Chris - you are absolutely correct. More on this shortly....
2009-01-30 21:56:59
Yeah, stupid lawyers!
2009-01-30 21:45:44
There's one important thing that seems to be missing from this argument: whether a majority of Americans want to see Roe overturned is (or at least ought to be) fundamentally irrelevant. There are precious few Americans who actually know what Roe held (meaning they've actually read the decision and understand the legal theories upon which it was based). The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.
Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary in a way that defining it as beginning at birth or at conception would not have been. Of course, had the court chosen to do either of those two things, Roe would be even MORE controversial today, as for the vast majority of Americans personhood begins at some undefined point between conception and birth (you will not find many people who are supportive of third trimester abortions for example).
But this, to me, is the great problem with Roe - Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature. Indeed, as Linker says, if Roe did not exist, it is unlikely that abortion rights would be much changed in the vast majority of the country, because the vast majority of the country (myself absolutely included) fits within the mushy middle, being increasingly pro-life the further along the pregnancy, and increasingly pro-choice the closer to conception.
(N/B: I edited this comment to cut it into paragraphs instead of being one giant block of text)
The commenter archive features may be temporarily disabled at times.
Chris - you are absolutely correct. More on this shortly....
Yeah, stupid lawyers!
There's one important thing that seems to be missing from this argument: whether a majority of Americans want to see Roe overturned is (or at least ought to be) fundamentally irrelevant. There are precious few Americans who actually know what Roe held (meaning they've actually read the decision and understand the legal theories upon which it was based). The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.
Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary in a way that defining it as beginning at birth or at conception would not have been. Of course, had the court chosen to do either of those two things, Roe would be even MORE controversial today, as for the vast majority of Americans personhood begins at some undefined point between conception and birth (you will not find many people who are supportive of third trimester abortions for example).
But this, to me, is the great problem with Roe - Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature. Indeed, as Linker says, if Roe did not exist, it is unlikely that abortion rights would be much changed in the vast majority of the country, because the vast majority of the country (myself absolutely included) fits within the mushy middle, being increasingly pro-life the further along the pregnancy, and increasingly pro-choice the closer to conception.
(N/B: I edited this comment to cut it into paragraphs instead of being one giant block of text)