R.I.P. RBG

Ruth Bader Ginsburg, US Supreme Court Associate Justice, died recently. She was an amazing woman.

She was nominated by President Bill Clinton in 1993, and confirmed by the Senate with a vote of 96-3. She was generally seen as a moderate judge and consensus builder. She spent much of her legal career as an advocate for gender equality and woman's rights when it was sorely needed, arguing many cases before the Supreme Court. She attended Harvard Law School in 1956, one of only 9 women in a class of 500.

One of her best friends was Justice Antonin Scalia. They often opposed one another in legal decisions perceived as having ideological elements. This did not stop them from being fast friends, which is a lesson for us all.

 

RBG was not on the court when Roe vs. Wade was decided, but she criticized the decision for terminating a nascent democratic movement to liberalize abortion laws. In other words, while she was in support of the rights of women to abortion, she criticized the court for overstepping and felt it would have been more appropriately handled via law making.

Many people, I think, misunderstand the Roe v. Wade judgement.

It was a case brought before the Supreme Course that argued that Texas's strict anti-abortion law of the time, which banned all abortions at any point in the pregnancy for any reason other than for the mother's physical health, was unconstitutional.

Traditionally, states had the power to pass laws regarding abortion. The argument brought before the court was that if these state laws went too far, then they violated the rights and freedoms of the woman over her own body, essentially condemning her to a form of body-slavery, forcing her to bear an unwanted child.

The court did not, however, consider that right to be absolute, but may be balanced against the government's interests in protecting women's health and protecting prenatal life. It reasonably divided the pregnancy into three trimesters.

1. During the first trimester governments could not prohibit abortions at all.
2. During the second trimester, governments could require reasonable health regulations.
3. During the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother.

Many eminent constitutional scholars from both sides of the political divide argue that the constitutional argument is feeble and that the court overstepped its authority and took on law-making powers. These include John Hart Ely, Laurence Tribe, Alan Dershowitz, Cass Sunstein, Kermit Roosevelt, Jeffrey Rosen, Michael Kinsley, William Saletan, Benjamin Wittes, and Edward Lazarus, a former clerk of the Justice who wrote the opinion, who said,

"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."

While I believe that the court did overstep, I cannot get too upset about it. It was clear that the politicians would not achieve a consensus, and would go too far in one direction or the other, and some guidance was required which the court reasonably provided. I believe it went too far in allowing a state to legalize abortion up to the moment of birth, and would have been happier with the judgment had it prohibited states from making third trimester abortions legal in all cases. However, I beleive it to be unreasonable and discriminatory towards women to not allow access to safe and legal abortions up to at least the first trimester.

I can certainly understand both sides of the abortion issue. But reasonable people should agree that it's folly to ban the abortion of a newly fertilized egg, and evil to allow the abortion of a healthy viable baby moments before birth when the mother's life or health is not substantially at risk. Therefore some compromise should be arrived at, such as the historical "quickening" rules which banned abortion after the baby started kicking, typically midway through the pregnancy, except when the health of the mother was at stake.

 

President Trump and the republican senate now have the opportunity to appoint a new Supreme Court Justice. I do not buy the argument that because it is an election year, that ought not be done. It is perfectly legal and constitutional to do so, and has ample precedent. Republicans would be remiss in their duty to their voters if they do not do so when they have the opportunity.

Scott Adams amusingly describes the situation in a recent podcast.

https://youtu.be/Kgyny2ktF7Q

Democrats calling it hypocritical are themselves being hypocritical, for they argued vociferously that it was perfectly ok to do so in Obama's last year, and would have absolutely done so had the Senate been held by Democrats. I find the Republicans not to be hypocritical in this instance as Scott Adams explains better than I in the above.

I find that I generally approve of the Supreme Court justices appointed by the Republicans, as they value a judiciary which sticks to the law as written and attempts not to intrude into matters of law-making, whereas Democrats are much more open to having an activist judiciary.

Let me know if you agree or disagree. Polite comments and arguments are always welcome!