Settled Law

Just one point on Roe, to follow up on Atrios.  There's a lot of nonsense about the legal reasoning behind Roe, but that's really besides the point.  There are different schools of legal reasoning, which means that coherence by one school is incoherence by another (ahem, Bush v Gore much?).  Roe's rationale has changed pretty substantially; originally it was written to protect the rights of doctors, but now it has intersected with women's rights, privacy rights, and civil rights cases as well.  Settled law means that functionally, Roe has taken on the meaning of a legal precedent that other courts must work under.

It's not some airy philosophical debate.  Roe is de facto part of the constitutional order under which we live.  



Display:


Roe is becoming irrelevant (none / 0)

Roe, as a right, will probably survive as an abstraction. But as a practical matter it's becoming increasingly difficult for many, many women to get an abortion. The anti-choice forces in state after state have imposed so many difficulties for providers and women that in many states only one or two clinics barely survive.

We're not terribly far from the point where there will be two clinics left in this country. Open on the third Thursday of the month from 2-4 pm. Large payment required. Major waiting period mandated. Poor women need not apply.

Alito actually advocated this sort of thing years ago when he was in the Reagan administration. Unfortunately, with all the attention focused on Roe, no one seems to be noticing.

by S1 on Wed Jan 11, 2006 at 11:08:17 AM EST

Re: Roe is becoming irrelevant (none / 0)

Legal abstractions don't protect women's health, unfortunately.
by Matt Stoller on Wed Jan 11, 2006 at 11:16:02 AM EST
[ Parent ]

Re: Roe won't become irrelevant (3.00 / 1)

if you act to keep it relevant.

Go right to the top, and tell 'em "No" to Alito's confirmation:
Phone, fax, and email addresses for the Judiciary Committee.

Here's another "Veto Alito" tool:
    Write a letter to the editor of your local paper and contact your congress critters -- all with one click.

Also: Moveon.org gathered 300,000 signatures in their Anti-Alito petition -- in a day!
They're shooting for 500,000, please sign if you haven't already:

Move On.org's stop Alito petition

People for the American Way have sent over 60,000 letters to the Senate:

Save the Court Petition

American Rights at Work also
Oppose Alito Petition

Defending the Constitution's Stop Alito Petition

http://ga3.org/...

Democratic anti-Alito petition:

Democratic Party's Reject Alito Petition

Stop the NRA is also getting in on the party:

Stop the NRA's Oppose Alito Petiton

And while you're at it: sign Planned Parenthood's anti-Alito petition, too:

Planned Parenthood Petition

NARAL is shooting for 500,000 signatures, please add yours:

Naral Anti-Alito Petition

And don't forget: urge Congress to support Plan B:

Plan B Petition




by judybrowni on Wed Jan 11, 2006 at 12:50:42 PM EST
[ Parent ]

Frontline - The last abortion clinic (none / 0)

Frontline had a great show called "The last abortion clinic" about this very thing.  I'm not sure if they'll replay it all that soon but if you see it in your TV listings, I highly recommend it.
by pfoorion on Wed Jan 11, 2006 at 11:13:23 AM EST

Question (none / 0)

Can you further explain how Roe was written to protect doctors (any moreso than it current does, anyway.)  As I recall the doctor involved in the case lost his claim.
Bleeding Heartland - Iowa's Progressive Community-oriented blog
by ItsDrewMiller on Wed Jan 11, 2006 at 11:32:19 AM EST

Re: Question (3.00 / 1)

The original decision was based on the idea that it protected a doctor's right to prescribe medical treatment based on his expert medical opinion.

Indeed, the opinion says: "For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."  It has nothing to do with the judgment of the pregnant woman.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both
by Anthony de Jesus on Wed Jan 11, 2006 at 12:08:20 PM EST
[ Parent ]

Protect Doctors (3.00 / 1)

Doctors used to be the ones prosecuted for performing abortions, not the pregnant women. That's why abortions were performed in "back alleys" by doctors who had lost their licenses (and by nurses, and by lots of other people who had little or no medical training).

States that have in recent years put "trigger laws" on the books (i.e., laws that would take effect immediately if Roe were overthrown by Supreme Court) all (or nearly all) would, again, make the doctor the criminal.

by S1 on Wed Jan 11, 2006 at 12:09:02 PM EST

it was so frustrating (none / 0)

listening to durbin & alito's exchange.  durbin asked alito a yes or no answer, and alito just danced around it and talked in a circle.  while justice roberts (who i also opposed) at least had the guts to straight up answer whether roe was settled law, alito did not.

i say bork the motherfucker.

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 02:02:49 PM EST

All precedent is infalible! (2.00 / 1)

I'm glad your arguement wasn't listened to in the past.  Minorities and women who value equal rights should agree with me.

Regardless of Roe being overturned or not, the idea that a decision (made by as few as 5 people) should never be questioned is not defensible.

by bekind on Wed Jan 11, 2006 at 04:10:10 PM EST
[ Parent ]

you miss the point, my conservative friend (none / 0)

the question which was asked was whether SCOTUS should have the power to overturn laws passed by congress.  the simple answer is yes.  not only should they have the power, but they are granted it by our constitution.

maybe you should re-read your high school history book chapter about checks and balances.

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 04:24:30 PM EST
[ Parent ]

Naw, he's just being deliberately... (none / 0)

... obtuse, as wingnuts are wont to do.

He knows no one here is arguing that no Supreme Court precedent should ever be overturned. It's just his little straw man he can argue against, since arguing against Roe itself would be too hard.

If you're always playing the fear card, it's a pretty good sign you're not playing with a full deck!
by Mathwiz on Wed Jan 11, 2006 at 05:20:07 PM EST
[ Parent ]

yep (none / 0)

true indeed mathwiz.  

hey BTW, thanks for popping over to my site recently.  really appreciated your participation.  =)

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 06:22:33 PM EST
[ Parent ]

BTW (none / 0)

you should also look up stare decisis.
Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 04:25:23 PM EST
[ Parent ]

uno momento (none / 0)

sorry, i was conflating two different exchanges w/my first comment.

please, go look up stare decisis.  go read about settled law.  and with all due respect, i don't think you can claim to speak for women and minorities on this issue.  roe has many implications for women, and i think i know a bit more about that than you do.

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 04:31:53 PM EST
[ Parent ]

What are Democratic senators saying? (2.00 / 1)

My comment about precedent is not just directed at supreme court decisions vs. statute laws, but more at the hammering away by senators today, of course trumpeted by the media, trying to get Alito to say the words "Roe is settled law."  Your own senators believe it would be significant to get him to say this, even if you say "of course no one here" believes "that which is decided" is open to question.

Annatopia, do you really believe that only men can have relavant opinions on men, and only women can have relevant opinions on women, and on and on with every group concievable?

Must you all insult someone to attempt to score points in a discussion?

by bekind on Wed Jan 11, 2006 at 05:41:31 PM EST
[ Parent ]

let's not be stupid (none / 0)

you're trying to put words in my mouth and i'm not taking the bait.  

i'm not insulting you, either.  you need to go read up on stare decisis.  roe has been challenged many times in many courts, and each time, precedent unholding it has accumulated.  there is a point which is reached at which a decision can be upheld by stare decisis.  roe is long past that point.

and the reason why the senators are trying to get alito to say it is because the majority of this country supports keeping abortion safe and legal.  without alito's assurance that he will not vote to overturn roe, there is no reason to confirm him.  someone who does not respect stare decisis in this case is someone who will be a judicial activist, something those on your side constantly criticise.

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Wed Jan 11, 2006 at 06:21:58 PM EST
[ Parent ]

Re: let's not be stupid (none / 0)

Only the Supreme Court cases that looked into the case matter.  Each time it has, the court leaned in a different direction than it does now, and will be in the future.  

Your logic means that once a court leans to the left or right, all that remains is for that court to hear so may challenges to their ruling that people such as yourself begin to claim "See, it has been challenged so often, that it now gets special treatment."  

That brings me to my initial comment about minorities and women.  I'm sure there was plenty of legal precedent for denying rights to minorities and women last century and before, and people were talking about stare decisis.  Thank God for the "judicial activists" that didn't listen.

Glad to hear I can still talk about women in your presence.

by bekind on Wed Jan 11, 2006 at 07:54:52 PM EST
[ Parent ]

wrong (none / 0)

as usual, you're painting my comments regarding a specific issue with a broad brush to suit your preconcieved notions of what you think i believe.

i'm done with you.

Visit us at TexasKAOS, where we're taking Texas back!
by annatopia on Thu Jan 12, 2006 at 12:34:14 AM EST
[ Parent ]

Re: wrong (none / 0)

No disrespect, but I was simply trying to extrapolate your logic on one issue to others I find similar.  What you think of me is none of my business.
by bekind on Thu Jan 12, 2006 at 01:18:09 PM EST
[ Parent ]

We don't live in a Roe v. Wade world... (none / 0)

We live in a Planned Parenthood v. Casey world.

Roe gave the pregnant woman almost total autonomy in the first trimester. Planned Parenthood lets states pass any restrictions that don't pose an "undue burden" to such autonomy, allowing incredibly burdensome restrictions like mandatory 24 hour waiting periods (can you imagine mandating such a waiting period for ANY other significant medical procedure? Unreal.).  

The conventional wisdom is that Roe is on its last legs because it only commands the support of five justices. This is false. The core holding of Roe is gone, and commands the support of perhaps three justices (Ginsburg, probably Breyer, probably Stevens).

Anti-abortion justices don't want to give Roe the honor of a decent burial - they want to chip at it until there's no need to openly overrule it at all. And they're maybe 40% of the way there.  

an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability."

by TomGilpin on Wed Jan 11, 2006 at 11:08:55 PM EST


You are not logged in.

In order to post a comment, you must be logged in. If you have a member account, please log in to comment.

If not, you can make an account right here. It's quick and free.