Whirr2005-12-07
Roe v. Wade (long)
I've been meaning to tell you all about Drs. Peter Gordon and Dan Everett, and all that they said, both in the talk and in "private communication", (which makes me want to publish just so as I can quote them like that--Everett, private communication). It was fascinating, and you will love it.

But first, I need your help to understand how I feel about Row v. Wade. You see, up until about half an hour ago (when I wrote this first draft, on Friday...) it was merely a symbol of women's rights*--both of how far we've come, and of how misogyny still lurks in the country--and not really an actual decision. Then I read an article about the subject in the recent New Yorker, and began to lose some faith. It turns out that I have two objections two the ruling: one practical, and one theoretical.

Practically, I worry that there may be merit (!!) in the neo-con blather about Activist Judges. This is also the issue with Scalia's Constitutional Literalism*, which I have derided in the past.

Blackmun based his majority decision (and I'm far from being a SCOTUS scholar, so please correct if wrong) on a previous SC ruling about birth control (Griswold v. Connecticut, apparently, in 1965). This ruling held that the gov't couldn't tell you whether or not you could buy condoms because you, as a citizen, had a guaranteed right of privacy. This is different from the right to Speech or the right to maintain a militia, however, in that it isn't mentioned anywhere in the Constitution. In the ruling, Justice William Douglas argued that Privacy was one of the rights that exist in the "penumbra" that "emanates" from the Bill of Rights. As I understand it, the idea is that we can infer from the Bill of Rights that Privacy is protected, even though it isn't mentioned. And from the inference, we can assume that the Government can't outlaw birth control, and so therefore abortion must also be legal.

There are two practical problems with this. First of all, although Roe v. Wade now has thirty-plus years of precedence behind it, it still stands or falls on the opinion of five people. Therefore, it's almost always in crisis. Whether or not the Court is likely to overturn it tomorrow, it certainly could. I don't like the idea that millions of women should be effected by one woman's retirement.

Secondly, of the nine Justices, four of them scare the hell out of me--Scalia (who is pretty funny, I have to admit), Roberts (who, to be fair, I know nothing about), Thomas, and Alito (or whomever ultimately gets the position). The other five are simply ones that I don't know anything about, they might be just as scary. Even if four of them were Lefty Angels, though, it just takes five of them to make something legal. That's not very many when you're talking about dictating national policy and, what's worse, those people can't ever be voted out, no matter what. The President might have an awful lot of power, but if enough white people disagree with him they can kick him out after four years. However it's SCOTUS 4 LIFE, yo. Aren't you worried that Justice Thomas will use those same "penumbras" and "emanations" to outlaw black people?

Ok, that's an overstatement. To phrase it more reasonably, let's say that I'm deeply concerned that the current crop of Bush and Regan-appointed Justices might use a similar brand of "penumbric" logic to implement far-Right policy. Roe v. Wade is great because it's on my side, but I'd hate to see the bad guys use the same trick.

And for those of you who feel that the SCOTUS doesn't have a direct effect on the Nation, I'd like to remind you all that the National Guard forced people to allow black students into the public schools at gunpoint. Again, I think that's great... but only because I happen to agree with the issue at stake.

Finally, from a theoretical point of view I think Roe v. Wade was a lousy compromise. One of the other things that the New Yorker pointed out is that the ruling is mostly framed around the doctor--the Government has no right to interfere with a doctor's proposed treatment of a patient. But that's wrong--Reproductive Rights, as symbolized by Row v. Wade isn't about doctor's rights, and it isn't about privacy. It's about how we value half of our nation, and about whether women should be allowed to control their own bodies and, equally importantly, their circumstances. Instead of confronting these issues head on, though, the nation went through a back-door and came up with, essentially, a loop-hole. It's as if we said, "Look, maybe women deserve reproductive equality, or maybe they should be punished for having sex, we're not really sure. But... um... well, we are sure that doctor's have the right to determine patient care!"

There was a pretty determined effort to get pro-choice legislation on the books before Roe, but since then most of that effort has gone to defending the ruling instead of implementing laws. I don't want five people to change policy on a technicality, I want the country as a whole to stand up and say, through congressional law, that women are important and that they should have the right to determine when they will give birth.

Thanks, I feel better having thought through that a little. I'm not very good with realpolitik, so you'll probably tell me that Roe v. Wade was better for the country in the long run, because it would have taken much longer to get new laws passed. It's probably true that more women were helped through the "loophole" of Constitutional privacy then would have been though legislation. And, of course, I'm no lawyer so I've probably missed a dozen things about penumbric law and RvW that are really great. I guess all I'm saying is that in 2000 I was half scared to death to vote for Nader (although I did anyway, as I lived in Massachusetts) because surely that would be the end of Roe. Now I'm realizing that it's much harder to kill than I thought, and that maybe by the time they do kill it we'll be ready for something much, much better.














*Oh, yeah, it's also the punchline to a joke I heard today. What was George Bush's evacuation strategy for the residents of New Orleans? Row vs. Wade... yeah, never mind.



*Penumbras aside, surely even Scalia would agree that there are drawbacks to extreme literalism, as with the Texas amendment that would, if take literally, ban all non-homosexual marriage. I also heard a nice anecdote about a drug law proposing a $1000 fine for any caught with less than an ounce of cocaine. Personally, I don't even have half an ounce, so I guess I'd have to pay up.

On the other hand, maybe it isn't the court's job to interpret the laws at all... maybe all laws should be interpreted 100% literally, and the law-making body should act swiftly to amend laws with silly wording. I don't know.
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