Postcards from the Ledge: Miers Speeches Indicate a View of Abortion as an Issue of “Self-Determination”
[“Postcards from the Ledge” is a semi-regular feature of this site, detailing revelations about Harriet Miers that have driven your gentle host out onto the window ledge.]
From the Washington Post (h/t this commenter):
Supreme Court nominee Harriet Miers said in a speech more than a decade ago that “self-determination” should guide decisions about abortion and school prayer and that in cases where scientific facts are disputed and religious beliefs vary, “government should not act.”
In a 1993 speech to a Dallas women’s group, Miers talked about abortion, the separation of church and state, and how the issues play out in the legal system. “The underlying theme in most of these cases is the insistence of more self-determination,” she said. “And the more I think about these issues, the more self-determination makes sense.”
It gets worse:
“The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s [sic] right to decide for herself whether she will have an abortion,” Miers said.
Those seeking to resolve such disputes would do well to remember that “we gave up” a long time ago on “legislating religion or morality,” she said. And “when science cannot determine the facts and decisions vary based upon religious belief, then government should not act.”
Does she still sound like a stealth anti-Roe candidate to you??
She also had an interesting view on judicial activism — i.e., sometimes we need it:
“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.
Read the whole thing, and weep.
A colleague at work recently analogized social and judicial conservatives to Charlie Brown, and Republican presidents to Lucy. Every time, Charlie Brown thinks Lucy is going to let him kick the football. Just like, every time, conservatives think that Republican presidents are going to allow them to make progress on issues like Roe v. Wade.
And every time, Lucy pulls the football away.
Reading this latest Washington Post article, I’d just like to say on behalf of judicial conservatives:
AAAAAAAAAAUUUUUUUUUGGGGGGGGHHHHHHH!!!
UPDATE: Here is a link to the speech itself. The link is via Orin Kerr at Volokh, who notes this revealing passage:
What else do we hear a lot today about the Courts. The law and religion. A preacher in Dallas is challenged by suits charging that he is ripping off the helpless and defrauding them with prayer cloths, etc. Abortion clinic protesters have become synonymous with terrorists and the courts have been the refuge for the besieged. The Branch Davidian compound became a sight for speculation about legal responsibilities and legal rights. The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion. Questions about what can be taught or done in public places or public schools are presented frequently to the courts.
The law and religion make for an interesting mixture but the mixture tends to evoke the strongest of emotions. The underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes the most sense. Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of.
Kerr also notes the observation of a reader at Bench Memos that the Court had recently decided Casey.
UPDATE x2: I have now had a chance to read the original speech, and it is instructive. First, I note that the thrust of what Miers was trying to say about the interplay between the courts and the legislature was that the legislature has abdicated its responsibility. (Incidentally, I think that message comes through in the quote I selected to include in the post, despite the arguments of a couple of commenters here that I somehow ripped that quote out of context — an accusation that I disagree with.) What continues to disturb me is the underlying assumption that it’s okay for the courts to step in when the legislature fails to fix an issue. However, I’m willing to remain open-minded on that concern, since court action is indeed sometimes necessitated by legislative inaction.
Second, I think it is less than crystal clear from the speech (which is badly worded and confusing) that the “self-determination” comment relates to abortion. As the quote I provide above shows, it comes in the context of discussing cases about “the law and religion” — but interestingly, the previous paragraph seems to indicate that Miers sees abortion cases as cases about law and religion. So we can’t say for sure that Miers believes that “self-determination” is the way to go on abortion cases, as the Post suggested.
Does that assuage the concerns this speech raises about Miers and abortion? No, it doesn’t. The reason is a quote I bolded above: “The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women’s right to decide for herself whether she will have an abortion.” That is the way an abortion-rights supporter frames the issue, folks. There it is, in context. There is no denying that this is an incredibly demoralizing revelation for anyone who believes that Roe and Casey must be overruled.
