The religious Right’s quiet decline is one of the more interesting political developments of the last decade.
Simone Veil, the French politician most responsible for the passage of the law to legalise medical termination of pregnancy in France, died recently at the age of 87 in what I would be tempted to call, if France were not so militantly secular a country, the odour of sanctity. She was incontestably a redoubtable woman, a survivor of the German camps to which she was deported at the age of 16; but the effects of the law that she so assiduously promoted soon escaped her control and went far beyond its original intentions, as so many reformist laws are inclined to do. Very few reformers, however, ever take this tendency into account, perhaps because, for many of them, reform is the whole purpose and meaning of their lives.
Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.
One common way of thinking about the possibility of federal reforms – in both the legislature and the Supreme Court – is that they are more likely to occur as the number of states that enact those reforms at the state level grow. For example, Ruth Bader Ginsburg once argued that the Supreme Court had stepped in too quickly in the abortion issue. When Roe v. Wade was decided in 1973, only 4 states allowed abortion “in nearly all cases before the fetus was viable.” But support for abortion was growing. Ginsburg’s point was that the Supreme Court’s early and decisive action had prevented the country from continuing to change its mind gradually on the issue. After such a development and a large number of states supporting abortion, a Supreme Court decision constitutionalizing abortion would have been less controversial. By contrast, Griswold v. Connecticut, which recognized a constitutional right for married couples to have contraception, was a far less controversial decision in part because it struck down laws in only one or two states.
Ginsburg’s analysis of Roe recently came up when the issue of gay marriage was being debated in the country and decided by the courts. It was commonly thought that the Supreme Court would wait until a large number of states actually had decided in favor of gay marriage before announcing it as a constitutional requirement. And in 2015, when Obergefell was decided, 36 states allowed same sex marriage (although the process had ended up moving more quickly than many people expected).
Although 36 states allowed same sex marriage, the great majority of these states did so only because of court decisions. A rough and quick count indicates that only 10 states legalized same sex marriage by legislative decision, with the remainder being required to do so based on judicial decisions. Thus, while a significant elite supported same sex marriage, legislatures and the voters were much less supportive.
Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of rational, intermediate, and strict scrutiny tiers of review used in evaluating different constitutional rights. Justice Clarence Thomas has written two significant opinions concerning abortion. Seventeen years ago in his lengthy dissent in Stenberg v. Carhart (2000), he denied that there is a constitutional right to abortion; he called Roe v. Wade (1973) “grievously wrong” and insisted that nothing in the Constitution “deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of…
In the latest video showing the mind of Planned Parenthood, we learn that when they deliver an intact baby, pricing the parts is, “just matter of line items.” And the cost of baby parts, "We bake that into our contract." Over to you Jonathan Swift . . . "I do therefore humbly offer it to publick consideration, that of the hundred and twenty thousand children, already computed, twenty thousand may be reserved for breed, whereof only one fourth part to be males; which is more than we allow to sheep, black cattle, or swine, and my reason is, that these children are seldom the fruits of marriage,…
The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.
Many thanks to Randy Barnett for his very thoughtful response to my post “The Book of Judges,” which criticizes a natural rights constitutional jurisprudence. Barnett says I was going after a straw man—that real defenders of “judicial engagement” are not calling for a philosopher’s debate on the federal bench that would produce a settled list of the type and content of natural rights for federal judges to enforce. He isn’t about defining and specifying natural rights in judicial decisions. Instead, he notes that they exist, and they are protected in the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment.
Few, if any, constitutional scholars think Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973) was flawless. When Jack Balkin invited eleven leading scholars to rewrite the decision for his 2007 book What Roe v. Wade Should Have Said, each of the contributors departed in some way from the Court’s original approach. The one thing scholars across the ideological spectrum can agree on is that the Court should have said something else.