Thursday, April 19, 2007

Gonzales v. Carhart

Gonzales v. Carhart is an interesting decision.

First, it confirmed that Bush's appointments of Justice Alito and Chief Justice Roberts has titled the court towards the conservative right. Secondly, the abortion question is an area of law in which the justices are clearly straining the law to fit their own personal beliefs, whether these beliefs are for or against the right to have an abortion. Finally, abortion is widely seen as a litmus test for the political power of the religious right.(1)

The only thing that really isn't of interest to anyone is whether the law in question will have any significant effect in changing whether and when woman will choose to have an abortion.

While the abortion question creates different opinion poll responses, according to how the questions are phrased and the methodology of the poll, there seems to be general pro-abortion stance by the majority of Americans. Neither is there evidence that the 'Pro-Life' position is becoming more popular.(2) However, in spite of not being able to move public opinion, the religious right and Pro-Life movement has been able to move the Supreme Court to the brink of overturning Roe v. Wade.

If you are inclined to read the courts opinion (I've only skinned it), then notice the emotional language e.g.: "No one would dispute that, for many, D&E [dilation and evacuation] is a procedure itself laden with the power to devalue human life." (per Justice Kennedy at 23) and "Today's decision is alarming. It refuses to take Casey and Stenberg seriously."(3) (per Justice Ginsberg at 31).

1) I use the term 'religious right' to identify conservatives who emphasise their Christian beliefs in the formulations of their political positions, and not just far right religious politicians as Farwell, Robertsen and Dobson.

2) For more on public attitudes to abortion see different polling results at

3) 'Casey' and 'Stenberg' are supreme court precedents: i.e. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 and Stenberg v. Carhart, 530 U.S. 914.


At 20 April, 2007 15:00, Anonymous Kiersten said...

I do not see this issue so much as a religious issue, but a moral issue. I know that sounds like the same thing, but I don't believe it is. Even people who don't believe in God have morals, and an idea of what they believe is right or wrong. I think that the "religious right" has turned it into a religious issue, since they are the ones who speak out against it so often. Or it could be the pro-abortion crowd trying to deminish the arguments of the right. This issue is debated so heatedly not just because the conservative right believes so strongly that abortion is murder, but also because people never got a chance to vote on it.

I don't believe that abortion should be a litmus test for judges, on either side. Instead I think that having strict constructionists on the court is important. Thus I don't believe that the supreme court should be making the decision to outlaw abortion either. The court should not be making law, they were not voted in by the people and are not held accountable to them.

I think that this is a states issue and should be turned over to each state to let the the citizens vote what they want for their state. Which is also the way, I think, that most of the “right wing” judges on the court lean. The religious right would not have so much of a leg to stand on if the people of each state were allowed to make the decision about their states law.

As for the polls I'm not sure that lefty's believe them, since they are so eager to keep this issue in the courts, and out of public hands.

All that being said, I am one of those people that believe abortion is murder. The argument that it is a woman's right to chose doesn't hold water to me. Most abortions are not from rape or incest, and thus the decision is made when a woman choses to or not to have sex. Why should a baby be killed just because someone didn't think ahead? There are plenty of birth control options and there is always the fail safe option, abstinence.

At 20 April, 2007 20:02, Blogger Torsten Pedersen said...

Kiersten, I think you have some insightful thoughts, and you may be right in arguing that the pro-abortion side encourages abortion to be considered to be a religious question, so as to diminish the Pro-Life argument.

I also agree that the abortion debate in the US has been distorted by legalized abortion having been mandated by the judiciary and not a political decision.

That doesn't mean, however, that I think judges shouldn't make bold/activist decisions and even 'make law'. In 'Common Law' jurisdictions (such as the UK and US) judges have historically created the law and still have the authority to interpret the law as they understand it. The law is constantly being shaped by judges in the appeal and supreme courts, which is right because law is not static.

When it comes to US constitutional law, the Ninth Amendment is in my opinion a clear mandate to formulate rights not directly enumerated in the Constitution. The Supreme Court was therefore correct to hold in Griswold v. Connecticut that there is a constitutional right to privacy. However, that this right includes a woman's right to terminate a pregnancy, as decided in Roe v. Wade, is questionable.

My main point was that it is interesting how the Pro-Life movement has been able to change the Republican party into a Pro-Life party and make appointments to the Supreme Court largely dependent on hostility to Roe v. Wade, without actually gaining more support for the Pro-Life position in the population as a whole. That is a remarkable political feat.

P.S. I personally believe life begins at conception and that provoked abortions are morally wrong, even in cases of rape or incest. I also think IVF and Embryonic Stem Cell research is morally wrong. I am not sure, however, whether abortion, IVF or embryonic stem cell research should be illegal.

At 20 April, 2007 21:01, Blogger Charles said...

Interesting discussion going on here! Its ironic that both sides of the table can find common ground with the whole abortion debate, even with different approaches and/or philosophies.

Anyhow, I have to put in my two cents worth, cause, well...I just gotta! ;-)

I think that the Supreme Court made the right decision. Ironically, though, I have to confess that it was an activist decision. I don't appreciate activist courts at all, even when they are legislating towards my way of thinking. So, bravo, Torsten on getting me to see that. It is a bit hypocritical of me to snarl at the ultra-liberal 9th Circuit, yet cozy up to the Supreme Court because I like their conservative ruling... Ouch!

Now, specifically within this debate, this recent ruling has not overturned Roe v Wade. In that case, I suppose that "stare decisis et non quieta movere" is apropos. Our Chief Justice made that quite clear during his confirmation I do not foresee a overturning of that ruling. Though I would applaud that the legalized slaughter and murder of babies is over, it should be the will of the people, not a panel of judges. And as Kiersten stated, this should left up to individual states to decide.

Lastly, in regards to the Republican part becoming the Pro-Life party, I do chide many in my party for being "one-issue" minded. (Otherwise, voting or not voting for someone because they are for or against abortion.) The same can be said for the Democrats who voted in a majority congress because they were all against the war. People were not thinking, just voting completely on emotion. There are many who will not consider Guiliani because he is pro-choice. That is stupid.

Anyhow, I digress.... Emotion is the biggie though, and that is at the crux of the abortion debate. Politics becomes foolish and dangerous when emotions drain all energy from logic and reason.

At 22 April, 2007 20:29, Blogger Torsten Pedersen said...

First, let me reformulate my position on IVF. I'm not certain its morally wrong and I don't want to critize anyone who choose this treatment for infertility. However, personally I think it is very problematic.

Yes, at the moment 'stare decisis' is the position of the court concerning Roe v. Wade, and I wouldn't be surprise if the court actually tired to avoid having to revisiting this decision. However, the court is close to being willing to reconsider and overturn Roe.

At 23 April, 2007 15:05, Anonymous Kiersten said...

While I don't think that we will ever agree on activist judges, I found your points about the republican party very interesting. This next presidential election going to be a very fascinating. It was no surprise that that all the presidential candidates on each of their respective sides came out for or against the court's decision.

On the republican side, there doesn't seem to be a candidate that the religious conservatives are happy with. Whether it be about abortion or just that they are not happy with the candidate's religion. Since I would say they make up about 25 percent of the party, it will be interesting to see what they decide.


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