Ginsburg's dissent may yet prevail

[question everything]

http://www.latimes.com/news/opinion/commentary/la-oe-sunstein20apr20,1,738504.story

From the Los Angeles Times

Ginsburg's dissent may yet prevail
The justice argues that equality, not privacy, is crucial in the abortion right.
By Cass R. Sunstein
CASS R. SUNSTEIN teaches at the University of Chicago Law School.

April 20, 2007

IN THE LONG RUN, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court's argument was exceedingly weak. The Constitution does not use the word "privacy" anywhere, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit. And everyone knew, even in 1973, that the debate over abortion had a great deal to do with women's equality.

In 1985, Ginsburg, then a federal appeals court judge, argued in a law review article that the court should have emphasized "a woman's autonomous charge of her full life's course." Citing decisions on sex equality, she contended that Roe vs. Wade was "weakened … by the opinion's concentration on a medically approved autonomy idea, to the exclusion of a constitutionally based sex-equality perspective." In this week's case, Ginsburg, now the only woman on the court, attempted to re-conceive the foundations of the abortion right, basing it on well-established constitutional principles of equality. Borrowing from her 1985 argument, she said that legal challenges to restrictions on abortion procedures "do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."

For Ginsburg, this alternative understanding of the right to choose has concrete implications. It means that any restrictions on the abortion right must, at a minimum, protect a woman's health. It also means that no such restriction can be justified on the paternalistic ground that women might turn out to regret their choices or are too fragile to receive all relevant information about medical possibilities. In her view, such paternalistic arguments run afoul of the guarantee of sex equality because they reflect "ancient notions about women's place in the family and under the Constitution — ideas that have long since been discredited."

(snip)

True, men cannot become pregnant, and it is tempting to think that, for that reason, abortion restrictions cannot possibly create a problem of discrimination. But perhaps this argument has things backward. In our society, isn't there an equality problem if laws target only women's bodies and leave men's bodies alone?.. But Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth.

[aquart]

1. Roberts' court will be remembered for its nasty sleaziness.

For its hypocrisy, dishonesty, and discrimination. He's almost brand new but his path in history is clear.

[babylonsister]

2. Track back about right after X-mas. Roberts was the guy whining

about his paycheck, and got the bucks. Now, he can do his conservative duty.

[I Have A Dream]

3. This is a very interesting idea. K&R. n/t

[BrklynLiberal]

4. Off you go to the greatest page! Thanks for cross-posting.

[LastLiberal in PalmSprings]

35. Here's the Court's opinion:

GONZALES v. CARHART Click here to go directly to Justice Ginsberg's dissent.

[babylonsister]

5. Perhaps in the future, but it's a 'done deal' now, or isn't it?

Major props to Justice Ginsberg for prevailing with some common sense! :thumbsup:

[question everything]

8. Take comfort from the concluding remark

"..and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth."

If President Clinton, or Obama, or Edwards get to nominate a new Justice, it would then be time to revisit this issue.

[Breeze54]

17. Now is the time!!!!!

President Kucinich would stand up for a woman's right to choose!

[question everything]

19. Meanwhile, I worry about Jutice Stevens

who is 87 now and, no doubt, is hanging tough for two more years.

One can only speculate how Harriet Miers, if she got the appointment, have voted on this one.

[Breeze54]

20. Nothing to speculate at all!

She would have voted against choice! She's a bitch!

[Horse with no Name]

40. Actually I think they couldn't second-guess how she would vote

on this issue. She WAS a Democrat once before she flip-flopped to the dark side.
Conservatives didn't trust her to toe the party line on the abortion issue. THAT is why they crucified her and THAT is the sole reason that she didn't get the nomination.

[Breeze54]

41. Harriet Miers? She's * 's 'gurlfriend! lol!

You and I both know she'd vote against it.

[badgerpup]

44. I'm a liberal, voting Democratic, and I was against Harriet Miers...

...because SHE WAS UTTERLY INCOMPETENT FOR THE JOB.
:banghead:

Wrote both my Senators and told them they may as well confirm Barney the Dog*, since we're going the Caligula route.

*Li'l George is a-scairt of horses, so he won't be making a horse one of his counselors.

[Breeze54]

45. I was and am against her too!

I railed against the machine at the time, as well.

Letters, phone calls, rants and postings. ;)

[MN ChimpH8R]

37. The Honorable Justice Stevens will remain as long

as he can draw breath - at least until 2009. Good luck and good health to you, sir!

Also, FWIW, I had a seminar with Cass Sunstein while in law school. He was a visiting prof at my school my second year. Scary smart, and would be an outstanding SCOTUS nominee by a President Gore, Obama or Edwards.

[question everything]

46. I remember the previous liberals

who were hanging tough until Clinton was elected.

Cass Sunstein sounds like an interesting lecturer, capable of translating legal terms into every day language.

I hope that he will be considered for the next vacancy, though, to be honest, there is a need for one more woman there, one who is a brilliant scholar like Ginsburg, of course.

[Breeze54]

14. Help us fight the ban: Give today and SIGN in support of the Freedom of Choice Act!

Stand up to Bush: Support the Freedom of Choice Act

SIGN PLEASE!!!!
http://prochoiceaction.org/campaign/congress_foca_0407

Dear < Decision Maker >,

As your constituent, I am writing to ask you to cosponsor the Freedom of Choice Act (FOCA).

(Edit Letter Below)

Click link to read the letter and add your comments!

With its decision on the Federal Abortion Ban, the Supreme Court, reconfigured by President Bush,
has moved in a direction that further undermines Roe v. Wade and core protections for women’s
health. The door is now open for politicians like George W. Bush to interfere even more in our
personal, private medical decisions. The Court has given anti-choice lawmakers the green light
to launch more aggressive attacks on safe, legal abortion, without any regard for women’s health.

But there is something you can do to fight back. Help get a law on the books called the
Freedom of Choice Act that will restore the reproductive rights recognized under the vision
expressed in 1973 in Roe v. Wade.

Don’t let this latest attack on women’s personal, private medical decisions go unanswered.
Sen. Barbara Boxer of California and Rep. Jerry Nadler of New York are leading efforts to
introduce the Freedom of Choice Act.

Urge your members of Congress to sign on as cosponsors.

I signed!

[Gloria]

32. I repeat, that "Freedom of Choice Act" is a stupid name at this point....

I wrote Boxer about it, too. May have been fine in 1989, but not after Partial Birth Abortion and other RW framing has been embraced by the media and the public.

Our side, our Democrats, have learned NOTHING about framing over the years. This bill should be renamed something like
THE WOMEN'S HEALTH PROTECTION ACT. Its broad enough to get people thinking along different lines. Choice...what, something off the fast food menu?? The term has been trivialized and undermined over the years.

I want to hear more terms like "forced birth" or "like in Poland" or "abusive laws against women".....something to really kick back against the bullshit coming out of the RW.

More passion please from our side. Democrats in office better wake up....fast. I'd love to see Edwards argue a "case" about this so the public gets it. It would be awesome....

[Breeze54]

33. I hear you.

The RW certainly does have a handle of framing legislation that makes it hard
to vote against it. I do have to give them credit for that. Look at the welfare bill!

Personal Responsibility and Work Opportunity Reconciliation Act of 1996
http://www.sourcewatch.org/index.php?title=1996_Welfare_Reform_Act

Who the hell was going to vote against that title?? :shrug:

[question everything]

39. Indeed. The other side uses the term "life"

which is visceral, while ours uses the term "choice" which, as you correctly points out, is a term of consumerism.

Some suggested to change this terminology before the last elections and we will certainly have to face this next year.

[Honeycombe8]

6. Interesting. Great post. nt

[Erika]

7. Ginsburg put out the woman's reasoning

Those GOP Catholic males didn't like it.

[Manifestor_of_Light]

9. Justice Ginsburg has used a different theory for years.

I remember reading years ago that she thought Roe v. Wade should have not been decided under the right to privacy penumbra, but under equality.

Not surprising, and makes sense to me.

And yes I am a lawyer.

[question everything]

11. Let's hope that next cases - and there will be next cases

be argued along this line.

[depakid]

21. I think she probably realizes that Griswold's days are numbered

and that the court is simply waiting for the right case strike it down. That's been the far right's wet dream for 40 years now.

They've been moving this directions for many years now. Most people don't understand that the constitutional core of Roe is no longer controlling law. Planned Parenthood v. Casey made first trimester choice "something less" than a fundamental right, and under Lawrence v. Texas, consensual sex between consenting adults isn't a right at all! The state simply doesn't have a "rational basis" for legislating "morality" under those facts. That was a weird case. How many times have you ever seen a statute struck down via the "rational relationship" test?

Nope, I think we can count on it. With Alito's confirmation, the right to reproductive freedom was dead (people just don't know it, yet). My prediction is that when Griswold is overturned (and it has to be in order to finally allow the states to legislate forced birth) people in certain southern and midwestern states are going to be mighty surprised to see that their right to purchase or use contraception is also going to be curtailed- or perhaps even banned.

[question everything]

23. And this will have to be our campaign

to assure that the next president appoints justices who would not allow states to prohibit sales and uses of condoms. If nothing else, those machos with their bizarre sense of "family values" would not want to be saddled with too many babies to support.

Unless we revert to the old British law where "bastards" do not have any rights.

[depakid]

26. This should have been our campaign 20+ years ago

It's been clear for at least that long that Republicans do not believe in and are actively hostile to Americans' right to privacy- and not just with respect to reproductive freedom.

I think historians will note that the Democratic party's failure to point that out and make it a major campaign theme was one of the principle reasons that the far right and their fundamentalist allies were able to advance from the fringe to the forefront in all branches of government.

I also agree that at least some of the fundie men- hypocrites and misogynists that they are, will find the prospect of birth control pills being restricted say, to married couples- and banned outright to be a bit onerous....

On the other hand, they're generally too stupid to realize that that's what they've been working for until it's too late.

At this point, I think it's inevitable that we'll at least see contraception limited in terms of access and/or age. You can already see that foreshadowed in the efforts to restrict Plan B. With any luck, the restrictions will be limited to people in the sorts of states that currently criminalize the sale of dildos and would persecute gays, but then again, you never know.

[ms liberty]

10. This is what it should be about IMO...K&R n/t

[sutz12]

12. I always thought and felt.....

that it was a 'greater evil' to force a woman to take an unwanted pregnancy to term.

[TahitiNut]

13. Not just women, but fertile women of child-bearing age.

Thus, it really doesn't hinge totally on sex/gender and cannot be countered by those who oppose the ERA.

[Morgana LaFey]

22. huh?

I don't understand your point -- either half of it. Would you elaborate or explain, please?

[Hamlette]

15. k&r

[UTUSN]

16. 2nd that K&R n/t

[Gregorian]

18. Something's wrong with this- It makes common sense.

That would be too human. Too obvious.

[Clark2008]

24. Exactly

If Roe or Griswold is overturned, women should file for choice rights under the 13th Amendment which forbids involuntary slavitude: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Think about it: if the fetus is considered a human and a woman is forced against her will to give up her body for nine months in order to serve said human, then it's, essentially, slavery: deprived of personal freedom and compelled to perform labor or services for another.

I'm 8 months pregnant, willingly, but they don't call it "labor" for nothing.

[question everything]

27. Congratulations! Hope everything goes well (nt)

[roguevalley]

25. Ban viagra. Messes with natural law. Maybe if men had to LOSE

SOMETHING OF THEIR AUTONOMY, they would get it. God bless Ginsberg and her confreres.

[krkaufman]

28. To improve health, a law should be passed requiring all men ...

... to be circumcised.

[saltpoint]

29. Ginsburg's a gem. One of President Clinton's best moves.

And the frailest stay against the Roberts right tilt to the SCOTUS.

I think privacy and equality should both be considered before restricting any abortion generally and would add medical emergency should the woman's life be in danger.

What is despairing about the SCOTUS decision this week is that they know Ginsburg's argument, but as regards privacy and equality, the majority decided that women deserve neither.

That's appalling.

[Pacifist Patriot]

30. Is it too late to take another run at an ERA?

[Breeze54]

31. New Drive Afoot to Pass Equal Rights Amendment

New Drive Afoot to Pass Equal Rights Amendment

http://www.washingtonpost.com/wp-dyn/content/article/2007/03/27/AR2007032702357.html

By Juliet Eilperin
Washington Post Staff Writer
Wednesday, March 28, 2007; Page A01

Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment,
reviving a feminist goal that faltered a quarter-century ago when the measure did not
gain the approval of three-quarters of the state legislatures.

The amendment, which came three states short of enactment in 1982, has been introduced in
five state legislatures since January. Yesterday, House and Senate Democrats reintroduced
the measure under a new name -- the Women's Equality Amendment -- and vowed to bring it to'
a vote in both chambers by the end of the session.

snip-->

"Elections have consequences, and isn't it true those consequences are good right now?"
Sen. Barbara Boxer (D-Calif.) asked a mostly female crowd yesterday at a news conference,
as the audience cheered. "We are turning this country around, bit by bit, to put it in a
more progressive direction."

More.......

[NovaNardis]

38. Would make Ginsburg's argument

a lot easier to uphold constitutionally. Best left unconnected to the abortion debate until it passes, if ever.

[ProudDad]

34. If there is a future in this country

which includes a modicum of justice, Ginsberg's excellent opinion will become the underpinning for a newer and more durable decision in favor of women's right to free choice.

The decision made by those 5 old white pigs last week will be tossed on the ash heap along with Dred Scott, Plessy, etc. where it belongs.

[0rganism]

36. The Constitution doesn't use the word "privacy" because it meant something else in 1789

from the article:
> The Constitution does not use the word "privacy" anywhere,

At the time the Constitution was written, the word "privacy" referred specifically to certain bodily functions which ocurred in the "privy" -- i.e., what we now know as "going to the bathroom".

It would have been downright bizarre to enumerate the right to solitary bowel movements in one's federal constitution!

Instead, the founders spelled out their intent on the subject quite clearly in the much-abused and ignored 4th amendment, and to a lesser extent in the 1st, 3rd, and 5th amendments.

The constitutional notion of privacy is far from weak, and is made quite a bit more obvious than, e.g., the citizens' independent right to own handguns.

[Up2Late]

42. This is so weird. I agree with someone at the University of Chicago...

...that almost never happens, but I'll have to go back and look. I thought I never agreed with Cass R. Sunstein, but maybe I'm thinking of someone else?

Anyway. Bravo Justice Ginsburg, you are exactly right!:applause:

I can't remember who said it first but, I agree with who ever it was who said, "If you don't have a Uterus, you should not have any say on this matter."

And I'm sure not everyone here will believe this, and I must admit that I didn't know about Justice Ginsburgs 1985 Argument about Abortion being an Equal Rights issue, but this fits very well with my campaign, that I started HERE at DU a few years ago to end the use of the phrase "Pro-Life" and call it what it is:

It is ANTI-CHOICE, NOT Pro-Life which opposes PRO-CHOICE.

There is nothing "Pro-life" about a movement to pass laws that say, even though the Doctors say that having this baby will most likely cause your death, you have no say in the matter and Doctors are Banned from saving your life, because someone in Washington D.C. or some preacher in some church that you don't even belong too says you'll go to Hell if you do this medical procedure.

[frogcycle]

43. wow

you go, girl!

I have a new found respect for Justice Ginsburg.