Today in Supreme Court History

Today in Supreme Court History: October 11, 1972

|The Volokh Conspiracy |

10/11/1972: Roe v. Wade argued.

The Burger Court (1972-1975)

NEXT: Debt Reckoning

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Republicans didn’t have a problem with it until they noticed evangelical voters turning anti-abortion later in the 1970s.

    1. “And that’s not the first time Biden’s stance on abortion has changed over the years—especially during his time in the Senate. TIME pointed out, “In 1981, he supported a constitutional amendment that would enable states to overturn Roe v. Wade. ”

      1. Bob, I know I can always count on you for a what aboutism argument. What does Biden have to do with whether Republicans flipped on abortion? Also, you do realize that tu quoque is a logical fallacy, right?

        1. Both parties flipped, following their voters.

          You can’t say “oh look at those hypocrites” without doing the same to the other set of hypocrites.

          Of course neither side are in fact hypocrites, parties must follow the lead of voters or they will become Whigs and die.

          1. Except I’ve known Joe Biden for going on forty years and I don’t think he flipped for the same reason Republicans flipped. I think he was raised Catholic and never gave it much thought until it became a women’s rights issue. Once he thought it through, he honestly changed his mind. And I’m not going to fault him for being a wiser man today than he was yesterday.

            It’s possible that some Republicans also changed their minds after thinking it through, but I suspect it was more a case of the evangelicals hijacking the party. These days, you can’t win a Republican primary in most of the country without being anti-abortion. Neither Gerald Ford nor Nelson Rockefeller nor Ronald Reagan, running on their records as congressman/governor, could get the GOP nomination today. (For that matter, neither could someone with Joe Biden’s 1972 views get the Democratic nomination.)

            1. WTF does it matter why Biden flipped?

              Hypocrite is hypocrite. Liar is liar.

              1. Unless it was an honest flip, which is my point. Sometimes people really do change their minds.

                1. Not clingers who have outsourced their reasoning to a Mission From God. They just follow the fairy tale.

              2. So you are saying you believe exactly the same things you believed 40 years ago and you haven’t flipped on anything?

            2. My side good, your side bad.

              1. Except that is case I think that’s what the evidence shows.

            3. Except I’ve known Joe Biden for going on forty years and I don’t think he flipped for the same reason Republicans flipped. I think he was raised Catholic and never gave it much thought until it became a women’s rights issue.

              Complete and utter crap. Of course he flipped for political reasons. His recent flip on the Hyde Amendment was particularly obvious because his campaign actually came out right before the flip and said he still supported it.

              But I remember Biden in the 1980’s, when I first started seeing him on television, and he stated his opposition to abortion very eloquently and said it came from his religious faith (although to be clear, he said he favored Roe and didn’t want to impose his religious faith on women- he did, however, strongly oppose federal funding which he said impinged on his conscience rights by making him pay for it). His religious faith didn’t change. The requirement as to how strong a pro-choicer you had to be to be a Democrat did.

              Bob is totally right that this happens on both sides. Mitt Romney was pro-choice in Massachusetts and suddenly discovered he was pro-life when he ran for President (and then in Utah). George H.W. Bush pretty famously flip-flopped to pro-life). Dianne Feinstein was another, like Biden, who used to support extensive restrictions but now does not.

              The parties sorted and the politicians flip-flopped. They are all liars and phonies about this, including Joe Biden.

          2. “Of course neither side are in fact hypocrites, parties must follow the lead of voters or they will become Whigs and die.”

            Forty years from now, that line seems destined to become “or they will become Republicans and die.”

            Which will be nice for the Whigs.

            And America.

    2. That is revisionist. It didn’t appear on the 1972 platform because it wasn’t decided and most thought it wouldn’t get past the supreme court. It did appear in 1976. I can assure you many republicans and democrats back then were opposed to it.

      1. In 1973 if you randomly picked ten Congressional Democrats and ten Congressional Republicans, you’d have generally found Republicans supporting abortion rights and Democrats opposed. Times have changed. Nixon famously said on one of the tapes that sometimes abortion was necessary if, for example, the fetus was mixed race.

        1. That’s why need need abortion. To many black people. Western governments along with Bill Gates need to fund it all across Africa. It’s cheaper that way.

          If your point is that parties switch roles on issues, this isn’t exactly news to folks. At one time, the GOP was the party of cities and immigrants and William Jennings Brian and the Democrats were the party of rural areas. Just give it 10-20 years, and they will shift on a host of topics, like say, an individual mandate!

          Seriously though (?) Christian opposition to abortion goes back to the time of Augustine. And if you went back to the 1940s you’d find everyone was almost universally against contraception, but once a few Protestant denominations changed their mind, the rest followed except for the Catholics (at least officially, but perhaps not in actual practice).

          1. My point is that I was responded to SBIB’s claim of revisionism.

            And yes, Christian opposition to abortion does go back to Augustine, but I’m not sure why, in a nation with separation of church and state, that makes a difference. If you’re a Christian who thinks abortion is sinful, don’t have one. Ditto birth control. Ditto gay marriage. Since I don’t believe in your God, why should I be bound by your claims of what he says about abortion or anything else? The Flying Spaghetti Monster says abortion should be legal, so we’re even.

            1. I don’t believe in the nonsense of diversity or that I should be forced to adapt your standards of who to hire in my private business or who I should bake a cake for yet you’ll get the government to force me to bend to your morals anyway. Whats your point? You SJWs are just as bad as the worst stereotypes of Christian fundies for sticking your nose in others business. Why are you suddenly pretending otherwise?

              1. Because having an entire underclass of people who aren’t allowed to fully participate in the economy (which is why diversity laws were passed in the first place) impacts the economy itself. You’re crazy if you think their problems aren’t going to spill over and affect you. That’s not true of who chooses to marry whom or have sex with whom or whether or not to carry a pregnancy to term.

                1. So, yea, you think the trade-offs are acceptable. That’s fine. But don’t think that you’re not just as much of a buttinski as any other group. lol. This from the the guy who is all in on majoritarianism.

                  And the better way is to kill off the colored underclass. Just as Margret Sanger founder of Planned Parenthood wanted. Then we don’t have to deal with the whole promise of the Declaration of Independence or anything. Right?

                  1. Ready for election day, mad_kalak?

                    How about Inauguration Day?

                    How about 2021?

                    Enjoy your last gasp, clingers.

                  2. Kalak, even if you don’t agree with how I analyze and come down on economic issues, the point is that my analysis hinges on the purely non religious question of whether diversity laws leave us better off, not how someone’s imaginary friend feels about it.

                    You want to make a non religious argument that we’re better off with abortion being banned, make it. I’ll listen. If it’s a good argument I may even be persuaded.

                  3. I did make a secular, economic argument that you must have thought was satire. I support abortion whilst I know it’s murder. Blacks, in America, and abroad with all the foreign aid, are to expensive. To top it off, they will never integrate to the majority’s cultural values. It’s best if we let them kill themselves at white people’s prompting with the polite fiction that it’s their choice. Call me a modern day Jefferson.

                    Now, the scientific question the pro-choicers can never really answer, is when exactly does a baby become human. So, their scientism makes it, at best, a religion vs. religion debate.

                    As for diversity laws specifically, sure, it’s a series of trade-offs. The reduction of individual liberty for the group pay-offs. I get it. I listened to an Econtalk podcast about that very same thing and it was a good case. But what I’m mocking is your silliness that you think you’re not just cheerleading electoral majorities squelching minorities. That’s exactly what you’re doing, but you think it’s okay if it’s for what *you* believe is right.

                    1. I had thought it was satire. I didn’t realize you were an open racist. Thanks for clearing that up.

                      I’m not fine with majorities just squelching minorities. That’s why we need a strong Bill of Rights and an active, independent judiciary. There are things I would consider good policy that are unconstitutional and I would not always be happy with choices the majority makes. But I do think the majority is entitled to decide whom its elected leaders will be.

                      And finally, whenever the fetus becomes a child, it’s not religion just because there’s a difference of opinion. Religion goes to methodology. If you’re using the scientific method it’s not religion.

          2. Seriously though (?) Christian opposition to abortion goes back to the time of Augustine.

            Not really.

            It’s true that Augustine, like many philosophers, secular and religious, wrote about the morality of abortion. It’s not true that there were people advocating laws against abortion in Augustine’s time. Opposition to abortion in that sense started in the 19th Century and is probably far more connected to certain forms of anti-feminism than it is to Christianity. Even to this day, many large Christian sects take no position on the issue.

            1. Yes really.

              Augustine of Hippo (354-430)

              “Sometimes, indeed, this lustful cruelty, or if you please, cruel lust, resorts to such extravagant methods as to use poisonous drugs to secure barrenness; or else, if unsuccessful in this, to destroy the conceived seed by some means previous to birth, preferring that its offspring should rather perish than receive vitality; or if it was advancing to life within the womb, should be slain before it was born.”
              -De Nube et Concupiscentia 1.17 (15)

              First Wave feminists were generally pro-life because they thought that abortion allowed cads who knocked up some woman as a way to skate.

              1. From a speech by Susan B. Anthony, “Social Purity,” in 1875 (courtesy of Google Books)

                “The roots of the giant evil, intemperance, are not merely moral and social; they extend deep and wide
                into the financial and political structure of the government; and whenever women, or men, shall
                intelligently and seriously set themselves about the work of uprooting the liquor traffic, they will find
                something more than tears and prayers needful to the task. Financial and political power must be
                combined with moral and social influence, all bound together in one earnest, energetic, persistent force….

                “The prosecutions on our courts for breach of promise, divorce, adultery, bigamy, seduction, rape; the
                newspaper reports every day of every year of scandals and outrages, of wife murders and paramour
                shooting, of *abortions* and infanticides, are perpetual reminders of men’s incapacity to cope successfully
                with this monster evil of society.” [emphasis added]


                1. She at least made secular arguments.

                  At this point the quick and easy answer is that we tried prohibition and it didn’t work. Which is also a secular argument.

                  1. If you think the Prohibitionists used secular arguments… I’ve got a bridge in Brooklyn to sell you.

                    1. I said “she” made secular arguments. Go back and re-read the passage Cal cited. Those arguments are all secular.

                    2. To be fair, I didn’t quote the entire speech. There’s also this passage:

                      “…When the mother of Christ shall be made the true model of womanhood and motherhood, when the office of maternity shall be held sacred and the mother shall consecrate herself, as did Mary, to the one idea of bringing forth the Christ-child, then, and not till then, will this earth see a new order of men and women, prone to good rather than evil.”

              2. That’s way off.

                First, as I said, Augustine was a philosopher who wrote about the issue, as did other philosophers. But he wasn’t advocating laws. He was saying it was morally wrong. Abortions went on and nobody really cared what Augustine thought.

                As for “first wave” feminists, while it is accurate that abortion was not the issue that it is now, at the same time, the key group that was pushing for laws against abortion wasn’t feminists, or Christians (defined broadly), but misogynists. Obviously some of these misogynists were Christian, but all of them were freaked out about contraception and the 19th Century forms of pornography and licentiousness. It was about hating women having lots of sex, not Christianity. To this day, as I said, plenty of Christian sects take no position on abortion. It’s just that the ones that do are vocal and obnoxious about it (as misogynists so often are).

                Feminists were split. There were abortion opponents. On the other hand, Margaret Sanger was a first wave feminist as well.

      2. In 1971 Reagan (as Governor of California) signed into law the most liberal abortion law in the country. George HW Bush was similarly pro choice. Their backflips so soon after Roe were remarkable.

        1. “Speaking of that 1972 U.S. Supreme Court decision, Biden did say that he felt it went too far: “I don’t like the Supreme Court decision on abortion. I think it went too far. I don’t think that a woman has the sole right to say what should happen to her body.”

          1. Bob, I know I can always count on you for a good what aboutism argument. You do realize tu quoque is a logical fallacy, right?

            1. You do realize that selective whining is still whining?

              You don’t get to dictate the terms of a conservation here. It ain’t your forum. Suck it up or go away.

              1. Point out a logical fallacy isn’t dictating the terms of the conversation. It’s pointing out a logical fallacy. He’s free to make them; I’m free to point them out. You seem not to understand how this works.

                Why the belligerence? Have you considered seeing someone about all that anger you have?

            2. I love it when the same people here who complain about “whatabout ism” will then bring it up right in another thread with something like “what about these white supremacists!!!!!”

              1. When did I do that?

    3. Roe v. Wade surprised many even those in the bar who supported the general tactic of bringing test cases to the Supreme Court in an effort to expand rights. There are a few good, fair takes, of the history behind the push to recognize abortion as a federal right. Many on the left were skeptical of the judicial push. And it was cases like Roe which helped “cancel” the extremist Supreme Court of the 70’s leading us to the more moderate version in the 80’s.

  2. And let’s not forget on the day Roe was handed down (1/21/1973) LBJ dies (leaving us no living ex-Presidents) and Down goes Frazier!

    1. “Yes, Lyndon was told of it [the Vietnam Peace Treaty] before he died. Fate was kind.” — Lady Bird Johnson

  3. This was another catastrophic example of judicial review, in the same class and far more deadly than the Dred Scott case, setting off the Civil War. Judicial review is prohibited by Article I Section 1, giving “all” lawmaking power to the Congress.

    The states should regulate abortion. The best answer is for the Obstetrics Society to update the viability time of gestation, each year. Prior to viability, the fetus is a set of cells, totally dependent on the mother, and part of her body. Her body should be protected by the Fourth Amendment. After viability, the fetus has some ability to live outside the body. It should be protected by Fifth Amendment due process right to not have its life taken, for the purpose of another person. Past the point of viability, the fetus really looks like a baby. It is the rare doctor who could chop up and destroy a big fat baby, anyway.

    Gestational age has an uncertainty of up to 3 weeks. That uncertainty should be incorporated in favor of the fetus. Most non-viable anomalies that would result in great suffering by the fetus can be diagnosed prior to viable gestational age.

    Prior to the viable age, such as 14 weeks, the fetus has a repertoire of response to pain. For example, needle sampling that accidentally sticks the fetus causes wincing, active withdrawal and avoidance, release of stress hormones, reactive release of endorphins. This is the pain reaction repertoire of everyone. They have a thalamus, a lower brain part that receives pain. It connects to the cerebrum at around 18 weeks.

Please to post comments