Comments Elsewhere

“Pangloss” offers the following breezy attack on the strategy of Roe:

“Debating important issues of the day among members of the electorate is just so… messy.

“Things are so much better when a court just seizes control from a legislative body and rules by fiat, a la Roe (and Goodridge, for that matter).”

The problem here is not so much with the position (although it happens to be wrong) but rather with the complete lack of argument. There is a perfectly well-established pro-choice argument for why it’s at least as appropriate to handle the issue through the courts as it is through the legislature, to wit because:

<p>(1) *Some* things are not proper subjects for the legislature to decide on.<br />

(2) Abortion is one of those things.

Now, premise (1) is a perfectly reasonable premise; I agree with it and so, in fact, do you. The argument is simple: no legitimate government of any kind – including democracies – could presume to put certain fundamental rights up for legislative debate, because no government – and a fortiori no democracy – could possibly have the authority to curtail those rights. Here’s an example: say that I try to introduce a bill into the legislature which claims to authorize hunting all Christians like animals. Now, there’s a pretty good argument that, under Amendments IV, V, VIII, and XIV (and perhaps under Article I, Section 9), such a bill is blatantly unconstitutional. There’s also a good argument that even if it weren’t clearly banned under the language of the Constitution, the legislature could not possibly have the authority to enact any such bill, because no-one could, and any government that presumes to have that authority is committing precisely the sort of abuses that justify revolutions against it (this is the result if one takes constitutional appeals seriously–i.e., as claims about legal authority rather than exegetical questions concerning what is written on some sheet of paper with the word “CONSTITUTION” at the top).

<p>Premise (2) is, I take it, the controversial premise. But of course you simply breeze by the pro-choice *arguments* (whether those contained within Roe itself, or those made by pro-choicers independently of Roe) for finding a constitutional defense for taking abortion out of the hands of the legislative process. The Roe argument is based on precedent of a general right to a &#8220;private sphere&#8221; that the justices claim to have found in the &#8220;penumbra&#8221; of the Bill of Rights; other arguments are based on, for example, the claim that abortion is justified by a woman&#8217;s right to control her own body, and thus that outlawing abortion constitutes legalized <em>slavery</em>.</p>
<p>The point of touching on these arguments is not to insist that they are sound (for what it&#8217;s worth I think the Roe argument is <em>not</em>, and the slavery argument <em>is</em>). It is, rather, to point out that you have simply bypassed them rather than engaging with them. (You claim, for example, not to be able to find protection of abortion rights in the Bill of Rights; but the text of Roe gives a detailed argument, with sources in past cases, as to how they found it there. Staring at the text and crying &#8220;I don&#8217;t see it!&#8221; is not nearly as reliable a procedure as talking about the argument of Roe and trying to <em>show</em> the points at which you think it is specious.)</p>

<p>People on both sides of the aisle often complain about how no argument is possible on the issue of abortion. I don&#8217;t think this is true: the problem is that people generally don&#8217;t <em>argue</em> about it at all; they merely <em>assert</em>. So, in the spirit of trying to get past this impasse, let me give you my arguments for claiming that it&#8217;s perfectly legitimate for courts to enact measures like Roe, and you can present your own counter-argument, or else critique my argument by identifying which steps are invalid or which premises you take to be false.</p>
<p>(1) No government body has the legitimate authority to legalize slavery. (premise)<br />

(2) A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
(3) Courts can only enforce such laws as have successfully been made by the legislature. (premise)

(4) Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
(5) Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
(6) Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
(7) Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)

Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.

So is there something wrong with this argument? If so, what? If not, then what’s the problem with overturning abortion laws in the courts?