Monday, January 30, 2006

Cracks in Roe?

Earlier today I posted excerpts from a Reuters article by Carey Gillam entitled "Abortion rights groups say battle being lost." I also mentioned having picked up a sense of a possible shift in things from the papers while in Washintgon, DC, for the annual March for Life on Jan. 23, 2006. I found a sampling of the sort of thing I mean, which includes pro-choice Supreme Court justices and other liberals on record with startling criticisms of Roe (There's also a very interesting criticism of Roe by Sandra Day O'Connor, though I can't find it):
  • "Roe, with its ... argument about privacy raises more questions than it answers. For instance, if the right to an abortion is a matter of privacy, then why, asked Princeton professor Robert P. George in the New York Times, is recreational drug use not? ... I'm pro-choice, I repeat -- but [repealing Roe] would relieve us all from having to defend a Supreme Court decision whose reasoning has not held up. ... a bad decision is a bad decision." - Columnist Richard Cohen, Washington Post (October 20, 2005)
  • "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose ..." -- Author (and former Blackmun law clerk) Edward Lazarus, Findlaw.com (October 2, 2002)
  • "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statue before the court. ... Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict." -- Justice Ruth Bader Ginsbug, North Carolina Law Review (1985)
  • "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." -- Laurence Tribe, Harvard Law Review (1973)
  • "In short, 30 years later, it seems increasingly clear that this pro-choice magazine was correct in 1973 when it criticized Roe on constitutional grounds. Its overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people. ... Thirty years after Roe, the finest constitutional minds in the country still have not been able to produce a constitutional justification for striking down restrictions on early-term abortions that is substantially more convincing than Justice Harry Blackmun's famously artles opinion itself. As a result, the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it." -- Columnist and Prof. Jeffrey Rosen, legal affairs editor, The New Republic (February 24, 2003)
  • "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." - Prof. John Hart Ely, Yale Law Journal (1973)
  • "... if Roe ever does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating justices who might bury it once and for all." --Washington Post editorial writer Benjamin Wittes, Atlantic Monthly (January/February 2005)
[Credits: Dave Andrusko, "Pro-Abortionists Harshly Criticize Roe," NRL News (Jan. 2006), pp. 21, 25]

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