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Roe at 33

posted by awelborn

The NRO Editors

The Court would be perfectly justified in concluding that its attempts to micromanage abortion policy have failed, in regarding this failure as an indictment of its pretensions to have any special expertise or authority to do so, and in scrapping Roe. In Casey, the Court argued that many people have relied on the availability of abortion in the event of contraceptive failure, and that this fact was a reason to continue to protect a right to abortion. But legislatures are perfectly capable of deciding what weight to give to that fact.

The justices may prefer to move incrementally. They may decide, when they again rule on partial-birth abortion later this year, to rule narrowly: to cede just enough legislative authority back to legislatures to let them prohibit partial-birth abortion. Little by little, they might restore democracy in this area.

Roe‘s twin fortifications are there to protect each other’s weaknesses. The alleged popular ratification of Roe is invoked to cover its legal implausibility. But a truly populist constitutional law would allow prohibitions on late-term abortions and substantial restrictions on early-term abortions, so the majesty of the law and the authority of the court have to be invoked against this threat. The only way to keep the game going is through sleights of hand, diversions, and illusions: Roe creates only a limited right to abortion; everyone loves Roe; it is settled law; repeat as necessary.

The pro-abortion activists are right to be alarmed.

John Derbyshire on pendulums and the confidence that there’s no going back from Roe.



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chris

posted January 23, 2006 at 2:35 pm


On the topic of abortion, a glimpse into the camp of Satan.
Looks like Screwtape slipped up again, letting the truth come to the surface on what is perhaps the American left’s favorite sounding board:
http://www.dailykos.com/storyonly/2006/1/23/54131/7524
Ora pro nobis.



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Anonymous Teacher Person

posted January 23, 2006 at 2:37 pm


Even though I tend to agree with Derbyshire that “the wood has been made into a boat,” the question seems somewhat irrelevant to me. Regardless of whether or not we can expect to achieve a society which once again regards abortion as an abomination, we must speak to this grave evil and do everything within our power to prevent it.



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Desert Chatter

posted January 23, 2006 at 2:44 pm


My prediction is that Roe will be gradually pared away as courts take notice of the changing notion of “viability”, which was the basis of much of the Roe decision. As viability is extended deep into the first trimester, so will the state’s interest in protecting viable life. This could be a victory for millions of lives, if the all-or-nothing crowd will allow Roe to be peeled back gradually. I just don’t think it is realistic to think that Roe will be abolished in one stroke, short of a constitutional amendment, which looks unlikely.



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Anonymous Teacher Person

posted January 23, 2006 at 2:45 pm


See, and I left that last comment BEFORE I read the link to the Daily Kos. The wood has been made into that boat that ferries people to the underworld. (Wishing I were awake enough to accurately allude).
St. Michael the Archangel, defend us in time of battle.



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Maclin Horton

posted January 23, 2006 at 2:52 pm


Most people are not intellectuals — a fact that intellectuals have terrible trouble coming to terms with.
I’d argue with some of the other things he says here, but this is a great little aphorism from Derb.



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Dan

posted January 23, 2006 at 3:12 pm


Derbyshire derives his concept of “wood becoming a boat” from examples of wrongs that have been righted — foot binding, human sacrafice and slavery. As such the concept is, in my opinion, wholly inapplicable to state sanctioned abortion, which presents the opposite situation: it is not a wrong that has been righted but is intead a new outbreak of evil. Still the question of how the abortion mentality that prevails can be undone is both fascinating and troubling. In some cases — such as American slavery and Hitler’s Nazism — it has taken war to end an outbreak of evil. In the case of abortion, war is not possible because the opposing sides are not geographically separated (war is never desirable in any event). Further, love and non-violence are at the root of the pro-life movement and as such the Ghandi/MLK doctrines of non-violence are much more compatible with the pro-life movement than is war. Still the movement needs a catalyst. I don’t know what that catalyst might be and for that reason I sometimes feel the pessimism that the Derbyshire piece is designed to inspire.



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Richard

posted January 23, 2006 at 3:26 pm


1. The wood has been made into a boat. But boats eventually sink or get chopped up for pulp.
2. NRO is probably correct that we are more likely to see a steady chipping away at Roe than an immediate overturn.
But I will pray for the latter. It’s the option that actually makes jurisprudential sense.
The DailyKOS link – like so much at that site – is almost refreshingly candid in its open embrace of…well, evil:
“…Sorry. Nope. Bottom line: that may well be a human being in there, but it’s an awfully TINY one, and I’m going to have to lower the boom. I don’t wish to house and feed it for 9 months, let alone 18 years; for reasons whose details are my OWN and NO ONE else’s to examine, dissect, judge or measure, I do not wish to carry this potential human being to term. Thusly, I will make my medical decision and MURDER it, if you want to use that term.
“And when I’m feeling better after the procedure, you can find me at Damon’s, eating part of a freshly murdered COW and what was surely once a charming, life-loving potato.”

You, uh, go girl. Ski that slope all the way to the bottom.



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Richard

posted January 23, 2006 at 3:28 pm


P.S. But it must be remembered, against the danger of despair, that very few people are so hardened in their heart as Ms. O’Connor.
Many want to keep it legal in some degree, but they’re also not comfortable with it.
Something to keep building on for the future.



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Dan

posted January 23, 2006 at 3:41 pm


Ms. O’Connor’s Daily Kos article has remarkable unity of tone and content. The tone reminds me of Linda Blair in the Exorcist. And so does the substance.



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Bender

posted January 23, 2006 at 4:51 pm


My prediction is that Roe will be gradually pared away as courts take notice of the changing notion of “viability”, which was the basis of much of the Roe decision. As viability is extended deep into the first trimester, so will the state’s interest in protecting viable life.
This exact same thing was “predicted” by several members of the Court, including O’Connor in Akron v. Akron Center for Reproductive Health, more than 20 years ago!
Too many pro-lifers, good people all, make the fundamental mistake of believing that Roe and Casey are matters of logic and reason. If only we come up with the right argument, the courts will be compelled by logic to overturn Roe, they believe. That is a false hope, and a serious misreading of the reality of the situation. Roe and Casey have nothing to do with logic or reasoning. They are what Justice White called them 33 years ago — an exercise in raw judicial power, a judicial fiat, an arbitrary use of force to impose the will of judges upon the country. They are acts of tyrants. There is no reasoning with them.
It doesn’t matter how much evidence you offer up to prove the humanity of the unborn. THEY DON’T CARE. The facts that the entity in the womb is living and an individual and distinct person, or human being, or member of the species homo sapiens are irrelevant to them. The dirty little secret is that THEY ALREADY KNOW that abortion is killing, but they do not care. So, logic does not work and will not change their minds.
And, sadly, although he may have intellecutal problems with the merits of Roe, there is nothing in the background of Samuel Alito to suggest that he cares enough to overturn 33 years of precedent. In fact, everything in his conservative judicial philosophy suggests that his respect for precedent will lead him to uphold Casey. Given the expected vote in the Senate Judiciary this week, I fear that in coming years, we may look upon the week of January 22 as not only the week that murder was made a constitutional right, but also the week that the pro-life community committed suicide by supporting him.



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Donna V.

posted January 23, 2006 at 5:41 pm


Some great shift of sensibility, following some social or technological change I have not imagined — perhaps cannot imagine — could conceivably send this pendulum swinging back.
Er, I know of a few people who began having qualms about abortion when ultrasounds became common. And now that colored, 3-D pictures are available, it must create more cognitive dissonance than ever to look at your baby’s face and see a non-human blob of matter.
Of course, for some, the baby could be holding a little sign saying “I am a human being!” and it wouldn’t matter. As the Daily Kos writer shows, the only place you can go at this point and remain pro-abort is from saying “It’s not a person” to “It’s a person and it’s murder – and so what?”



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Dan

posted January 23, 2006 at 5:47 pm


“And, sadly, although he may have intellecutal problems with the merits of Roe, there is nothing in the background of Samuel Alito to suggest that he cares enough to overturn 33 years of precedent.” This could be true of Roberts — that remains to be seen — but it totally misreads Alito. Alito is a nearly sure-fire anti-Roe vote. As to Roberts, the Oregon suicide case is grounds for cautious optimism that he too will be an anti-Roe vote. Kennedy is the last remaining obstacle. He will vote to allow a ban of partial birth abortion, but it is unlikely that he would flip to join a decision that repealed Roe entirely.



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Bender

posted January 23, 2006 at 5:56 pm


it must create more cognitive dissonance than ever to look at your baby’s face and see a non-human blob of matter.
Ah, there’s the rub. When such things occur, when they are smashed between the eyes with a two-by-four of truth, that does present some difficulties for many. You see, they can continue their little boat trip down “da Nile,” and simply feel some cogitive dissonance or discomfort, or they can finally admit to themselves that it is a living and individual human person.
But if they finally admit that, then they also have to admit to themselves that they have been complicit in the murder of 46 million of those human lives. And that is a thought just too horrible for them to accept. So, they don’t. They continue the lie to themselves. “Its not really a human being, its not really alive, its not really a baby.” Then they do not have to wash the blood off their hands, then they do not have to admit that they are immoral monsters.
Luckily, and thankfully, this is where the Church comes in. This is where the Church can offer mankind salvation from abortion because the Church has Christ. And Christ can and will forgive even so horrible a sin as the murder of 46 million babies, just as He will forgive us pro-lifers for doing so little in defense of life. And the possibility of that forgiveness, the possibility of that redemption, made possible by the Blood of One on the cross, will ultimately lead the majority of “pro-choicers” to reject death and to demand that Roe be overturned. But not until then, will the despots that we call judges finally relent.



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Martin

posted January 23, 2006 at 8:06 pm


“…This exact same thing was “predicted” by several members of the Court, including O’Connor in Akron v. Akron Center for Reproductive Health, more than 20 years ago!”
Ditto to that post. Keep in mind that if abortion is outlawed then the moral status for cloning starts to teeter totter. “They” will never let this happen. Slavery was outlawed because we found better slaves, machines. As long as society puts its ageing hope for eternal life in science and not God we will be fighting this battle.
But then my wife says I’m a pessimist.



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Nick Frankovich

posted January 23, 2006 at 9:01 pm


John Derbyshire’s view of the trend in attitudes toward abortion may be true of Europe, but in the United States support for abortion rights — i.e., opposition to the right to life for the unborn — crested in the early 1990s and has declined since then. I don’t want to overestimate how much the pendulum has swung, but I have noticed what polls indicate, which is that the prolife cause has more traction among college-age students today than it did fifteen years ago. I have also noticed that support for the prochoice cause has softened in that people who side with it are increasingly likely to express ambivalence about it.



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Jim

posted January 23, 2006 at 9:21 pm


In my opinion, the failure to make progress in rolling back Roe is an unwillingness on the part of the pro-life leaders to make winning arguments that will eat away at , rather than sweep away, the “right” to an abortion.
Contrary to pop opinion, Roe was the product of a line of decisions building up a right to privacy and a right to sexual liberty. It didn’t happen in one swoop.
Roe should be attacked on its own terms, not on the basis of it being totally wrong and immoral. In 30+ years, the latter approach has gotten us nowhere.



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Glenn Juday

posted January 24, 2006 at 5:42 am


1. This Christianity thing will never catch on. A middle eastern Jewish cult shape a common culture in the territory of the mighty Roman Empire? Forget it. The civitas Romanas have passed beyond all that stuff. There’s no going back to mystical and spiritual worldviews once Greek rationality and Roman engineering and military power have caught on.
2. An actual, functioning modern Jewish nation-state? Forget it. There’s no going back, history has passed it by. It’s just a romantic dream by a fading, hopless minority.
3. A self-governing modern republic? Forget it. All that demos and cracy stuff and res and publica stuff is a bunch or romantic nonsense put into the heads of schoolboys tutored in Latin and Greek. Everybody know that time has passed those hoary old experiments by. They’ll crown George Washington king any time now.
4. A revival of the Latin Mass. Are you kidding? It’s been finished off. Once the old and infirm have passed on that will be that. YOUNG people learning an old, dead ritual in an old dead language? You’ve got to be dreaming! Time has passed it by.



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Donna V.

posted January 24, 2006 at 7:08 am


Glenn Juday: LOL! Thanks for reminding us that history does not move in logical, predictable lines.



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Jim

posted January 24, 2006 at 7:50 am


Glenn:
I’m sure these examples give you hope, but tell me this:
1) Did Christianity come out of its affair with Roman imperialism unscathed?
2) Is the modern Jewish nation-state anything like the biblical Jewish state?
3) Was American democracy the fulfillment of classical dreams or the result of mercantile capitalism?
4) Is the Latin Mass a basis for unity in the Church, or has it been turned into an icon of division? And I don’t see any young people in any significant numbers actually learning Latin….like the old days, they’re just mouthing the words.
As to Roe, I’d rather actually save more and more lives each successive year than persist in ineffective assertions of my moral absolutes. When your projected tipping point comes, great news……. but in the meantime there are real lives to be saved, I believe, by taking on Roe on its own terms.



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Henry

posted January 24, 2006 at 11:11 am


Back when slavery was the most divisive issue, its supporters had a similar argument. You can’t stop slavery- the wood has been made into a boat, the slaves are too numerous and among us.
In many ways, slavery was very similar to abortion in the way it clouded peoples’ thinking and morality. Opposition to it was largely Christian; though then as now some Christians were defectors.



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Desert Chatter

posted January 24, 2006 at 11:44 am


The slavery analogy makes Jim’s point. The aboltionists in fact did not rely on one big solution only: they create a multi-front war against slavery, including the underground railroad and litigation in the states on various fronts. There were absolutists, of course: but remember we fought a brutal civil war to get to the absolutist remedy…..and no one should propose that as a way to resolve differences without exhausting all other possible remedies.



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Glenn Juday

posted January 24, 2006 at 1:48 pm


Dear Jim,
Woah! I strongly recommend that you absorb one point at a time, specifically the one under discussion, or you will end up a confused and frustrated individual.
It doesn’t matter what I or, forgive me, you FEEL about the desirability or lack of it in each of the examples I gave. It’s not about our FEELINGS. For the record you incorrectly inferred some of my FEELINGS about some of the examples.
It’s about this: The observation was put forth that once great social transformations involving widespread acceptance of something that was once unthinkable or seemed unacheivable happen, then there is no going back. In my view this is a wildly romantic and silly notion, puerile really.
We heard it all the time as the intellectually bankrupt justification for communism – “History moves only in one direction – forward with the masses comrade.” No, actually, if you would bother to look.
Well, of course we are now in the Era of FEELINGS. In other words a proposition is true or not true to the degree that I FEEL good about it. And that fits rather logically into a culture in which men are urged to a role representing a rather bad parody of women.
Sometimes I believe that I discern signs that we are breaking out of the culturally silly and infantile times that have facilitated the spread of the worst excesses of our modern culture, but I could be persuaded otherwise based on enough evidence.



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c matt

posted January 24, 2006 at 3:33 pm


but I could be persuaded otherwise based on enough evidence.
Well, while some polls show younger folks as more pro-life, they also show them as more pro SSM. So while one leak (and a fundamentally important one at that) may get plugged by eventual demographic change, it seems another may spring open.



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Desert Chatter

posted January 24, 2006 at 3:51 pm


Glenn:
Calm down. All you need is to learn is the difference between an anecdotal example and real proof.
E.g.: You once walked blindfolded across a busy interstate highway and emerged unscathed. Anecdotal conclusion: it’s an OK and safe practice.
Some things in history turned out in ways that not many people foresaw, so let’s bet the farm on it happening again with Roe…..someday.
In the meantime, there are real lives to be saved, which, after all, was the original goal.
That was, I believe Jim’s point…..and you missed it.



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Glenn Juday

posted January 24, 2006 at 6:23 pm


Mr. Desert Chatter,
Perhaps I did miss the point. However, the point (Derbyshire’s) I thought I saw was this: history operates as a one-way gate with respect to certain deep-seated moral issues in the realm of social/cultural practices. Once a given social convention that effectively limits or prohibits the practice is breached and the practice or condition becomes common, there is “no going back.”
If what is meant is that there is no possibility that the practice or condition will ever be limited in the future, I do in fact object. History is full of improbable outcomes that seemed impossible according to the proposed standard.
If the outcome of the fight to eliminate legalized abortion and the concept of an abortion “right” were entirely a matter of human desire and there were no Divine intention involved, one might be justified in pessimism. But God IS involved and is not neutral. Humans were not designed in a way that will allow us to institutionalize a system to comfortably slaughter ourselves, and especially our offspring, on a whim and for selfish reasons.
God will order a situation that will bring this tragic situation to an end. If we cooperate freely with Him and His desire out of higher motives, it will end (and end well for us). If we need more persuasion, then God will see that we get a clearer picture of what having our own way in opposition to His loving way will mean, and that may repulse us enough that we will change. But, if we are completely defiant, God will punish by giving us over to our disordered desires and we will be utterly destroyed – by our own doing. A simple Darwinian selection model would be sufficient, and I find it amazing that such an observation has largely escaped comment by the self-identified believers in Darwinian mechanisms. In a sense they had better hope that they are wrong.
Salvation history contains example after example of this process of sin and reform; it should not come as a surprise and certainly should not give rise to foolish ideas about irreversible directions and gates of history. It should also serve as an antidote to the temptation of pessimism and discouragement by those enmeshed in the day-to-day battles for life. Our side is going to win. Our. Side. Is. Going. To. Win. It may not be in my lifetime. There may be horrendous damage before it gets done. But we are on the winning side and those who aim to institutionalize an assault on life will loose. They have already lost the aura of finality and invincibility that accompanied the early, foolish commentary that at least the Supreme Court had definitively settled the issue and there was no sense fighting over it anymore. It’s truly time for them to be pessimistic. They have had their day, time has passed them by.



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