Patterico's Pontifications

7/4/2005

L.A. Times Pushes the Panic Button on Roe

Filed under: Abortion,Dog Trainer,Judiciary — Patterico @ 9:53 am

I said this yesterday, but it bears repeating: Justice O’Connor’s retirement isn’t about abortion. But it is about reasonable restrictions on abortion. The retirement of Justice O’Connor does not, by itself, endanger Roe v. Wade. But it does raise the possibility that states may be entitled to pass sensible limitations on abortion, like strict parental notification, longer waiting periods with real informed consent, or — most importantly — a ban on partial-birth abortion.

Because such reasonable restrictions are quite popular, look for newspapers to mention them only in passing. The strategy of leftist abortion activists is to push the panic button on Roe v. Wade itself, and their surrogates at the nation’s largest newspapers understand and will support this approach. Rather than portraying the issue as a chance to allow real restrictions on abortion, the newspapers will portray the issue as a simple case of the basic right to abortion hanging in the balance.

When will the back-alley abortions begin? When will we start throwing pregnant women in jail? These are the questions you can expect to hear from leftists at major newspapers like the L.A. Times. And it’s already starting.

The Times today publishes an article titled If Ax Falls on Roe, It May Also Split GOP, which opens:

WASHINGTON — Social conservatives relish the idea that Justice Sandra Day O’Connor’s resignation from the Supreme Court has moved them one step closer to their goal of outlawing abortion. Liberals are vowing to fight any potential successor who would, unlike O’Connor, favor overturning Roe vs. Wade, the 1973 ruling that affirmed a woman’s right to end a pregnancy.

Nice word choice, that: “affirmed.” I guess they didn’t feel like using the accurate word: “created.” And, of course, the Supreme Court can’t outlaw abortion, it can simply return the matter to the states. The story doesn’t say any different, of course . . . it just strongly implies it. Very clever.

The story neatly fits the theory I articulated above, by creating the following false dichotomy:

But the prospect of progress toward overturning Roe — and the realization that President Bush could have at least two chances to make transformative appointments to the court — has exposed a disagreement between conservatives who want abortion criminalized and pragmatic Republicans concerned that shifting the issue from the courts to the ballot box would lead to massive GOP losses.

See how deftly that was done? There is no mention of the Republicans who are uncomfortable with criminalizing abortions, but who want states to have more freedom to impose the sorts of restrictions that Chief Abortion Dictator Sandra Day might find offensive, depending on the circumstances — like a ban on partial-birth abortion, longer waiting periods with informed consent, or strict parental notification laws for minors, to take three prominent examples. (In fact, in some cases Justice O’Connor actually voted for milder restrictions — but always arrogated to herself veto power if she felt they would constitute an “undue burden” on a woman’s right to an abortion.)

Many such restrictions are overwhelmingly popular — far more popular than the right to abortion on demand. An April 2005 Fox News/Opinion Dynamics poll found:

Over three-quarters (78 percent) of the public think young women should be required to notify at least one parent or guardian before having an abortion and 72 percent support requiring permission from at least one parent.

A March 2005 poll from Quinnipiac University similarly found that 75 percent of the public favors “parental notification before a minor can get an abortion.” That same poll found that 66 percent of voters support a “24-hour waiting period for a woman seeking an abortion,” and also found that:

Voters say 75 – 13 percent that so-called “partial birth abortion” should be illegal except when necessary to save the life of the mother.

In short, reasonable restrictions such as these enjoy overwhelming support — far more overwhelming than the basic right to abortion. But today’s L.A. Times article doesn’t mention the numbers I just cited to you. It chooses instead to focus, predictably, on poll numbers relating to the basic right to abortion itself:

A May survey of registered voters by Quinnipiac University in Hamden, Conn., found that 55% believed abortion should be legal in all or most cases — including 6 in 10 independents and more than a third of Republicans.

Another May survey, conducted for NBC News and the Wall Street Journal, found that 55% of adults believed the matter should be left up to a woman and her doctor. The margins of error for each poll were 3 and 3.1 percentage points, respectively.

The article ends, once again, with the false dichotomy:

Ann Stone, chairman of Republicans for Choice, said the best evidence of all that the GOP establishment benefited from maintaining Roe was the lack of any push by the party’s majority leadership in Congress for a constitutional ban on abortion.

“If they thought it was a winning issue, they would have had a vote,” she said. “This could wind up being a case of getting what you wish for and then regretting it.”

See? Again, it’s those who support Roe vs. those who want to ban abortion entirely. Apparently, if you oppose Casey, and the O’Connor “undue burden” jurisprudence that strikes down immensely popular restrictions such as partial-birth abortion bans, you must want to start jailing pregnant women and their doctors for exercising basic abortion rights in the first trimester.

Today’s article is a blueprint. Look for various versions of this article to be published during the coming weeks and months. As you read them, remember: it’s all a false dichotomy. Replacing O’Connor will not overrule Roe. And overruling Roe will not outlaw abortion. But getting a good conservative Justice at the Supreme Court may open the way to restrictions that most Americans favor.

28 Comments

  1. I thought the exact same things when I read that headline this morning. Before reading the article I said to my husband, “look at this, how the Times is raving on about Roe vs. Wade since O’Connor resigned” And he said (correctly so) “it’s just the news media creating news again.”

    Comment by Jackie Warner (95d9f3) — 7/4/2005 @ 10:31 am

  2. And, of course, the Supreme Court can’t outlaw abortion, it can simply return the matter to the states. The story doesn’t say any different, of course . . . it just strongly implies it. Very clever.

    This time. In the past, they have stated outright that Roe’s reversal would “outlaw abortion.”

    Comment by Xrlq (158f18) — 7/4/2005 @ 10:36 am

  3. At this point, many from the left and right will turn their attention to abortion and assume instinctive attitudes. I doubt that the political debate will enlighten many, so I’d like to take this opportunity to put a plug in for a high-quality discussion of the compatibility of abortion with our democracy as a matter of principle: Thinking Critically about Abortion.

    This is a nonreligious discussion. All are welcome. So far, there have been valuable contributions to the discussion, leaving us at a point where we are between viability and conception with the question of personhood still unanswered.

    This is a good opportunity to hone your mettle. Of course, Patterico is also invited (and bring your friends).

    Comment by Paul Deignan (664c74) — 7/4/2005 @ 11:56 am

  4. “The retirement of Justice O’Connor does not, by itself, endanger Roe v. Wade. But it does raise the possibility that states may be entitled to pass sensible limitations on abortion, like strict parental notification, longer waiting periods with real informed consent, or — most importantly — a ban on partial-birth abortion.”

    But the retirement of SOC does ‘raise the possibility’ that Roe will go, since it would only take 1 more thomas/scalia/rehnquist replacing one more of the casey majority.

    “As you read them, remember: it’s all a false dichotomy. Replacing O’Connor will not overrule Roe”

    Speaking of false, its false that the LAT, in the quotes you have given us, tells that a SOC replacement will overrule ROE. But thanks for reminding us!

    Comment by actus (3be069) — 7/4/2005 @ 12:13 pm

  5. Speaking of false, its false that the LAT, in the quotes you have given us, tells that a SOC replacement will overrule ROE. But thanks for reminding us!

    No, they simply strongly imply it — as I said in the post. And the media will continue to do that throughout the battle this summer.

    Comment by Patterico (756436) — 7/4/2005 @ 12:23 pm

  6. Note also the weasel-wording: so-called “partial-birth” abortion.

    Comment by Ben Lange (b16a48) — 7/4/2005 @ 12:37 pm

  7. “No, they simply strongly imply it — as I said in the post. ”

    The part you quoted, and bolded, called it ‘one step closer’ to the end of Roe. That’s a strong implication that the destination (end of Roe) is reached? Not to me.

    The article refers to ‘prospect of progress’ to overturning Roe. Again, that’s not an implication that it will be overturned with a SOC replacement.

    Both of these are pretty clearly talking about headed towards the end of Roe, not getting there now.

    Comment by actus (3be069) — 7/4/2005 @ 1:15 pm

  8. Actus,

    My problem is your use of a strawman to suggest I said something false:

    Speaking of false, its false that the LAT, in the quotes you have given us, tells that a SOC replacement will overrule ROE.

    Speaking of false, I didn’t say that the LAT “tells” that an O’Connor replacement will overrule Roe. So it’s a strawman, bordering on a lie, for you to suggest that I did. I did warn against being suckered by the media doing that in the future.

    In fact, the story says the exact opposite. And it was an overstatement for me to say in my previous comment that the story strongly implies it; more accurately, the story strongly implies that the overruling of Roe would outlaw abortion, and that’s what I said in the post. But, it’s my judgment that the tone of the article, with its emphasis on the basic right to abortion, is unduly dramatic and creates in the mind of the lazy reader an apprehension that doesn’t exist in reality.

    Anyway, this is a waste of time, as responding to your trollish comments usually is. This all started with your bullshit suggestion that I said something false, when I didn’t. Why don’t you go back to the other thread and defend your equally bullshit suggestion that I claimed the editors do layout? Or, better yet, if you can’t refrain from claiming or suggesting that I have said things that I haven’t, why don’t you just step back from the keyboard until you get your false-accusation reflex under control?

    Comment by Patterico (756436) — 7/4/2005 @ 1:34 pm

  9. If you get a chance sometime, Patterico, I’d be curious what you think of a brief article I wrote for Findlaw, at http://www.abortionlaw.org. The article proposes a solution to the whole abortion controversy, and I doubt you’ve heard of it before.

    Anyway, Happy July 4.

    Comment by Andrew (b77187) — 7/4/2005 @ 2:08 pm

  10. “more accurately, the story strongly implies that the overruling of Roe would outlaw abortion, and that’s what I said in the post”

    It certainly strongly implies that. When really all that the end of Roe means is that these legislatures that constantly restrict abortion would finally succeed. How many red states you think would ban abortion outright?

    “Speaking of false, I didn’t say that the LAT “tells” that an O’Connor replacement will overrule Roe”

    No. You just said it was a blueprint, a version, of those who do.

    ” Why don’t you go back to the other thread”

    At least on that one the article ‘conveyed the impression’ rather than being a blueprint, a version, of those who do.

    Comment by actus (3be069) — 7/4/2005 @ 3:32 pm

  11. Facts:

    75-80% of people think that there should be limits on abortion with respect to minors and late term.

    75-80% think that there should be no restrictions on an adult womans right to a first trimester abortion. (I could go source this again, but I won’t).

    The Court isn’t going to strike down Roe no matter who replaces SOC and the Chief.

    Result: After this is over, the Court will begin to uphold state and federal abortion resrictions on the margin, moving the abortion “right” back to a minor “rational-basis” unenumerated right rather than strict-scrutiny Holy Writ. Which will, in effect, but not quite, overturn Roe.

    Abortion will be available in the first trimester for adults without restriction, and more limited as one mores towards the margins. As the middle 60% want.

    At this point, can we please move on? And, like, restore speech and gun rights?

    Comment by Kevin Murphy (6a7945) — 7/4/2005 @ 11:39 pm

  12. “And, like, restore speech and gun rights?”

    What gun rights decision do you want overturned?

    Comment by actus (cd484e) — 7/5/2005 @ 8:14 am

  13. Oh, I dunno. For starters, how about every friggin’ appellate decision that’s been made on the Second Amendment to date? Emerson construes the Second Amendment much too narrowly, and every other circuit denies there is one at all, so if the Supremes were half as serious about enforcing the Second Amendment as they are about enforcing the Fourth Amendment, the Fourteenth or the Establishment Clause of the First, their best bet would be to wipe the slate clean and start over.

    Then, when we’re done getting rid of all that absolutely awful appellate-level Second Amendment jurisprudence, maybe the Supremes can re-think two ancient turkeys of their own, namely U.S. v. Cruikshank (Second Amendment not incorporated because … well, just because) and U.S. v. Miller (ruling that the Second Amendment only protects weapons that bear a “reasonable relationship” to a “well-regulated militia,” while defining neither).

    Comment by Xrlq (5ffe06) — 7/5/2005 @ 8:48 am

  14. Unlike restrictions on speech, when you kill a child, it is final. There is no appeal for the child.

    The problem with abortion in this democracy is that it is a denile of an intrinsic right to life. Hence no intrinsic right to liberty. Hence no intrinsic rights.

    Abortion is a de facto recognition that government is supreme as JimBob seems to realize.

    Just in case there is any question about the assumptions supporting abortion, you should definitely read his analysis–and think.

    The comment was in reply to the post: Thinking Critically about Abortion.

    Comment by Paul Deignan (033ecb) — 7/5/2005 @ 8:54 am

  15. ” For starters, how about every friggin’ appellate decision that’s been made on the Second Amendment to date? ”

    I’m not familiar with 2A jurisprudence at all. What would you like it to look like? I’m guessing incorporation. Strict scrutiny for any restriction on keeping and bearing arms? Restrictions within the police power? Or how about registrations, or safety tests or other things which we might call common sense or just part of running a well regulated militia.

    Comment by actus (cd484e) — 7/5/2005 @ 9:50 am

  16. “more accurately, the story strongly implies that the overruling of Roe would outlaw abortion, and that’s what I said in the post”

    It certainly strongly implies that. When really all that the end of Roe means is that these legislatures that constantly restrict abortion would finally succeed. How many red states you think would ban abortion outright?

    He said “and, of course, the Supreme Court can’t outlaw abortion”. The SCOTUS not prohibiting the states from outlawing abortion is not the same as the SCOTUS “outlawing abortion”. Just as for example if the SC had ruled the other way on medical marijuana it would not be correct to say the SCOTUS “legalized marijuana”. Advocates of medical marijuana would have said correctly the SC was just allowing states to decide for themselves. The wording “moved them one step closer to their goal of outlawing abortion” clearly creates the impression that conservatives seek to have the court itself outlaw abortion nationally rather than permit individual states to do so. It also creates the impression of something being imposed on the nation. This is an important and elementary distinction that lying liberals always obfuscate, at least on Roe v Wade.

    Comment by Gerald A (dd601b) — 7/5/2005 @ 9:54 am

  17. ‘He said “and, of course, the Supreme Court can’t outlaw abortion”. ‘

    I’d say it can. It would just need to adopt radical cleric dobson’s view that life begins at conception and that abortion is murder which is outlawed.

    “The wording “moved them one step closer to their goal of outlawing abortion” clearly creates the impression that conservatives seek to have the court itself outlaw abortion nationally rather than permit individual states to do so.”

    Overturning Roe is one necessary step in the goal of outlawing abortion, whether that outlawing is done judicially or by legislatures. No ‘clearly created’ impression that its the courts that ultimately do this.

    Comment by actus (cd484e) — 7/5/2005 @ 10:02 am

  18. I’d say it can. It would just need to adopt radical cleric dobson’s view that life begins at conception and that abortion is murder which is outlawed.

    Oh, please. Even if the Supreme Court adopted the view that life begins at conception for purposes of the federal Constitution, all that would follow is that state and federal (mostly state) murder laws may constitutionally apply to cover the unborn, not that they do, especially if they were last enacted or amended during the Roe era. Besides, the ultimate say in what a state law means is the court of last resort of that state – not the U.S. Supreme Court.

    All this is pretty basic stuff you’re struggling with, Actus. Where did you say you’re getting your law degree from? Sears, Roebuck, perhaps?

    Comment by Xrlq (ffb240) — 7/5/2005 @ 11:03 am

  19. “Even if the Supreme Court adopted the view that life begins at conception for purposes of the federal Constitution, all that would follow is that state and federal (mostly state) murder laws may constitutionally apply to cover the unborn, not that they do, especially if they were last enacted or amended during the Roe era.”

    I’m not following your ‘may.’ It seems to me that there are plenty of state and federal laws that cover the taking of life, which would pretty immediately apply from the definition that a foetus was a life. You’re right, states would be free to call that not murder, and prosecutors may not go after such crimes.

    I think we can agree that the Supreme Court has the ability to define abortion in such a way as to cause it to fall under existing criminal laws, and in this way, ‘outlaw’ abortion.

    I doubt they would ever do that though. No matter how many dobson-pleasing nominees.

    Comment by actus (cd484e) — 7/5/2005 @ 12:40 pm

  20. No, Actus, we can’t agree that the U.S. Supreme Court has the power to decide whether or not a state murder law should be construed to include abortion. I’m baffled that you are seriously entertaining this possibility at all.

    Comment by Xrlq (ffb240) — 7/5/2005 @ 1:43 pm

  21. “No, Actus, we can’t agree that the U.S. Supreme Court has the power to decide whether or not a state murder law should be construed to include abortion.”

    What do you think would be the result if the Supreme Court ruled that life begins at conception? To me its quite clear that then destroying a foetus is a homicide, unless the states went and made (or have already made) exceptions to their understanding of homicide.

    Comment by actus (cd484e) — 7/5/2005 @ 3:01 pm

  22. If the Court determined that a constitutional right to life existed beginning at conception, then, no, the states could not infringe on that right by statute, judicial decision, or state con amendment.

    Maybe I’m misunderstanding. In any case, it’s a pretty unlikely scenario. I tend to agree with Kevin’s predicted “result” (#11). Roe will simply get the squeeze.

    Comment by biwah (f5ca22) — 7/5/2005 @ 3:15 pm

  23. The U.S. Supreme Court doesn’t have the authority to say what a word does or doesn’t mean for purposes of state law. The most it can do is rule that life begins at conception for purposes of federal laws, and then only if they do not clearly express a contrary intent. After that, it would be up to each state supreme court to rule whether or not its own homicide laws were intended to cover all acts the U.S. Supreme Court now says they can constitutionally treat as homicide, or whether they were intended to do something else.

    Comment by Xrlq (5ffe06) — 7/5/2005 @ 4:56 pm

  24. I agree that they can’t impose upon states to outlaw abortion, but I still think that they can go a long way towards placing it under current laws covering homicide. Of course the states are free to escape this.

    Now none of this means that there can’t be federal laws which might work.

    Comment by actus (3be069) — 7/5/2005 @ 5:26 pm

  25. I think the notion of a federal ban on abortion is extremely far-fetched. For one thing, any Senate that would consider borking an otherwise qualified conservative judge over his stance on Roe is a Senate that would never pass such a law anyway. For another, any Supreme Court that was conservative enough to overrule Roe would likely also be conservative to strike down a federal abortion ban as a clear violation of the Tenth Amendment.

    Comment by Xrlq (6c76c4) — 7/5/2005 @ 6:10 pm

  26. I was referring to a definition of life that construed a fetus as possessing that fundamental right. The possibility of this ever happening seems far-fetched but you never know.

    Anyway, any infringement on a fundamental right will have to pass strict scrutiny under the 14th Amendment. Some law permitting abortion could pass that test, but I imagine it would have to do so only where another life is threatened, i.e. mother’s fundamental right to life threatened by failure to abort.

    It is also possible that Congress could legislatively create such a definition of life, and the Court would have to apply it in a constitutional analysis as described above.

    Comment by biwah (7f3ccc) — 7/5/2005 @ 7:50 pm

  27. Nah. The 14th Amendment only applies if the state is the one doing the aborting. It doesn’t require states to prohibit private citizens from murdering each other on their own.

    Comment by Xrlq (158f18) — 7/5/2005 @ 9:10 pm

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