Monday, February 27, 2006

Thoughts on SoDak Roe-bait Law

By now you've probably heard about South Dakota's proposed legislation which would ban virtually all abortions.

I'm not going to say much about the merits other than I think it's terrible from a policy standpoint considering the lack of rape or incest exceptions. It's also ridiculous that doctors will be criminally liable for performing the procedure but not women who receive it. You want to talk about infantalising women's choices regarding reproduction...

I wouldn't argue that abortion is 'good', but I will say that treating it as the cause rather than a symptom of larger social issues is incredibly myopic. I find the agenda of anti-choice plus "abstinence only" education both morally imperialistic (I can respect if your religion says no premarital sex and no contrception, but mine doesn't) and completely divorced from reality. Plus, I tend to agree with the guys at LGM<>worded) but if you want to play that particular brand of poker, I see your Roe and raise you a Bush v. Gore and Hamdi.

My intuition is that Jack Balkin is right as to how this will play out:
South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.
But then someone, somewhere will pass a similar law, and the next ten years of jurisprudence will be straight from a Verizon Wireless ad - "Unconstitutional? How bout now? How bout now?

How about instead of passing a law that will never take effect, and if it does will likely have some particularly nasty effects on certain demographics, take steps to reduce the demand for abortion? Reality-based sex-ed; contraception for those who would choose to use it; programs which make raising children less burdensome to poorer single women, and perhaps a more efficient surrogacy and/or adoption market.*

Alternatively, make a good faith effort to comply with existing law, and perhaps try to push around the edges. (Tactically, this makes more sense anyway.) But this law just smacks of "nullification," which I would have hoped was discredited in the '60s at the very latest.


*It's somewhat ironic to me that the great champions of 'free-markets' always try to alter behavior from the supply side by declaring something illegal and pretending that will make it cease to exist. If history shows us anything it is that demand will always create supply. And illegal markets have enforcement mechanisms which are slightly more unsavory than those that are legal. See, e.g. prohibition.


I hadn't realised how long it has been since I blawged here until I got blogrolled as a 'blawg' (thanks, btw, Angelica. Always warms my little bloggy heart...as Carly Simon says, I'm so vane...) Partially it's because I feel somewhat constrained by my job, but mostly that some of the big 'legal' issues have been beaten to death by those who are both better bloggers and smarter lawyers than myslef, but I'll try to do it a little more often.

8 comments:

Icepick said...

Reality-based sex-ed

And who decides what "reality-based" means? Who's being morally imperialistic now?

the contraception for those who would choose to use it

Contraception is already cheap and readily available.

programs which make raising children less burdensome to poorer single women

I thought the point of legal abortion was so that poor single women wouldn't have children. If they're going to have them anyway, what difference will making abortion illegal make?

Pooh said...

The 'point' of legal abortion is for women, full-stop, to be able to make the choice about whether they can 'do' motherhood. You or I may disagree with the choices they make, but it's their choice.

I admit, I'm being indelicate in my use of 'reality-based', but are you seriously going to argue that "abstinence only" sex-ed is more effective at preventing teen pregnancy and STD than a more balanced approach?

My underlying point is that if you want to make the "culture of life" point, that's fine, but you have to go all the way with it, life doesn't end at birth and if the state is going to step in, it has continuing responsibility down the line.

(Actually my underlying point was less about the policy issues and more about the problem with legislation being passed with the full knowledge that it is unconstitutional.)

Icepick said...

The 'point' of legal abortion is for women, full-stop, to be able to make the choice about whether they can 'do' motherhood. You or I may disagree with the choices they make, but it's their choice.

If they can't "do" motherhood, perhaps they should have made choices that would have prevented them from becoming pregnant in the first place.

And what about the fathers? If they decide thay can't "do" fatherhood, they do not get the chance to opt-out. They will be held accountable for their choices by the state. If the full weight of the state can force men into faces the consequences of the choices they make, why shouldn't the state force women to do the same?

I admit, I'm being indelicate in my use of 'reality-based', but are you seriously going to argue that "abstinence only" sex-ed is more effective at preventing teen pregnancy and STD than a more balanced approach?

I made no argument about sex-ed either way. You're the one insisting that yours is the way, while inasisting other approaches are morally imperialistic. If moral imperialism is bad, don't have the state teach you're preferred version thereof.

Personally, I'd say have the schools teach the biology and leave the rest of it to the parents. Besides I have no reason to suspect the schools will be any better at teaching sexual mores than they are at teaching other subject. Can the people that brought us Peace Balls really be expected to handle this topic with any amount of intelligence?

My underlying point is that if you want to make the "culture of life" point, that's fine, but you have to go all the way with it, life doesn't end at birth and if the state is going to step in, it has continuing responsibility down the line.

If you are going to say that the state shouldn't step in here, then you have to go all the way with it. The state should then never step in and interfere with people's personal decisions. Abolish all schools and other social assistance programs.

Crappy argument, isn't it? But it's the mirror image of yours.

(Actually my underlying point was less about the policy issues and more about the problem with legislation being passed with the full knowledge that it is unconstitutional.)

Watch it with the parentheticals, or XWL might claim copy-right infringement.

More seriously, are you saying that once reviewed by the SCOTUS an issue can never be reviewed? I've never understood this POV when brought up by any side on any issue.

And if SCOTUS rulings can be reviewed, then how else is a state to challenge challenge a ruling that they can't pass a certain kind of law than to pass a certain kind of law? I'm asking this a technical question, since I'm not a lawyer.

Pooh said...

See, and I didn't want to have a policy debate on the subject... you forget, I'm a durn librul, so I don't hate state intervention. That doesn't mean that I think said intervention is per se good. On the merits, I think personal choice issues are generally best left to the person (I see schooling as something of a special case because I feel there is a very strong 'public good' aspect, but I recognize that you and I have considerable, and probably reasonable, disagreement on that score).

My issue as to the propriety is that the attempt is to simply relitigate the case until you get the outcome you like. As between the same parties, this is called Red Judicata. It basically means 'you lost, go away'. In this case, the SoDak law is essentially the exact same law that was overturned in Roe. On what basis is it a better law now?

And before you bring Plessy and Brown into the conversation let me say that Plessy said "seperate but equal" was ok, whereas the court in Brown made a finding based on empirical work that 'seperate' is never 'equal', thus there was a good faith basis for arguing that things were in fact different. (I don't consider court membership to be 'a good faith basis' BTW).

Fletch said...

Wow, I never saw you as a rooster blowing in the wind. But then again, maybe you meant "vain."

I would love to get involved in this well-intentioned debate, but in my experience neither of you are really going to budge. But hey, I love to watch a good verbal exchange.

I know that we can all throw out published reports about the impact of sex-ed on contraception use. Personally, I have a tendency to believe those researchers who aren't funded by the neo-creationists and the anti-science right. But that's just me.

Pooh said...

Sure, Fletch, come by and drop a few bomblet's. No, I really do not want to have the 'abortion policy' discussion because I agree, it's pointless, as no one is ever going to budge.

Pooh said...

And sure, make fun of my spelling...low hanging fruit, that is.

Icepick said...

Hmm, hadn't read this post in several days, didn't see the later comments. I didn't come back until I saw ou linked to it.

As for "neither of us is going to budge", that is the argument of someone who is either young enough to have never changed their mind on anything important, or someone to rigid to believe that opinions can ever change. Either way you're right, there's no point in argument.

Through the years my opinion on abortion has changed considerably. (The one thing that hasn't changed is that I thought Roe v Wade smacked of pure sophistry and was bullshit, and I feel that way now, too.) What finally pushed me over into the anti-abortion camp was the timing issue.

The law says that abortion is only legal up to a point, and after that you have to get a doctor to swear it's done to save the life of the mother. In other words, at some point I'm supposed to believe that a mass of cells suddenly aquires personhood merely by the stroke of a clock. That's too much like the medieval concept of the humonculus and the quickening. I thought we were supposed to be beyond such mystical thinking.

So, last day of second trimester? Kill it, it's nothing more than a mass. One day later? It's a person, and you have to get a doctor to sign a death warrant. Why is the threshhold at that day, and not a day earlier? Or a day later? Where can one draw a line that is clear cut about when a person becomes a person? I finally determined that I wasn't wise enough to make that kind of distinction. And so, I became anti-abortion.