Doing the Math

I’m starting to feel weary and gun-shy about political discussions in the public sphere (among bloggers or otherwise).

It feels to me that so few people are stopping to take a deep breath, look at issues from several angles, think about first principles, likely outcomes, the constraints on the possible. Even commentators that I’m generally in sympathy with are precluding any discussion besides strict agreement with their own take on matters.

I’m really feeling this with the Roberts nomination and the related discussion of Roe vs. Wade. Yes, I found the head-fake to Clement deplorable: a petty bit of political mockery from the inner cirlces of the Administration, a “hah-hah, you thought maybe for once we’d actually try to play to the center! Hah-hah!” Yes, this is about trying to get the Supreme Court to overturn much of what it has accomplished in the last twenty years, which makes me sad for a variety of reasons. Yes, I’m concerned about the threat to Roe vs. Wade.

But at the same time, here’s some other things on my mind.

1) Do we really want to be in the position of saying that we will oppose a candidate who has great qualifications for the Supreme Court strictly because of his apparent legal and political ideology? There’s only one person on the current Court who I think is straightforwardly a blemish on the institution, and that’s Thomas, who is clearly not qualified and who doesn’t even have a vague hint of a judicial temperment. Even Scalia was an intellectual asset of sorts before he started going off the religious deep end and cutting his originalism to fit instrumentally partisan ends. I think the ideal Supreme Court should have ideological and philosophical pluralism, as long as all of its members are intelligent, knowledgeable and persuadable, capable of adjusting their views in any particular case based on the soundness of the arguments presented to them. I understand that the arguments against using a “litmus test” are offered cynically by many on the right (and the culturally conservative right isn’t even pretending any longer that they don’t have their own litmus test). At the same time, I’m always thinking about where we want to be as well as where we are, and where we want to be, I think, is that the Supreme Court should have a different ethos of selection than other branches of government. I want to vote for Congressional representatives who will speak for my views on the issues, and a President who will lead in a way consistent with my political values, but I don’t want the same direct correspondence between my own political views on particular issues and each and every Supreme Court justice. Indeed, if we value the Warren Court’s legacy, that’s exactly what we’re saying.

2) That’s all pretty abstract. Let’s get down to the real deal. Do you think that there is any way in hell to stop the confirmation, barring the revelation of some dark secret about Roberts? Somebody tell me how the opposition pulls that off. No, don’t tell me to get angry, demonstrate, write letters to my (avowedly and inflexibly Republican) Representative or my (batshit insane and wimpily moderate) Senators. Not unless you can tell me about the unknown terrain between getting! really! angry! and “blocking the nomination with the result that a more moderate person is nominated next time”. So if the nomination isn’t going to be stopped, what should it be about? How about a longer-term strategy where the implications of the shift in the Court are made clear to the American public, where the Democrats in the confirmation process set themselves up as the reasonable guardians of American consensus as opposed to the irresponsibly partisan fringe-elements dominating the Republican Party? And so on: all things which seem to me necessarily preclude an apocalyptic, fight-to-the-finish, junkyard-dog strategy for opposing the Roberts nomination. There’s some consensus on the left that the longer-term strategy is the way to go, but it’s often followed by advice to hit Roberts himself hard, or to be fierce in the hearings, and these are incommensurable.

3) On Roe vs. Wade. Amanda Marcotte at Pandagon is unsparing: she says drop the “horseshit argument” that securing the right to choose abortion is going to have to be conceded back to state legislatures. There’s a lot of opinion behind her on this point. It’s an argument that was newly galvanized by Benjamin Wittes’ article “Letting Go of Roe” back in the February 2005 Atlantic Monthly.

I think that Marcotte and others are right about the consequences of accepting Wittes’ argument: there will be some states in which a choice that many of us regard as an expression of a larger right to privacy and self-ownership will be denied to women. In practical terms, it will be denied in particular to poor women who lack the resources to travel across state lines. I agree that if you see choice as part of a fundamental right, accepting that it is not a universally guaranteed right is extraordinarily painful.

But Wittes’ argument is not “horseshit”, and it’s not “looking for a way out of the fight”, both cheap responses to an important debate that we’d better have now in a much fuller and more mutally tolerant fashion. Wittes observes that centering the debate on Roe vs. Wade has prevented those of us who believe in choice and in the right to privacy and self-ownership from securing that right either constitutionally (with an amendment) or through state and federal statutes. We’ve put all our eggs in the Supremes’ basket. More importantly, Wittes is right, in my opinion, to note that our reliance on Roe has kept the cultural conservatives from having to actually shoulder the political cost of passing specific statutes that take away a right that the majority voting population of most states supports, from having to actually do something that will have concrete consequences in terms of the everyday lives of most Americans.

You could legitimately object that Wittes’ argument implies that we should never rely on the Court to do anything, in fact, that all rights should be secured by statute. Should we overturn Brown vs. the Board of Education, too? But this goes to the deeper heart of the abortion issue. The fact is that the Court’s civil rights decisions were, first off, supported by a wave of legal and political reforms. But second, they were supported by a broad and abiding moral and cultural consensus across the United States. The glorious triumph of the civil rights movement was that it simultaneously forced the political order to abide at long last by the guiding principles embedded at its foundations and it made white Americans who had not wanted to see or know or truly care about racial inequality to at last care, to recognize how far the country was from a minimal realization of its highest ideals.

Abortion has simply never achieved the same status. The right to privacy and self-ownership is supported by a relatively wide social consensus, but that consensus peels away significantly around abortion. Yes, at least some of the opposition to abortion is a reactionary, unacceptable opposition to the wider right of privacy, and some of it is unmistakeably motivated by a desire to control women, or to discriminatorily deny them a general right. Some of it is driven by the same kind of proxy exportation of fundamental social and cultural conflicts that appears in debates over gun control, free speech rights, and so on, where abortion is just a synecdotal device expressing a deeper cleavage. But some of the separation of abortion from the wider right to privacy is driven by an authentic if also ambivalent sense that abortion is a place where the right to privacy and self-ownership gets authentically complicated. Complicated because a child is a rights-bearing entity in its own right and because children, even in utero genuinely involve more than one person’s hopes, fears, wishes, desires and rights. Any argument on behalf of choice has to take that messiness and the unease it generates seriously, and that’s something which those of us who support Roe didn’t do for a long time.

We even have to take the more obdurate or extreme opposition seriously in that it exists and it persists. There was for a long time an assumption among supporters of Roe that the Court’s protection for the right to choose would eventually, by osmosis, create a consensus, that the opposition to Roe had the same archaic and self-evidently backward character that the opposition to civil rights did. That history would dispense with the opposition to choice, and that all we had to do was keep strong and organized amongst ourselves. The folly of that approach has been demonstrated, and I think with more than just abortion. The force of social reform coming out of the 1970s became far too dependent upon guarantees of legal, political or institutional power, far too dependent on a model of enforcement. At a distant remove, that’s what drove speech codes in universities: the mutating, growing belief that changing what people think, producing new consensus views, could be done through an enforcement model rather than through seeking persuasive dialogue with people unlike ourselves. Because persuasive dialogue exposes, requires concessions, is dangerously contingent in its outcomes.

That’s all high-toned talk. So let’s switch gears a little on Roe to practical matters. It’s pretty clear it’s going to be overturned sooner or later, either in total or as good as such.

So then what, if it’s just “horseshit” to talk about other political pathways to securing the right to choose for as many Americans as it can be secured for? Does the campaign for the right to choose in Ireland curl up and die because they don’t have Roe vs. Wade to begin with? You work with what you got. Go to the barricades for Roe if you like, but if you don’t have a Plan B, then don’t spit on the people who do. If you can’t tell me how you actually intend to keep Roe from being overturned beyond getting angry and demonstrating and all that, and you don’t want to talk about the political alternatives, how committed are you really to the right to choose or the wider right to privacy from which it derives?

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60 Responses to Doing the Math

  1. hektor.bim says:

    “That’s all high-toned talk. So let’s switch gears a little on Roe to practical matters. It’s pretty clear it’s going to be overturned sooner or later, either in total or as good as such.”

    What evidence do you have for this view, exactly? If Democrats make gains in 2006 and get the White House and/or Congress in 2008 and manage to keep it for a while, then this will obviously not happen.

    It seems to me like you want it to be overturned because it creates messiness and unpleasantness for you and for the country. That’s a prefectly defensible position, but you should just say that.

    This whole appealing to historical determinism went out with Communism. It is by no means clear that it is inevitable that Roe will be overturned, and I would challenge you to provide some evidence to the contrary.

  2. Timothy Burke says:

    Do you think Democrats are going to make gains in 2006? It’s possible that the Dems will get the White House in 2008, of course, but if they do so, I sincerely doubt that they will do so in such a way as to get a good lock on the White House for the next decade. I don’t see the Democrats reassembling a reliable majority in the House for at least twelve years and that’s only if all goes right; a majority in the Senate in the near-term is a possibility but it’ll be a thin majority if so.

    All it would take to get Roe overturned before 2008 is one of the Supremes besides Rehnquist, Scalia or Thomas dying or retiring.

    As long as there is a strongly committed, politically driven, sizeable plurality of national voters who want Roe overturned, the danger of it being overturned is permanent and imminent. We can spend the rest of our political lives living one hair’s breadth away from losing Roe, or we can sit down and think about a political strategy which might lock in the right to choose in a much more permanent, distributed, robust fashion, either through constitutional amendment on the right to privacy or through state statutes, knowing in advance that there will be a few states that we can make no headway in.

    Roe has no redundancy; it’s a fragile and non-robust way to guarantee the right to choose. It’s not just that it depends on the Supremes: it even depends on people reliably voting for the Presidency and Congress strictly on the grounds of a defense of Roe through their influence on the Supremes and on nothing else. And I just don’t think that many people are going to do that: there will always be other issues contending for attention. You are not going to be able to engineer a major shift of power to the Democrats for the long-term just on Roe alone, any more than antipathy to Roe explains by itself the current support for the Republicans.

    I’m not appealing to historical determinism: I’m saying as a practical matter, Roe is far too slender a reed to rest the defense of rights upon. Too easy to reverse, too likely to be reversed in the current political constellation. I grant that it’s possible that Roe can be preserved, but never securely so.

  3. ogged says:

    Tim, I made a point similar to your (1) and got lots of smart dissent here.

  4. This is really startling. What you are calling pragmatism (let’s give up on Roe v. Wade, it’s a lost cause anyway, sheesh get over it) is in fact heartlessness. Because she says it better than I possibly can, please read Katha Pollitt’s column in the latest issue of the Nation and really think about whether you can possibly, possibly, possibly mean what you’ve written here.

    The privacy/ownership grounds for protecting abortion rights are the wrong grounds, and Roe v. Wade may indeed be a slender defense of the right to choose. So what? Quinine doesn’t cure malaria, but people are glad for its existence anyway. The crypto-argument: let it all go to hell in a handbasket, then later (hopefully) (maybe) we’ll come up with something better…. dude, unless you are OUT ON THE BARRICADES, committing your entire existence to bringing about that better alternative, your airy dismissal of something that makes an immediate difference in life as we know it is … well, I won’t go the route of saying the strongest thing I can think of. Instead I’ll just say this: as someone who has read your blog for a bit and liked things on it, to discover that this is your attitude is ill-making.

  5. Timothy Burke says:

    I guess this is why I feel sort of tired, if this comes off as an airy dismissal, I don’t know how to make it grounded. If it’s get out on the barricades or I suck–and where are these barricades, and how are they going to keep Roe in place, exactly–I guess I suck.

    The way I read the cards, Roe has at least a significant chance of being overturned. I’m asking what we do then, if we care about the right it protects. It seems to me that there is another barricade beyond this one, and maybe it would protect the right we cherish even better, that maybe Roe was only the first step. Why is it heartless to ask about the political future?

    What are the constitutional grounds for protecting Roe v. Wade if not privacy, by the way? There are other ethical or moral grounds for defending the right to choose, most importantly involving gender and power, but I don’t think those are the grounds that have kept Roe afloat in constitutional law, by and large.

  6. hektor.bim says:

    Yes, actually, I do think Democrats will make gains in 2006. After all, it can hardly get worse, can it? 🙂 Also, Bush is very unpopular, and so is the Republican congress and things like the Schiavo case have not helped matters. The Democrats are also pushing the corruption angle, and Republicans keep giving them examples on a steady basis. Full-spectrum Republican dominance is fairly unlikely given current trends.

    But that is largely beside the point. If you had argued above that Roe is on weak ground and thus we need a better and more broadly-based strategy, then I might have agreed with you. But you argued that it was inevitable that Roe would be overturned. This I can’t agree with.

    It’s also true that I don’t detect any proactive ideas from you either. It’s fine to talk about how dangerous it is to rely on Roe, but since I don’t really detect any better ideas from you, all I get from your post is pessimism and attacks on people who would seek to bolster Roe. Frankly, that isn’t very constructive and is even somewhat hostile. Since I don’t want to pigeonhole you as a “man of the left”, I don’t actually care so much what your positions are, so long as you articulate them clearly. I don’t think you are articulating your abortion views very clearly here, and I don’t understand where the hostility comes from.

  7. Timothy Burke says:

    Ogged: yeah, those are good points made in that thread. I think it’s fine to oppose Roberts, and there are many sharp and pointed questions to be asked him from the nitty-gritty to the generality of his judicial philosophy. I’m just not deluding myself that we can stop him from being confirmed, and given that, I think it’s important not to go balls-to-the-wall or to come off badly. It’s all theater: I think we have to think about how our performance should be couched.

    If somebody has a real plan that goes beyond general invocations of the need for stern opposition or “little-engine-that-could” wishfulness which could actually stop this nomination and compel Bush to nominate a more suitably moderate candidate, I’m keen to hear it.

  8. Timothy Burke says:

    Hektor: Ok, it’s not inevitable that it will get overturned. But I think it likely, and the very fact that it’s likely strikes me as proving that Roe is too slender a reed to put all our hopes in.

    I thought my proactive argument was clear. The time to begin campaigning for state legislatures to pass laws affirming the right to choose is now. That’s where I’d start putting most of the money and effort available. Not just in lobbying state legislatures but in campaigns for state legislatures and governorships. I’d start bulding local organizations–not chapters of NOW, but something to counter conservative churches and other right-wing civic organizations that function at the local level. I’d start political advertising at the state level that argue that the fight for choice begins now in votes for state offices.

    And yes, in making that effort, I’d write off states where polling information shows that bans on abortion are likely to get majority support. I’d start the wheels rolling on treating those states the same way that we targeted Confederate flag-flying, as future boycott targets. Have a boycott ready to go as a promised sanction for any state that votes in a post-Roe ban on abortion.

    I’d begin now by building the foundations of a network that will transport means-tested patients across state lines for abortions, a latter-day Underground Railroad. Model on travel across the Canadian border for medicines. Make it so every donor can individually fund an individual “seat on the bus” for women exercising their right to choose. Any attempt to impede such travel by states banning abortion should bring immediate legal challenges.

    Begin extensive campaigns of mass civil disobedience to bring and distribute RU-486 or other ‘morning after’ abortifacents from abroad to states banning abortion.

    Put the pressure on those who would deny a woman’s right to choose–make them act, deny, arrest, oppress.

    Yes, this puts securing the right to choose ahead into the future, possibly the long-term future. So does defense of Roe. I think this leads to something stronger and better than Roe in the long-term.

  9. djw says:

    I wish there were better options, more likely to secure reproductive rights, than Roe. Maybe there are. I don’t see them. You’re correct, I think, that Roe is too slender a reed to pin our hopes on. However, it happens to be the only reed we’ve got. Under such circumstances, it seems to me pragmatism demands precisely the opposite of what you think it does.

    Whether are chances of keeping Roe are 30%, 50%, or 70%, it seems like the most likely thing to work. I agree–it’s not a great position to be in. I’d like a better approach.

    You seem to presume that in some sense, fighting for Roe and coming up with a better strategy are mutually exclusive. You don’t argue the point, but it seems to underwrite both your argument and your attitude. This doesn’t seem obvious to me at all.

    I’m with you on the underground railroad, and I’ve actually been thinking a lot about such strategies lately. While it might be smart for people to start planning for such a contingency, it’s clearly second best to keeping abortions solidly legal. Again, how one course of action detracts from the other isn’t at all clear.

  10. while it’s really awesome to hear about all the things you “would” do, state-by-state, if you were supreme leader of the national pro-choice movement (oh happy day), I see that you were careful not to claim you *had* been doing any of those things, nor that you are putting out feelers to start out any of those activities. (the constitutional amendment idea I can only assume you meant as a cynical joke).

    Your plans are for the long-term future. What about women with unwanted pregnancies, RIGHT NOW? right now, we’ve got Roe. you’re suggesting we should just give up on it, in favor of a hypothetical better alternative, about which you are happy to speculate but are passive in practice.

    It was very telling when you said this discussion makes you “tired”. Portions of the left keep recycling this one — they are tired of fighting about abortion. It’s not central, it’s not essential, it gets in the way, the other side makes some good points, yadda yadda. This argument is not made in hope of persuading anyone of anything, it’s offered in hope of getting people to shut up. Pardon the demurral.

    Why privacy is not the right grounds — first, it suggests that abortion is somehow shameful. Abortion is a procedure that 40% of American women choose at some point during their childbearing years. Second, what needs to be recognized is that abortion is not like anything else (privacy, self-ownership, organ donation, whatever). Abortion is inseparable from the inherently unequal nature of human reproduction. Nothing else is quite like it. It might take another generation to make the case for a legal framework that recognizes this. In the meantime, yes, Roe is worth fighting for. First, to protect women from forced childbearing in the interim. Second, because even if we lose on this nomination, *the fight itself is part of the process*.

  11. ogged says:

    It was very telling when you said this discussion makes you “tired”.

    This, Kathleen, is what we call irony. The discussion makes people tired because they can’t discuss it reasonably without being harangued by people *with whom they agree* for being callous. Tim isn’t “suggesting we should just give up on [Roe],” so much as seeing clearly that there’s a good chance that, given political facts and trends, Roe won’t protect the rights we (liberals, here on this blog) value, and that our efforts might be better directed elsewhere. If you want to disagree with this, arguments that Roe is good law, or is hazy but justifiable, or that abortion is a fundamental right are irrelevant. To disagree, you have to show that Roe can be saved, or that Roberts’s nomination can be blocked, or that the Congress or Supreme Court will soon become far more liberal. Those are the claims at issue.

  12. First, I don’t recall granting you permission to address me by my first name. If you attempt being patronizing as a rhetorical strategy, it’s much more devastating if you can pull it off with a high degree of courtesy.

    Second, no, I don’t have to disagree in one of the three delimited formats you choose to prescribe. This another iteration of the same tactic I was critiquing: “this makes me tired, this is irrelevant, this is outside the bounds of reasoned discourse.” These are all arguments directed not toward persuasion, but instead toward getting one’s opponents to hush. No, we do not agree; both you and our host hold views inconsistent with mine, in ways that I described above. The “strategic unity on the left” approach which you both advocate, which brackets abortion rights as inessential and not worth fighting for whenever, wherever, and however they are under threat, is one that I believe to be utterly wrong-headed. That is what is at issue.

  13. Timothy Burke says:

    I see those rights as utterly essential. It’s why I’m trying to think about how to fight for them.

    I’m dead serious about a constitutional amendment that ends all the arguments about the right to privacy. Why is that silly?

    What about the women who have pregnancies right now? How are you more serious than I am about them? Imagine that the overturn of Roe v. Wade comes up to the Supreme Court in about two years? Who’s going to have been more serious if it gets overturned? Me or you?

    I’m not tired of fighting for the right to choose. Never.

    I’m tired of defining Roe v. Wade as the political guarantee of the right to abortion. It’s not.

  14. Timothy Burke says:

    Let me add this, in case it’s not clear. A strategy for securing the right to abortion that requires the indefinite extension of a judicial order down the throats of those who object fundamentally to that right until those people just go away, die, or what have you, will never ever be a secure strategy, even if we win the Presidency for the next century.

    The only secure strategy is to build a solid majority voting confirmation of the right to choose in every single state we can, and try to recognize that some of the uneasiness that a fraction of the voting population feels about abortion comes from an ethical source that is not purely debased. That doesn’t mean making concessions on the fundamental, non-negotiable core of the right to choose, but it does mean treating potentially persuadable people who are uneasy as something other than ethical village idiots, it means recognizing that in very straightforward terms, the choice to abort is actually a pretty complicated one, even if the right to choose to abort is not a complicated obligation of a free society. I think there’s been a lot of progress on that front in recent years; we only have to extend it a bit more in campaigns that extend their political power beyond Roe v. Wade, that reach for some more extensible and structurally permanent solution to this never-ending wound.

  15. Timothy Burke says:

    A quick final point. My comment on being tired may be a distraction here. I’m not tired of this discussion in specific. I’m just a bit tired of feeling that on a great many political issues, there’s no space to say, “Maybe there’s some other things to think about” without getting chewed to bits.

  16. All of the above suggests to me that your under-commitment to Roe has less to do with some avowed commitment to a “better” alternative than it does to with your basic feeling that the “choice to abort is actually a pretty complicated one”, that it brings up ethical problems with which one must wrestle, that creating a legal framework that protects women from forced childbearing somehow “shoves” something down the “throats” of other people (and no, I don’t think the crypto-sexual fear imagery here is irrelevant).

    Look — think what you want, and act accordingly. I’ll just reiterate my original post. My understanding of your character and worldview has changed based on what you have said here, in ways by which I am saddened. In one sense, this is a very small matter — I don’t know you and have only been reading your blog for a couple of weeks. In another sense, it’s (perhaps) a large one, in terms of what it hints at about attitudes toward women and “women’s issues” even within the academic left. At least I know the intensity of my own reaction has come from that concern. But I’m reminding myself even as I write the words that after all, this is just one person’s blog.

  17. jim says:

    I believe that choice will be taken away if it is not defended. Roe has become the symbol of choice and therefore the point at which it has to be defended. Like Verdun. The Senate’s Democrats are unwilling to make that stand. Roberts could be opposed on the grounds of choice. A campaign which continually blazoned his footnote from Rust v. Sullivan might even be successful. That it is not being undertaken frustrates many.

    Some of the perceived “under-commitment to Roe” (not necessarily yours) comes from the fact that there are now alternatives. If abortion were to be outlawed tomorrow in the US, the alternative for my daughters (yours, too, though not for a few years yet) is no longer the back alley and the coat hanger. I have the phone number of the Mergentaler Clinic in Montreal. There are planes from National Airport (from Philly, too, I assume) every day. True, it’s not as convenient as the Women’s Health Center round the corner and with the plane fares and probable overnight stay it’s a bit more expensive, but not enough that we of the middle classes would find it unaffordable. Globalization has its benefits. For us. For People Like Us.

    But that People Like Us can evade the possible consequences of our representatives’ (who, after all, are also People Like Us; their staffs, too) actions/inactions raises the suspicions of those who can’t.

  18. Timothy Burke says:

    What I’m asking is, “Can Roberts be opposed successfully on the issue of choice, e.g., his nomination blocked and Bush compelled to select a more pro-choice nominee?” I just don’t think so. I’d love to hear more from those who think he can be blocked and how they think that would be accomplished.

    I’m genuinely saddened that anyone would think poorly of me as a human being (and see me as a stand-in for the male academic left, which whatever I am, I am not) because of what I’ve argued here.

    To me, the right to choose seems fundamental, particularly in terms of an equally fundamental, wider, right to privacy. I personally don’t find it ambivalent. I am suggesting that the evidence is clear that there is a significant plurality of the national population, men and women, who do not find it as clear-cut. That’s an empirical fact, and one that those of us who use or are interested in an ethnographic perspective are especially bound to take seriously. The way I see it, that plurality is wrong in their views, but I also recognize a diversity of explicit reasons and implicit habitus that is shaping the way they see the issue, and at least some of them are troubled by a genuinely difficult puzzle that abortion can present in terms of conflicting rights-in-person. I don’t share their ambivalence, but I can see why some people might have it.

    Whether or not one can have any sympathy for those who do not believe in the right to choose, or whose support for it is weak and conditional, their existence is a social fact. I think if you support the right to choose, you’re going to have to defend the right to choose with an awareness that the opposition is deeply embedded and will not simply wither away. You’re either going to have to work out some kind of accomodation with that opposition or find a more secure way to defeat it politically than Roe. You can’t just hum real loud and expect the problem of opposition to abortion rights to just go away.

  19. jim says:

    I don’t know if Roberts can be successfully opposed. I don’t know if Roberts can be blocked. I don’t know if Bush can be compelled to nominate someone less clearly anti-abortion. But no-one will know unless someone tries.

    I do believe that Roberts can and should be opposed. Here is a nominee who has signed a Supreme Court brief which said (unnecessarily) that Roe v. Wade was wrongly decided. If pro-choice forces cannot summon the will to oppose such a nominee, who can they oppose? What can they achieve?

  20. mcmoran says:

    “I don’t know if Bush can be compelled to nominate someone less clearly anti-abortion. But no-one will know unless someone tries.”

    I guess I don’t know, either, if to know implies less than, say, 99.9 percent certainty. I’m about 99.8 percent certain that Roberts cannot be blocked and that Bush cannot be compelled to nominate someone less clearly anti-abortion. I’m close to 100 percent certain that Bush cannot be compelled to nominate a clearly pro-choice candidate. Is there anything to be gained by losing this battle (which Democrats will surely lose)? If not, then why spend our lunch money?

  21. what lunch money? what are we saving that lunch money for? why have an opposition party at all with that logic? The Republicans control the executive branch and the Congress, so let’s try really really hard not to annoy them?

    This is, I am sure, not what you mean. what you mean is, *this* fight is not worth it. Taking a stand on Roe is not worth it. At least own up to your position.

    I’m not sure how links work for this site, but please read ”
    this”: below before becoming too smug about the pragmatic rightness of your position.

  22. akotsko says:

    Tim Burke, You are the worst person to have ever lived. I used to think highly of you, and I’m saddened by the change.

    Now give me a few minutes to read your post. I only skimmed the first paragraph.

  23. Timothy Burke says:

    I mean that if there is a serious threat to Roe–and my argument is that there will always be such a threat for the forseeable future, no matter what we do–why not explore other strategies for guaranteeing the right to choose?

    Isn’t the really important thing the right to choose itself, not Roe? Isn’t Roe’s importance only that it extends that right? Why are we all so focused on Roe and Roe alone?

    I’m both trying to prepare for an event that I think is likely and I’m trying to think about long-term strategies that might be more successful at achieving the real end goal than relying on a single Supreme Court case that rests on a contested interpretation of the content of the Constitution as it stands.

    I thought that it was now well understood that this is precisely what American conservatives did after the defeat of Barry Goldwater in 1964: methodically lay the groundwork for political and social power over a period of two decades. Every attempt to think that way on the left is immediately subject to the classic left-wing firing squad objections.

  24. Rebecca says:


    I agree on your points about John Roberts. He is qualified for the Supreme Court and should be confirmed. I hope he is persuadable. But as a staunchly pro-choice and pro-Roe person myself, I think that it is a poor use of resources and political capital to try to block his nomination.

    I’m not sure though, that there’s a legislative solution to the abortion problem. After Roe, members of Congress introduced FOCA (Freedom of Choice Act) to enshrine in legislation a woman’s right to choose abortion. It was last debated, without passing, in 1993. Even if Congress had managed to follow-up the court decision with a legislative solution, I don’t think this would have made Roe’s position any firmer–anti-legal abortion activists would still focus on overturning Roe AND on repealing FOCA. The fact of the matter is that too many people are ambivalent about abortion to begin with. Even though the majority of Americans think abortion should be legal, they are unwilling to fight for the right to do something they are so fundamentally uncomfortable with. And that is why Roe will be overturned and not replaced with federal legislation.

    Overturning Roe, of course, will have implications beyond abortion, because what even Roe supporters overlook is that Roe is based on a series of precedents regarding medical privacy, not just Blackmun’s assertion of a penumbral Constitutional right to privacy. The most important of these cases is Griswold vs. Connecticut (1953) which used the right of privacy to declare statutes making birth control illegal for married couples unconstitutional. Anyone who thinks that the anti-Roe crowd will stop with abortion is seriously deluded. The end of Roe will mark the beginning of the decline of medical privacy in matters where women try to prevent pregnancy to begin with. Unravel Roe, and you unravel a whole host of other cases dealing with women’s right to choose the timing and circumstances of pregnancy.

    What I think will happen is that after Roe is overturned, over half the states in this Union will make abortion illegal. Pro-choice groups will start a state-by-state lobbying effort to legalize abortion, but before that effort can be even remotely successful, women will start to die from nasty illegal abortions because they cannot afford to travel to a state where they can procure a safe legal abortion. In that moment, Americans will have to make a real moral decision about what life, individual choice, and privacy really mean.

    Incidentally, I think the Dems have a real shot in 2006. Santorum will almost certainly be defeated in PA, and Senator Spector is very ill. In the event of his death, Rendell will appoint a Democrat. In other words, I think it’s likely that in the next two years, the PA Senators will both be Dems rather than Rs. Even that small change is enough to start seeing a difference in Congress…

  25. Perhaps we should look at the rapid response of the states to the Kelo decision — passing limitations on eminent domain takings considerably more stringent than the Supreme Court’s “anything goes” decision — as a model. I don’t think we have to wait, as Tim says, until Roe is overturned to start moving the state legislatures to declare themselves on this point. At the very least, we should be looking at state statutes and pushing on states that haven’t updated their laws to reflect Roe…

  26. Rebecca says:


    Twenty-seven states have laws that would outlaw abortion as early as 12 weeks, with no health exception: AK, AL, AR, AZ, FL, IA, ID, IL, IN, KY, LA, MI, MO, MS, ND, NE, NJ, OH, OK, RI, SC, SD, TN, UT, VA, WI, and WV. These of course are unenforceable because of Roe. (source–NARAL)

    I’m not sure how many of these are residual (meaning that those laws were on the books before Roe and were just never changed). I would think in states like Illinois, New Jersey, and Rhode Island those laws would be repealed if Roe were overturned. For the others it is harder to say.

    Of course, pretty much every state has at least considered, if not passed, statutes relating to the abortion question since Roe (waiting periods, counseling, parental consent and judicial bypass, late-term abortions, state medicaid funding for abortions, etc.). Even liberal Massachusetts has a parental consent law.

    State battles for abortion rights folks are focused now on limiting and testing the constitutionality of restrictions, not guaranteeing the legality of abortion. My point is, most state legislatures have declared themselves on abortion, and most have moved to restrict and qualify access. This does not bode well for the post-Roe world.

  27. Timothy Burke says:

    As you point out, Rebecca, some of those declarations are residual, I suspect quite a few. Illinois, New Jersey, Rhode Island and I suspect Wisconsin could be moved into the pro-choice column with relative ease. Maybe a few of the others as well. Some of those states would be immoveable, though.

    One of the things that is factoring into my thinking here is that it’s not just a question of whether Roe is overturned but how it is if it comes to that. There are some really bad scenarios possible: a reversal which nevertheless preserves federal primacy over abortion as in the recent judgement on medical marijuana laws or with right-to-die or assisted suicide legislation. I think this is why I’m focused on a state-by-state approach: a reversal of Roe which contains a clear instruction by the Court that this is a state matter is in some ways the best case scenario for a reversal given how relatively forbidding the federal prospects are and how relatively easy it is to swing federal law in one direction or another as the political winds shift. One good thing I could say about a state-by-state approach is that even if it left some states without the right to choose, or draconian restrictions on choice, it would also be hard to remove it in all states if the Court made it clear that it was not a federal issue.

    Of course, this is also why a privacy amendment to the Constitution itself would be the best possible approach. Not easy, I know: it would take laying enormous groundwork across a decade or more of organizing.

  28. joe o says:

    That atlantic article does look like horseshit.

    >the nomination process will become an ugly spectacle in which a single narrow issue pushes to the sidelines discussion of the broad array of other important legal questions the Supreme Court handles.

    What is wrong with an ugly spectacle? The supreme court has defined a “right to privacy”. Justices like Scalia want to undo the “right to privacy”. That is the most important issue facing the court. Why is it so impolite to ask nominees about this?

    Democrats need to make a stand that they support the “right to privacy”.

  29. Timothy Burke says:

    My reading of the article on that point is that Wittes would rather the confirmation hearing have a show-down on broader questions like originalism (which very much concerns the reading of a right to privacy in the Constitution as it stands) than a specific “litmus test” discussion of Roe.

    As for what’s wrong with an ugly spectacle, it all depends on who comes off as ugly and how they do so.

  30. I dunno. To me, some of the most disturbing stuff about Roberts is his fairly deeply embedded role in the FL 2000 fiasco (advisor to Jeb Bush, recommended hypothetical legislative override of the counting process). It suggests to me he’s a very political and politicized ally of the Bush administration.

    With major tests of Bush admin policies and perhaps Rove/Plame-related cases on the horizon, I’d like some direct answers to questions about his political allegiances in the past, and how that will inform his judgment in the future. I’m also interested in hearing about how proper he thinks it is for former clerks to influence SC judges, and whether such communications happened in 2000.

  31. Rebecca says:

    I like the idea of a privacy amendment. It might have a positive impact on civil liberties, the erosion of which as we fight that “war on terror” is cause for a great deal of concern.

    But. In order for a privacy amendment to work to protect abortion rights, all parties would have to agree that abortion is really about privacy. Opponents of legal abortion argue that abortion is about murder rather than private medical decision making. There’s still no guarantee that the courts or federal or state legislatures would consider abortion one of the things to be kept private under the terms of the amendment.

    So, what about the ERA? I know proponents have said that the ERA would not affect abortion rights, but it seems to me that an amendment guaranteeing equality under the law regardless of sex (gender?) might be the way to go on this…just a thought. Must get back to those seventeenth-century Barbados slave laws now.

  32. Timothy Burke says:

    I think the problem with the ERA as a guarantee of the right to choose is that it requires making the case that denying the right to choose is discriminatory. That argument is no more protected from the argument that abortion is murder than the privacy argument.

    The reason I think of privacy is that it’s essentially been the constitutional reasoning up till now that has sustained Roe, privacy and the associated assumption of self-ownership. It also fits more with the constitutional logic of negative rather than positive liberties, while the ERA is in the eyes of some proponents and critics potentially more of an assertion of a positive liberty (e.g., something which requires the courts to adjudicate remedies for existing conditions). It seems to me that defending the right to choose as a subset of an interwoven net of related rights (the right to privacy, the requirement of consent for medical interventions, sexual relations and so on) is also sounder in that it ties abortion rights to other rights that will be defended strongly even by some who may feel uneasy about abortion per se; it also ties the right to choose to the rights of both men and women. One of the basic problems we’ve seen with defining abortion as a “women’s issue” and situating with women’s rights is that some women oppose abortion and the right to choose, which gets us into the classic problem of identity-based politics from the outset: how to think about members of the identity group who dissent strongly from political projects founded on their identity. A right which is not voiced in terms of identity categories strikes me as potentially more robust in that it avoids those kinds of conflicts.

  33. joeo says:

    How a nominee stands on “roe. v. wade” will tell you how the nominee stands on originalism. No originalist supports “roe. v. wade”.

    Plus, the public doesn’t and shouldn’t care about judical philosophy apart from the policy effects of the judicial philosophy. Originalism isn’t as incoherent as people like to pretend it is. It is a perfectly reasonable interpretation; but it will result in a rollback of the” right to privacy” cases.

    The only way to fight these nominees is to get down to the details. Do you want people to go to jail for having sex? Do you want to rollback “roe v. wade”?

  34. Timothy Burke says:

    Ah, but some oppose Roe v. Wade without being originalists.

    No potential nominee is going to tell you that he wants to see certain outcomes (“yes, I’d like people to go to jail for having sex” or even “No, I do not want people to go to jail for having sex”) exclusive of an actual case built around actual Constitutional challenges, and that’s just as it should be. A nominee ought to be expected to say what they think of an argument that the Constitution has a right to privacy implicit within it, however. You might want to go to the heart of the argument, but any nominee of any ideology has a legitimate right not to answer a directly instrumental question in directly instrumental terms.

  35. joeo says:

    The “right to privacy” has a long string of associated cases. Nominees should be asked how they stand on each of these cases.

    There is no use pretending that these cases don’t have real effects. People will go to jail for having sex, buying contraceptives and having an abortion without a “right to privacy” interpretation. Originalists need to explain why that is ok.

  36. Timothy Burke says:

    Some originalists–not Scalia, who I think is no longer a particularly principled interpreter of the Constitution in any school–would reply that none of those things are ok, but that the remedy for them is statutory rather than constitutional. E.g., if you don’t want sodomy laws, get your legislatures to repeal them. You might not buy that reasoning in this case (if you believe, as I do, that there is indeed a right to privacy implicit in the Constitution) but the general form of that reasoning is something that I think almost anyone who has respect for the role of the Supreme Court as it has evolved has to respect, that under some circumstances, a justice may legitimately have to say, “I think the particular law in question is a stupid one with extremely negative effects, but it is unfortunately constitutionally stupid.”

  37. joeo says:

    “I think the particular law in question is a stupid one with extremely negative effects, but it is unfortunately constitutionally stupid.”

    That is the point of Thomas dissent in the Lawrence case. That may be a legitimate opinion, but it is an opinion that will lead to people going to jail for having sex.

  38. Rebecca says:

    Tim–first just a quick thanks. Your post was very thoughtful (although some of the comments didn’t exhibit that same level of thoughtfulness). One thing that those of us who support abortion rights can and must do is think about this seriously is how to articulate why we think abortion should be legal. I agree with you that a knee-jerk reaction filled with anger is not the way to convince opponents of the verity or even of the legitimacy of your position.

    I find, though, that there is a wall you hit whenever you try to talk to someone who is anti-legal abortion. No one who is committed to the anti-abortion position will give up on the notion that abortion is murder. I think this means that anti-abortion and pro-choice folks are talking at cross purposes. Anti-abortion folks scream about a right to life, pro-choicers yell about trusting women to decide privately their own futures. They are arguments aimed at the same issue but derive from such wildly different understandings that any discussion is like ships passing in the night.

    That’s why maintaining the status quo under Roe (in which there is a recognized constitutional right to abortion that states can regulate and restrict within reasonable limits) is so important. But, like you Tim, I’m not sure how we get there. New constitutional amendments are a possibility, whether it is a privacy amendment or an ERA (although your points on why that might not work are well taken). Federal and/or state legislation is also possible, although just as vulnerable in their own way as Roe.

    What I really wish we could have is a strategy to retaking the intellectual and the moral high ground in favor of abortion rights. A lot of the comments on this post have suggested ways of doing that. Anyone want to go work for NARAL??

  39. Chris Clarke says:

    Akotsko: best comment ever.

  40. bitchphd says:

    Ok, I have just skimmed these comments, but I have a couple of things to say.

    First of all, Tim, you did in fact say “It’s pretty clear it’s going to be overturned sooner or later, either in total or as good as such.” That is a real problem for those of us who think that retaining Roe is crucial. Not because we don’t have backup plans; not becuase we are unwilling to talk about what will happen if Roe is overturned and what we should do about it. But because, in my experience, *every* time a man–and forgive the essentialism, but in my experience this is true–every time a leftist man says, “let’s talk about what will happen if Roe is overturned,” what he actually says is “let’s talk about what will happen WHEN Roe is overturned.” In other words, it sounds to us like you have just conceded the battle and are callilng on us to fall back, stepping over the bodies of dead and damaged women on the way. We aren’t willing to do that. If it comes to that, then *obviously* we will keep fighting, on the state level; but we are not willing to just concede the loss before it happens. That’s the fundamental argument, from our point of view.

    Second, and along the same lines: I will take on myself the mantle, for today, of “feminist spokeswoman” and apologize that our fervent dedication to this cause makes some of you “tired.” It makes *us* tired to be told that we might as well concede the Roe point; to be condescended to when we refuse to make that concession while the law is, in fact, still on the books; to be told that we shouldn’t “harrangue” people (notably people whose rights are not the ones in question); to be told that we have to argue about these things on your grounds, rather than our own; to be told that you aren’t arguing that Roe is dead in the water when in fact that is what you have actually said; to be told that our very clear bottom line on this issue is divisive (when what is, in fact, divisive is being constantly told that we have to talk about this issue on someone else’s terms); or to be mocked and made fun of for feeling strongly on this issue. We get tired and impatient because people who are on our side keep insisting that they, not we, should set the terms of the discussion. And when we resist that, we are told that we are in the wrong.

  41. I am puzzled by by several aspects of argument #3, but I really can’t believe that anyone is arguing that a constitutional amendment legalizaing abortion is a viable option. Obviously. this would have no chance of passing. The only precendent for a substantive right on such a divisive issue would be the Civil War Amendments, and given the way the 14th was ratified this is obviously the exception that proves the rule. And, certainly, overturning Roe will not somehow make this more likely, no matter how hard pro-choice activists work. (After all, pro-lifers have been railing against Roe since is came down and yet the decision both remains good law and remains popular with the public.) And, obviously, framing it as a “privacy” amendment won’t work; legislators will know perfectly well what the stakes are, and an ambiguous amendment would rely on judicial interpretation anyway.

    Moreover, let’s posit an alternate univerise where Democrats and liberal Republicans became powerful enough that an amendment legalizing abortion could get 2/3 of the vote on both houses of Congress and 3/4 of state legislatures. Is there any chance Roe would be overturned in such a political climate? Obviously not.

  42. Timothy Burke says:

    BitchPh.D: I’m tired not of this argument, as I clarified. But a bit of what Amanda Marcotte did, namely, saying it’s “horseshit” to even *think* about the scenarios here. That’s not so much about this specific discussion as the general rhetorical tactic of saying, “Fuck you, let’s not even talk about things, there’s people who are right and people who are wrong, and anybody who’s not clearly in one container or the other is in the wrong one.” I think that the overturn of Roe is at least highly possible in the current political scenario, so it’s worth thinking about not just what to do if that happens, but whether Roe was ever the best way to secure the right to choose. It’s the right to choose that’s sacred, not Roe: why is the Supreme Court the best way to protect the things that matter to us? The way you frame it, I have to agree with you and Amanda Marcotte or shut the fuck up, that it’s one formulation or nothing.

    On Scott’s point, it’s why I’m thinking constitutionally about the right to privacy broadly rather than the right to abortion narrowly. Maybe even that’s a pipe dream, but I wonder if there might not be a much more substantive support out there for a right-to-privacy amendment of osme formulation.

  43. bitchphd says:

    No, Tim, I’m not saying you have to agree with me and Amanda or shut up. Nor is Amanda saying that we shouldn’t even talk about these things. You’re misreading her argument, and I honestly can’t see why, because what she is saying is very clear to me.

    What Amanda is saying is “horseshit” is the argument–which I have seen made many places–that overturning Roe is no big deal, because it will “just” return abortion to a state issue. It is the “overturning Roe, no biggie” part that is horseshit. Overturning Roe, if it happens, will be a BIG biggie, because a lot of states will, in fact, make abortion illegal–and therefore a lot of women will have children they do not want or cannot afford, and a lot of women will damage or kill themselves trying to abort.

    The reason the Supreme Court is the best way to protect abortion–or, even better, a constitutional amendment–is that, again as Amanda says, abortion is an individual right. A fundamental right. Just as we do not leave, say, voting rights “up to the states,” we should not accept that women’s rights should be left up to the states. It’s not a zero-sum game: defend abortion at the state level or the national leve, but not both. It is a war being fought on multiple fronts. Defend it at the state level, absolutely: but we also need to defend it on a national level. Because we care about the women who live in Alabama and Mississippi and Texas and Oklahoma. Because it is a basic, fundamental, right–one that, like all fundamental rights, isn’t and shouldn’t be subject to popular vote.

    There are a few problems with a broad “right to privacy.” First, it reads, to me, as an attempt to shy away from the “a-word.” Second, it’s all too easy to imagine a scenario where a generalized right to privacy that doesn’t specifically mention abortion will get interpreted as *not covering abortion*. Third, because as Scott says, there’s absolutely zero political chance of passing a “constitutional right to privacy” in the current climate: the anti-abortion folks will see right through that one. If you think we can’t save Roe, what makes you think we can enshrine it in the constitution?

  44. Timothy, I never said that you can’t make your arguments. Just that the argument that it’s not a big deal if Roe gets overturned is horseshit. And I would point out that by saying that I’m shutting down conversation by speaking my mind honestly is a pretty common tactic used to intimidate feminists into shutting up. Surely you remember the entire P.C. thing where feminists were told that simply by being mean enough to point out sexism, we were censorious? It’s silly.

    And it’s condescending to think that women aren’t creating back-up plans. I saw this shit coming a mile away and arranged things in my personal life so that pregnancy isn’t a possibility in my life so when abortion is made illegal, I’m not up a creek without a paddle.

    By no means is it horseshit to start discussing what we’re going to do when Roe is overturned. But you know who is actually doing this? Not you and not anyone who is making pie in the sky arguments about how the nation will suddenly pull together and legalize abortion for every woman who wants one. Feminists are pulling together and going over our options–the return of Jane? Funds to help pregnant women travel to states where the procedure is legal? Protests where women come together to tell their stories all over again?

    Meanwhile, I have to deal with liberals who are all too happy to lean on the feminist infrastructure to deal with the fallout when Roe is overturned so that they don’t have to waste an ounce of energy fighting Roberts’ nomination. So what if women go to jail? So what if they die on the table? So what if they commit suicide rather than go to jail?

    My problem with this entire discussion is that far too many people are willing to see the overturn of Roe as a positive because it may be a strike against the Republicans. In my world, which may I remind you is Texas, the overturn of Roe will be a fucking nightmare. The overturn of Griswold even more so. So when I say horseshit, I mean it. I wasn’t saying don’t have a back-up plan, because, as I stated previously, feminists already have one and it’s better than the one you’ve offered. I said that I don’t want people leaning on the back-up plan in lieu of taking on the necessary fight of opposing hard right court appointments.

  45. Eh, Bitch said it better than me. But the word “horseshit” is near and dear to me anyway.

  46. bitchphd says:

    Actually, I thought that your last sentence was beautifully concise, and all I was saying was a wordier unpacking of your original post on the subject anyway 😉

  47. Timothy Burke says:

    Ok. I think the main difference here is not that I don’t view the overturn of Roe as nightmarish also. To me, it’s also a nightmarish prospect, one among many on the political landscape. The difference is that I think Roe as the protection of the right to choose has always been a weak foundation in two key ways (here I agree with Wittes): first, because it puts all our political eggs in the Supremes’ basket, and we’re seeing why that’s perilous now.

    Second, because it really is a problem if you have to enforce what should be a social consensus about rights through legal sanction for an indefinite period of future time. At some point we have to think about what that means. There is an important conceptual difference between laws and rights which are defended robustly by broad social consensus, state and federal statute and the Constitution versus those assertions of rights which define rather than bridge social cleavages and which rest on more confined forms of political support. The key thing is that we’re not getting any closer on consensus about the right to choose: that is a social fact to which our response cannot simply be “fight harder! fight better!” It also has to be, “Why aren’t we getting closer to consensus?” where the presumed answer in advance is not “Because everyone preventing us from reaching consensus is the enemy of liberty.” If we have relatively distinct communities within the nation where a significant majority of the people in them do not accept the guarantee of this right under the law of the nation, that has to give us pause. I don’t understand, in fact, why many liberals or leftists understand why it’s profoundly difficult to impose moral, ethical or cultural understandings by an enforcement model when we’re talking about transnational contexts, but who then don’t see the same fundamental problem once they’re safely inside the borders of a nation. (Or who see that problem only when it’s “our” side being imposed upon culturally by legal fiat.) I’m not judging here whether particular kinds of cultural or community sovereignity are good or bad, but simply noting that they are, that if people within a community share a strong consensus about a particular practice or worldview, you cannot make that consensus go away simply because you have the law or the police or even civil institutions on your side.

    For me, the right to privacy is not a Trojan Horse to sneak in a separate right to abortion. I actually follow the logic of seating abortion rights within the logic of privacy and self-ownership; it’s the general philosophical reason why I believe that the right to choose exists. This is a constitutional argument; it’s also an argument that I think goes beyond the US Constitution to the general substance of liberal democratic rights. So I wouldn’t set out to offer an amendment that dispenses with the debate about whether such a right is implicit in the Constitution just to instrumentally preserve the right to choose: I’d do it because I think it’s the right thing to do and it’s the deeper source of the right to choose.

    This is an ancillary problem with Roe, I think: there’s two main thrusts to decisions by the Supremes about it. The first takes the right-to-privacy path, the second takes the changing-standards line. (Later decisions also take up the argument that it’s bad for the Court to just be reversing itself on fundamental principles every decade or two, which I suspect is the main logic that will preserve at least the letter of Roe if not the spirit, if you guys are right that Roe can be kept intact despite new appointments.) There are other reasons to believe in the right to choose that have nothing to do with privacy, or with any conception of negative liberty, that are about positive liberty, about correcting or attacking past discrimination, about gender and power. I don’t oppose those reasons, but I do think it’s important that if those are your reasons to fight for Roe, that you recognize that they’re not the primary declared logics of the Court’s rulings on the issue, even if they might be the actual social logic of them.

  48. savitri says:

    I am a woman, and a feminist. I have worked for planned parenthood, and I plan to continue to support the right to choice however I can – in my writing, and in my non-profit work. (I can’t believe I have to write this, but I feel that some of the commentators here have made that a requirement for being allowed to participate in this debate with any chance of being heard. Phew, I feel better already.)

    Like Timothy Burke, I have grave concerns over the sustained viability of Roe. I do think it’s a “fundamental” right; but I don’t think saying so – or even defending it as such under the penumbra of constitutionally-guaranteed privacy rights – ends the debate. I also strongly agree with Rebecca’s point that there is much work to be done with respect to articulating the moral groundwork on the pro-abortion side. To borrow from a canard, “some of my good friends are pro-life”; and I feel I owe them a respectful discussion of the moral framework that they worry about – and owe myself a response that I believe satisfies my need for a morally conscientious defense of abortion.

    I think there is support for choice in this country; and if the statistics tell us anything, it is still in the majority. I think we on the left have to be better at clarifying the message in a way that resonates with less affluent and often more vulnerable families. These are, after all, the ones who we lose in discussions over conservative tax schemes – the ones who are generally the most negatively affected, but who tend to vote conservative anyway. What are we not doing that can reach these people? How can we clarify to them that the denial of choice will probably have the greatest negative impact on their families (as more affluent women will more likely be able to buy their way out of an unwanted pregnancy)? How do we miss reaching the poorer women who are staunchly anti-abortion, even if it means a loss (to them) of freedom, of privacy, or of economic well-being? What can we say that will strengthen our support in these communities?

    Why is it so contempt-worthy to worry about these issues? Why can’t we think more about the moral stance that effectively responds to the “murder” question? Why don’t we realize that it’s more condescending to continue haranguing people than to try to come up with not only a political set of actions but also a philosophical set of reasons? And no, I don’t see that happening – not at bitchphd’s board, anyway, nor at any of the places where most of the liberal feminists I would otherwise feel connected with keep talking. (They only talk with each other, anyway. You can feel free to get out if you disagree.)

    Most of all, I am disgusted at the mean-spiritedness and hypocrisy of bitchphd and Amanda Marcotte. You tell us that women were once told to shut up – but how you have the temerity to tell Timothy Burke to shut up is beyond me. You are the censorious ones here. And yeah, it’s just as shitty when a woman does it to a man, or to another woman. In this day and age, at this point, it is equally repulsive, no more, no less. It’s equivalent to a person of color telling a white person “you just don’t understand”. That is risible, weak, and cowardly. That is what you both are.

    You have told me to shut up at your site, bitchphd. You have made anyone who disagrees with your position on the right to choose feel like shit. And Amanda, fuck you for saying you “have to deal” with “liberals who are happy to lean on the feminist infrastructure” blah blah blah. You are not the epicenter of the feminist infrastructure; and you aren’t its abitrer. You and your kind are the reason that liberal women of color like me, who aren’t from your neck of the woods and don’t have your first-world arrogance, frankly, find it nauseatingly hard to work for women’s rights in which we passionately believe.

    Timothy Burke, thank you for a very thoughtful and caring post.

  49. Savtri, no, FUCK YOU. Seriously. Piss up a rope. I did not tell anyone to shut up, just that I don’t accept their argument. But you can go fuck yourself, seriously. You and any other “liberals” who think that feminists are censoring you simply by disagreeing. Fuck you and fuck you again. Jesus Christ, we are having an normal conversation in here and you have to jump in and bitchsmack me and Bitch simply because we don’t roll over and whimper while the boys figure out what rights you’re gonna let us have.

    And I’m a fucking coward? I’m not the one who moans and bitches that women are being big meanies for daring to disagree with you. There is nothing more cowardly than a man and/or a white person who expects the less privileged than them to show deference.

  50. And I suggest you go along now until you can grow up enough to treat feminists like equals instead of petulantly demanding that we cater to your whininess and sensitivity in lieu of actually pursuing our political goal of full equality for women.

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