Thursday, June 24, 2010

Narrowing Roe v. Wade

One way the Supreme Court might have avoided this debacle is by narrowing the issue a bit. For instance, in Roe v. Wade the Supreme Court might have found an unenumerated right to abort in cases of rape. See how that plays out. See how many people start screaming about that one. The woman suing in Roe v. Wade claimed that she had been raped. She was lying her ass off, but the Justices didn't know that at the time. They could have focused on the rape issue.

Texas did not allow abortion in rape cases. On the other hand, Texas argued that pregnancy began at implantation, not conception. Implantation of the ovum in the uteran wall happens 7-9 days after conception. So a woman who was raped in Texas would have a week to go to a hospital and get cleaned up and make sure she didn't become pregnant. Texas did not specify that rape victims could have an abortion, but defined their law in such a way ("pregnancy begins at implantation") that actual rape victims had at least a week to stop any pregnancy.

Consider too that some forms of birth control--constitutionally protected under Griswold v. Connecticut--might in fact be abortions. The I.U.D. works by keeping an ovum from attaching to the uterus.

To many pro-lifers, who say that pregnancy begins at conception, that's an abortion. Many other people consider the I.U.D. not to be an abortion at all, but an ordinary form of birth control. They are shocked to hear that an I.U.D. is abortion. And they don't believe it.

My own opinion is that the I.U.D. is far more similar to Griswold than, say, all the free-floating baby heads described in Carhart. I kinda classify the I.U.D. along with the pill and the condom. Maybe I'm wrong but that's where I put it.

A cautious abortion opinion, then, would focus on the rape issue, would talk about Texas' argument that pregnancy begins at implantation, would debate whether I.U.D. is abortion or birth control, would question whether a week is enough time for a rape victim to go to a hospital and get cleaned up. The Texas rule, allowing for abortions for one week after conception, does not specify rape victims. But of course they are the ones most likely to take advantage of the rule. And people who use an I.U.D. for birth control can do so in Texas. I don't even think it would be particularly controversial to find that the I.U.D. falls under Griswold, or that rape victims have a right to stop a pregnancy.

If the Supreme Court had written a narrow opinion, making these comparisons, drawing these arguments out, Roe v. Wade would have been just an ordinary case. And it would give people time to reflect and think about it and criticize, if they felt strongly about it.

Instead the Court wrote very absolute rules in regard to abortion, and dictated those rules to all the people in our country. As a result, we are killing 6-pound babies. We're way beyond birth control. We're way beyond any opinion that's going to resolve this case and make it go away. 

If you're going to be jurisprudential, you really need some sort of constitutional text to support anything that makes people mad. If you're going off-book and free bird, your opinion better be damn popular. If you're going off-book and free bird and writing an opinion that you know half the country is going to find "cold, callous...and horrifying," you pretty much screwed the pooch.

One thing you clearly did not do was resolve the case or controversy. And that's your job description, damn it. If you morons start another civil war, we're going to be pissed.

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