Tag Archives: abortion

Justice Scalia Will Have a Field Day Tomorrow with Massachusetts “Buffer Zone” Case

Justice Antonin Scalia, ready to pounce.
Justice Antonin Scalia, ready to pounce. Picture via Wikimedia Commons.

McCullen v. Coakley has received a good deal of attention in the press already because of its contentious subject matter: anti-abortion activists are challenging a 2007 Massachusetts statute that created 35-feet “buffer zones” around the entrances, exits and driveways of all reproductive health care facilities in the state, arguing that the law infringes upon their First Amendment rights to share their views in a public forum. Due to personnel changes, there is a very good chance that the Supreme Court will end up overturning its own thirteen-year-old precedent in order to invalidate the Massachusetts law. But just in case you needed another reason to follow the oral arguments for McCullen v. Coakley tomorrow, here’s one more: even though the case has zero bearing on the constitutionality of abortion, Justice Scalia is going to give us some choice quotes railing against Roe v. Wade and the Court’s abortion jurisprudence.

Why do I think this? Just look at Justice Scalia’s dissent in Hill v. Colorado, the 2000 case that the anti-abortion activists in Massachusetts are asking the Supreme Court to overrule. In Hill, six justices (Chief Justice William Rehnquist and Justices Stevens, O’Connor, Breyer, Souter and Ginsburg) voted to uphold a Colorado law that was similar but arguably posed even less of a First Amendment problem than the Massachusetts law now in question: Colorado’s statute created a buffer zone of only eight feet, and it applied to all health care facilities. Writing for the majority, Justice John Paul Stevens balanced anti-abortion protestors’ right to free speech against the “recognizable” privacy interests of the “unwilling listener” and came out in favor of the latter. Stevens reached back into a 1928 Court opinion by Justice Brandeis for “the right to be let alone” from unwelcome speech and ran with it, concluding that Colorado’s interests in protecting patients and staff members from impeded access to the facilities and the content-neutral way in which the law was written satisfied the First Amendment.

Justice Scalia was livid. His dissent, which Justice Thomas joined (but not Justice Kennedy, who wrote his own separate dissent, for reasons that are obvious once you read the two), is vintage Scalia in its mix of anger, indignation and sarcasm. In my view, he quite effectively calls out Justice Stevens’ shaky reasoning regarding the unwilling audience, pointing out that what Justice Brandeis actually meant was the “right to be let alone” by the government, not the right to be free from hearing other private speakers communicating their message in a public setting. Being Scalia, however, he doesn’t stop there. The First Amendment is not the only thing at stake. Justice Scalia wants you to know that the Hill decision is just one in a long line of animus-driven, unconstitutional attacks on the rights of the unborn and those who would save them, so he takes the opportunity to excoriate the Court’s “relentlessly pro-abortion jurisprudence:”

What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice [citation omitted]. Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.

The emphasis is mine.

The public forum involved here–the public spaces outside of health care facilities–has become, by necessity and by virtue of this Court’s decisions, a forum of last resort for those who oppose abortion. The possibility of limiting abortion by legislative means–even abortion of a live-and-kicking child that is almost entirely out of the womb–has been rendered impossible by our decisions from Roe v. Wade… For those who share an abiding moral or religious conviction (or, for that matter, simply a biological appreciation) that abortion is the taking of a human life, there is no option but to persuade women, one by one, not to make that choice. And as a general matter, the most effective place, if not the only place, where that persuasion can occur, is outside the entrances to abortion facilities.

And in the final paragraph:

Does the deck seem stacked? You bet. As I have suggested throughout this opinion, today’s decision is not an isolated distortion of our traditional constitutional principles, but is one of many aggressively proabortion novelties announced by the Court in recent years.

Look for more of these quotable “suggestions” from Justice Scalia tomorrow, the incidence of which is only made more likely by the fact that this time around, with Chief Justice Roberts and Justice Alito on the bench, he will likely have enough votes to jettison Hill once and for all. Justice Kennedy may well end up writing a final opinion in McCullen that is based on his own Hill dissent–a much more temperate disagreement that skipped the “proabortion” talk and stayed focused on the First Amendment–but Scalia will doubtless take this opportunity to run a victory lap.

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“Too Far, Too Fast:” A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade

Judging. Picture via AP.

Justice Ruth Bader Ginsburg made headlines this past weekend when she criticized the legal basis of Roe v. Wade at an event marking its 40th anniversary, saying that the 1973 decision had gone too far and “given opponents of access to abortion a target to aim at relentlessly.”

Ginsburg, who was at the time of the decision head of the ACLU’s Women’s Rights Project, told the packed audience at the University of Chicago Law School that the Supreme Court should have stuck to a narrower ruling striking down the Texas statute challenged in Roe. (That law had banned abortion in all cases except for those that would save the woman’s life.) Instead, however, the Court issued a sweeping pronouncement on the right to privacy encompassing a woman’s choice to end her pregnancy–a decision which, Ginsburg said, stopped the momentum of grassroots pro-choice groups and galvanized the anti-abortion movement.  Ginsburg also characterized Roe as not being “woman-centered” enough, as the opinion focused mainly on “a doctor’s freedom to practice his profession as he thinks best” rather than “a question of a woman’s choice.”

Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion. The following is a timeline of Ginsburg’s comments from 1985 to present (you can zoom in and click on each box for more detail):

 

 

If I’ve missed any other quotes from Justice Ginsburg during this period, please let me know in the comments.

Apparently “baby killing” is not such an effective scare tactic anymore

Today marks the 40th anniversary of Roe v. Wade, and a new poll reveals that the ruling is more popular now than it’s ever been before:

Seven in 10 adults say the Supreme Court should not overturn its landmark decision establishing abortion rights, according to a new Wall Street Journal/NBC poll.

That is the highest level of support for Roe v. Wade in the poll’s 24 years of tracking the question. Only about one in four said the court should overturn its verdict.

Michael Tomasky zooms out:

Same-sex marriage approval. Marijuana legalized. Now this. It continues to amaze me how the country has flipped culturally. I think this is probably Obama’s biggest impact, more than health care or anything else. He’s changed the political culture of the country. In some senses by doing particular things–repealing don’t ask, don’t tell. But in other senses just by being Barack Obama.

In accepting him as their president (which 70 percent of Americans happily do, even when they may disagree with this or that policy), Americans appear also to have accept in some internal way that it’s a different time and a different country now. It seems natural that that psychic change would first manifest itself in certain shifting cultural attitudes, as these are low-hanging fruit compared to the big policy changes that face ferocious opposition in Washington.

It may also be that it’s not really Obama who made these changes, that they were well in formation when he just happened to come along and embody them. I think here of the Beatles as an analogy. They certainly changed the culture and the world and led a revolution, but many societal factors were lined up in harmony just waiting for someone to come along and pop the cork: the rise of the teenage demographic, the end of conscription (in Britain, which gave young males more freedom), and so on. Everything came together and boom it all went. Same kind of thing here.

#10: Notes from the Cracked Ceiling

Anne E. Kornblut, a White House reporter for the Washington Post, is impatient to see a woman in the White House — and not another First Lady, either. Her book, Notes from the Cracked Ceiling: Hillary Clinton, Sarah Palin, and What It Will Take for a Woman to Win, is easy (yet purposeful) reading. But lest her novelistic tone deceive you, let it be clear that her views on the necessity of recruiting more female political candidates are never in question. Having personally followed the two aforementioned presidential hopefuls during their campaigns, Kornblut has seen firsthand the unique abuse lavished upon female candidates. In her introduction, she argues that Clinton and Palin “may not have lost because they were women…but their sex played an outsize role in the year’s events.” She then closes that section with the observation that “the glass ceiling may be cracked…but it is far from broken.”

What, then, is keeping women from breaking through that glass? History is an obvious culprit, but Kornblut is disinclined to let the present off the hook so easily. More specifically, she faults the candidates and their large teams of handlers, who often waged behind-the-scenes battles over their candidates’ public self-portrayal. Should Hillary exude toughness, or feminine restraint? How about a combination of the two? Would it help if her daughter, Chelsea, campaigned along with her? In one potent example of poor decision-making, Kornblut details the various Christmas commercials the presidential candidates aired in December 2007. While Obama focused on his home and family, Clinton devoted her airtime to wrapping Christmas presents with labels such as “universal health care” and “bring troops home.” “It was hard,” Kornblut wryly notes, “to quit being tough.”

Of course, Hillary Clinton eventually lost the Democratic nomination, but not without some help from the national media. Was their constant bombardment indicative of sexism, or simply a reaction to the Clinton camp’s preexisting ambivalence towards the press corps? Kornblut seems to think there is some of both, but the mass public’s embrace of some of the more vicious ad hominem attacks on Clinton lend credence to allegations that it was more the former than the latter.

Clinton’s demise was soon overshadowed by the meteoric rise of Sarah Palin, the governor of Alaska. Kornblut does an admirable job retracing Palin’s time on the campaign trail, especially in noting how quickly the high praise was overtaken by vitriolic condemnation. And while it is true that public commentary on Palin soon reflected sexist undertones, Kornblut at times seems unable to completely separate these attacks from the legitimate criticisms, most prominent of which was Palin’s lack of a grasp on even basic domestic and foreign policy issues and her disastrous performances in network interviews. That Palin became a favorite target of the Democratic base was undeniable, but that this was largely due to her gender is much less apparent.

Furthermore, Kornblut missed a golden opportunity to delve deeper into one of the more fascinating subplots of Palin’s candidacy — namely, that of her role within the historical feminist movement. Traditionally, feminists were assumed to adhere to more liberal ideology, which in its most common incarnation usually included a pro-choice stance and a general alignment with the Democratic Party. So when Palin, a mother of five with strong pro-life views, became the vice presidential nominee, it seemed almost as if the modern feminist movement had reached a fork in the road. Kornblut had noted earlier how many women in their twenties had voted for Obama over Clinton in the Democratic primaries, confident in their belief that voting based on competence and ideology over gender politics epitomized a more authentic form of gender equality. With Palin, older models of feminism were once again being strained: was Palin’s candidacy, given her conservative views (especially on abortion), a betrayal of feminist ideals, or was it reflective of a new wave of female ascendancy representing all points on the political spectrum?

Kornblut gives this tension a brief nod when she notes that “if Clinton had epitomized the feminist movement’s dream, Palin was in many ways its worst nightmare.” Entire volumes could be written on this subject, and in that Kornblut’s book was ostensibly intended to ask these and similar questions, the fact that she devoted just several pages to Palin’s role within feminism was disappointing. Similarly glaring in its absence was any discussion of female minority voters who faced the difficult and historic choice between Barack Obama and Hillary Clinton in the Democratic presidential primaries. The question of which identity holds strongest — race or gender — was ignored in Kornblut’s analysis, a surprising omission in an election for which identity took center stage.

Towards the end of the book, Kornblut contrasts the American political experience for women with that of other countries. The comparison is not flattering to the United States. For Kornblut, however, the upside to the disappointment of two women narrowly losing out in the 2008 elections is that countless lessons can be taken from their failures — shortcomings that were as much the fault of their advisers, the media, and an unpredictable electorate as they were of the candidates themselves. With shrewd recruitment and well-planned campaigns, women will continue to challenge the gender status quo in politics. It remains to be seen when this will happen, but the shattering of the glass ceiling is long overdue.