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Jill has been blogging for Feministe since 2005.
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14 Responses

  1. Beet
    Beet June 20, 2006 at 5:33 am |

    Wow. Thanks to Scott Lemieux on this article.

    It’s ironic that pundits at The Atlantic Monthly and Slate are trying to get progressives to accept an overturn of Roe partly by arguing that this would create a backlash to help progressives. Firstly, progressives are the political group most likely group to support Roe. Therefore if progressives are willing to see it gone then there is no reason to expect that moderates and independents are not. Ironically, the more progressives accept this argument, the less likely any backlash would actually occur. But as Scott points out the argument is farcial on face because it could be used to apply to any policy– why not let Social Security be privatized because of the “backlash” it would generate? And what would we use that backlash to do? Run around in circles?

  2. Cortney
    Cortney June 20, 2006 at 10:15 am |

    Scott rules.

  3. DAS
    DAS June 20, 2006 at 5:44 pm |

    This “contrarian” conventional wisdom shouldn’t be suprising given the earlier spate of “the Republicans really don’t want Roe overturned as it will deprive them of a key rallying point”. What that CW ignored (as does this one as do, to be a “contrarian” myself, many progressives who strongly support Roe v Wade) is that over-turning Roe doesn’t make abortion illegal per se: it throws the issue to the states. Some of the states will obviously keep abortion legal (in particular, this means the rich don’t care about overturning Roe as they can always travel to another state), some will make abortion illegal, but for many states, abortion will remain an issue.

    Thus, if abortion arguments benefit conservatives over progressives, ignoring the fact that reactionaries may be sincere in wanting to over-turn Roe and progressives should be sincere in wanting to maintain it, over-turning Roe v Wade doesn’t mean that the abortion debate, which supposedly benefits the Republicans, is over, but that instead of having one (national) debate, we have a debate in every state in which there is a anti-abortion population (except for the few which will just automatically be anti-abortion … in no state will the anti-abortion population let pro-choice practice stand, although in some cases anti-abortion will be a futile cause), which population exists in every state! Not to mention that the right are far from being sportsmanlike winners (even though they urge sportsmanship on the left).

    If the abortion debate benefits Republicans — then overturning Roe will benefit them … as overturning Roe doesn’t end the abortion debate, it just takes on debate and makes it into 30-50 debates, giving the right 30-50 x the political advantage they have now.

    And this, of course, ignores that the abortion debate is not just a game — outlawing abortion affects real people in a negative way, so in a sense all of this political calculation is completely callous anyway!

  4. Beet
    Beet June 20, 2006 at 6:47 pm |

    over-turning Roe doesn’t make abortion illegal per se: it throws the issue to the states

    This is a claim that’s always puzzled me; and I’m not challenging it on face; USA Today and numerous CW outlets have repeated it without qualification, and they’re certainly more credentialed to pronounce on this than me. But the logic behind it has always been a bit puzzling, and since there are a lot of lawyers on here I wonder if they can help clear it up. The claim seems to be that since Roe v Wade only barred states from banning abortions, that reversing it would simply allow states to resume those bans.

    On the other hand though, Roe v Wade and its successor, PP v Casey, have been cited in Planned Parenthood v. Ashcroft (2004), where the plaintiff (ACLU) contended that the 2003 D&X (‘partial-birth’) abortion ban was unconstitutional and listed the following reasons-

    (1) the Act places undue burden on the woman’s right to choose (based on Roe)
    (2) the Act is impermissibly vague because it fails to define the prohibited medical procedures (based indirectly on Roe)
    (3) the Act’s failure to provide exception for the health of the mother a woman’s Fifth Amendment due process rights set forth in Casey and Stenberg (based indirectly on Roe)
    (4) the Act violates a womans’ due process right to bodily integrity. (based indirectly on Roe)

    If Roe merely prohibited states from banning abortion, why is the reasoning of Roe/Casey being used to challenge a federal abortion ban (and why do appellate judges unanimously accept the ACLU’s reasoning)? Why doesn’t the ACLU simply argue that Congress has no jurisdiction to enact an abortion ban under the interstate commerce clause? Also, why does Congress itself– and the President, feel that Congress has authority to enact an abortion ban as long as it does not violate Roe/Casey? Does there exist any legal precedent that explicitly states that Congress does not have the authority to regulate abortion on its own?

    That’s the contradiction I see– CW in political discussion is unanimous in conviction that without Roe, states would have sole authority, but Congress, the President, the federal appellate courts seem unanimous in the conviction that Congress can override the states. So what gives?

  5. zuzu
    zuzu June 20, 2006 at 7:24 pm | *

    If Roe merely prohibited states from banning abortion, why is the reasoning of Roe/Casey being used to challenge a federal abortion ban (and why do appellate judges unanimously accept the ACLU’s reasoning)? Why doesn’t the ACLU simply argue that Congress has no jurisdiction to enact an abortion ban under the interstate commerce clause? Also, why does Congress itself– and the President, feel that Congress has authority to enact an abortion ban as long as it does not violate Roe/Casey? Does there exist any legal precedent that explicitly states that Congress does not have the authority to regulate abortion on its own?

    Just off the top of my head here (any other lawyers more conversant with the particulars can chime in), it’s because Roe was based on the US Constitution, and the US Constitution provides a floor for civil rights, not a ceiling — meaning that states can pass laws and constitutional provisions of their own that are less restrictive to civil liberties than the US Constitution, but not more restrictive. If SCOTUS overturns Roe, then the floor is pretty well removed.

  6. Gordon K
    Gordon K June 20, 2006 at 7:35 pm |

    IANAL, but law in the US is based on prohibiting things, not permitting them (something along the lines of “the presence of certain rights in this Constitution shall not be construed to imply the non-existence of other rights”).

    Thus, the “default” is: abortion is a procedure that has presumably been approved by the FDA; with no law to the contrary, there’s no legal ground for saying a woman can’t have an abortion (barring homicide arguments, which the courts haven’t supported). Thus, by saying “oh, no, women *don’t* have the Right to an abortion and states have the Right to ban abortion” doesn’t mean that states *must* ban abortion.

    That said, would overturning RvW pave the way for the federal government to ban abortion, thus taking the states out of the equation?

  7. Feministe » Body Politics
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  8. Feministe » Body Politics
    Feministe » Body Politics June 20, 2006 at 8:16 pm |

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  9. Glynda
    Glynda June 20, 2006 at 8:55 pm |

    Beet, I think you are asking two separate questions (correct me if I am wrong). The first is, since Roe interpreted the due process clause of the 14th Amendment, which limits states, why does it affect what Congress can do? The short answer to that is that the 5th Amendment has a due process clause as well, and the 5th Amendment limits what the Federal government can do. For the most part, the two due process clauses are interpreted the same way. In other words, the 5th Amendment of the due process clause has been interpreted to grant a right to privacy (that includes a right to terminate a pregnancy) that is equivalent to that granted by the dp clause of the 14th amendment. Your second question is harder. Given that Congress has limited powers, and has to find its source of power somewhere in the Constitution before it can pass any legislation, how does it have the power to pass a ban on abortions. You are right that they are hanging their hats on the commerce clause, which grants Congress the power to regulate interstate commerce. Once upon a time (New Deal through the late Nineties) any time Congress said that its legislation somehow impacted interstate commerce, that was enough. But now it is a harder question. The Supreme Court, in cases about gun possession and the Violence Against Women Act, said that Congress can only regulate wholly intrastate activity (something that happens in one place, doesn’t involve moving across state lines) that affects (tangentially, even) interstate commerce only when that activity is economic or commercial in nature. But last year in the medical marijuana case, the Court said that growing pot for one’s own medical use “was in the class of economic activities” that Congress can regulate. So, that’s where we are. Is abortion more like gun possession, or violence against women? Or more like growing marijuana? I am inclined to say more like growing marijuana (one has to pay for an abortion, so it is fee for service — even if Congress’s goals are purely moral, the Court in the past has said that’s fine).

    Hope that’s helpful.

  10. Beet
    Beet June 20, 2006 at 9:21 pm |

    Glynda: Wow, yeah that’s really helpful. Then if I understand, if Roe/Casey is overturned, surely both the 14th Amendment and 5th Amendment interpretations would have to be repudiated. In that case, if Congress, for example, attempted to enact a law regulating abortion, it would go to court in a case similiar to the gun/VAWA/marijuana cases, and the court would then decide in a separate case whether the activity is commercial in nature.

    It’s still a bit confusing as to why this issue hasn’t been raised on the appellate cases over the D&X abortion ban, and why Congress hasn’t tried to act on things such as parental consent and waiting periods– perhaps they think they have no authority over the latter two types of regulation, but apparently they do think they have authority over the former type of regulation. Perhaps it’s driven by politics?

    Either way, I’m not seeing clear evidence here for the overwhelming conviction that the states’ authority would never be challenged in a hypothetical post-Roe world. You seem to be saying that it’s a murky legal area that would have to be decided in a separate SCOTUS decision.

  11. Glynda
    Glynda June 20, 2006 at 9:25 pm |

    Beet: Certainly politics are involved, and there are others here who are far more qualified than I am to talk about that. But also, since the courts had Roe/Casey to rely on, there was no need to get into the interstate commerce question. But yes, they will address it if/when they are forced to.

    In a post-Roe world, I am not sure that states’ authority would be challenged; but Congress’s most certainly would be.

  12. Scott Lemieux
    Scott Lemieux June 21, 2006 at 4:43 am |

    Overturning Roe would not “return the issue to the states.” Congress had already pass aboriton regulations (which are almost certain to be upheld next term with O’Connor leaving), and they’re certainly not going to be less inclined to do so if all restrictions are removed.

  13. Feministe » Because I’m in a Bitchy Mood

    [...] the same time. And apparently these individuals are unable to read or do any of their own [...]

  14. Twiss Butler
    Twiss Butler June 21, 2006 at 3:26 pm |

    Scott’s article is well researched and expressed, as are many of the comments in response to it. The only problem is that this is just another political discussion that has nothing to do with feminism. It takes the pronouncements of what John Adams called “Our Masculine Systems” at face value – about saving that fabulous invalid Roe v Wade, about state vs. fed legislatures and courts, the First and Fifth Amendments, due process, right of privacy, party in-fighting, you name it. These are mock battles staged by opponents who equally get the pay-off from sexism and have every motive for keeping the game going. From this perspective, Scott is just another of the nice dudes whom he criticizes, all of whom presume to dictate policy on a man-made issue that negatively impacts only women. No feminism involved. As Gloria Steinem observed, “Women suffer from terminal gratitude.”

    Feminism is a revolutionary critique of the sexist institutions and practices by which men advantage themselves at women’s expense in order to end sexism-not accommodate ourselves to it. Pregnancy discrimination in any form, including problematizing abortion and devising barriers to it, is sex discrimination. And the great American Family Secret is that, thanks to the Founding Fathers, the liberal drafters of the 14th Amendment, and all sexist fixers who came after them, sex discrimination is flat out not unconstitutional – and nobody talks about it. That is the real reason why Roe v Wade with its “right to abortion” is a jerry-built constitutional lie that legalized abortion for men’s convenience and left women with a shaky claim that can be threatened and harassed at will. Saving Roe v. Wade is an excellent strategy for keeping women’s rights activists busy and well distanced from demanding a constitutional guarantee of their right to equal protection of the law based on a concept of human rights, not solely on men’s needs.

    There is a fine symmetry to the way that, in our time, Masculine Systems have targeted for every form of abuse from ridicule to savage invasion the one physical feature by which men assure themselves that women are “other” and can be treated differently. With admirable efficiency and teamwork, they divide the public task of attacking women’s sex and reproductive organs. Liberal men wield their First Amendment in brave defense of pornography and prostitution which in word and deed objectify women as subhuman merchandise to be used and abused at the whim of the buyer. Conservative men call on the Almighty to help them take care of the reproductive harassment with policies against contraception, barriers to abortion, and gross indifference to the welfare of women and children. The profoundly subordinating effect of this invasion and colonization of women’s bodies is fundamental to enforcing misogyny.

    Political punditry and free speculation about future outcomes is entertaining, but it relies on not outing and confronting the systems by which men control women. Elizabeth Cady Stanton and her colleagues got it right at the Seneca Falls Conference in 1848: ” Resolved that the women of this country ought to be enlightened as to the laws under which they live, that they may no longer publish their degradation by declaring themselves satisfied with their present position, nor their ignorance by asserting that they have all the rights they want.”

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