"Discussion about Roe v. Wade will—and must—be part of this nomination process"

Damon W. Root | May 28, 2009

That's from a letter that Nancy Keenan, president of NARAL Pro-Choice America, just sent to supporters. "As you know," Keenan continues, "choice hangs in the balance on the Supreme Court as the last two major choice-related cases were decided by a 5-to-4 margin." As Charlie Savage reports in The New York Times, Keenan is among a small number of pro-choice activists who aren't yet sure they can trust Judge Sonia Sotomayor to uphold Roe v. Wade:

In nearly 11 years as a federal appeals court judge, President Obama's choice for the Supreme Court, Sonia Sotomayor, has never directly ruled on whether the Constitution protects a woman's right to an abortion. But when she has written opinions that touched tangentially on abortion disputes, she has reached outcomes in some cases that were favorable to abortion opponents...

None of the cases in Judge Sotomayor's record dealt directly with the legal theory underlying Roe v. Wade—that the Constitution contains an unwritten right to privacy in reproductive decisions as a matter of so-called substantive due process. Several of her opinions invoke substantive due process in other areas, however, like the rights of parents and prisoners.

She has also had several cases involving abortion-related disputes that turned on other legal issues. While those cases cannot be taken as a proxy for her views on the constitutionality of abortion, she often reached results favorable to abortion opponents.

Read the rest here.

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Ray Gardner|5.28.09 @ 1:17AM|#

They're putting on a show for us.

No one in their right mind thinks that Sotomayor would be soft on abortion rights.

NARAL & Co. will voice a little "unease" in order to downplay how much of a slam-dunk this is for their cause. Meanwhile in the proverbial smoky back rooms, the champagne glasses are tinkling with cheerful toasts of victory.

Madonna-Whore|5.28.09 @ 2:31AM|#

I think it very unlikely that Sotomayor will overturn Roe. However, she may be a moderate on abortion, like Justices Kennedy and O'Connor.

I just hope the court will soon recognize a constituional right to infanticide. I hate my kids.

Paul|5.28.09 @ 2:39AM|#

Uhm, it's NARAL, so anything they say is so completely skewed, that all should be taken with a grain of salt. Having said that, my bet still stands, Roe v Wade is still the law of the land and probably always will be, judge Sotomayor not withstanding.

I haven't followed through any links, but what exactly is NARAL referring to by anti-choice rulings? That the supreme court upheld that a 14-year-old can get an abortion on demand while drunk and on meth without notifying anyone anywhere anytime ever? In my experience, NARAL has a very-- shall we say-- expansive view of "choice" (let's face it, they gotta keep the donations coming in) as they like to think that if we don't have government mandated abortion drive-thrus, choice is teetering on the brink!!!111!!

godless utilitarian|5.28.09 @ 2:45AM|#

I agree with Madonna-Whore (great name). Babies and fetuses are not that different. Libertarians should adopt Peter Singer's position.

|5.28.09 @ 2:53AM|#

While she won't overturn Roe-v-Wade, she might not favor tax funded abortions, late term abortions, etc. To NARAL that places her to the right of Atilla the Hun.

BeesInTheBrain|5.28.09 @ 2:56AM|#

Wow. Your New York Times folks.

Where unless you allow the police to use excessive force and the government to force abortions you are a hidden anti-abortionist.

Angie|5.28.09 @ 3:00AM|#

Madonna-Whore | May 28, 2009, 2:31am | #
...
I just hope the court will soon recognize a constituional right to infanticide. I hate my kids.

godless utilitarian | May 28, 2009, 2:45am | #
I agree with Madonna-Whore (great name). Babies and fetuses are not that different. Libertarians should adopt Peter Singer's position.

Peter Singer's argument favoring infanticide does seem to be more consistant and respectable than the pro-choice position, i.e. not all human life is equal and worth protecting.

godless utilitarian|5.28.09 @ 3:19AM|#

Angie, I think you mean that Singer's argument (not all human life is equal and worth protecting) is better (and it is) than the traditional pro-choice position (at birth the baby is magically human).

Therefore infanticide should be legal up to a certain point.

|5.28.09 @ 4:12AM|#

What is the Libertarian position on Abortion?

1 - That it's a phony invented Constitutional Right and its better left as it is

2 - That it is a matter open to Federal legislation

3 - That it is a matter open to State Legislation

4 - That the Right to Life (in the XIV Amendment I think) also covers the unborn and Abortion is an violation of that right

I think it's murder, so I naturally tend toward number 4, but yet I understand that many people feel otherwise, so I feel that Number 3 is a legal framework that I can accept. I certainly dont think that the Const. protects such a thing from State law due to X Amendment.

Do Libertarians oppose phony rights even if those rights go alo0ng with the general "keep govt from interfering" philosophy? Or is honest interpretation of the Constitution a higher principle?

Or is opinion not so unified and therefore there is no general consensus?

I dont mean to insult anyone by calling abortion a phony right , but that's how I see it. I think it is a total contrivance to assert it's a Const. protected action.

I'm a (non-social) Conservative and am sincerely curious in my question.

I waver between 3 and 4

Mike in PA|5.28.09 @ 7:32AM|#

I sit on number 3.

It's a matter of protecting the liberty of the unborn child vs. protecting the liberty of the mother to decide for herself what kind of medical procedures she chooses.

The government is charged with both of these protections. When they conflict, I think you have to defer to each state to make that decision. If you disagree with the decision of your state, you are free to try to change it, or move.

|5.28.09 @ 7:35AM|#

Mike: Your argument is precisely what makes Number 3 a persuasive option for me.

Mike in PA|5.28.09 @ 7:36AM|#

|5.28.09 @ 7:57AM|#

Singer forgot to mention the "innocent" leg of his rebuttal.

1) it cuts toward endorsing capital punishment
2) I've never met an innocent kid over the age of 18 months. the little bastards are always into something.

|5.28.09 @ 8:14AM|#

I'm curious where people stand on that mother and child that ran away to avoid the chemo treatment. I've heard a libertarian argument in both directions.

Does the state have the obligation to protect the life of the minor? Or does the mother have the right to decline uncomfortable medical treament for her child?

I am more conservative than Libertarian but I think that the parents have the absolute right to decide what kind of medical treatment their children receive. Like the market this isn't perfect but it is miles above the State making decisions for parents. I think it is a tragedy that this child will likely die, when he might be spared through treatment, but cancer is tragic and government mandates can not change this fact.

The thing that I saw in the original story was the number less than 100% that were cured by the treatment suggested. So the child might suffer through the treatment and still die. In that case I suppose those who forced the treatments would throw up their hands and say "Oh, well,we said it might not work".

I question where that could lead? If the State can force a child to submit to chemo, can they also force parents to immunize their children? Give them oatmeal for breakfast? Unless their is actual evidence of abuse, positive action, not negative, the State should stay out.

|5.28.09 @ 8:16AM|#

can they also force parents to immunize their children?

Yes, they can.

Abdul|5.28.09 @ 8:24AM|#

Ray nailed it in the first post. Only one president was stupid enough to nominate a Justice when he didn't know that justice's positions on abortion: GHW Bush, and the nominee was Souter (who, coincidentally, sotomayor will replace).

Sotomayor couldn't be more pro choice if she was in a back ally with a coat hanger.

|5.28.09 @ 8:38AM|#

can they also force parents to immunize their children?

Yes, they can.

Wanna bet?

|5.28.09 @ 8:56AM|#

Marshall,
You doubt the plethora of bills in the works that aim to do exactly that will fail in democratically controlled country?

|5.28.09 @ 8:58AM|#

besides, it's already practically mandatory if you attend public schools.

Mad Max|5.28.09 @ 8:59AM|#

From the article, here is something which may be reassuring to NARAL:

'In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China's abortion policy. "The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, *akin, no doubt, to the killing of a child,*" she wrote, also taking note of "the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage."' [emphasis added]

Get it? Abortion is *akin* to the killing of a child. It's not child-killing in and of itself.

|5.28.09 @ 9:07AM|#

I think of abortion like I think of eviction. If a homeless man is living in my garage, I have a right to kick him out. Will this kill him? Let's say it will. Let's say he will die, definitely, and for whatever reason, if I kick him out, and all parties involved know this. I still have the right to kick him out. In my opinion, to do so at that point would be immoral... but legally, I'd still have the right.

So, I'm not sure when life begins, but I'm sure it doesn't matter.

In this way, abortion rights are tied to a woman's rights to her own body --- her own life, as well as her own property. The right to abortion is inalienable.

|5.28.09 @ 9:40AM|#

Uh oh - mad max attack!

robc|5.28.09 @ 9:46AM|#

Solana,

Ignoring the stupidity of your analogy, you still cant kill* the homeless guy in your garage before you kick him out.

*depending on state's specific castle doctrine - if he is stealing your stuff you can in some places - but, with rare exceptions (Texas?), not for just trespassing.

|5.28.09 @ 9:47AM|#

1 - That it's a phony invented Constitutional Right and its better left as it is

Certainly, the opinion in Roe is famously weak. The best argument for Constitutional protection is a strong reading of the 10th Amendment combined with a strong reading of the 14th to incorporate it against the States. That, however, blows the lid off of way too much of what our government does at all levels, and is a road that will never be taken.

2 - That it is a matter open to Federal legislation

It is not, if you take seriously the enumeration of powers of the national government.

3 - That it is a matter open to State Legislation

Absent a strong reading of the 10th/14th amendments, it is.

4 - That the Right to Life (in the XIV Amendment I think) also covers the unborn and Abortion is an violation of that right

And here is where the irreducible and inevitable issue arises - at what point does a fetus become a person with rights?

I think of abortion like I think of eviction. If a homeless man is living in my garage, I have a right to kick him out.

Not so fast, Solana. If you invited him into your garage, and he relied on your invitation to his detriment, you have an implied contract with him to allow him to live there. In these circumstances, which are pretty consistent with pregnancy after consensual sex, you don't have an absolute right to evict.

|5.28.09 @ 9:56AM|#

If a homeless man is living in my garage

Catch-22, he's only homeless if you kick him out of your garage. I would prefer you call my homeless buddy a "person of variable residency"

Tacos mmm...|5.28.09 @ 11:12AM|#

In these circumstances, which are pretty consistent with pregnancy after consensual sex, you don't have an absolute right to evict.

I find this untenable. Certainly pregnancy is a posssible consequence of some sexual activity, but if you take steps to prevent preganancy which fail because the tenant willfully evades, you should have the right to evict.

robc|5.28.09 @ 11:19AM|#

Tacos,

Do sperm have a will?

|5.28.09 @ 11:46AM|#

You doubt the plethora of bills in the works that aim to do exactly that will fail in democratically controlled country?

besides, it's already practically mandatory if you attend public schools.

Now I can't speak for other States but here in OK you can file as, basically a conscientious objector, for lack of a better term. They don't advertise, and really don't like it but they could not refuse. Even the Boy Scouts didn't put up much objection.

Are there a plethora of bills to make it mandatory? Don't forget identity politics. If I can refuse because I am an Amerind, or because I simply claim it against my "religion" it isn't mandatory in any meaningful sense.

|5.28.09 @ 11:51AM|#

Mr. Waldman's comments are eerily reminiscent of the thoughts I had in this old H&R post, to the effect that any Catholic who hasn't proclaimed herself "pro-choice" is unacceptable to some, and that is, in effect, a religious test for office.

BTW, has anyone else noticed how far down the memory hole Miguel Estrada has gone? The NYC-area media has been playing ecstatic sound bites from every conceivable Hispanic about how wonderful it is now that a Latina has been nominated for SCOTUS. I don't remember that much effusion back in Ought One, do ye?

Kevin

|5.28.09 @ 11:56AM|#

The memory lapses: Estrada's nomination was to the appeals Court. It was Alberto Gonzalez who was going to be the First Hispanic Justice, though no nomination was ever forthcoming.

Kevin

|5.28.09 @ 11:58AM|#

If you invited him into your garage, and he relied on your invitation to his detriment, you have an implied contract with him to allow him to live there. In these circumstances, which are pretty consistent with pregnancy after consensual sex, you don't have an absolute right to evict.

Actually, she has a higher responsibility than that. She did not "invite" the child but placed it there without it's consent.

It would be more like taking the homeless man when he was drunk, passed out in an alley and dragging him into your garage and killing him once there because he was trespassing.

|5.28.09 @ 12:04PM|#

Ignoring the stupidity of your analogy, you still cant kill* the homeless guy in your garage before you kick him out.

*depending on state's specific castle doctrine - if he is stealing your stuff you can in some places - but, with rare exceptions (Texas?), not for just trespassing.

Alright, Rob, so if the fetus is killing you, you can kill the fetus. Fair enough. In the mean time, instead of aborting the non-killer fetuses, we'll just starve them to death. Clip the chord. Problem (at least civil problem)solved. No?

Also, my analogy rocks and you know it. Don't be J.

Not so fast, Solana. If you invited him into your garage, and he relied on your invitation to his detriment, you have an implied contract with him to allow him to live there. In these circumstances, which are pretty consistent with pregnancy after consensual sex, you don't have an absolute right to evict.

Dean, I see where you're coming from, but I don't buy for a second that two kids on prom night screwing in the back of a VW is tantamount to "inviting" a baby into the chick's body. I'm pretty sure it's just... well... sex.

Also, your scenario allows for abortion in the case of rape, ignorance, and faulty birth control then? Honestly curious.

|5.28.09 @ 12:07PM|#

Analogies that recogize the fetus as an unrelated thing, homless person or famous violinist, immediately fail. The relationship that exists is mother-child.

|5.28.09 @ 12:21PM|#

I don't buy for a second that two kids on prom night screwing in the back of a VW is tantamount to "inviting" a baby into the chick's body. I'm pretty sure it's just... well... sex.

Come on, Solana, no personal responsibility? As a man, I certainly understand the desire to have sex without taking responsibility for any unwanted outcome.

Also, your scenario allows for abortion in the case of rape, ignorance, and faulty birth control then? Honestly curious.

In the cases of faulty birth control or ignorance, no. In neither case was the positive action that of the child.

In the case of rape I admit there is no positive action on the part of the woman and I would make an exception, however reluctantly. If my daughter were to be impregnated by a rapist I would ask her not to punish her child because of the actions of his father. Indeed, I would tell her that the ONLY revenge that she could enact (I would have almost certainly already hunted him down and killed him) would be to raise and love the child. Of course, I am sure I could understand if she felt differently.

|5.28.09 @ 12:25PM|#

I guess, Obi, but a mother's right to her own property (body) aren't trumped by anyone's need of it for life... not even her own child.

Right?

Abortion has always kept me on my toes. I've changed my opinion a few times now.

|5.28.09 @ 12:29PM|#

In the case of rape I admit there is no positive action on the part of the woman and I would make an exception, however reluctantly. If my daughter were to be impregnated by a rapist I would ask her not to punish her child because of the actions of his father. Indeed, I would tell her that the ONLY revenge that she could enact (I would have almost certainly already hunted him down and killed him) would be to raise and love the child. Of course, I am sure I could understand if she felt differently.

Alright, MG, I see where you're coming from. But this bit demonstrates that you're approaching this question on moral grounds. I'm only talking about legality, here. How is punishing the child legally acceptable under any circumstances at all, if not in the case of ignorance or a hole in the condom? You've made an exception for your raped daughter on strictly emotional grounds.

|5.28.09 @ 12:34PM|#

Dean, I see where you're coming from, but I don't buy for a second that two kids on prom night screwing in the back of a VW is tantamount to "inviting" a baby into the chick's body. I'm pretty sure it's just... well... sex.

srsly. The argument that a man tacitly agrees to father a child everytime he has sex is pretty extreme in my book.

|5.28.09 @ 12:53PM|#

Dean, I see where you're coming from, but I don't buy for a second that two kids on prom night screwing in the back of a VW is tantamount to "inviting" a baby into the chick's body. I'm pretty sure it's just... well... sex.

The foreseeable consequence of which is a pregnancy. Sorry, if the sex is consensual, then the ensuing pregnancy is voluntary and foreseeable; the fetus is neither a trespasser nor a parasite.

Also, your scenario allows for abortion in the case of rape, ignorance, and faulty birth control then? Honestly curious.

Rape, yes (although statutory rape presents an interesting question).

Ignorance and faulty birth control, no. You don't get absolved from the foreseeable consequences of your voluntary activities because you were ignorant of those consequences. The failure of birth control is foreseeable and even well-known (even the pill has documented and predictable failure rate), so the same principles apply.

|5.28.09 @ 12:54PM|#

How is punishing the child legally acceptable under any circumstances at all, if not in the case of ignorance or a hole in the condom? You've made an exception for your raped daughter on strictly emotional grounds.

No, I conceded that I would make an exemption

In the case of rape I admit there is no positive action on the part of the woman and I would make an exception, however reluctantly.

The rape victim does not choose to have sex. In the case of ignorance or birth control failure, the positive action is that of the adults having sex. They choose it, not the child, even if they are ignorant of the possible consequences. I would place the rape victim on an equal moral footing with the child in that neither choose. You could evict the homeless man if someone else placed him there.

I reject the idea that someone who was able to consent to sex could not understand it's possible results. Statutory rape is also not a positive action on the part of the woman because it is assumed that she does not understand and it is therefore not consensual.

If a woman is physically able to reproduce but mentally unable to understand it's consequences isn't she, by definition, incapable of "consent"?

The argument that a man tacitly agrees to father a child everytime he has sex is pretty extreme in my book.

Dom, while they are not held personally responsible for their actions shouldn't they be? Don't get me wrong, here, I have acted irresponsibly many times in my life. But every time a man has sex he IS risking pregnancy, just because that reality is a burden we can discard it?

I have a friend who slept with a girl once or twice and was sued 12 years later for a gazillion dollars for back child support. The State will hold a man responsible every, single time they have sex.

|5.28.09 @ 12:55PM|#

Dean, get out of my mind!

Stagman|5.28.09 @ 12:57PM|#

The arguments for and against abortion, to me, have always been equally persuasive because they depend entirely on the central assumption. If you honestly believe that a fetus is a person at the moment of conception, then abortion is murder, plain and simple. If you don't then it's not. The problem is that this central assumption, when a life begins, is not a fact and can never be a fact. It's a completely intractable issue.

Because of this, I go with option number 3. We live in a representative republic and this is a political, not legal, issue. People should not be forced to live under laws they find morally repugnant. Thus people in Texas can outlaw what the see as murder and people in California can maintain what they see as a woman's right to make her own health care decisions. You're free to move to either state or try change the law if you don't agree.

Also, Roe v. Wade is a piece of shit. It should be overturned solely on the grounds that it's one of the worst reasoned and written opinions in the history of the Supreme Court.

|5.28.09 @ 1:11PM|#

the fetus is neither a trespasser nor a parasite.

BULLSHIT.

Regardless of the how it got there, if it can not live without a host then it is a parasite.

If I choose to get tapework, does that somehow magically not make it a parasite?

Another Phil|5.28.09 @ 1:12PM|#

The foreseeable consequence of which is a pregnancy. Sorry, if the sex is consensual, then the ensuing pregnancy is voluntary and foreseeable; the fetus is neither a trespasser nor a parasite.

The fetus may not be a trespasser, but it is most certainly a parasite.

|5.28.09 @ 1:21PM|#

The foreseeable consequence of which is a pregnancy. Sorry, if the sex is consensual, then the ensuing pregnancy is voluntary and foreseeable

Not really. Considering how reproduction works, statistically speaking, you are more likely to not get pregnant when having sex even without any contracpetion. A woman only ovulates for a couple of days a month -- once ovulation has occurred your window to get pregnant is a few days. And even then it isn't guaranteed (just look at how many people have to try for months or even a year or two to get pregnant without getting fertility treatment)

And that doesn't even take into account contraception failure -- is that forseeable too?

But the bottom line is that too many "pro-life" people are really just trying to reinforce the idea that pregnancy is punishment for having sex. That's what the issue is really about. Controlling other people's sex lives.

No an un-viable fetus doesn't have rights. Period. FULL STOP.

And unless you plan on sending cops to investigate manslaughter/homicide/infanticide whenever a woman miscarries, then you don't really believe that the moment an egg is fertilized or implanted that it is a "human" with full rights and protections either. You are just trying to justify controlling the sex lives of others.

|5.28.09 @ 1:35PM|#

The foreseeable consequence of which is a pregnancy. Sorry, if the sex is consensual, then the ensuing pregnancy is voluntary and foreseeable

Not really. Considering how reproduction works, statistically speaking, you are more likely to not get pregnant when having sex even without any contracpetion.

Just because something is statistically not going to happen every time does not change the fact that it does happen. If I randomly shoot a gun in different directions it doesn't mean I am not responsible once I actually hit someone because there was a statistically small chance of it happening.

You are just trying to justify controlling the sex lives of others.

Strawman. It has nothing to do with "control". It has everything to do with taking personal responsibility for one's actions.

|5.28.09 @ 2:34PM|#

Regardless of the how it got there, if it can not live without a host then it is a parasite.

Wrong. Biologically speaking, parasites cannot be the same species as the host.

Sorry, if the sex is consensual, then the ensuing pregnancy is voluntary and foreseeable

Not really. Considering how reproduction works, statistically speaking, you are more likely to not get pregnant when having sex even without any contracpetion.

You are confusing "foreseeable" with "probable", ChicagoTom. You can't possibly be seriously arguing that pregnancy isn't a foreseeable outcome of having sex, can you?

No an un-viable fetus doesn't have rights. Period. FULL STOP.

I can live with that, believe it or not, and have never argued to the contrary.

|5.28.09 @ 5:39PM|#

You are confusing "foreseeable" with "probable", ChicagoTom. You can't possibly be seriously arguing that pregnancy isn't a foreseeable outcome of having sex, can you?

It's not foreseeable if you were told you couldn't have kids on account of genetics... and then your girlfriend was suddenly preggers. Happened to my dad...

Djyrn|5.28.09 @ 10:36PM|#

I'm inclined to leave it to the states as a philosphical matter.

As a practical one I don't think it'll matter. The battle will rage on. Some states will allow it, and others won't. Traveling across state lines will be an issue. Tolerance of other states rights will be challenged by both sides. The single great benefit of this would be to fragment the efforts of each side.

At least is would be outside SCOTUS.

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