Roe v. Wade Question

[jester710]

There's a good article in this month's GQ about Phill Kline, the Attorney General of Kansas who's zealously pro-life. In it, the author makes the following observation:

"Roe came at a time when abortion was being hashed out in the country's state legislatures. If it had remained there, our nation's laws would have reflected what polls have shown year after year- that most Americans want to keep abortion legal but restricted.....Instead, Harry Blackmun and his concurring justices stopped that democratic process in its tracks and imposed a national solution that went beyond what all but the most fanatically pro-choice Americans were wishing for..."

Is this a valid description of Roe v. Wade? I was not alive when it was decided, and most of the discussion about it today is useless. I was under the impression that it was a controversial decision, but one that came with a groundswell of support; this article makes it sound like judicial activism at its worst. The article also implies that abortion was a relative non-issue (at least when compared to today), and this decision basically created our present controversy.

Do any pro-choicers feel that Roe v. Wade was a poor decision, and/or would they support overturning it if it were replaced by measures that could keep abortion legal (by, say, making it a state issue instead of a federal one)?

Any replies are appreciated. Thanks.

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Is this a valid description of Roe v. Wade?

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No. Look around. There are a wide variety of restrictions on abortion, not a "national solution". What courts have held is that there are some restrictions that are constitutionally impermissible. Setting a floor is not a "national solution".

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Do any pro-choicers feel that Roe v. Wade was a poor decision, and/or would they support overturning it if it were replaced by measures that could keep abortion legal (by, say, making it a state issue instead of a federal one)?

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The decision wasn't a model of jurisprudence. That having been said, I would not support the Supreme Court "overturning" (i.e., overruling) the essential holdings of Roe and Casey (the real operative decision now), for a number of reasons, not the least of which is the damage it would cause to the Supreme Court as an institution.

I would support a carefully written Consitutional Amendment that has the simultaneous effect of permitting states to outlaw abortion (subject only to as-applied constitutional challenges) BUT ALSO absolutely prevents any federal restriction of abortion and any state criminalization of travel for the purpose of obtaining an abortion.

[TomCollins]

Inventing an imaginary "right to privacy" in the Constitution IS judicial activism at its worst.

[tonypaladino]

I support keeping abortion legal, but Roe v Wade was a terrible decision.

-It completely trampled states' rights, and is a terrible case of legislating from the bench. The judicial branch is to enforce the laws, not make them. If there is a need for a national standard for abortion laws, that is for congress to decided, not any court.

- As another poster mentioned, the court somehow extracted an imagianary "right to privacy" out of the 4th ammendment.

[etgryphon]

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I support keeping abortion legal, but Roe v Wade was a terrible decision.

-It completely trampled states' rights, and is a terrible case of legislating from the bench. The judicial branch is to enforce the laws, not make them. If there is a need for a national standard for abortion laws, that is for congress to decided, not any court.

- As another poster mentioned, the court somehow extracted an imagianary "right to privacy" out of the 4th ammendment.

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It was the Griswold decision that created the "Right to Privacy" namely in that case the use of Birth Control within the confines of the home between MARRIED adults. Roe just extended the right to privacy to abortion. The other reasoning that they used was that control of reproductive rights is essential for equal protection under the law. Men do not by nature have to be shackled with the pregnancy process and therefore a situation is created that provides an unequal burden to women and therefore a violation of the equal protection clause. This is one of the more weak argument of Roe.

I have a bit of crisis of concience with the whole "Right to Privacy" bit. I do believe, like Chief Justice Roberts, that there is a "general" right to privacy that is outlined in the 4th, 5th, 9th and 10th amendments. But where are the boundries? I think that the Framers of the Constitution had this general right to privacy in mind. But, do I think that the State can impose which form of intimacy we choose to participate in or whether or not we can use birth control? I have a tough time accepting this.

So I think the solution is a new amendment that will outline this right to privacy that will make Lawence v Texas and Griswold mute.

But, it will never happen...

-Gryph

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Inventing an imaginary "right to privacy" in the Constitution IS judicial activism at its worst.

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To be clear to the orignal poster: do not take what I said about Roe not being a model of jurisprudence as an endorsement of the extreme view quoted above. The "right to privacy" predated Roe, and was not "created" for that case. These types of simplistic views make for good soundbites but poor analysis.

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Inventing an imaginary "right to privacy" in the Constitution IS judicial activism at its worst.

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Devil's Advocate...

I think the "right to privacy" is an "implied" right. Old white guys, given their background and experiences, wanted fed-drul gummint to be small and unobtrusive. Nosey kings, monarchs, etc. had controlled and/or butted into any and all phases of their lives. Also, they included a certain amount of lattitude for later interpretations.

Again, just my buck and a half. (inflation's a bitch)

[twowords]

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Inventing an imaginary "right to privacy" in the Constitution IS judicial activism at its worst.

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Yea! They're trying to tell me I have a right to privacy? What a terrible thing! Truely, if there could ever be a worse form of judicial activism, I could not imagine it.

[jester710]

Thanks to everyone for the replies. Now I need to look into the Griswold case and Lawrence v. Texas to figure out where to go from here, I suppose.

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These types of simplistic views make for good soundbites but poor analysis.

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While I can't say whether this quote truly applies to anything posted here, I think it perfectly sums up the problems I have with using what currently passes for discussion to inform my decision. That's why I came to the good people at 2+2. (I also get the majority of my news from the Daily Show, if that tells you anything.)(I'm only half-joking.)

[etgryphon]

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Thanks to everyone for the replies. Now I need to look into the Griswold case and Lawrence v. Texas to figure out where to go from here, I suppose.

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These types of simplistic views make for good soundbites but poor analysis.

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While I can't say whether this quote truly applies to anything posted here, I think it perfectly sums up the problems I have with using what currently passes for discussion to inform my decision. That's why I came to the good people at 2+2. (I also get the majority of my news from the Daily Show, if that tells you anything.)(I'm only half-joking.)

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Side note...

Lawence v. Texas I believe has more to do with Equal Protection and Due Process under the law rather than Right to Privacy. My comments are that it should be argued under the "general" right to privacy.

Griswold is the real deal...

-Gryph