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Monday, June 9, 2008

Reversing Roe V. Wade: Be Careful What You Wish For

Whether you are pro choice or pro life, there is plenty to find wrong with the landmark Supreme Court decision Roe V. Wade. Even if you are pro choice, you may believe that such a decision should never have been made by the Supreme Court but rather by the legislature. In legalizing abortion, the Supreme Court not only created a right to abortion but a right to privacy. None of those are of course in the Constitution, and so this is a textbook example of the court creating, rather than interpreting, law. Of course, if you are pro life, you have plenty of inherent reasons to despise Roe V. Wade and want it overturned.

Of course, the forces in favor of overturning this law may want to be careful of what they wish for. If it is ever overturned, then those behind that movement may face a very stiff political penalty as a result. If abortion is illegal, then an abortion becomes murder. Now, think about what that means. What would the penalty then be for a 16 year old girl that got an illegal abortion? It means that scared sixteen year old girls would be brought up on charges of murder. Even if it isn't murder, it would likely be manslaughter or conspiracy. In other words, you would have scared and confused sixteen year olds being charged with serious crimes.

Now, if we suddenly were trying sixteen year olds for murder because they had an abortion, it wouldn't take long for the American public to punish the political party behind such a movement. Since the Republicans would be the ones that would push that it would be the Republicans that would be held responsible.

While I am not only pro life, but furthermore, I firmly believe that Roe V. Wade ceded responsibility that the states had, I do believe that if Roe V. Wade is ever overturned that would spell the end of the Republican party. It would be the Republican party that would be associated with sixteen year old girls being systematically tried for murder. That is simply something the public at large would not stand for.


Zeno said...

The Supreme Court didn't say that 'privacy' was a new right they created. It was a right the justices inferred from the 'other rights reserved to the people' from the 9th Amendment. Of course, a huge number of people debate the existence or scope of this right.

Also, the overturning of Roe v Wade would NOT result in abortion being legalized. It would result in a return to whatever state laws are currently in force. I did a longer treatment of this idea here:

Anonymous said...

Oh, right. That "penumbra" of the enumerated provisions thing.

Moreover, if Roe v. Wade were overturned, it would not only be up to the states to regulate abortion, but they could assign whatever degree of legality or criminality they wanted, which would be determined by the prevailing political climate in each particular state. The problem with Roe v. Wade is not so much that it legalized abortion, but that it froze the debate by taking it out of the legislative process and substituted the wisdom of the courts.

Anonymous said...

This argument is what is called a "straw man". Historically women having an abortion were considered victims not criminals. The individual performing an illegal abortion was only considered a criminal based upon the circumstances. Can we please get this discussion into the realm of reality rather than hyperbole?

mike volpe said...

There is some duplicitous commentary here. If we are going to be against abortion because we believe it is murder, that is the way it should be punished when it is illegal.

I have uncle pavian, who I will assume is against abortion, claiming that once it is illegal it won't necessarily be considered murder in the eyes of the law.

Are you saying you will consider it murder while it is legal, and then consider it something else when it is illegal.

As to Zeno's comment, the SC never consciously thinks they are making law. They always think they are interpreting, however this was clearly the SC making law not interpreting. Nowhere in the constitution is there a "right to privacy" and suddenly they made one in creating another right to have an abortion. That is making law.

mike volpe said...

I don't much care what people considered women historically that had an abortion. Bottom line is that they made their decision of free will. They are active participants. Again,what we have are duplicitous arguements from pro life folks. On the one hand you consider abortion murder when arguing against its legality and then can't face the consequences of that arguement once it is illegal.

Anonymous said...

Not at all, Mr. Volpe. I don't believe that I expressed an opinion on whether abortion should be legal or not. Nor did I say that abortion will cease to be what it is if Roe v. Wade is reversed. What I said was that, if Roe v. Wade is overturned, regulation, prohibition or legalization of abortion will be the province of the states, which would be free to assign whatever level of criminality that they feel appropriate, consistent with whatever decision the Court hands down to reverse. Hardly anything happens "automatically" in the law in this country.

mike volpe said...

No, you just expressed the exact position of someone against Roe V. Wade, Uncle Pavian. Not to mention, that you found me from the conservative blog, Little Green Footballs, where I would say it is over 90% pro life. In any case, of course, reversing Roe V. Wade would send the question back to the states. In fact, I implied as much in piece. Again, at some point, we would have to deal with the sixteen year old that got an illegal abortion. Now if you think abortion is murder, then that is what you charge her with.

Anonymous said...

I think you're confusing logical consistency with the enactments of the state legislature. The legislatures could carve out a statutory distinction between your hypothetical teenager and, say, Andrea Yates. Most people think there is some kind of difference, even if they haven't fully articulated it. What the Supreme Court did in Roe was to make sure that that debate didn't happen.
But now I'm confused. I thought liberals were in favor of "having conversations", but you don't seem to want to permit the conversation about whether abortion is always murder, and if not, when. Of course, Roe was about imposing national standards by judicial fiat, rather than allowing the elected representatives of the citizenry to make their decisions, which I guess would be anathema.
Likewise, you assume that because I turned up at this post via a link on a particular web site, that I must agree with everything that gets said there. In fact, I don't own a pickup truck, I've never been deer hunting, I have no plans to move to a double wide, and I own neither a yarmulke or a ball cap, not that I think that you think that I do or anything.

mike volpe said...

Let's get a few things straight. First, I am no liberal, and I pointed out in the beginning that I am pro life. Second, I am not squashing any debate. As you can see, each of your comments has been approved. I think you mistake someone disagreeing with you with someone not letting your opinion be heard.

Of course, there is a difference between Andrea Yates and a sixteen year old who had an abortion. For one, Yates killed five kids. That said, I don't think that the punishment should, or would, be a slap on the wrist. It isn't going to amount to a few hundred dollar fine and some community service.

Consistent or not, if you think that abortion should be illegal because it is murder then it must be punished as such when it is.

Anonymous said...

I'm not so sure that this is the case.

First, overturning Roe v. Wade and its successor cases would not mean that abortion would everywhere be banned. That decision would then devolve to the states.

Second, those states that decide to prohibit or further restrict abortion need not recognize the life of the not yet born. They could simply ban abortion as an impermissible medical procedure (opening the door to charging women with practicing medicine without a license or some similar charge rather than murder) or prohibit it as a health risk. Only those states where abortion is already generally understood to be murderous would likely have women who kill their children charged with murder or similar, lesser charges.

I have no sympathy for the killers of children, and I hope that eventually all states will recognize their crimes for what they are - and be able to punish them. The people who will object to such measures will usually be across state lines from the jurisdictions in which the laws will be in force - and thus have no ability to vote against them. Federal legislation could restrict abortion, but it is unlikely that is could compel states to loosen their abortion laws. Only the courts or the people can do that.