There are several rumors floating around that Reihnquist will announce his retirement soon. Given that he has cancer, I find this a likely scenario. Should he choose to stay on, he will still retire within Bush’s second term. Either way, despite Bush’s claims that he has no litmus test, O’Connor’s announced retirement gives Bush the opportunity to appoint a justice who will overturn Roe. Therefore, it is safe to conclude that Roe v. Wade will soon be overturned. It is now important to make plans for a post Roe world.
I opened up my Constitutional Law textbook last night and reread the Roe case. Here is the key to the decision: “This tight of privacy, whether it be founded in the 14 Amendment’s concept of personal and restrictions upon state action, as we fell it is, or as the District Court determined, in the 9th Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” In other words, the word “liberty” in the 14th Amendment includes the right to abortion. This is what the rightwing will successfully attack when they challenge Roe.
So, what does this mean? What is the result of a post-Roe world? A women’s right to choose won’t be a federally protected individual right.
However, there is a way to use this to our advantage. In the last election, the Republicans used gay marriage as a wedge issue that appealed to the rightwing extreme base. The Democrats can do the same in 2006 by offering an amendment to state constitutions that the right of a woman to choose is a fundamental right. Depending which poll you read, a clear majority of Americans support the right to choose, usually with some restrictions. There are people with better Constitutional legal minds than mine who can come up with the wording. But, you get the point.
The Democrats can do this at the state level to great effect. This will increase Democratic turnout and get some moderate Republicans on our side.
But, the time to start planning is now. Let’s get to work
Actually, it’s scarier than that. A Conservative attack on Roe is likely to come in the form of a Conservative attack on the idea of a Constitutional right to privacy. Any Constitutional right to privacy. One of the Conservative justifications for the PATRIOT act was that there was no such right. This has also been used to justify any number of incidents of corporate snooping, data mining, and other questionable actions.
But you’re right, the best way to fight it is at the state level… By pushing for right to privacy amendments that explicitly include privacy for medical decisions.
at least it will swing the libertarians firmly on our side…
I certainly hope so, but I’m not so sure. A lot of them still support the Republicans, even now. They seem to put “business friendly” above anything else these days…
It depends on whether you mean small-l or big-L libertarians.
I have always believed we can make common cause with the libertarians. I also believe that a “right to privacy” amendment rather than a “right to choice” amendment will garner more support with the same results and will also cover decisions like Griswold v Connecticut, the pro-birth control decision.
I think we can make a common cause with libertarians, but have to be careful about how we do so. Many are in favour of minimized government involvement, while the core of progressivism seems to be making use of government to help people. To some degree or another, the libertarian movement seems to categorize government as a necessary evil, but an evil all the same. (This is what, I think, separates them from anarchists)
I agree, Bonddad. Or, the state constitutions could be amended to specifically provide the right to privacy, which probably have even broader appeal. A constitutional right to privacy has kept reproductive choice available for California women, though we’re not home free — there’s a proposition on the November ballot to restrict abortions for young women under 18.
Here’s Article 1, Section 1 of the Cali Constitution:
Supreme Court just said Federal drug laws take precedence over state jurisdiction in medical marijuana cases in CA.
So our state consitutional amendment was just overridden by a ‘moderate’ court.
What the hell will they do with our right to privacy constitutional amendment? Make it T.P. probably.
Good point SallyCat.
Where are the conservatives who favor states’ rights?
The assumption is that Democrats are dedicated friends of Roe. These days Dems, on the national level, at least, seem eager to not take a stand on anything where they might draw the ire of the right.
I don’t trust them. And I don’t trust our “allies” who think people like Tim Roemer are “moderate” and believe that women’s equality and freedom don’t qualify as important shit.
Oops! I guess I’ve just outed myself as a “single issue voter”! Me, I just consider this to be at the root of the entire political question right now: How much power does the State have over individuals’ lives?
If we package abortion as part of a wider right to privacy and place it on state amendment initiatives, you might pick up supporters you otherwise wouldn’t have had. You might even pick up allies that disagree with you on Roe, but will support a strong, overarching right to privacy amendment to protect, say, their credit card records from corporations that would mine that information for resale and profit.
Good luck on selling Biden on that one.
Seriously, I think this is a major problem. A lot of Democrats that post at a certain other community-blog seem like they’d celebrate a defeat of Roe. There might be the grassroots progressive movement for it, but the establishment and partisans will fight tooth and nail against it. The establishment because it puts a big dent in corporate profits, the partisans because it decreased Democratic electability.
Great comeback! You get a 4 for that line alone – you had me roaring.
You raise a very valid point, though, of the work we have to do with certain people within our own party to pull the consensus back to a voice for progressive values.
On the other hand, dislike of large corporations and a certain kind of populism cuts across party lines.
True, and I wish you Democrats would throw out the corporate appeasers so you can take advantage of this. Playing the underdog, the rebel, the anti-establishment is a major trump card (Republicans have been doing it for decades), and there’s few establishments more established than “big corporations”.
…though lots of people would like to marginalize it as such.
It’s about equal protection under the law. It’s about feedom. It’s about whether women are “persons” under the law or not.
I dare say if the government were poised to sieze control of men’s testicles, there’d be a lot more alarm from these so-called supporters. They might as well say, “Some of my best friends are women.”
You raise an excellent point, and I agree. I approached the issue from the privacy perspective because the quotes from the original Roe decision framed it that way.
Also, the privacy perspective may be an easier sell to a wider audience – again, not that I think this is right, but having been raised Catholic and educated in Catholic schools for 16 years (now an ex-Catholic for several years), I can tell you that the answer our opponents will make to the “It’s my body” argument is “And the baby’s body is hers. What makes one life more precious than the other?”
I think the fundamentalists will have a harder time getting traction if the discussion is framed in terms of privacy (especially in the western states, where conservatives have much more of a libertarian bent).
Again, we agree, and I want to apologize if I gave a different impression. I was just trying to think outside the box to see how we might most successfully do battle with the courts, legislatures, executive branch, and media stacked against us. I was thinking in terms of tactics. You are dead-on right about the principles of equal protection under the law and “personhood.”
Mediagirl, I completely agree with you that it’s not about privacy, it’s about women being free and equal people. Nevertheless privacy is the legal framework that has sustained reproductive freedom in California so far.
The principles were upheld in Panned Parenthood (1992), where the essential principle was “libery”.
What? You don’t think the Handmaid’s Tale is the way it should be?
Seriously, While I agree with you, I think privacy is an easier sell. I should add that I could be entirely wrong.
We need to start “packaging” reproductive issues together — abortion, birth control, pre-natal health care, ivf. Not only would it get broader support but the fundies reaction would expose just how extreme their positions are. And it might wake up some of those under-30 women who don’t seem to realize just how much they have at risk.
Another thing to focus on here is eliminating abortions by treating the disease, not the symptom – eliminate unwanted pregnancies. Make this part of a campaign for easily-available birth control, good sex education, family planning education, and the like.
It would be nice if this could work. However, it assumes that the wingnuts are all hot and bothered about abortion. But if you look at their agenda, what’s consistent is not anti-abortion — if that were the case, they’d be embracing what you suggest already. No what’s consistent is that it’s all about disempowering women. So I’m not so sanguine about the prospects of prevention as a winning argument. You will get hot opposition from the right because they don’t want to prevent pregnancies, they want pregnancy to be enforced as punishment for what they consider promiscuous women.
The problem isn’t so much attempting to win the hearts of the hard right as it is the soft squishy people in the middle. The hard right should essentially be considered off-limits. No matter what we do, they will oppose it loudly. The point of this is to win over those who are unsure about abortion or uncomfortable with it, by convincing them that the best way to minimize it is to make sure that people don’t need it in the first place.
In this I would agree. But we also should realize that there are times when BC does not work, when EC does not work, and abortion is the only option to avoid 9 months of health and socio-economic risks.
That’s why we should combine all reproductive rights issues together — they are all necessary. Supporting birth control and EC as a means of reducing the frequency of abortion doesn’t negate the need for abortions to be available any more than abortions negate the need for birth control and EC. And if you can’t get pregnant through the normal means, then IVF and other technologies are another aspects of reproductive choice. And if you are pregnant, low income and/or without insurance, then access to quality pre-natal care is of vital concern.
We need to keep forcing the far right to expose just how much they want to control and punish women. We need to make it clear to the people who are worried only about marginal abortion issues like partial birth abortions and parental notification exactly what supporting the far right really means. We need to make those marginal abortion issues what those in the middle will compromise on because they understand how necessary it is to maintain reproductive rights.
I don’t trust them. And I don’t trust our “allies” who think people like Tim Roemer are “moderate” and believe that women’s equality and freedom don’t qualify as important shit.
Distrust in this matter is informed and evidence based. Those folks are not our allies, neither are people who insist that reproductive rights are ‘single issues’. I no more want those folks to have control over my life than I want James Dobson to and for precisely the same reason.
What they’re aiming at directly, from all I’ve seen, is the Constitutionality of liberalism in general: regulations and controls on business; social safety net; progressive taxation; blocking recognition of any kind of public rights or purpose to the mass media; these sorts of things. Since they’re not constrained by reasoning, I’d expect them to take down Roe at the same time.
I’m hardly an expert but it makes gut-sense to me that in planning ahead for women’s rights, we need to be expecting a legal/Constitutional environment that is radically different than any we’ve experienced.
A majority do NOT support the idea that abortion is a fundemental right. A majority DO support the idea that allowing safe and legal abortions before the 2nd trimester is a good and reasonable policy for a society, whether or not any individual would ever choose to have an abortion. Therefore, making state amendments a wedge issue would backfire — it would wedge Democrats again, not Republicans.
A better, more unifying, plan would be to propose legislation to allow abortions because the alternative is worse — there will still be abortions, but under tragically unsafe and unregulated conditions.
That’s an interesting interpretation. What are your sources? You’re going against at least two recent polls on the issue.
If so-called “pro-life” folks were really against abortion, then they would encourage sex education, not try to ban it, they would make birth control available to all, not try to ban it, they would make emergency contraception easily obtainable, not try to ban it.
This is an agenda to remove the personhood from women. It’s an agenda to make women into breeders for the state.
That is what the majority of people are against.
Agree about the Right agenda. They’re basically control freaks and women and sex (gay or straight) are their two favorite targets. Parental notification and abstinence-only sex educaton are additional examples.
Maybe I’m just getting naive in my old age but I’m not convinced that Roe will be overturned so easily. Did check the latest polls on Polling Report. Looks like only 20% are against abortion under any circumstances. That’s the fringe that makes the most noise. If ~80% would accept abortion under at least some circumstances, that’s not horrible. ~65% favor judges that would uphold Roe. The split between “pro-life” and “pro-choice” is almost even. (So assume some pro-lifers would support Roe?)
Could be wrong but my gut feeling is that an effective approach would be to dump the pro-life/pro-choice stuff that’s an artificial dichotomy anyway and do massive education about how to effectively reduce abortions and, just as important, focus on the hypocrisy of those who want to do away with abortion but not offer women legal alternatives. Call it what it is – a fringe group that has a need to control women’s sexuality. Does that sound unreasonable?
be it the Pew polls or others. What are your sources for the outrageous claim that being pro-life is “an agenda to remove personhood from women” or “make women into breeders of the state”?! Find me one serious pro-life person who actually believes that, please. In fact please find me a pro-life person who isn’t against that.
You choose to read evil and conspiracy into those who oppose you, rather than use reason to dialogue with them. What happened to you to make you so cynical?
does not want to take Roe down.
It is too good a rallying point to get those illusive wingnut religious folks to DONATE$$ and vote. And I am not so sure that the “gay threat” to marriage is a big enough wedge this time around to get the support they want. They Need Roe. Without it they have to talk about boring things like the economy, and the Huge elephant in the living room= the illegal, unwarranted war in Iraq and the 40,000+ injured, disabled, missing limbs, with PTSD vets that will need to be supported for the rest of their lives. See, they really need Roe. It is so emotional an issue that people just don’t have to think about the important stuff. I will be amazed if they touch Roe at all. Threaten, scream and never stop talking about it? Yep. Take it down? I don’t think so. JMO
I gave you a 4 purely because I desperately want these people, at long last, to be in the pickle we need them to be in!
The question, though, is whether they can avoid it. After all the talk of the nuclear option and how they’re the majority and can do whatever they want, I suspect that the Moral Minority isn’t going to take no for an answer.
They’re riding the tiger now.
You are dead-on right. It’s been a reliable fundraiser and rallying cry for them since the Reagan administration, and maybe before that (I was more worried about acne and dates during most of Carter’s administration, so my recollection is less reliable – LOL).
after Roe v. Wade was decided. Everyone assumed that it would live forever, and as a consequence many state level changes were abandoned.
Many states were well on their way to legalizing abortions. We should have continued with those changes.
I suspect today less states would be likely to pass the same legislation or amendment to their constitutions than they would have in say – 1974.