Civil Rights Cases, Lochner (+200 other cases in same period), Bakke, campaign finance cases, Shelby County, and Bush v. Gore for Brown, Roe, Baker and a smattering of free speech and religion cases--any day. Of course one can't prove a negative so we don't know what the world would look like without judicial review, but, I'm pretty sure it would tilt more left. An "irreconcilable variance" standard could still stop the most flagrant violations but take the Court out of most social and political issues.

Joe said...

I didn't mean to say that I thought the USSC "been on the side on liberal social values over the last eighty or so years." They haven't in various ways. In other ways, on certain issues, they have been. The mixed character is one reason why I'm open to the somewhat slow development of gay rights over the last twenty or so years.

Joe said...

I apologize as to the two deletions. I was going to reply to the professor's comment via a broad comment, but the formatting didn't work. Eh. Anyway, simply put, I don't agree with various assumptions in his latest comment and find it overly assured. I will leave it there & Happy Holidays.

Shag from Brookline said...

Eric's comments bring to mind Johnny Mercer and this reconstruction of his pop tune lyrics:

"You've got to accentuate the negative, eliminate the positive, and mess with everything in between."

Eric concedes that you can't prove a negative and then comes up with more negatives.

But not all negatives are necessarily the same. Consider this (off-topic):

If it wasn't for the Bay of Pigs, there would not have been a Cuban missile crisis. Consider the closeness in time.

But Eric is all over Supreme Court decisions going way back in time with his suggested swaps. What ifs are sometimes fun. But Eric's are not. Is he really serious?

David Ricardo said...

Contrary to what Mr. Segall has said, the issue with respect to progressives and the Court is not one of wanting or not wanting an activist Court. It is one of wanting the Court to uphold and defend the basic principles of the nation. And much of the problem here are hypocritical Conservatives who say that they want limited government and supremacy of the individual, but who in practice do not.

Decisions like Brown, Griswold, Roe, Lawrence, Windsor and their like are not liberal decisions, they are conservative decisions. They reinforce the rights of individuals to act free of government interference and/or limit and restrict the power of government. (Until the 1960’s segregation was not something that was just practiced by state and local governments, it was in many cases something that was mandated.) Real conservatives should support and applaud these decisions. But they do not.

Why? Because almost all of the post WWII conservative movement is not about limiting government and enhancing individual freedom. It is about using the power of government to impose the personal and political beliefs of these so-called conservatives on the public. That is why, for example, that they want to use government to prevent physician assisted suicide, as anti-conservative a position as one can find.

Conservatives despise the gay and lesbian community and so want government to have the right to jail individuals for engaging in homosexual activity. They believe women are inferior to men and so oppose laws that protect women and grant them equality in the workplace. They are very religious people who think everyone should be religious and support their religion, so they argue for and support government activities that impose religion on the willing and unwilling. They believe that sexual relations should be restricted to married heterosexual couples and so want government to outlaw adultery and restrict or even ban access to contraception so that the threat of pregnancy will reduce unmarried couples form engaging in sex. They support a police state and believe the police are always right and do not want to grant rights to the accused because, well you know, if you are arrested you are obviously guilty or you would not have been arrested, particularly if you are a minority. If you are sentenced to be executed that means you committed the crime so things like inadequate counsel or prosecutorial misconduct are not relevant to putting you to death.

So no, the battle is not between an activist and passive legal system, it is between those who would use government to implement policies that improve and protect the lives of Americans versus those who would use government to impose their own sectarian views on the people. And that is why the cases that Mr. Segall would dismiss are needed and critical.

Shag from Brookline said...

I recently read Scott Berger's recent paper "Liberal Originalism: The Declaration of Independence and Constitutional Interpretation," noting that Gerber is critical of Eric Segall, describing him as "a progressive constitutional law professor." (Pages 16-18.)

Gerber employs the word "liberal" in the Lockean sense, not the current sense of that word. Gerber attacks not only Segall and liberals in the current sense but also conservatives claiming to be originalists. I have coined this as "Gerber pablum originalism," where everybody is out of step except for Gerber and his one-trick-pony adulation of Justice Thomas as also being a "liberal" (in the Lockean sense) originalist. But both Gerber and Thomas are outliers within originalism. Gerber's paper closes with this:

"The theory [italicized] of the Constitution requires that Congress exercise the political courage necessary to perform its constitutional duty of impeaching those justices who seek to 'rewrite' the Constitution rather than 'interpret' it." [Presumably by means of his "liberal originalism" as he saddles up and rides off with Justice Thomas into the sunset without any significant originalist following, even the "conservative originalists" he criticizes, tilting at windmills].

I don't know if Prof. Segall has responded to Gerber's paper. If not, perhaps he might post on it here.

Shag from Brookline said...

Scott Gerber's paper referenced in my earlier comment stresses the importance of the role of the Declaration of Independence in interpreting the Constitution. Today at Larry Solum's Legal Theory Blog, he pas a post of his weekly "Bookworm" selection "Happiness and the Law" by Bronstein et al. The Declaration includes has an "unalienable" right the "pursuit of happiness." While the Constitution does not specify this right, perhaps Gerber's "liberal [in the Lockean sense] originalism" would incorporate this right into the Constitution. The description of "Happiness and the Law" references new research the authors draw on. So how would Gerber's "liberal [in the Lockean sense] originalism" treat that new research? Or is the pursuit of happiness a universal right well defined in 1776 such that the new research of sociologists has no relevance as it might constitute a living Constitution ? Of course, the Declaration of Independence in its final form was not applicable o slaves who might have desired pursuing happiness, but the slave owners said "NO"!

David Ricardo said...

In this season of gloom, punctuated by the fact that the Democratic Party is not present or has self destructed in a large part of the nation (at least for short term and probably for the long term) all of us should be thankful to Shaq from Brooklyn for giving us the best laugh of the holiday season, namely that there a legal thinker out there somewhere who actually believes Justice Thomas is a liberal in the Lockean sense.

Yes, this is the Justice Thomas who believes the state has the right to jail individuals for engaging in homosexual activity, who opines that the doctrine of freedom of speech protects the right of billionaires to spend unlimited sums of money in political campaigns, who argues that the 1st Amendment with respect to religion empowers each state to set up its own state sponsored religion free of interference from the federal government and that for all practical purposes governmental police power is unlimited. If one were looking for the opposite of a Lockean liberal one could do no better then finding Clarence Thomas. (That Justice Thomas may be a Lockean liberal with respect to civil rights, which is highly questionable, as described by Gerber in his paper is the exception that proves the rule here).

Justice Thomas is not a conservative, he is not a classical liberal, he is nothing more than a statist, one who believes that the role of government is to force the beliefs that Clarence Thomas has onto an unwilling public. So thanks again to Shaq for alerting those of us who do not follow academic legal writing to this hysterical (in the Lockean and Laughter sense) hypothesis. Many of us will be chuckling through the night.

Shag from Brookline said...

Thanks for the "Locke and Laugh." But I'm from Brookline, MA, which competes with Cambridge for liberal/progressive honors jere in MA.

I've read quite a bit over the years on originalism but Gerber's paper was the first one I read that had me shaking my head all the way through. My purpose in making these comments was to let Prof. Segall know, in perhaps too subtle a way, that I agreed with his take on Gerber (although I may have been a tad harsh on Segall's post here). (And I agree with Mark Tushnet's take on Gerber.) Gerber's paper is only 22 pages in length. Links to it are available at the Originalism Blog, the Legal Theory Blog and the Legal History Blog.

David Ricardo said...

My great apologies to Shaq from Brookline for writing Brooklyn, particularly since I have been in many a fine bookstore in Brookline.

I have read the Gerber article, it is available free of charge (wonder of wonders.

And in the spirit of holiday laughter here is the funniest line from the piece, the immense humor being derived from the last phrase. Surely the term “ascertainably implicit” must rank as the wordsmithing of the year, maybe the decade.

“In my work I have labeled the dominant iterations of originalism “conservative originalism.” It is an approach that dictates that judges may legitimately recognize
only those rights specifically mentioned in the Constitution, or ascertainably implicit in its structure or history.”

One can only be in awe of the ability of Justices Thomas, Scalia et. al. to discern what is ‘ascertainably implicit’.

Shag from Brookline said...

Our host at this Blog may be tolerating this colloquy while he is busy grading exams, but I think there is a relevancy to Segall's post as interpretation/construction of the Constitution is involved.

First, it is "Shag," not "Shaq," ending in a "g" which might look like a "q" to some because of the typeface. My nom de blog relates not to certain proclivities I once may have had but to a name variation once attributed to me by a law school classmate that fortunately never stuck. I can't dunk but doughnuts.

At the Originalism Blog, a link is provided to the Green Bag Symposium on Scalia and Garner's "Reading the Law," which I downloaded. So far I have printed out only Prof. Segall's submission "Grinding the Canons," 3 short pages that are a delight to read, loaded with humor, including in footnotes. Since it's so short, I won't provide any teasers. But thoughts of "The Charge of the Light Brigade" came to mind and a proposed subtitle to Segall's contribution might be:

"Canons to the right of us,
Anti-Canons to the left of us ...."

By the Bybee [expletives deleted], Heller (5-4) blessed as "arms" only certain guns for self defense in the home but did not address as "arms" either canons or anti-canons.

David Ricardo said...

Okay, a second apology with respect to invoking the name of a correspondent here, and I join with that individual (I am no longer citing actual names) in asking for tolerance from the sponsors of this Forum with respect to the colloquy on this posting. But I would argue that these commentaries do address the original point of Mr. Segall, who raised the question of why can’t the two sides of the abortion rights issue engage in a constructive, meaningful and intelligent dialogue. The answer, as illustrated by many of the comments here and elsewhere is that the anti-abortion rights side is does not want to engage in such a dialogue or more likely is not capable of doing so. In fact as shown by their attitudes toward preventing unwanted pregnancies they do not even have as their primary concern the prevention of abortion.

And if anyone should question that statement I would say that such a conclusion is ascertainably implicit.

Shag from Brookline said...

While Gerber doesn't base his "liberal [in the Lockean sense] originalism" on history, he does utilize history as it may be called for. Perhaps some might suggest that Gerber employs both "law office" history and ]drum roll] "law office" philosophy. Gerber has faith in natural law (and perhaps natural foods on the side?), emphasizing the "beliefs" of the signatories to the Declaration of Independence. But can their "joint" beliefs be ascertained? Recall the original original intent originalism that Paul Brest shredded in his article in 1980 on the problems with determining "joint" intent of the Founders/Framers/Ratifiers (take your pick or combo) regarding the 1787 Constitution and the bill of rights ratified in 1791. There are similarities between "belief" and "intent."

But let's focus on "beliefs." Thomas Jefferson, the principal author of the Declaration, had a razor sharp mind and was handy with a razor in excising from his Bible extraneous non-factual portions, perhaps demonstrating his beliefs. But did the other signatories share Jefferson's beliefs?

As to natural law, I just downloaded Pierluigi Chiassoni's "Kelsen on Natural Law Theory, n Enduring Critical Affair" that I plan to read in the next few days. A link is available at Larry Solum's Legal Theory Blog.

Query: Does natural law, however defined, trump the Constitution and other positive law? (Consider Heller's (5-4) self defense in the home reading into the 2nd A.) Does natural law evolve or has it been static since the Creation? Maybe I'll get some answers. Also, has Gerber created a Locke-ness Monster, taking the low rather than the high road (or vice versa, if that is your preference)?

Joe said...

So, does Gerber want eight justices to be impeached and removed so a new Court can be built around Thomas? Scalia repeatedly clashed with Thomas to not be pure.

I found Charles L. Black Jr.'s "A New Birth of Freedom" (it's a book but short) very interesting as to the role of the DOI in constitutional analysis.

His application of the rights of life, liberty and pursuit of happiness, however, were probably different than Gerber.

Shag from Brookline said...

The impeachment quote provided above is from the last paragraph of Gerber's paper. Earlier in that paragraph after responding to various of those critical of his views, here's what he said:

"Rather it means that we need better judges. Bluntly put, the President and the Senate need to appoint justices who are 'thinkers, and more particularly legal philosophers' [Citing Felix Frankfurter] who can exercise the self-restraint necessary to interpret the Constitution in light of the political philosophy of the Declaration of Independence on which it is based. We also need to impeach judges who either cannot do so or refuse to do so. Although Thomas Jefferson may have been correct inguing in practice [italicized] impeachment has 'not even {been} a scare-crow,' that does not mean it should remain so. [For convenience, here's the rest of the paragraph I quoted earlier.] The theory [italicized] of the Constitution requires that Congress exercise the political courage necessary to perform its constitutional duty of impeaching those justices who seek to 'rewrite' the Constitution rather than 'interpret' it."

Happy New Year to all.

adam bolger said...