Patterico's Pontifications

11/13/2005

This Time, It’s Personal — So to Hell with the Facts!

Filed under: Abortion,Judiciary — Patterico @ 9:14 am



Kate Michelman has an op-ed in this morning’s Los Angeles Times titled This time, Alito, it’s personal. I guess the fact that it’s personal frees Michelman from any constraints of accuracy.

Her piece opens this way:

LOOKING BACK more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or — many years later — Supreme Court nominee Samuel A. Alito Jr.’s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”

I consider it insulting to compare a spousal notification provision, such as Alito ruled on, to a spoual consent provision, such as Michelman faced. Michelman acknowledges the distinction further down in the op-ed, but saying so up front would have detracted from the power of her opening. She continues:

In 1969 — in those distant but suddenly closer days before Roe vs. Wade — my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.

In the 1992 case of Casey vs. Planned Parenthood, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Such a requirement, he ruled, was not an “undue burden” on most women. The vast majority of women, he noted, voluntarily discuss an abortion with their husbands, while the law provided a nominal exception for women in the most extreme circumstances, such as abusive relationships.

The only women who would be burdened were all those left in the middle — women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.

Michelman’s only apparent “extraordinary and individualized circumstances” were that her husband had deserted her. She makes it sound as though the law made no provision for such a situation — and indeed, could not “possibly anticipate” it. Yet the law in question explicitly provided an exception in cases where the husband “cannot be found after diligent effort.” A woman needed only to sign an unnotarized statement to that effect, and did not need to provide evidence supporting her statement.

Big deal, Kate. Why didn’t you explain that to your readers? Again, because it’s “personal” — and what do the facts have to do with it, when it’s “personal”? But wait . . . I guess it’s not personal after all:

To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t.

The headline writer thinks you do. And so do I.

Further evidence for my conclusion comes in Michelman’s scare tactics, making it sound as though Roe v. Wade hangs by Justice O’Connor’s vote:

But [Alito’s] potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote — Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor — as is obviously the case — his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.

It’s hard to see how a woman’s right to choose can be “immediately” threatened when the Court currently has six solid votes in favor of that right: Ginsburg, Breyer, Stevens, Souter, Kennedy, and O’Connor. If O’Connor is replaced by Alito, and if Alito turns out to be a vote against Roe, and if Roberts is as well, that’s still 5-4 in favor of a woman’s right to choose. We would still have to replace one of the remaining five with yet another Justice opposing Roe, and then get a case to the Supreme Court that would allow that Justice to cast vote to reverse Roe.

None of this sounds very immediate, Kate.

And the fact that a distorted reading of Judge Alito’s vote in one case might offend you is not a compelling reason to filibuster a qualified candidate to the Supreme Court, as you suggest Senators should do with Alito. No matter how personally you might be offended.

UPDATE: Andrew at Confirm Them has more on Michelman’s piece.

20 Responses to “This Time, It’s Personal — So to Hell with the Facts!”

  1. We’ve posted about Michelman’s piece at confirmthem. http://www.confirmthem.com/?p=1911 Coincidentally, the title of our post is very similar to yours.

    Andrew (381af8)

  2. […] UPDATE: Patterico also believes that Ms. Michelman’s op/ed glosses over some important facts. No responses to ‘Michelman Versus the Facts’. RSS feed for comments and Trackback URI for ‘Michelman Versus the Facts’. […]

    Confirm Them » Michelman Versus the Facts (5c7b11)

  3. For Ms. Michelman, the decision to kill an unborn baby is a “wrenchingly” personal one. Why does she consider it wrenchingly difficult? The only way I could see her being wrenchingly upset over this decision would be if she was seeing herself as doing something morally wrong, like taking a life. But of course she couldn’t possibly think that was the case, or else the decision would be quite simple — you just wouldn’t take the life. I just can’t see agonizing over the question whether or not you should kill a baby. You just shouldn’t do it. Either you think it’s just a tomato, in which case you can do what you will with it and there’s no reason to get upset, or you think it’s a human life, in which case you don’t hurt it. Where does the agonizing come into the question?

    dbn (fc3b7a)

  4. And if it is truly a human life, then doesn’t that human have some rights too? I’m still curious exactly when the “right to choose” accrues to the woman? Does it include the right to choose to live? Good observation dbn.

    I can’t help but offer the same logic with respect to “safe, legal and rare.” Why rare if the issue isn’t fundamentally the question as to when the fetus becomes a human?

    But the issue in the instant case is “what does the consitution have to say?” not what we think public policy ought to be. Even if Alito agrees with me regarding the sanctity of unborn life, if the constitution truly recognizes the “right to privacy” as alleged by the Roe decision, then I would expect Alito to affirm that right in future decisions.

    I do not want an activist court from EITHER side of the spectrum. That arguably simply isn’t their job.

    Harry Arthur (b318a5)

  5. Interesting that the left now wants a litmus test but firmly rejected the concept when Reagan was selecting judges.

    Harry Arthur (b318a5)

  6. Go right ahead, Kate!

    One might ask if “With Liberty and Justice for All” would be an appropriate title, given that she certainly didn’t seek liberty or justice for the unborn.

    Common Sense Political Thought (819604)

  7. I wonder if Kate Michelman had a personal choice, would she rather live under a repressive dictatorship which permitted abortion on demand, or would she prefer life under a free republic which bans abortions?

    Black Jack (ee9fe2)

  8. Black Jack asks, rhetorically:

    I wonder if Kate Michelman had a personal choice, would she rather live under a repressive dictatorship which permitted abortion on demand, or would she prefer life under a free republic which bans abortions?

    She does have a personal choice; if she wishes to emigrate to the People’s Republic of China, where they not only have abortion on demand, but even allow the government to be the one to demand it, no one will stop her.

    I notice that she hasn’t left yet.

    Dana R. Pico (8d0335)

  9. Harry Arthur wrote:

    But the issue in the instant case is “what does the consitution have to say?” not what we think public policy ought to be. Even if Alito agrees with me regarding the sanctity of unborn life, if the constitution truly recognizes the “right to privacy” as alleged by the Roe decision, then I would expect Alito to affirm that right in future decisions.

    Even if there is a right to privacy enshrined in the Constitution, that does not mean it would cover abortion. We certainly don’t accept the idea that the right to privacy covers committing incest in one’s own home, we don’t accept the notion that you can commit any crime in your own home, and be immune to prosecution because of the right to privacy.

    And abortion is hardly a private act. It involves the traveling out of one’s home, to a doctor’s office or a clinic (both of which are regulated businesses), disclosing one’s pregnancy and desire to terminate it to a receptionist, a nurse, a physician and at least a couple of other health care professionals, it involves prescriptions, the payment of money, all sorts of things that are public acts regulated by government.

    That someone can claim that this is a privacy issue is amazing.

    Dana R. Pico (8d0335)

  10. Off Topic:

    Anyone catch the news that Al Zarqawi may not be from Jordan after all. MSM identifies him as Jordanian, but he may actually be from Palestine and only grew up in a refugee camp in Jordan.

    If so, his hatred for Jordan, remember Black September, could be behind the hotel attacks.

    Black Jack (ee9fe2)

  11. Jordan is Palestine.

    Angry Clam (a7c6b1)

  12. Dana, just to clarify my thoughts … I was not suggesting that there is a right to abortion within the constitution, nor even that abortion is a private issue, as it always involves at least two people. My comment was really a rhetorical statement with an implied “… but there isn’t any such right recognized therein …” tacked on the end. I suspect I’m in agreement with your thoughts on the subject in general. I have yet to hear a compelling argument for abortion on demand, let alone a constitutional argument that makes any sense.

    My broader point was that I want judges who strictly interpret the constitution based solely on what the founders (and “amenders”) meant when they wrote it, not some current social construct dreamed up by the majority. If the founders wrote the right to have an abortion into the constitution, then so be it. We all know they didn’t, nor have any of the succeeding amendments recognized such a right.

    I would further argue that Roe was social policy dressed up as a legal opinion for which there arguably may have been was some level of public support but not a shred of constitutional support.

    As Scalia asserts, if we approach the constitution based on the latest polls reflecting the opinions of the majority, the result is inevitably the destruction of the bill of rights, which rights are protection of the minority from the majority.

    Harry Arthur (b318a5)

  13. Harry has a way with argument. And it makes a great deal of sense as well. I submit if you have to explain your reasoning in more than three pages, you are presenting a “social construct” as opposed to “interpretation”.

    “Adumbrate”, “penumbra”, “emanation”, and such other ethereal terms seem to me to smack of social construction and not interpretation.

    What do you think?

    vnjagvet (d3d48a)

  14. You know, every time I think I’m finally reconciled to being pro-choice, Kate Michelman will open her mouth and remind me that some folks out there think abortion really is just fine and dandy.

    The Pathetic Earthling (08c01e)

  15. Alito said in Casey that giving a husband “veto power” would be an “undue burden”, so if the law Michelman was subject to had come before Alito he would have struck it down. For Michelman’s comparison between notification and consent to have its intended effect she has to ignore that Alito wrote that consent laws were unconstitutional.

    Nels Nelson (fbbc2f)

  16. No wonder you are unalarmed: you are on the incrementalist track.

    If a woman’s right to her own reproductive choices is to be stolen, it must be stolen stealthily so as not to cause any panic! But no one should think that this is part of an agenda-driven approach to anything.

    (P.S. I have responded to your comments elsewhere, and I apologize for suggesting that you are lying when you say that you are more concerned for the integrity of the Constitution than about abortion itself.)

    Toby Petzold (86d5ac)

  17. Earthling:

    Whrn you put it that way, maybe it isn’t you who is the pathetic one.

    Dana R. Pico (3e4784)

  18. Toby, If a woman’s right to her own reproductive choices is to be stolen … but this is the real issue, isn’t it? Whether there is such a right in the constitution as written and amended is the question after all. True, the Court decided in Roe that there is a right to privacy regarding abortion, but then the court has erred in the past. One might reasonably wonder whether in 50 years Roe will be considered to be one of those errors in judgement.

    Other questions also remain in my mind: When does the woman possess this right? Is it absolute or are there limitations as there are with the rest of our rights recognized by the constitution? At what age does the right accrue? Is the fetus a human? If so, what rights does he or she possess? Enough questions for now …

    Harry Arthur (40c0a6)

  19. Arthur:

    Other questions also remain in my mind: When does the woman possess this right?

    It is inherent, unalienable, and self-evident. Unless, of course, you imagine that someone else besides the woman in question should compel her to carry and bear a child against her own wishes. Is that really a role you would even want to play?

    Is it absolute or are there limitations as there are with the rest of our rights recognized by the constitution?

    The biological imperative precedes the Constitution of the United States.

    At what age does the right accrue?

    Whatever the age of the prospective mother is at the time of conception.

    Is the fetus a human?

    Turns out that Nature has solved the problem for you by arranging a birth day for each and every one of us. Clever, isn’t it?

    If so, what rights does he or she possess?

    I don’t believe in the sanctity or the equality of all human life, so I’m probably not a good person to ask.

    Toby Petzold (86d5ac)

  20. Toby,

    It is inherent, unalienable, and self-evident. Unless, of course, you imagine that someone else besides the woman in question should compel her to carry and bear a child against her own wishes. Is that really a role you would even want to play?

    Not sure I agree that this is a “self-evident” right. At least it’s not self-evident that it is recognized by the constitution, and that is clearly the question at hand.

    Secondly, I respectfully submit that your answer is a straw man. I’m not asking whether to “compel” a woman to carry and bear a child. Except in cases of rape or incest, the decision to engage in activity in which the conception of a child is possible is clearly her choice. I am merely wondering whether, once the conception has occured through voluntary sexual activity, whether there is another life in which the state arguably has an interest. Since that life is entirely powerless to speak for his or herself, perhaps he or she should receive some level of due process in having his or her life terminated.

    The biological imperative precedes the Constitution of the United States.

    Unfortunately an answer to a question I didn’t ask. To recap, my question was whether this was an absolute right or whether there are limitations as there are with all other rights recognized by the constitution. If there are limitations, what are they? If not, why not? Even the first and second amendments, both of which clearly delineate fundamental rights, are limited.

    Secondly, whether there is a biological imperative or whether it precedes the constitution is quite irrelevant. The instant question is whether the constitution recognizes the “biological imperative”. Interesting choice of words – “imperative”. Suggests to me that choice is limited, but that’s another subject I suppose.

    Whatever the age of the prospective mother is at the time of conception.

    Interesting answer, this one. So this right only accrues to “prospective mother(s) … at the time of conception”? Then I take it that the right to choose, derived from “privacy” does not accrue to all women, just those pregnant. This is convenient because I was about to wonder whether the baby women waiting to be born might have a “choice” to go through with the process. Presumably not, at least by your definition. But this is not a definition from a SC ruling about which I am familiar. Is there a precedent here, because I don’t believe this was the decision in Roe.

    Turns out that Nature has solved the problem for you by arranging a birth day for each and every one of us. Clever, isn’t it?

    Not really. “Nature” has only arranged a birth for those of us whom the “prospective mother” has chosen to allow to live. And, pardon me, but this is another non answer to the question unless you mean to state categorically that the trip down the birth canal conveys “humanity” on each of us. Is it really your contention that a new-born baby is somehow fundamentally different than he or she was 10 minutes prior to birth? If so, I suppose there is some scientific, theological, or philosophical reason for your assertion?

    Furthermore, if birth conveys humanity, then may I presume that you are OK with abortions up to the very minute of birth?

    I don’t believe in the sanctity or the equality of all human life, so I’m probably not a good person to ask.

    I note that you used the term “believe.” Is that belief based on scientific, theological, philosophical, or some other source of reasoning? Or is it simply an assertion because you have assumed this “inherent, unalienable” right is “self-evident”? If so, your reasoning appears circular to me.

    Harry Arthur (b318a5)


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