Tuesday, January 22, 2013

40 years of Roe v Wade

Roe vs Wade turns 40 today, and whatever you think of it, I hope you can appreciate that this is an effective graphic (from the Pew Research Center, via WaPo)
As a data stickler who's the daughter of a legal technicality stickler, I have to point out that the overturning of Roe v Wade would not actually make abortion illegal, but actually return it to a state issue.  I'm curious what percent of the respondents in this poll knew that, and if it would have changed the stats any.

Also, I love the PRC....including the question wording and categories at the bottom of the infographic?  Awesome.

One more thing....any of my more legally minded readers want to fill me in on the thinking behind the 4%?  That's the only view I've never heard IRL.


  1. The 4% probably consists of people who think the 10th Amendment means what it says.

  2. Two reasons really.
    They can have an issue with the soundness of the constitutional decision -- e.g.: How many of Alan Dershowitz, John Hart Ely, Michael Kinsley, Kermit Roosevelt, Jeffrey Rosen, William Saletan, Cass Sunstein, and Laurence Tribe would be among that 4%? All have written that the decision is constitutionally unsound for various reasons, yet don't strike me as being anti-abortion generally.
    Or, they can have an opinion that the intensity of the polarization on the issue is a direct result of the decision, which as a fait accompli short-circuited the political discussion on the issue that had been ongoing. In every other country where I've lived, the legalization of abortion (or not) has been a public decision by an elected legislature, and the controversy largely died afterwards.

  3. I would say the 4% is probably like the Ron Paul crowd.

  4. When I attended law school, Roe v. Wade was less than 10 years old. I took Con Law my second year (1978-79 for anyone who cares). The Con Law book contained edited versions of decisions (for reasons that are obvious but I didn't realize at the time - the decisions could literally go over 100 pages and Roe was one of the longer ones). So, I can't actually say I have ever read all of the various parts. But Blackmun's logic was tortured and outcome based. So I will definitely second Douglas2 position of "constitutionally unsound". But what few people outside of the legal profession understand is that the 5-4 decision was not a "majority" opinion in the sense that people think. It was (from memory) 5 different opinions, the majority of whom agreed on the outcome but not on the rationale. That makes for terrible constitutional law. But I don't think enough people are versed in this to comprise 4%, so I would chalk it up to contrarianism (essentially agreeing with Anna). As to the 10th amendment, I don't think there are enough people who could tell you what the 10th amendment says or means to get much traction in this debate.

  5. I didn't know that about the 5-4 decision, Michael.

    The diagram does a good job expressing a short list of thoughts. The major controversies over the decades have not been about overturning Roe, however, but on limiting it. The strong prolife and prochoice crowds both frame the debate in terms of overturning it, but they are always on other playing fields, such as waiting periods, parental notification, etc.

    I think it thus a largely cultural and symbolic argument at this point, by which people identify which tribe(s) they are in.

    1. I think the reason the Roe v Wade part has stuck around is because it gives people an excuse to involve the presidential race.

      The whole "he appoints the next Supreme Court justice and that could make or break our chances at getting it overturned/keeping it going" narrative has been used consistently by both sides as long as I've been aware of elections.

      If that was no longer the case, it would be much harder to explain concisely why who was President mattered any more than any other elected official (for this issue at least).

      Relatedly, I'll never forget the time during high school that I went to a friends house where her mom had just finished up a Bible study where they had discussed if it was Biblically okay for women to vote in the Presidential election. They had decided it was because abortion was legal and they should vote against it, but if it ever stopped being legal it would no longer be okay.

      True story.

  6. Sorry, time dulls memory. I decided to look it up. The overall decision was 7-2 in favor of a woman's right to choose, but because there were concurring opinions that differed as to the application, the court cobbled together a 5-4 majority for applying "strict scrutiny" to any state laws purporting to limit abortion. There were two emphatic dissents (White and Rehnquist) and some concurring opinions that, essentially, indicated the majority had gone too far. So, while I was correct that some aspects of the case were 5-4, I was incorrect in characterizing the overall decision in that manner. My apologies.