Abortion vs. War: How Should I Vote?

[miguel]

Surely you are familiar with the concept of the filibuster and what it means to have a filibuster proof senate majority. Since the Republicans never had such a majority, getting such a law passed was quite simply impossible. There was no opportunity missed as there was no opportunity available.

There is nothing in the Constitution about filibusters or filibuster proof majorities. The filibuster springs from Article I, Section 5 “Each House may determine the rules of its proceedings…” It’s a compromise rule protecting the minority party from being totally dominated by the majority party. And it’s generally respected by the majority party since it’s only a matter of time before it becomes the minority party. But a majority party could change the rule anytime. I guess the majority party has to consider what’s more important…protecting the lives of thousands of innocent babies murdered every day or protecting the filibuster.

 

[miguel]

miguel:
“Amazingly, the partial birth abortion ban act explicitly reaffirmed Roe’s jurisprudence that unborn children are not constitutionally protected persons under the 14th Amendment’s equal protection clause.”

This is another statement that is a good bit south of the truth.

Michael Hichborn wrote an article that appeared in the July/August 2007 New Oxford Review, entitled “Dissecting the Partial-Birth Abortion Ban”. At the time, he was Assistant Director for Media Relations of the American Life League. It’s important for people to understand what the Partial Birth Abortion Ban Act actually says:

"…The key wording (from Section 2.14(H) of the Act) is:“A child that is completely born is a full, legal person entitled to constitutional protections afforded a ‘person’ under the United States Constitution. Partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person’…”…It affirms that only a “child that is completely born is a full, legal person, while it fails to lend that same personhood even to a partially born baby…”

This is nothing other than an affirmation of Roe’s jurisprudence, and this is held out to prolifers as progress?
newoxfordreview.org/artic…=0707-hichborn

From their 2008 platform.

“…and we endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children…We have made progress. The Supreme Court has upheld prohibitions against the barbaric practice of partial-birth abortion…”
gop.com/2008Platform/Values.htm

Of course the Partial Birth Abortion Ban Act had language making clear that 14th Amendment protections don’t apply to unborn children. That’s why it was upheld in Carhart. The act only bans a specific procedure.

 

[miguel]

Even a cursory reading of Ginsburg’s dissenting statement shows that Carhart was a major loss for the abortion crowd. As to the specific charge above this comment is probably relevant:

most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of **Roe,” are merely “assume[d]” for the moment, **ante, at15, 31, rather than “retained” or “reaffirmed,”

This is an interesting point. We can only hope that Ginsburg’s worry will come true.

 

[miguel]

It is not for Scalia or any other justice to rule for the outcome he prefers; he can rule only on what the law says. If his position is all that is allowed by the Constitution then that is how we should hope he would rule. It really is preferable to have justices interpret the laws as they are written rather than as they would like them to be.

14th Amendment:
“…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Blackmun, in his majority opinion in Roe, held that the unborn are not persons as that term is used in the 14th Amendment. Wade defended the Texas statute prohibiting abortion by claiming it was constitutionally required by the 14th Amendment. Scalia agrees with Blackmun that the unborn are not persons protected by the 14th Amendment. He has indicated in some of his opinions that he would allow the states to decide.
all.org/newsroom_judieblog.php?id=2139

 

[miguel]

miguel:
And don’t look to Roberts or Alito to overturn Roe either. They view Roe as “settled law”. Settled for them means that Roe is established precedent and they have no intention of changing it.

My my, another statement with no basis in fact. How surprising.

Regarding Roberts:
“We had quoted Roberts when he came before the Senate Judiciary Committee for his appointment to the Court of Appeals on April 30, 2003. Roberts said: “Roe vs. Wade is the settled law of the land…. There’s nothing in my personal views that would prevent me from fully and faithfully applying that precedent….” Sen. Arlen Specter asked Roberts at the Judiciary Committee hearings for his appointment for Chief Justice (Sept. 13, 2005): “Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?” Roberts answered: “Well, beyond that.” That means that Roe is settled law, not just for Roberts himself, not just for Roberts as a circuit judge, but is settled for him as a Supreme Court justice.” (per New Oxford Notes November 2005)
newoxfordreview.org/note…otes-prolifers

Regarding Alito:
“On the same day Alito was nominated (Oct. 31, 2005), he met with pro-abortion Sen. Arlen Specter, Chairman of the Senate Judiciary Committee. Alito told Specter of his respect for precedent (and Roe is precedent), adding, according to Specter, that “when a case has been reaffirmed many times [as *Roe has been], it has extra weight” (USA Today, Nov. 1, 2005). Later, Alito met with Sen. Joseph Lieberman, and Alito told him, according to Lieberman, that “Roe was precedent on which people, a lot of people relied, that it had been precedent for decades and therefore deserves great respect” (The New York Times, Nov. 9, 2005).”(per March 2006 NOR editorial)
newoxfordreview.org/artic…0306-editorial

A little history of Republican judicial appointments…
The majority in Roe (5 of the 7 were Republican appointees):

Blackmun (Nixon), Burger (Nixon), Douglas (Roosevelt), Brennan (Eisenhower), Stewart (Eisenhower), Marshall (Johnson), Powell (Nixon)

Dissenting
White (Kennedy), Rehnquist (Nixon)

Appointees since Roe (Of the 8 Republican appointees since Roe, 4 have voted to uphold Roe and the 2 most recent are highly suspect. Even Scalia agrees with Roe that the unborn are not persons protected by the 14th Amendment’s equal protection clause.):

Stevens (Ford, voted to reaffirm Roe in PP vs Casey)
O’Connor (Reagan, voted to reaffirm Roe in PP vs Casey)
Kennedy (Reagan, voted to reaffirm Roe in PP vs Casey)
Scalia (Reagan, wrote in PP vs Casey dissent that abortion not a constitutionally protected right)
Souter (Bush, voted to reaffirm Roe in PP vs Casey)
Thomas (Bush, signed Scalia’s dissent in PP vs Casey)
Ginsburg (Clinton)
Breyer (Clinton)
Roberts (Bush, In Carhart vs Gonzalez, Kennedy’s majority decision was joined by Roberts, Alito, Scalia and Thomas, upheld the partial birth abortion ban. Ginsberg wrote the dissent. Thomas wrote a concurrence to clarify that he does not think that Casey and Roe were correctly decided and would overturn them. Scalia joined Thomas, but Alito and Roberts did not.)
Alito (Bush)

Fortunately we have Ginsburg to provide us with a more accurate view:

In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court

Ender

The pro-aborts are paranoid. What else is new?

 

[miguel]

But a majority party could change the rule anytime.

Correction: A majority could change the rule anytime. The majority vote could be comprised of members of either party. And I’m sure the rule could be re-instated without too much trouble, once specific legislation is passed.

 

[Ender]

"…The key wording (from Section 2.14(H) of the Act) is:“A child that is completely born is a full, legal person entitled to constitutional protections afforded a ‘person’ under the United States Constitution. Partial-birth abortions involve the killing of a child that is in the process, in fact mere inches away from, becoming a ‘person’…”…It affirms that only a “child that is completely born is a full, legal person, while it fails to lend that same personhood even to a partially born baby…”

This is nothing other than an affirmation of Roe’s jurisprudence, and this is held out to prolifers as progress?

You jump back and forth between the law written by Congress and the ruling issued by the Court as if there were no distinction between their roles. Of course the law had to conform to Roe; there was no possibility of it withstanding a legal challenge if it didn’t. In fact, had the law not conformed to Roe, it would not have withstood the legal challenge and this would simply have lent strength to that ruling by adding yet another decision supporting abortion. As can be seen from the decision, however, the ruling - based on this law - has weakened Roe, as Ginsburg herself pointed out.

Ender

 

[Ender]

Blackmun, in his majority opinion in Roe, held that the unborn are not persons as that term is used in the 14th Amendment. Wade defended the Texas statute prohibiting abortion by claiming it was constitutionally required by the 14th Amendment.

Yes, that was Wade’s position. He was, however, forced to concede that there was no case he could point to to support that position. Blackmun addressed this point in his opinion:

On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define “person” in so many words.

Scalia agrees with Blackmun that the unborn are not persons protected by the 14th Amendment. He has indicated in some of his opinions that he would allow the states to decide.

And if this is a correct interpretation of the Constitution would you have Scalia ignore that fact and rule based on his personal belief that the unborn are in fact persons and should be protected by the law?

Ender

 

[Ender]

And don’t look to Roberts or Alito to overturn Roe either. They view Roe as “settled law”. Settled for them means that Roe is established precedent and they have no intention of changing it.

This is astonishing. Of course they accept Roe as established precedent because that’s exactly what it is. As to how they would rule should a case come before them challenging Roe’s findings, no one can know. The claim that they have no intention of changing it is completely baseless.

Regarding Roberts: … Regarding Alito:…

More baseless speculation. Everyone knows that when any nominee - especially one appointed by a Republican president - goes before the Senate, the number one objective is to ferret out his position on Roe. This is also known - especially - by the nominees. Both Roberts and Alito were very careful to neither give an opinion on Roe or to appear to give an opinion. The belief that we can predict their future rulings based on carefully guarded statements made during their confirmation hearings is little different than believing one can do it by reading tea leaves.

A little history of Republican judicial appointments…

This argument is not simply without merit, it is completely disingenuous. The bottom line is this: Republicans have made appointments that were bad (Souter) or mediocre (Kennedy, O’Connor) but in no case have they sought out anyone with the expectation that he would uphold Roe, and the good appointments (Scalia, Thomas, Alito, Roberts) appear to be very good indeed. The Democrats have sought out those (Ginsburg, Breyer, Sotomayor) who they believe will keep Roe safe. While it is true that the nominee of a Republican does not guarantee a good justice, we are pretty much guaranteed a bad one from a Democrat.

Roberts (Bush, In Carhart vs Gonzalez, Kennedy’s majority decision was joined by Roberts, Alito, Scalia and Thomas, upheld the partial birth abortion ban. Ginsberg wrote the dissent. Thomas wrote a concurrence to clarify that he does not think that Casey and Roe were correctly decided and would overturn them. Scalia joined Thomas, but Alito and Roberts did not

.)Here is what Thomas wrote:

*I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410U.S. 113 (1973), has no basis in the Constitution.

*Given that neither Roberts nor Alito had ever expressed a view on Roe, exactly how were they supposed to have joined an opinion reiterating a view they had never iterated?

Ender

 

[miguel]

You jump back and forth between the law written by Congress and the ruling issued by the Court as if there were no distinction between their roles.

I didn’t mention Carhart until you brought up Ginsburg’s dissent. I criticized the explicit wording of the PBAB act itself.

Of course the law had to conform to Roe; there was no possibility of it withstanding a legal challenge if it didn’t. In fact, had the law not conformed to Roe, it would not have withstood the legal challenge and this would simply have lent strength to that ruling by adding yet another decision supporting abortion.

It first needs to be pointed out that the act restricts a specific procedure from being performed. But there are other ways to accomplish a late term abortion. So the act isn’t really saving lives. It’s allows the GOP to point to a piece of legislation (as they did in their 2008 platform) claiming progress when there is no progress. Actually we lost ground, because we now have an act of Congress explicitly affirming Roe (denying 14th Amendment equal protection to unborn children) and directly contrary to the promise made in their platform.

As can be seen from the decision, however, the ruling - based on this law - has weakened Roe, as Ginsburg herself pointed out.

I think you’re definitely right to point out her concerns with some of the wording in the majority opinion relative to Roe. We’ll see. Hopefully her fears will be realized. Obviously, I don’t think we have to wait forever for the Court to have the right make-up to reverse itself. There are Constitutional ways around this.

 

[miguel]

Yes, that was Wade’s position. He was, however, forced to concede that there was no case he could point to to support that position. Blackmun addressed this point in his opinion:

On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define “person” in so many words.

And if this is a correct interpretation of the Constitution would you have Scalia ignore that fact and rule based on his personal belief that the unborn are in fact persons and should be protected by the law?

Ender

It’s an abominable interpretation of the word person. One second before birth the baby is not a person, one second after birth the baby is a person. It’s absurd.

 

[Fidelis_Unus]

According to Catholic Church teaching, [1] embryonic stem cell research, [2] same-sex marriages, [3] euthanasia, [4] human cloning and [5] ABORTION are Non-Negotiable voting issues. War is not.

And there is a difference of opinion whether the war is unjust. Speak to soldiers who have been over there and who have seen what they were doing to their own people and how that was stopped by the war and then you will be qualified to speak about whether or not the war is unjust.

Absolutely clear! Thank you. Very well put.

on a more personal level, we are called to protect the weak and the innocent and abortion kills a completely helpless innocent life.

 

[Ender]

It first needs to be pointed out that the act restricts a specific procedure from being performed. But there are other ways to accomplish a late term abortion. So the act isn’t really saving lives. It’s allows the GOP to point to a piece of legislation (as they did in their 2008 platform) claiming progress when there is no progress. Actually we lost ground, because we now have an act of Congress explicitly affirming Roe (denying 14th Amendment equal protection to unborn children) and directly contrary to the promise made in their platform.

Because of Roe and Doe, no law can be passed banning abortions. The battle over partial birth abortion (PBA) was significant despite the fact that there are other procedures that can be used to achieve the same ends because it strongly affected public opinion. Most people, even those who support abortion, are rightly appalled by PBA and separate themselves from those who worked to retain it. This created a divide between the activists who are unwilling to yield an inch on this issue and the (significantly greater number of) people who would in fact be willing to place meaningful restrictions on abortion. It may have been mostly a symbolic victory but it was by no means a Pyrrhic one, and if Ginsburg’s understanding the ruling is correct, it may turn out to be a substantive victory as well. In the battle to change public opinion it was a significant success.

Ender

 

[miguel]

This is astonishing. Of course they accept Roe as established precedent because that’s exactly what it is. As to how they would rule should a case come before them challenging Roe’s findings, no one can know. The claim that they have no intention of changing it is completely baseless.

Taking their own words during their respective confirmation hearings is not baseless…suspect maybe, but not baseless.

Everyone knows that when any nominee - especially one appointed by a Republican president - goes before the Senate, the number one objective is to ferret out his position on Roe. This is also known - especially - by the nominees. Both Roberts and Alito were very careful to neither give an opinion on Roe or to appear to give an opinion. The belief that we can predict their future rulings based on carefully guarded statements made during their confirmation hearings is little different than believing one can do it by reading tea leaves.

OK fine. If this is your position, don’t claim that Roberts and Alito are “good appointments”. If you don’t know they’re bad appointments (based on their own words during their confirmation hearings), you don’t know they’re good appointments either. I’m strictly talking abortion here.

This argument is not simply without merit, it is completely disingenuous. The bottom line is this: Republicans have made appointments that were bad (Souter) or mediocre (Kennedy, O’Connor) but in no case have they sought out anyone with the expectation that he would uphold Roe,…

You have no way of knowing that. All you really know is what he does in office and who appointed him. When my guy appoints someone who turns out to be bad, it makes me question my guy. That’s not disingenuous.

…and the good appointments (Scalia, Thomas, Alito, Roberts) appear to be very good indeed. The Democrats have sought out those (Ginsburg, Breyer, Sotomayor) who they believe will keep Roe safe. While it is true that the nominee of a Republican does not guarantee a good justice, we are pretty much guaranteed a bad one from a Democrat.

I don’t have a problem with this except for the premature good guy claim for Roberts and Alito.

Here is what Thomas wrote:

I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410U.S. 113 (1973), has no basis in the Constitution.

Given that neither Roberts nor Alito had ever expressed a view on Roe, exactly how were they supposed to have joined an opinion reiterating a view they had never iterated?

Come on. Obviously, there was a first iteration for Thomas to express this view as a Supreme Court justice. When he did that, he wasn’t reiterating. There was nothing to prevent Roberts and Alito from expressing a similar clarifying concurrence as Thomas. They didn’t. That says something. It isn’t good.

 

[Ender]

If this is your position, don’t claim that Roberts and Alito are “good appointments”. If you don’t know they’re bad appointments (based on their own words during their confirmation hearings), you don’t know they’re good appointments either. I’m strictly talking abortion here.

One thing that distinguishes us is that I am not talking strictly about abortion when I talk about a justice being good or bad and I certainly don’t judge their merit by whether their rulings advance my agendas. There are several judicial philosophies that influence how a justice interprets the law and it very much appears that Roberts and Alito are on the same page as Scalia and Thomas in that regard. I consider this very good and am encouraged by what we have so far seen to believe that, should a challenge to Roe come before them, they will all see it the same way.

Obviously, there was a first iteration for Thomas to express this view as a Supreme Court justice. When he did that, he wasn’t reiterating. There was nothing to prevent Roberts and Alito from expressing a similar clarifying concurrence as Thomas as a first iteration. They didn’t. That says something. It isn’t good.

Scalia and Thomas had both ruled on the Constitutionality of Roe in previous cases (Casey, Webster, Ohio v Akron). That is, they sat in cases where the core position of Roe was debated, and they gave their opinions. In Carhart, the validity of Roe was not raised as an issue and neither Alito nor Roberts have ever ruled in a case where the Constitutionality of Roe was challenged. Given the supercharged nature of the issue of abortion I think it would have been totally inappropriate for a Supreme Court justice to give an opinion on the subject without ever even hearing a case. I cannot think of anything that would make court rulings seem like nothing more than personal opinions than to act in such a way. As I said, I think both Alito and Roberts are good justices and their behavior is in line with how I believe a good justice should act.

Ender

 

[miguel]

One thing that distinguishes us is that I am not talking strictly about abortion when I talk about a justice being good or bad and I certainly don’t judge their merit by whether their rulings advance my agendas. There are several judicial philosophies that influence how a justice interprets the law and it very much appears that Roberts and Alito are on the same page as Scalia and Thomas in that regard. I consider this very good and am encouraged by what we have so far seen to believe that, should a challenge to Roe come before them, they will all see it the same way.

I hope you’re right. I was focusing on abortion as the thread topic. No doubt there are constitutional reasons to like all of these guys you mention, in spite of what they do on abortion. But if any of them uphold Roe, I won’t be in their fan club. And I won’t be in the fan club of the Republicans who appointed them either. Just want to be clear on that.

Scalia and Thomas had both ruled on the Constitutionality of Roe in previous cases (Casey, Webster, Ohio v Akron). That is, they sat in cases where the core position of Roe was debated, and they gave their opinions. In Carhart, the validity of Roe was not raised as an issue and neither Alito nor Roberts have ever ruled in a case where the Constitutionality of Roe was challenged. Given the supercharged nature of the issue of abortion I think it would have been totally inappropriate for a Supreme Court justice to give an opinion on the subject without ever even hearing a case. I cannot think of anything that would make court rulings seem like nothing more than personal opinions than to act in such a way. As I said, I think both Alito and Roberts are good justices and their behavior is in line with how I believe a good justice should act.

Understand. Since the validity of Roe wasn’t challenged in Carhart, are you implying that Thomas and Scalia acted inappropriately with their concurrence? Or was that acceptable since everyone knows their position?

 

[miguel]

Because of Roe and Doe, no law can be passed banning abortions.

True. But a law could be passed per Article III, Section 2 removing appellate jurisdiction over abortion cases from the Supreme Court. The states would then be free to pass restrictions, since those restrictions couldn’t be challenged in federal court. I’d also love to see that happen because the people would learn that we do have checks and balances and we don’t have to live with unconstitutional Court decisions. And it wouldn’t hurt for the Court to see overreaching as futile.

The battle over partial birth abortion (PBA) was significant despite the fact that there are other procedures that can be used to achieve the same ends because it strongly affected public opinion. Most people, even those who support abortion, are rightly appalled by PBA and separate themselves from those who worked to retain it. This created a divide between the activists who are unwilling to yield an inch on this issue and the (significantly greater number of) people who would in fact be willing to place meaningful restrictions on abortion. It may have been mostly a symbolic victory but it was by no means a Pyrrhic one, and if Ginsburg’s understanding the ruling is correct, it may turn out to be a substantive victory as well. In the battle to change public opinion it was a significant success.

It has its good points as you say, but I have very mixed feelings about it.

 

[Ender]

True. But a law could be passed per Article III, Section 2 removing appellate jurisdiction over abortion cases from the Supreme Court. The states would then be free to pass restrictions, since those restrictions couldn’t be challenged in federal court. I’d also love to see that happen because the people would learn that we do have checks and balances and we don’t have to live with unconstitutional Court decisions. And it wouldn’t hurt for the Court to see overreaching as futile.

I am aware of this option and while I don’t oppose it I don’t understand it well enough to support it either. It has never been used in our entire history and for that reason alone I would proceed cautiously. Actually, as I said before, since such a law could never pass the Senate, it might be worth the attempt just to change the focus of the debate. The discussion now is about the legal considerations. An attempt to use Article III would change the focus of the debate and put it back on the nature of the act itself where it is much more difficult to support.

Ender

 

[miguel]

I am aware of this option and while I don’t oppose it I don’t understand it well enough to support it either. It has never been used in our entire history and for that reason alone I would proceed cautiously. Actually, as I said before, since such a law could never pass the Senate, it might be worth the attempt just to change the focus of the debate. The discussion now is about the legal considerations. An attempt to use Article III would change the focus of the debate and put it back on the nature of the act itself where it is much more difficult to support.

Ender

Actually, it has been used, though not often. And it’s use has been acknowledged as legitimate by the Court more than once.
en.wikipedia.org/wiki/Jurisdiction_stripping

 

[Ender]

Actually, it has been used, though not often. And it’s use has been acknowledged as legitimate by the Court more than once.
en.wikipedia.org/wiki/Jurisdiction_stripping

Ah, well then, I would support its use in stripping this issue from the jurisdiction of the Supreme Court. Don’t minimize, however, the risk to the politicians who might try to do this. Support for abortion is certainly stronger among Democrats but it still exists among Republicans and even more so among independents. Given that Republicans are continually beaten up for - essentially - not banning abortion, it is not at all clear, should they go this route, that they would pick up very many Democrats - even as they could possibly lose significant support from the rest of the voters. After all, they are described as hypocrites and for not really caring about this issue, that their actions are merely posturing. Suppose they attempted this and it failed - as I contend it inevitably would. Why wouldn’t this just generate more of the same charges? Democrats who oppose abortion are in large numbers unwilling to give up their other political objectives and support the only side that might end abortion. The rationalizations are endless, and attempting and failing to pass a “stripping” bill would cost Republicans votes from the people who support them now that would not be compensated for by the people who oppose them on everything other than abortion.

Ender