Glenn Greenwald on overruling Roe, and the arguments pro and con
Greenwald is right, and he’s crystal clear about what the legal issues are (he doesn’t deal with the moral ones). An excerpt:
Rhetoric that heralds the values of democracy and warns of the tyranny of “unelected judges” and the like is not a rational or viable way to defend Roe. That abortion rights should be decided democratically rather than by a secret tribunal of “unelected men in robes” is and always has been the anti-Roe argument. The right of the people to decide, rather than judges, is the primary value which Alito repeatedly invokes in defending the overruling of Roe and once again empowering citizens, through their elected representatives, to make these decisions.
The only way Roe can be defended is through an explicit appeal to the virtues of the anti-democratic and anti-majoritarian principles enshrined in the Constitution: namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it. Few people like to admit that their preferred views depend upon a denial of the rights of the majority to decide, or that their position is steeped in anti-democratic values. But there is and always has been a crucial role for such values in the proper functioning of the United States and especially the protection of minority rights. If you want to rant about the supremacy and sanctity of democracy and the evils of “unelected judges,” then you will necessarily end up on the side of Justice Alito and the other four justices who appear ready to overrule Roe.
Anti-Roe judges are the ones who believe that abortion rights should be determined through majority will and the democratic process. Roe itself was the ultimate denial, the negation, of unrestrained democracy and majoritarian will. As in all cases, whether Roe’s anti-democratic ruling was an affirmation of fundamental rights or a form of judicial tyranny depends solely on whether one believes that the Constitution bars the enactment of laws which restrict abortion or whether it is silent on that question. But as distasteful as it might be to some, the only way to defend Roe is to acknowledge that your view is that the will of the majority is irrelevant to this conflict, that elected representatives have no power to decide these questions, and that all debates about abortion must be entrusted solely to unelected judges to authoritatively decide them without regard to what majorities believe or want.
The left, of course, hypocritically argues both sides of coin, each time choosing the side that supports their desire to make abortion available everywhere and to ban its banning by any state. That’s why we hear them saying contradictory things like this:
It was bizarre to watch liberals accuse the Court of acting “undemocratically” as they denounced the ability of “five unelected aristocrats” — in the words of Vox’s Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?
Indeed, Millhiser’s argument here — unelected Supreme Court Justices have no business mucking around in abortion rights — is supremely ironic given that it was unelected judges who issued Roe back in 1973, in the process striking down numerous democratically elected laws. Worse, this rhetoric perfectly echoes the arguments which opponents of Roe have made for decades: namely, it is the democratic process, not unelected judges, which should determine what, if any, limits will be placed on the legal ability to provide or obtain an abortion.
There is no such inherent contradiction in the right’s position on Roe, however. If you believe that the SCOTUS justices overstepped their bounds with Roe and found a federal constitutional right where none exists, and that the right to pass legislation on abortion should only be allowed the states, then you certainly are not being inconsistent to say that SCOTUS justices can state as much in a decision and undo Roe for that reason. The left, on the other hand, is saying that the SCOTUS justices (“unelected judges”) are allowed to find such a phantom right in the first place but are barred from finding that they were mistaken at the time and that such a constitutional right does not exist.
The same general groups routinely argue that one President cannot undo the executive order of another president.
Its an entirely results based group of people. How you get to what they want has no bearing for them.
Therefore consistency is not even in the realm of something they need to consider.
What they routinely fail to understand is that the PROCESSES needed to put such things in place. Are what in the end protect their preferred choices from being upended so easily. They seem to expect they can forever use a mob to intimidate people from going against their wishes.
I always chuckle, with a bit of a chill up my back, when allegedly intelligent people in positions of power trot out the Stare Decisis argument to defend Roe.
If I had the power, I would force them to publicly argue against Brown vs Board of Education on the same grounds. With respect to the infallibility of SCOTUS decisions, I would make them argue the merits of Dred Scott in a public forum.
These are two of several instances in which the court has had egregious decisions overturned by subsequent courts or other constitutional means.
The people in the streets may be ignorant of those issues–they should be required to read them. But, certainly the political hacks are not ignorant. They just assume that the rest of us are.
Finally, the defenders of Roe must support the idea that the Court has a mandate to enact laws to suit their personal ideology. These folk have to assume that their own prejudices will govern, at least during the course of their own lives.
Of course the defenders of Roe also try to obscure the issue of the court’s over reach, and cloak their arguments in various disguises. One that resonates with me is “the woman’s right to choose”. My response, “well, Ma’am, unless you were raped, or otherwise victimized, you did choose”.
In 1969, years before the Roe V Wade decision, abortion was legal in California. What the left is agitated about is the possibility of state legislatures placing limits on the right to abort. The left has only itself to blame as abortion slipped to infanticide and selling baby parts. They lost the 50-50 split in public opinion.
“It was bizarre to watch liberals accuse the Court of acting “undemocratically” as they denounced the ability of “five unelected aristocrats” — in the words of Vox’s Ian Millhiser — to decide the question of abortion rights. Who do they think decided Roe in the first place?”
It is only bizarre if one isn’t familiar with the attitude and tactics of the left (which Greenwald surely is). Logical consistency means nothing. Evidence means very little. Well reasoned arguments mean…not much. What matters is being on the right side of history (which is always whatever the left espouses) and saying and doing anything to get what the left wants.
Missing here is what the US Constitution actually says, in the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
Neither abortion NOR “privacy” are actually in the Constitution. 5 judges, not elected but confirmed by elected Representatives, created the abortion right.
Democrats (on ballots, unlike “Left”) like rule by judges when they like the decisions of the judges, Reps are not so happy about it even when they like the decision. The USA will be a better country with states deciding according to democratic majorities in those states.
And the pro-abortion folk need to have more babies than the pro-life folk if they want their democratic majority to continue, where they have it. I wonder how long the rich, libertine Whites will keep it legal in CA as Blacks continue leaving (now less than the 5.8% from 2019), and if Asians join the usually Catholic Hispanics in being increasingly pro-life.
Ultrasound has made far more pregnant women feel like mothers, sooner. The desire for convenience is becoming a less compelling reason to kill before birth, rather than give away for adoption after birth, an unwanted baby.
Althouse, strongly pro-abortion, has a post against a Mike Gaetz tweet:
https://althouse.blogspot.com/2022/05/how-many-of-women-rallying-against.html
“How many of the women rallying against overturning Roe are over-educated, under-loved millennials who sadly return from protests to a lonely microwave dinner with their cats, and no bumble matches?”
Seems like pretty true stereotypes to many observers.
While in general agreement with Greenwald’s argument, I do have to object to one assertion he makes; “namely, that because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy)”
Setting aside the self-evident right to privacy (within common sense limits) in order for the Constitution to guarantee the right to have an abortion, it would have to remove the prohibition to commit murder.
As the intentional taking of the life of an innocent individual is by definition, murder.
Which is why pro-‘choice’ advocates have to declare that the fetal state of a human being’s development is not a person, not yet an individual.
Some excellent points in reasoned rebuttal to the above and abortion in general are here; https://youtu.be/-txhf3UOiyA
Oldflyer gets to the heart of the Pro-‘choice’ position; “Of course the defenders of Roe also try to obscure the issue of the court’s over reach, and cloak their arguments in various disguises. One that resonates with me is “the woman’s right to choose”. My response, “well, Ma’am, unless you were raped, or otherwise victimized, you did choose”.”
An unwillingness to accept responsibility for their choices rests at the heart of “My Choice, My Body”
What they wish to get rid of is not their body and, in their heart of hearts they know it. Which is why, when they welcome the pregnancy… it’s a precious baby. But when unwelcome, it’s a clump of cells to be thrown out in the trash.
A pregnancy consists of the body of a temporary resident using the mother to be’s body and, doing so through no fault or choice of the temporary resident.
No doubt the left wants abortion, and the far left Malthusians want much more. But the politicians on both sides know that abortion as a topic is the biggest fundraiser. Essentially they begged us not to throw them into the briar patch. Now the establishment is going to ride this to fill their coffers.
Geoffrey Britain:
That is not Greenwald’s assertion. It is his summary of the legal position of pro-choice (pro-abortion, pro-ROE) advocates.
In addition, there has not been any sort of legal determination that abortion is murder and therefore there is no need to remove the prohibition on murder in order to legalize abortion.
Overruling Roe allows states to legalize abortion or ban it as they wish.
neo,
I’m unfamiliar with Greenwald’s position on abortion and I haven’t read the article. So, I’ll take your word for it being his summation of the advocates for abortion.
I also realize that there has been no legal determination that abortion is murder. Legality of course does not determine truth. The truth of the issue determines the appropriate moral stance on abortion. We cannot know the full truth but reason and science can get us closer to the truth.
At the fetal stage, it is a human being under development, not any other species. We also know that the fetus is developing into a unique individual. So the question is reduced to is a human being in its fetal stage of development… a person?
Many on the left are claiming that even until a baby reaches the stage of self awareness, it is not a person and by that standard it would not be murder to end that life. Evidenced most recently by a Mass. State bill that would legally permit early infanticide.
So when does a person become a person? Upon that question all rests for a right to life is a persons’ most fundamental right.
If we accept the premise that we have souls, then when the soul enters the body becomes the determinant. Since we do not know and cannot prove when that occurs there is no logical basis for assuming that it does not occur at conception. In which case, capriciously ending that soul’s life is in fact murder.
If in fact we do not have souls, then we are simply somewhat unique biological computers and abortion is at base no different from having a hangnail removed.
The corollary to that reality would be that the “self-evident” truths of life, liberty and the pursuit of happiness are but an illusion. As life is reduced to might makes right, whether by the mob, totalitarians, a dictator or authoritarian oligarchs. Since absent divinely ordained rights, only mankinds’ personal opinion defines ‘rights’.
Which by the way is exactly the position of the World Economic Forum. Schwab speaks of the merging of our digital, biological and physical realities. While WEF advisor Harari speaks of “hackable humans” and what will need to be done with the “useless people”… once machine intelligence eliminates most manual labor jobs.
“We will become Gods” – Yuval Noah Harari
Geoffrey Britain:
The article by Greenwald is not a philosophical discussion and it is not about abortion itself, the pros and cons and moral underpinnings. It solely deals with the LEGAL issues in the case.
You are discussing something else entirely. The questions you are discussing are certainly of interest, but they have nothing to do with the topic of Greenwald’s article.
Nor do you have to read Greenwald’s article in order to understand the passage you quoted and what he’s referring to. I excerpted that part in my post.
Shocked that WEF / Davos has its nose under this surgical drape as well. It’s behind everything! Even stole his homework it seems.
Wef is down with zpp agenda the ukraine war works well for this
Tin foil hats make frogs gay.
You. Would have to have a steel helmet not to realize what is happening
Im sure glenn is fine with the results not the ends though, he would prefer the qccountability of the legislature
A conspiracy that is tied to everything (WEF/Davos) is of no value. Try to be a little more discerning.
Tin foil hats.
“. . . because the Constitution guarantees the right to have an abortion (though a more generalized right of privacy), then majorities are stripped of the power to enact laws restricting it.” [Greenwald]
With this observation Greenwald also reveals the hypocrisy of the left. The so-called right to abortion is created from a “penumbra” of whole cloth while the right to bear arms is specifically mentioned in the second amendment. That actual notation, however, has never impeded the the left from pursuing laws restricting that right while demanding no restriction on an invented “penumbral” right.
The hypocrisy of the left! I know, . . . my shocked face is borrowed from Sarah Hoyt.
“I wonder how long the rich, libertine Whites will keep it legal in CA as Blacks continue leaving (now less than the 5.8% from 2019), and if Asians join the usually Catholic Hispanics in being increasingly pro-life.” [Tom Grey @ 5:48 above]
So, if the national black population is ~13% and California’s black population is ~5.8%, in the interest of diversity inclusion and equity should we not prohibit federal funds to California until such time as their black population approaches the national average? It seems only reasonable since California has prohibited its own state funds to be used in certain locations.
Just asking . . . .