Month: April 2007

[Ross] Stephen Hunter investigates the connection.

[Ross] Michael Uhlmann provides a reminder of just how tangled the Supreme Court’s abortion jurisprudence has become over the years, by quoting the Court’s own summary of the Planned Parenthood v. Casey decision:

O’Connor, Kennedy, and Souter, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III,V-A, and VI, in which Blackmun and Stevens, JJ., joined, an opinion with respect to Part V-E, in which Stevens, J., joined, and an opinion with respect to Parts IV, V-B, and V-D. Stevens, J., filed an opinion concurring in part and dissenting in part. Blackmun, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Rehnquist, C.J., filed an opinion concurring in the judgment in part and dissenting in part, in which White, Scalia, and Thomas, JJ. Joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C.J., and White and Thomas, JJ., joined..

Got that? Casey, of course, was more than a decade ago, but matters haven’t become any clearer since.

[Ross] Should NBC have shown the killer’s video? Kaus, Crowley, Orr and Shafer debate. (I think I’m with Kaus and Orr.)

[Ross] Encouraging students to squeal on potential psychopaths, rather trying to profile them, is the best way to prevent school shootings, Steve Sailer suggests.

[Ross] A milestone for NPR. (hat tip: Jonah)

[Ross] Responding to my earlier post, Matt Y. writes that yes, legislatures can regulate some conduct that takes place within a person’s body, but that they can only do so in the context of health-and-safety regulations, not to protect fetal life (unless said life counts as a person under the Fourteenth Amendment, in which case the point is moot anyway):

… The common thread tying together the sort of regulations Ross is citing here is a public health rationale. I don’t think anyone would dispute the constitutional right of congress to prohibit or curtail the use of a genuinely dangerous abortion procedure — regulations aimed at protecting the health of pregnant women. Abortion regulations that lack health exemptions, however, can hardly be said to be public health measures. Alternatively, one could try to see abortion bans as a kind of commercial regulation — like a rule that you can’t have a liquor store next to a school, or zoning in general. But I find it hard to see how this sort of rationale could support banning the provision of a class of medical services throughout an entire state or country.

What’s more, anything along these lines would be offered in bad faith. Abortion opponents don’t oppose abortion rights because they think such rights are bad for the health of pregnant women. Nor do they oppose legal abortion because they think it’s bad land use policy. They oppose it because they think fetuses have moral rights that ought to be instantiated as legal rights. This, however, leads to the conclusion that courts should require abortion bans, just as the SCOTUS wouldn’t let a state pass a law saying "murder is illegal unless the person you kill is over 73." Either way, it’ll be decided by judges.

I guess I don’t think of laws banning prostitution, or even laws banning drugs, primarily as public health regulations – I think of them as morals legislation, outlawing practices that the majority considers sufficiently offensive to human dignity to deserve an outright ban. And in this context, I don’t see why killing one’s unborn offspring, even if the offspring isn’t a legal person and the crime therefore isn’t the same as murder, shouldn’t be something that the state has an interest in regulating on moral grounds. (We have laws against animal cruelty, for instance, even though animals aren’t legal "persons.")

This, incidentally, is why so many conservatives hated on Lawrence v. Texas – not because it did away with sodomy laws, but because Anthony Kennedy’s majority opinion seemed to hint that any and all morals legislation was effectively unconstitutional. That was the substance of Scalia’s dissent, which warned that laws against everything from prostitution to obscenity would be threatened by the decision. For now, though, that threat hasn’t been fulfilled – and as long as morals legislation in general is still safe from Supreme Court override, there’s no reason a state or Congress shoudn’t be able to restrict abortion (in a post-Roe world, that is) even without claiming legal personhood for the fetus.

[Megan] I’m sure I will now reveal that I am a net neophyte, and that everyone saw this, like, eight zillion years ago, but surely there are a few dinosaurs in the audience like me who have not seen Songs to Wear Pants To, where a young musician composes songs based on random requests from his readers. Here’s how it works. Andrew, who runs the site, gets a request:

can you write a song about snails who eat people? haha

The result: Reverse Escargot.

Current favourites include This Girl, The THX Song With Just My Voice, and Celtic Techno Burrito.

[Ross] Predictions from 1900. (They were really into pneumatic tubes.)

(via Tyler Cowen, Kottke, etc.)

[Megan] The alleged logic of overturning Roe v. Wade is, for many libertarians, that it will throw the issue back to the states. There, states will rapidly use the legislative process to come to a compromise that makes the majority of people within their borders roughly happy, and both the pro-choice and pro-life groups will lose much of their energy.

This argument has a lot of appeal.  As one of my colleagues at The Economist pointed out, Europe had the same conversation as America about abortion in the sixties and seventies.  The difference is, European countries either passed laws, or submitted the question to referendum. Even those who weren’t happy with the outcome felt the process by which it had been reached was legitimate. In America, neither group feels that the Supreme Court’s process was morally legitimate–or at least, I infer that pro-choicers do not, since they seem to view an attempt to ban abortion by exactly the same process as a completely illegitimate usurpation of power by conservative ideologues. 

Besides, the more local a problem is, the less anger it generates; American pro-lifers do not, after all, head over to England to hold their candlelight vigils, nor do pro-choicers fly to Germany to protest the country’s near-complete (de jure, though not de facto) abortion ban.

But what if this doesn’t happen, as Scott Lemieux has argued? What if Congress starts making abortion law? We’ll see a substantial nationwide curtailment of abortion rights, then, without the decentralised decision-making that libertarians so love.

Certainly, no classical liberal is cheering the Supreme Court’s decision to uphold the Federal partial-birth abortion ban. Even those who are pro-life (yes, there are some!) or like me, moderately pro-choice, are unhappy that any federal abortion statute would be upheld under the commerce clause. The procedure is so rarely performed that it’s hard to view it as a sort of devil’s bargain. And it bodes ill for any future in which Roe is overturned.

Still, you have to ask whether a Roe-less world with federal restrictions would be worse than than the status quo. The restrictions that could actually be passed at the Federal level would probably bring our abortion law roughly in line with the rest of the world’s: no abortions after the first trimester, with exceptions for the life and health of the mother, mental health not being included in those exceptions. That wouldn’t actually stop very many abortions, though obviously it would make unhappy anyone who thinks that you should be able to abort right up until the moment the doctor slaps it on the ass. 

But even a suboptimal law–and I’m sure that it would be more restrictive than I’d like, since what I’d like is pretty much no restrictions–would probably be better than the current situation, because as in Europe, the process would legitimate the decision. It would burn out a lot of the energy on both sides for packing the courts in order to legislate from the bench by fiat. It would force legislators to actually put what they want right out there in the sunlight, rather than insulating themselves from accountability by standing behind nine people in black robes. I’m not saying that we wouldn’t still have vigorous debate, because obviously, the period of deciding abortion laws would be even angrier than the current one. But at the end, you would have a law roughly acceptable to most of the population. The extremists on both sides, those who think they can still win the game of Supreme Court Chess with some surprise killer move and therefore need not compromised with the [great unwashed/heretics] in most of the country, will obviously not think that this is a great thing. But I’m not sure it sounds so bad to me.

And of course, it is also good for the process itself. The perception that the Supreme Court just gets to make shit up whenever it wants has not added to either civil discourse, or public faith in our institutions. That of itself might be worth the tradeoff.