Patterico's Pontifications

10/5/2008

David Savage Cries Wolf on Abortion Yet Again

Filed under: 2008 Election,Dog Trainer,General — Patterico @ 4:31 pm

David Savage, the Boy Who Cried Wolf, today tells us that there really is a wolf out there. And this time (he says), he’s not lying!

Savage has a front-page Sunday-edition article titled This time, Roe vs. Wade really could hang in the balance. This time, definitely! The deck headline reads:

The Supreme Court’s onetime wide majority in favor of abortion rights has shrunk to one: Justice John Paul Stevens, who is 88. Now the decision’s fate may depend on who becomes the next president.

And the lead paragraphs:

WASHINGTON — Every four years, defenders of abortion rights proclaim that the fate of Roe vs. Wade hangs on the outcome of the presidential election.

This year, they may be right.

Through most of the 1990s and until recently, the Supreme Court had a solid 6-3 majority in favor of upholding the right of a woman to choose abortion. But the margin has shrunk to one, now that Justice Sandra Day O’Connor is retired and has been replaced by Justice Samuel A. Alito Jr.

Nonsense. David Savage doesn’t know that. Yet he insists on giving prominence to the sky-is-falling concerns of the NARAL crowd:

“Clearly, Roe is on the line this time,” said Indiana University law professor Dawn Johnsen, a former lawyer for NARAL Pro-Choice America. “It is quite clear they have four votes against it. If the next president appoints one more, the odds are it will be overruled.”

It is not “quite clear” at all. Indeed, there is good reason to believe that there is still a 6-3 majority in favor of upholding Roe, based on the actual language of recent opinions.

As I have previously written, we have no way of knowing whether Justices Alito and Roberts would vote to overturn Roe:

There are, as we speak, two clear votes for overturning Roe. And Roberts and Alito aren’t either of them.

In the most recent major abortion decision, Gonzales v. Carhart, Justice Thomas wrote a concurrence that stated his opposition to Roe:

I write separately to reiterate my view that the Courts abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.

He was joined by only one Justice: Antonin Scalia. To the disappointment of Roe opponents, Justices Alito and Roberts pointedly refused to sign on to that concurrence.

Nowhere in Savage’s article does he tell readers that Justices Alito and Roberts had a chance to sign on to an opinion rejecting Roe, and refused to do so. The closest Savage comes to making this point is in this paragraph, which is the 26th paragraph of a 32-paragraph article:

If Stevens or Ginsburg were to be replaced by a staunch conservative, that would tip the majority against abortion rights. However, it is not certain that Roberts and Alito would join Scalia and Thomas in pressing to overrule the right entirely.

Why are readers not told until the 26th paragraph that Alito and Roberts may not vote to overturn Roe? Why are readers never told that Alito and Roberts had a chance to sign an opinion overturning Roe and refused? Why are readers told that a majority that may well be 6-3 has “shrunk to one”?

And is it just a coincidence that the alarmist view of the Court espoused by Savage benefits the Obama campaign?

I don’t know, but I know that Savage has shown a pattern of crying wolf in reporting on this issue. Before “Justice Sam Alito” was even a gleam in President George W. Bush’s eye, Savage was busy implying that John Roberts could be the fifth vote against Roe, by calling Justice O’Connor (whom Roberts was then set to replace) the “swing vote on . . . abortion.” (See also this 2005 post.) In January 2006, once Justice Roberts was on the Court, it was Justice Alito’s turn to become the bogeyman, as Savage misleadingly implied that Alito would be a fifth vote to overturn Roe.

Since then, Savage has been screeching in article after article that McCain could provide the Court with the fifth vote to overturn Roe — just like Savage previously suggested would happen with the appointment of Roberts, and then again with the appointment of Alito.

And just look at how simple this will be for McCain! All McCain has to do is a) win the election, b) nominate a justice conservative enough to vote to overturn Roe, something that has happened twice in the last 36 years, c) get that justice confirmed by a Senate controlled by Democrats, who may have a filibuster-proof majority, and d) get Justices Alito and Roberts to sign on to an opinion disapproving Roe, which they have so far refused to do.

Piece of cake! No wonder David Savage is so worried.

Because this time, the wolf is really out there!!!

37 Responses to “David Savage Cries Wolf on Abortion Yet Again”

  1. I could make a FAR better case that the 2nd Amendment hangs in the balance. After all, it WAS 5-4 to even consider the 2nd Amendment having meaning.

    I could also make a case that IF Alito and Roberts intend to overturn Casey, they might already have a 5th vote in Kennedy who is rightously P.O.ed at Souter for promising to support reasonable limits on abortion as a trade for getting Casey, then welching.

    Besides, isn’t Roe settled law? [/sarcasm]

    Kevin Murphy (eb4d6c)

  2. The election of John McCain to the Presidency will certainly bring about Armegeddon.
    He will appoint Conservative Justices who will help reverse Roe, forcing Liberal women to give birth to their mistakes, and raising a new generation of little libs/community organizers.
    A Reversal of the Roe Effect!
    What calamity will be visited upon us?

    AOracle (e6d3fc)

  3. get that justice confirmed by a Senate controlled by Democrats, who may have a filibuster-proof majority
    .
    For blocking judges, all that’s needed is a filibuster-sustaining minority of 41. For passing judges, one would need a filibuster-proof majority of 60.
    .
    Not that it matters for your analysis, either way, the DEMs can and will block nominees. And that being the new system, I trust Republicans will do the same if Senator Obama wins the presidential race.

    cboldt (3d73dd)

  4. “As I have previously written, we have no way of knowing whether Justices Alito and Roberts would vote to overturn Roe”

    How much money are you willing to bet against that?
    This post is a sham

    Readnek (105b91)

  5. Readnek, I missed the part where you provided contrary evidence.

    SPQR (26be8b)

  6. Clearly abortion and gun rights are not relevant issues in this campaign, and liberals are silly to even bring these issues up. After all, in the VP debate, Gwen Ifill didn’t ask one question on these subjects and I didn’t read one liberal commentator or blog commenter complaining about it.

    DRJ (c953ab)

  7. Abortion is an issue that is brought up all the time to scare women voters. Indeed, Joe Biden brought up Roe v. Wade in the debate (note without being questioned by Ifill about it) in a shameless pander to women voters. I think Patterico’s analysis is spot-on. Besides, even if all of those events occurred to lead to Roe v. Wade being overturned, it will still be legal in 17 states that had statues on the books making it so (I assume prior to Roe v. Wade). Don’t you suppose that NOW and Planned Parenthood could mobilize pretty quickly to get measures on the ballots in the remaining states, to allow the people to decide whether to legalize it?

    Janemarie (faa07c)

  8. I wish I were only smart enough to understand how the left can keep saying that we of the right are always trying to rule by fear.

    Meanwhile they keep talking about how the guy who was Governor when two of the yahoos that killed James Byrd were sentenced to death and the one who talked was sentenced to life without parole was all ready to burn down black churches.

    Peter (6afa35)

  9. Personally I wouldn’t mind a SCOTUS stuck at eight members for awhile if Stevens were the justice tossed off the island.

    Split 5-3 for conservative causes, and 4-4 for others. And those 4-4 decisions carry no precidential weight.

    Soronel Haetir (644722)

  10. Patterico – All McCain has to do is a) win the election, b) nominate a justice conservative enough to vote to overturn Roe, something that has happened twice in the last 36 years, c) get that justice confirmed by a Senate controlled by Democrats, who may have a filibuster-proof majority, and d) get Justices Alito and Roberts to sign on to an opinion disapproving Roe, which they have so far refused to do.

    You left out a couple:
    a1) One of the justices must resign, and that must be one of the ‘liberals’ of the court.

    e) Have his choice of ‘conservative’ justice perform as he or she is ‘supposed’ to, unlike many other justices nominated by other ‘right wing’ Presidents.

    f) And here’s the zinger – convince the court, post Roe, to rule abortion illegal, something that Scalia has written has no Constitutional basis – because, you see, it’s not really about Roe v Wade entirely. If Roe was overturned, and then the question was settled, the left would lose an incredible rallying point for many who wouldn’t otherwise vote Democrat. The left does not want to see the matter settled, especially in its favor.

    Leftists thrive by causing problems, conservatives thrive by solving them.

    Apogee (366e8b)

  11. Apogee–

    Good point. As of now there are exactly ZERO justices willing to rule abortion unconstitutional. At worst they would toss it back to the states and it is very unclear if ANY state would outlaw the procedure, knowing that the decision is not just posturing.

    Kevin Murphy (0b2493)

  12. What strange values we have in main stream America.
    American women have the right to sacrifice unborn Americans at the altar of selfishness and all under the guise some “woman’s rights” ( keep your laws off my body ) while the father has no such rights unless its all about the money, then he is considered important.

    As Ronald Reagan once said:
    “Abortion is advocated only by persons who have themselves been born.”

    I don’t under stand the lefty, “liberal” view that abortion is A-OK, yet the death penalty is an abomination.

    Of course I don’t have the ability to get my head that far up my rectum to see that view point.

    ML (14488c)

  13. The last Democratic candidate for President or for Vice-President who was pro-life was R. Sargent Shriver, in 1972.

    Official Internet Data Office (799ce0)

  14. A woman is bound and determined to end her pregnancy, she is going to end her pregnancy. You want to stop her, you’re going to have to work harder than she is. I remember when abortions were illegal, women still had them. They tended to be more dangerous, women still had them. People got arrested, convicted, and did time. Women still had them. It’s very simple, a women doesn’t want to have a child, she will find a way to not have that child, and there’s nothing you can really do about it.

    It’s murder? I don’t think you understand what murder is. A fetus at three months is an easily dashed hope. At six months it’s barely tenable, and then only with a lot of backbreaking work. A woman with reasonable access to abortion goes through nine months followed by a successful birth ups and kills the kid, then you’re talking homicide.

    I have a stricter definition of homicide than some folks do. Terminating a pregnancy isn’t part of it. I’m also not convinced that a murderer is automatically beyond redemption. I’m not going to trust his say-so, but I won’t reject any attempts he makes at redemption out of hand.

    A woman who takes reasonable precautions but gets pregnant anyway? How she handles it is her business. A woman who takes no precautions at all? Still her business.

    But what about God? That’s God’s business. He’s got an issue with women who have abortions I’m certain He can handle it fine without our help. God wants to forgive a woman who had an embryo flushed out, that’s God’s business and you can butt out.

    You can’t make people do what you think is the right thing, all you can do is encourage them. When they do something you think is wrong you have to ask yourself; is it worth my time, or society’s time, to go to the extreme on this? With homicide yes, it is worth society’s time to go to the extreme, for a murderer is a real threat to society and those who live in that society. A woman who gets an abortion? Hardly, for the vast majority of women who have abortions are not a threat to society.

    Let’s focus on issues that really matter, and stop fussing over things there is no need to worry about in the first place.

    Alan Kellogg (e4d258)

  15. Alan, it’s definitely the case that if abortion were illegal, far fewer women would have abortions.

    Your argument that a ban cannot succeed 100% is a silly one to make. Would you make it for any other behavior?

    And of course, if Roe v. Wade were rightfully struck down on the simple lack of merit to the ‘implicit to ordered liberty’ nonsense, abortion would remain legal all over the country. In the few states that outlaws abortion outright, women would be free to go to a doctor elsewhere. It would be a lot harder for children to lie about their age to planned parenthood down the block… they would have to take their problems to their parents.

    Also, adoptions would increase. And more people would be alive to support our economy, create new inventions, and enjoy life.

    You’re certainly right that Mccain nor Obama will make a difference on the issue. Obama believes in infanticide and was stalwart on supporting it… and Mccain knows when life begins. But no one is touching that issue.

    Juan (4cdfb7)

  16. Also, Alan, with all due respect, the idea that God would intervene if he had a problem with abortion is a silly one that my mother in law shares. Do you really believe there is a God? And s/he might be OK with abortion for convenience? You really think that’s one of the reasonable possibilities?

    Go down to family court or follow a Child Abuse prosecutor and watch a docket and tell me that God intervenes. There may be a God, but s/he lets bad things happen. You can think it’s for free will all day long. You’d think the holocaust and North Korea would have taught us that by now.

    Juan (4cdfb7)

  17. We have this financial crisis and people are worried about abortion ?

    Michael Ejercito (a757fd)

  18. Mcain – Palin has one thing going for me – they are the only non-lawyers in the mix.

    Gbear (58b08c)

  19. I suppose when you own the kitchen, you can just turn off the heat when you feel the need. Eh, Mr. Patterico?
    Seems a posting or two went missing here. What rule was broken to cause that, other than perhaps challenging your post about David Savage as strongly as you made it?
    This blog must be edited by Winston Smith.

    Larry Reilly (d11f9a)

  20. Larry Reilly,

    I will look in the filter for any comments, but you are wrong to think your comments have been deleted or targeted. Patterico has had very frustrating server problems for several weeks, and he has spent countless hours dealing with it – I know because I’ve helped whenever I could.

    Fortunately, things are looking better after some work they did this morning.

    DRJ (c953ab)

  21. Larry Reilly,

    I checked the filter and didn’t find any comments there. The website was very slow earlier today and is still sluggish. My best guess is that if you submitted a comment that didn’t show up, it didn’t post because of the server issues.

    DRJ (c953ab)

  22. Larry – Your comments are comical, not challenging.

    daleyrocks (d9ec17)

  23. DRJ – It is entirely possible that Larry was pushing the “Submit Comment” button with his finger on the monitor.

    JD (f7900a)

  24. JD – It’s entirely possible that Larry was having visions of his oh so challenging comments entirely in his mind, you know, where he splits atoms.

    daleyrocks (d9ec17)

  25. I posted last evening. It was there, in the postings not just the pre-posting box, when I came back a little later. There even was a comment about my posting by SPQR and then a response from me. All gone.

    Larry Reilly (d11f9a)

  26. It’s a conspiracy Larry.

    daleyrocks (d9ec17)

  27. Larry Reilly,

    Email Patterico with your concerns because he may not see this. Someone tries to read every comment in these threads but we can’t always do it.

    DRJ (c953ab)

  28. One might think that MyNameIsLarry would just repost his comment instead of whining about his previous post disappearing.

    Icy Truth (1468e4)

  29. Encore une fois, from last night, with one of the famous Seven Dirty Words removed, just in case that is what made the posting so ephemeral:

    You’re spinning this more than a White House flack wearing fishnet stockings.
    You know exactly why Alito and Roberts, in upholding this ban on a particular aspect of abortion, declined to join Scalia and Thomas in a sweeping concurrence that went well beyond the matter at hand. They went against previous and recent Supreme Court opinion just the same. They voted to uphold the prohibition of late-term abortion at issue in the case.
    Never mind that the same issue had come before the court seven or so years earlier with an entirely different outcome. So much for staring decisively at challenges to prior rulings.
    You’re spinning this, and smearing David Savage, because you’re working the refs for the next time, the next chance, to increase the value of your shares in a company that manufactures coat hangers. (Hyperbole, of course. Your are pushing the policy of the Church. That’s fine. Go with any religion, there are many, but don’t EFFing EFF with the truth behind the politics of it all.)
    You know gosh-darned-you-betcha well that Roberts and Alito will come through if and when they can knock down Roe v. Wade in its entirety. They know what they’re doing. They didn’t want to raise any more hackles than necessary in Gonzales v. Carhart, what with it coming so soon after their careful and calculated testimony in the Senate aimed at masking what everyone already knew. We know that ritualized dance.
    They’re waiting for the right time (decent interval from their joining the bench) and right case with which they can dispatch Roe v. Wade such that there will be no more questions. You know that’s the game.
    And you’re trying to help give them cover by saying no one can know how they’re going to go on the big issue.
    BS.
    As for your multi-exclamation mark attack on David Savage’s work, you, sir, are the drama queen, replete with short, tight skirt and makeup caked on with a trowel (see McCain misogyny dictionary).
    You can sway this gaggle of munchkins here, but you can’t put together an argument on this that might withstand serious scrutiny. As someone here asked, you bettin’ money that there’s no way of knowing how Roberts and Alito will go on abortion?

    Larry Reilly (d11f9a)

  30. Larry – I had the same problem several days ago. I commmented, saw the comment, left the page, came back, and they were still there.

    In the morning, they were gone.

    It is a conspiracy.

    By extra-terrestrials.

    And Patterico.

    Which must mean…

    Patterico is an extra-terrestrial.

    And because I think it’s true, it must be true.

    Apogee (366e8b)

  31. Larry Reilly,

    You left that comment on a different David Savage thread. Did you also try to leave it earlier on this thread?

    DRJ (c953ab)

  32. What I don’t see in all this overheated comment is the fact that abortion was legal before Roe V Wade. It was legal in California in 1969 because I did some. Had William O Douglas not jammed the decision down the country’s throat, it might be settled law by now.

    Mike K (d8deba)

  33. You’re spinning this more than a White House flack wearing fishnet stockings.
    – Is that some kind of sexist slight of Dana Perino? Nothing but class, Larry.

    You know exactly why Alito and Roberts, in upholding this ban on a particular aspect of abortion, declined to join Scalia and Thomas in a sweeping concurrence that went well beyond the matter at hand.
    – For the exact reason that Patterico stated?

    They went against previous and recent Supreme Court opinion just the same. They voted to uphold the prohibition of late-term abortion at issue in the case.
    – “previous” AND “recent”, Mr. Mensa?

    Never mind that the same issue had come before the court seven or so years earlier with an entirely different outcome. So much for staring decisively at challenges to prior rulings.
    – So much for you trying to make coherent sense. This entire issue is based on a mistaken prior ruling.

    You’re spinning this, and smearing David Savage, because you’re working the refs for the next time,
    – WHO are the “refs” that Patterico is working?

    the next chance, to increase the value of your shares in a company that manufactures coat hangers.
    – Did I already use “nothing but class”? Okay. Nothing but ass, Larry.

    (Hyperbole, of course.
    – Too late.

    Your are pushing the policy of the Church. That’s fine. Go with any religion, there are many, but don’t EFFing EFF with the truth behind the politics of it all.)
    – I feel like such an outsider, being a pro-life agnostic. And just what is the the fucking truth behind the politics that Patterico is trying to fuck with?

    You know gosh-darned-you-betcha well that Roberts and Alito will come through if and when they can knock down Roe v. Wade in its entirety. They know what they’re doing.
    – It’s that “if and when” part that is the sticking point, for Scalia and Thomas as well. And that is why Patterico is exactly right that Savage is crying wolf.

    They didn’t want to raise any more hackles than necessary in Gonzales v. Carhart, what with it coming so soon after their careful and calculated testimony in the Senate aimed at masking what everyone already knew. We know that ritualized dance. They’re waiting for the right time (decent interval from their joining the bench) and right case with which they can dispatch Roe v. Wade such that there will be no more questions. You know that’s the game.
    – Whose hackles would they be raising? What a goof you are. It is ALL about the right case; Scalia said so in his 60 Minutes interview. The timing, including allowing a span of time to pass post-confirmation, has nothing to do with it.
    And you’re trying to help give them cover by saying no one can know how they’re going to go on the big issue. BS.
    – It depends on the particular case. You said it yourself.

    As for your multi-exclamation mark attack on David Savage’s work, you, sir, are the drama queen, replete with short, tight skirt and makeup caked on with a trowel (see McCain misogyny dictionary).
    – As for your ad hominem attack on the host of this blog, you, sir, need to grow up.

    You can sway this gaggle of munchkins here, but you can’t put together an argument on this that might withstand serious scrutiny. As someone here asked, you bettin’ money that there’s no way of knowing how Roberts and Alito will go on abortion?
    – As proven in his post, DEPENDENT UPON THE SPECIFIC CASE, no — there is no way to know for sure, unless you are being literal. They are Catholics and are personally opposed. And absolutely, given the right case they may well vote to overturn Roe. What YOU don’t know is whether or not the right case will ever present itself during their enures on the court.

    Icy Truth (1468e4)

  34. Mike K — You “did some”?

    Icy Truth (1468e4)

  35. Wow Larry, that sure is one tightly reasoned comment. I am glad you took the time to repost it. I needed a good laugh tonight!

    daleyrocks (d9ec17)

  36. Larry,

    1. I never saw or deleted the comment to which you refer. Looks to me like you left it on a different thread. In any event, I assure that you falsely accused me of deleting it, and it appears that the fault lies with you and not my filter.

    I’ll be waiting right here, holding my breath, awaiting my apology!!!

    2.. You say: “You know gosh-darned-you-betcha well that Roberts and Alito will come through if and when they can knock down Roe v. Wade in its entirety.”

    How sure of that are you? Put some specific odds on the proposition that you’re wrong.

    3. You don’t understand my exclamation points. They’re ironic. I learned that from Mickey Kaus.

    I just used them again in #1!

    Patterico (339c72)

  37. Nothing new here. Why, I’m old enough to remember the Robert Bork confirmation fight when, way back in 1987, everyone in the media from Time to the Times were claiming he could represent the 5th vote to overturn Roe (O’Conner was included among the other 4, notwithstanding the fact she had already established herself as unwilling to overturn Roe by then).

    Sean P (e57269)


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