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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | |
Ginsburg on Roe v. Wade | |
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< | Shortly before being nominated to the Supreme Court, then Judge Ginsburg wrote that Roe, though successful, may have harmed the long term goals of achieving public acceptance of the right to an abortion and stability in the courts. Roe, Ginsburg wrote, “invited no dialogue with legislators,” and “halted a political process that was moving in a reform direction and thereby ... prolonged and deferred stable settlement of the issue.”
If Ginsburg is correct on this point, Roe is actually a failure of pro-choice adovacates to secure their victory for the future. If this is the case, are post-_Casey_ actions by pro-life groups an attempt to avoid a similar Pyrrhic victory? | >
> | Shortly before being nominated to the Supreme Court, Ruth Bader Ginsburg, then a Judge on the D.C. Circuit, wrote that Roe, though successful, may have harmed the long term goals of achieving public acceptance of the right to an abortion and stability in the courts.
Roe, Ginsburg wrote, “invited no dialogue with legislators,” and “halted a political process that was moving in a reform direction and thereby ... prolonged and deferred stable settlement of the issue.”
To Ginsburg, Roe was actually a failure on the part of pro-choice advocates to secure their victory for the future. If this is the case, are post-_Casey_ actions by pro-life groups an attempt to avoid a similarly Pyrrhic victory? | | | Necessity: The Mother of Creative Legal Thinking | |
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< | Following the decision in Casey, pro-life advocates likely realized the futility of attempting to directly overrule Roe given the composition of the Supreme Court. Additionally, they may have realized that an abrupt overruling of Roe would have led to the same type of backlash the was born from Roe. | >
> | Following the decision in Casey, pro-life advocates likely realized the futility of attempting to directly overrule Roe given the composition of the Supreme Court. Additionally, they may have feared that an abrupt overruling of Roe could have led to a pro-choice backlash, similar in strength to the wave of pro-life revulsion following the holding in Roe. | | | In the face of Casey, pro-life advocates sought to advance their objectives through the several cracks Casey put in Roe.
Casey v. Planned Parenthood of Pennsylvania: The Foundations | |
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< | While claiming to uphold Roe, Casey significantly weakened it protections of abortion rights. First, the overruled the trimester structure of Roe. Second, the court determined that government regulations of abortion do not need to meet strict scrutiny, but instead should be allowed unless imposing an undue burden on access to abortion. The only aspect of Roe clearly maintained was that states do not have a compelling interest in protecting potential life before fetal viability. | >
> | While claiming to uphold Roe, Casey significantly weakened the protections of abortion rights. First, the overruled the trimester structure of Roe. Second, the court determined that government regulations of abortion do not need to meet strict scrutiny, but instead should be allowed unless imposing an undue burden on access to abortion. The only aspect of Roe clearly maintained was that states do not have a compelling interest in protecting potential life before fetal viability. | | | Moving the Ball
Ayotte v. Planned Parenthood of Northern New England | |
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< | In the years following Casey, states passed increasingly restrictive regulations on abortion, however these were
In Ayotte the Court facial challenges to abortion statutes when the law could be tailored in such a way that the affected party could remain unaffected. The court argued that it was only bringing abortion cases inline with other constitutional claims, however, it was a significant blow, the effects of which were felt quickly in Carhart v. Gonzalez. | >
> | In the years following Casey, states passed increasingly restrictive regulations on abortion.
In Ayotte the Court rejected facial challenges to abortion statutes when the law could be tailored in such a way that the affected party could remain unaffected. The court argued that it was only bringing abortion cases inline with other constitutional claims. The significant ramifications of this decision would be revealed in Carhart v. Gonzalez, however. | | | Carhart v. Gonzales
In Carhart, the Supreme Court made three major decisions that the pro-life movement has been able to use to continue pushing the line on acceptable state regulation.
First, the decision signaled a reversal in how the court would evaluate legislative findings of scientific evidence when there is no medical consensus on the issue, deferring to the the legislature. | |
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< | Second, the Court took notice of additional state interests beyond the mother's health and protection of potential life when deciding if the state could legitimately regulate abortion. These include the protecting the aesthetics of the process of birth, preventing post-abortion syndrome, and a general respect for life. | >
> | Second, the Court took notice of additional state interests beyond the mother's health and protection of potential life when deciding if the state could legitimately regulate abortion. These include the protection of the aesthetics of the process of birth, preventing post-abortion syndrome, and a general respect for life. | | | Third, the Court affirmed the principle in Ayotte that it would not allow a party to bring a facial challenge when the challenged aspect could not be shown to affect her.
The Outer Reaches | | | Correct Strategy? | |
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< | If one were hired by a national pro-life group the day after Casey was decided and asked to craft a legal plan for rolling back abortion rights, would the preceding path be the one to follow? It is creative lawyering insofar as it showed an ability to look several cycles ahead. Surely the new Nebraska laws are a logical step for a pro-life advocates to take at this stage, but it is impossible to know if the plan was to build, through test cases, the necessary jurisprudence to support it. Objectively, pro-life advocates have managed, since Casey, the register successive small legislative and judicial victories limiting the freedom to choose in abortion while expanding the ability of the government to restrict abortions. Additionally, they have succeed in doing this with minimal backlash while creating new narratives of government interest purportedly based on biology and psychology. | >
> | If one were hired by a national pro-life group the day after Casey was decided and asked to craft a legal plan for rolling back abortion rights, would the preceding path be the one to follow?
By “the preceding path,” you’re referring to the path starting with Ayotte, moving on to Carhart, and then turning to the recent NE legislation, right? If this is what you meant, then this needs to be rephrased because it’s temporally out of sync. You’re asking the reader to imagine himself in the days immediately after Casey, before Ayotte or Carhart were decided and before the ratification of the NE laws, and you call those events which have yet to happen the “preceding path.” This needs a rewrite but I want to clarify your intent before I monkey with it.
It is creative lawyering insofar as it showed an ability to look several cycles ahead. Surely the new Nebraska laws are the next logical step for pro-life advocates to take at this stage, but it is impossible to know if the plan was to build, through test cases, the necessary jurisprudence to support it. Objectively, pro-life advocates have managed, since Casey, to register successive small legislative and judicial victories limiting the freedom for women to choose to have abortions while expanding the ability of the government to restrict abortions. Additionally, they have succeeded in executing these aims with minimal backlash while creating new narratives of government interest purportedly based on biology and psychology.
Regardless of how one feels about abortion rights, it is clear that since Casey, pro-life advocates have found significant success though a gradualist approach which has slowly but steadily moved the ball forward without generating a noticeable backlash. This, according to Ginsburg, is where the pro-choice advocates behind Roe ultimately failed and is a significant reason the issue continues to rage today as it does.
Pete, I made some basic clean-up changes in the first revision. If you hate any of them, just forget about them and change them back. I do still have some scattered substantive comments, though.
1.) You suggest a thesis at the onset that you never really address fully and as a result I think this essay has a little bit of a split personality. In the beginning, you ask whether the legislative and legal challenges against an abortion right brought by the pro-life movement were products of a conscious attempt to avoid the “pyrrhic victory” problem alluded to by Ginsburg. The trouble is that proving this would require a level of insight into the pro-life hive mind – more on that later, by the way - that I’m not sure either of us is privy to. As a result, you haven’t really proved your thesis – in part because it might be impossible to do so. This essay actually seems to be about pointing out a distinction between the “sudden” imposition of pro-choice preferences as opposed to the “gradual” imposition of pro-life preferences. If that's the case so be it, but let's at least change the introduction to fit that end.
2.) You say that there was noticeable conservative backlash against Roe v Wade, but assert that there was no corresponding liberal backlash condemning the decisions and the legislation you write about in this essay and you attribute this to be a result of a more gradual erosion of abortion rights. But is it true that there has been no backlash? Around election time I heard lots of liberals talking about the importance of electing a president who would nominate judges dedicated to prevent the continuing erosion of abortion rights. Isn’t that a backlash? If it’s not, how do you define backlash? | | | | |
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< | Regardless of how one feels about abortion rights, it is clear than since Casey, pro-life advocates have found significant success though a gradualist approach which has slowly, though surely moved the ball forward without generating a noticeable backlash. This, according to Ginsburg, is where the advocates behind Roe fell short and is a significant reason the issue continues to rage today as it does. | >
> | 3.) If we're going to stick with your initial thesis question, we're going to need to tackle a big issue: the question (the one about the attempt to avoid pyrrhic victory) seems to assume that “pro-life groups” possess a single spear of agency sufficient to work towards such a goal. But is this true? Aren’t there pro-lifers who think that abortion rights should be eliminated through force (I doubt abortion clinic bombers are primarily concerned with liberal backlash) and others who believe it should be abrogated through careful rational Constitutional interpretation, and wouldn't these groups likely have different strategies to create legal change and different concerns regarding defending the change they achieve? I suppose the root question of what I’m asking is whether or not the “pro-life movement” is singular and unified enough to be “trying to avoid” anything at all. | | | | |
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> | Let's keep working on this. Let me know what you think.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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