Hey - it's a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of "Lochner-ing." I only picked up on it when I re-read it; had I not done so, I wouldn't have thought to include that point in this post.
2009-01-31 18:30:51
Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being "Lochner-ing."
2009-01-31 10:51:34
Dave Hunter:
Are you referring to me with that? Because I'm not sure where I implied that I'm in favor of results-oriented decisions. (If you're referring to my remark about Lochner, I'd just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases...but that's completely OT).
2009-01-31 10:48:10
Matoko - have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a "person" and "not a person" and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe's application of Griswold's right to privacy is illogical.
Roe and its progeny, unlike Brown or Loving, provide very few clear rules - or even paths to creating clear rules - for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.
The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.
The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.
But that's not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.
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Hey - it's a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of "Lochner-ing." I only picked up on it when I re-read it; had I not done so, I wouldn't have thought to include that point in this post.
Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being "Lochner-ing."
Dave Hunter:
Are you referring to me with that? Because I'm not sure where I implied that I'm in favor of results-oriented decisions. (If you're referring to my remark about Lochner, I'd just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases...but that's completely OT).
Matoko - have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a "person" and "not a person" and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe's application of Griswold's right to privacy is illogical.
Roe and its progeny, unlike Brown or Loving, provide very few clear rules - or even paths to creating clear rules - for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.
The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.
The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.
But that's not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.