An article in today’s Wall Street Journal is really burning my biscuits. The author, Robert George, claims that if the Supreme Court decides to hear an appeal of California’s Proposition 8 (which outlawed same sex marriage), the justices would be “repeating the mistakes of Roe.”
It would be disastrous for the justices to do so. They would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to their personal lights.
Even many supporters of legal abortion now consider Roe a mistake. Lacking any basis in the text, logic or original understanding of the Constitution, the decision became a symbol of the judicial usurpation of authority vested in the people and their representatives. It sent the message that judges need not be impartial umpires—as both John Roberts and Sonia Sotomayor say they should be—but that judges can impose their policy preferences under the pretext of enforcing constitutional guarantees.
By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Abortion, which the Court purported to settle in 1973, remains the most unsettled issue in American politics—and the most unsettling. Another Roe would deepen the culture war and prolong it indefinitely.
First of all, Roe was not a mistake. Although the justices at the time could have done more to shore up women’s equality by deciding the case under the 14th Amendment’s equal protection clause, rather than on the grounds of privacy, the wording of the original decision is still sound. If any SCOTUS decision can be faulted it’s Planned Parenthood v. Casey, which set up the “undue burden” standard. Since 1992, we have seen a vicious attack on women’s rights, as anti-choicers keep sponsoring legislation that pushes the limits of the “undue burden” standard further and further. Abortion may still be technically legal in the United States, but the legislative restrictions that have been placed on access to abortion make it inaccessible for most women – 87% of US counties have no abortion provider. In her Feminists For Choice interview last week, Gloria Feldt argued that pro-choice advocates need to be articulating their demands from a human rights platform, rather than on the grounds of privacy. I think that this paradigm shift would overcome any of the shortcomings of Roe because it would allow us to have recourse beyond SCOTUS.
Secondly, I seriously doubt that the attorneys in the Prop 8 appeal are going to be arguing that same sex marriage is a matter of privacy. Granted, the Lawrence v. Texas case, which overturned sodomy statues, relied on Griswold v. Connecticut for legal precedent. Griswold was the 1965 case that set the groundwork for Roe. The justices found that a married couple had a right to receive contraceptives because it was covered under the right to privacy. Although Griswold is an important legal precedent, my bet is that the Prop 8 case will ultimately be decided on the justices’ interpretation of the 14th Amendment’s equal protection clause. The Supreme Court will have to decide if gays and lesbians are entitled to equal protection under the law. This is not a “moral issue,” as those who oppose same sex marriage claim. If the government grants legal protections to heterosexuals to marry, then it must provide the same protections and benefits to gay and lesbian couples under the 14th Amendment. If the Supreme Court rules otherwise, then we will truly see what the Court believes about the LGBTQ community and our rights.
I do think that an appeal of Prop 8 to the SCOTUS is a mistake, but not for the same reasons that George gives in the Wall Street Journal. I think that the state by state strategy is actually working. I mean, hell – even voters in Iowa approved marriage equality this year. I don’t think that the current make up of SCOTUS is going to pan out in favor of the LGBTQ community on the question of marriage equality. It’s far too conservative, and if they decide that Prop 8 is not unconstitutional on 14th Amendment grounds, you can kiss everything else, like employment protections and hate crimes statutes, goodbye. It’s too risky. We could actually get an inclusive ENDA passed this year. But if a Prop 8 decision comes down in favor of the fundies, ENDA will be a wash.
That’s just my opinion, though. What do you think? Was Roe a mistake? And is it a mistake to appeal Prop 8 to the Supreme Court?
Roe was not created in a vacuum. It relied heavily upon previous Griswold, as you said, and cases previous to Griswold. And Roe was not only about abortion; it was women’s and couple’s right to privacy in medical matters surrounding pregnancy (IIRC). The government has no more right to tell a woman what she can and cannot eat during pregnancy than they can tell her she cannot have an abortion. Abortion is no more a “morally charged policy issue” than is pregnancy.
The same is true of same-sex marriage. Government-sanctioned marriage is not a moral issue but a policy issue; as such, it is unconstitutional to restrict it to one set of partnering, consenting adults (namely opposite-sex as some states have disregarded science when deciding cases between a transitioned adult and their now-opposite-sex spouse). Any decision defending the right of the government to give benefits to specific couples would justify extending those beneifts to same-sex and mixed-sex couples.
But, no, Roe wasn’t a mistake. It protected the rights of all women in this country. Protected them from a tyranical majority at the state level. That’s one of the jobs of SCOTUS.
I do think Roe was a mistake. It was the right result for the wrong reasons. It was predicated on an unarticulated constitutional right (the right to privacy) which is also not a fundamental right. Had it been predicated on a fundamental right such as a vested liberty interest or even a property interest, the decision would have subjected Roe’s ruling to a much higher level of scrutiny and not have left it so shaky and open to an overturning. Had Roe opened up the interest in bodily integrity, say, as a liberty and/or property right, we’d be on much more solid, permanent ground. additionally, a right to bodily integrity (which, incidentally, is not an articulated fundamental right) would also have given additional grounding to things like forcible sterilization, medication and blood draws since those issues turn on search and seizure standards and could use some bodily grounding.
Alexx, spoken like a true lawyer.
Carolyn, I couldn’t agree more about Prop 8. This is obviously a question of equal protection under the law. We pay equal taxes (more, actually), so we’re entitled to equal rights. Period.
Alexx’s point is dead on! Should the Supreme Court overturn Roe, I wouldn’t be happy. But it wouldn’t make a huge amount of difference to how things are now.
Since abortion restrictions are decided on a state by state basis anyway, there would still be some states where access is good and some where it is not.
Whether it happens on a statutory basis through local, state or federal legislation or via the court system, abortion rights need to be clearly articulated in terms of the Constitution, rather than on an abstract and untested legal concept.
Freewomyn–you are right about equal protection under the law for LGBT individuals and couples. The tax argument is a little dicier, me thinks.
It is the “tax paying citizen” argument that concerns me. The working poor, on the whole, pay very little (if any taxes), but that doesn’t mean that their concerns should be any less than those of the mythical “taxpayer”.
Additionally, married (straight) couples without children have an enormous tax burden compared to married (straight) couples with children.
Our tax system clearly favors those that conform to an idealized version of the American family–married couples with children pay less than married couples without children, homeowners receive all sorts of tax benefits (another facet of the bullshit our culture likes to sell as “The American Dream”), etc. Taxpayers can apply for adoption credits–read–good, middle class folks get “credit” for taking on the burden of caring for the “less fortunate” and the list goes on.
As Shanman ever so brilliantly decided a while back–the debate over “gay marriage” is really another red herring strategy offered by the right. Every couple (gay or otherwise) should be allowed to have a civil union in order to secure the rights now conferred on married couples under federal law. If you want to get married in your church, that is a separate thing–a private matter between the couple and their chosen faith.
I agree with Shan, though I would argue that the notion of marriage (or civil unions) = state sanctioned relationships and as such these institutions = a form of social control. No matter how it is organized or who is included (or not) marriage is a means by which our culture rewards some behaviors an excludes others from the norm.
Yes. I am married. But I didn’t get married by my own choice. One deployment as the girlfriend of a Marine and I realized that our being married was a necessity for us. Now I am a “Marine wife” which, in some ways, means that I chose to give up a large part of my autonomy as a woman because the military rewards married service people and punishes (or excludes) unmarried service people.
Phew. That was a lot in one comment. Perhaps I will blog later about how all of this is related.
It’s not perfect – but i appreciate the application of the right to privacy in Roe.
It establishes the precedent of privacy in family planning decisions – keeping the state OUT of the business of when, where, and how many (think China) babies people choose to have.
Hopefully, additional decisions will broaden and deepen it – not diminish it, as serena points out the Casey decision has done.
p.s. burning your biscuits. hehe. love it
@ Mrs. Mastro – I agree with you about the tax argument, as well as on the marriage front. But when you’re talking to capitalists who love the almighty dollar and believe in the idea of “the American Dream,” you have to articulate your arguments in a language they can understand. No taxation without representation . . . it’s an “ideal” that this country is supposedly founded upon (depending on which view of history you’re reading).