Your last sentence made me laugh--because it's so true and so typical of the "Right". I just outlined a case on my blog from the First Appellate Division of NY wherein the Court held that the NY laws re: marriage that don't provide for homosexuals to marry did not violate the NY Constitution. In doing so, the (Conservative) majority chastized the lower court for the doing the same thing that Scalia proposed, stating:

"However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court's constitutional mandate and usurped that of the Legislature."

Hypocrisy with a captital "H".

And, I just stumbled upon your blog recently. I like it a lot.


Put away the law books on this one. They’re of little use. I sense you’re taking the legal aspects of this case too seriously. The argument before the Court was only coincidentally about emergency situations, and all the players (including the justices) know it. To listen to it with this fact in mind is to listen to a well-rehearsed theatre play. Everyone was in character and so predictable that the law was rendered as mere stage direction. How can you cite caselaw as if it matter on this one?

I’m a conservative pro-choicer (yes, it is possible), and yet Scalia is right when he suggests that a practical solution to the (extremely rare) emergency situations could be found. What he is wrong about (and he knows it) is that nobody really wants a solution to the emergency situation. (I imagine he posed the question precisely for that reason.) The emergency situation is being played because that’s all there’s left right now after years of political wrangling. In the eyes of the choicers it’s the lifers exposed flank they want to exploit, and the lifers are afraid of the whole line crumbling piece by piece if the emergency situation is too broadly adopted. That is all that matters in this case, nothing else.

You also wrote, “Justice Ginsberg (joined if I remember correctly by Breyer and Souter) opined that it is not appropriate to read something into the statute that isn't there.” I nearly laughed out loud at that line because after (correctly) taking Scalia to task for adopting the judicial activist position to the statute, you didn’t even blink when you wrote it. I mean, are you that dogmatic that you can’t see the irony in the Ginsberg/Souter/Breyer strict constructionist stance as you could with Scalia’s activist position?

William  Sunderhahl

It boils down to the anti-abortion folk not wanting to leave it to case law to determine, as
vaguely as a series of separate court opinions does, what "emergency" means. They don't want
any wiggle room in the statute. You are right-- it is amazingly callous.
The strategy of the right, apparently nationwide, is to restrict access to abortion so severely
that, in effect, Roe becomes irrelevant. Anti-abortion sympathizers on the highest court surely
would welcome more chances to make that aim a reality, which a rightwing majority would assure.

Though it is seldom mentioned in the press, it is clear (to me at least) that the fundamentalist right's fear of sex, teenage or adult, plays a fundamental role in their program. I started having sex at 16, my girlfriend was 15. I did not then nor do I now see anything wrong with sex. Protect yourself from disease and practice moderation and what in God's name is wrong with it?
Amazing how the right believes that if some church pastor gives his okay via marriage, then sex, previously a grievous transgression akin to perversion, suddenly becomes a sanctified foundation of living. Wow, the perverson of lust is transformed into a divine directive! Astounding! How do they do it?------- No hypocrisy there, oh no.
Before the sanctfication, if the same urge is allowed to run its course, it is to be punished, and one way to accomplish that is to outlaw abortion. God's will.
Bill Moyers is right, the delusional has become mainstream.

Nicole Black

I do agree with the 2 posters above re: the fact that neither side of the abortion debate is really laying their cards on the table--that's it's all a show of sorts with two very different intended results. I think Alito's words from a DOJ memo from the mid-80s sums up the pro-life intent quite nicely: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling Roe v. Wade ... and in the meantime, of mitigating its effects."

The Happy Feminist

Richard, I agree that pro-choicers would prefer not to see parental notification at all, and of course, the pro-lifers want to restrict abortion as much as possible. That doesn't mean the legal arguments are irrelevant. The Planned Parenthood attorney admitted, as she must under the law, that she would be satisfied with a parental notification statute that permits a doctor to provide an immediate emergency abortion without notification when he believes "in good faith" that it's necessary.

I actually did think long and hard about the Justice Ginsberg sentence -- but I don't know that her stance in this argument really contradicts anything she has said or done before. I am no constitutional scholar but I know that she has, for example, invalidated far, far fewer statutes than either Scalia or Thomas. Frankly, I don't think any Supreme Court justice has ever been wholly consistent in his or her theory of interpretation, but Scalia-lovers are the ones trumpeting his "judicial restraint" and condemning the "judicial activism" of the more liberal members of the court.

The Law; Our Law: is Law

Tough Subjet - No Doubt.

But, in defense of the defense-the complete defense-of "competing harms"; See


Case No. 2003-242:
Argued February 11, 2004

Opinion Issued: April 23, 2004

Which may have been overlooked at research time.

The Happy Feminist

Right. This case makes the competing harms slightly less stringent. It clarifies that a person may break the law to avoid an imminent danger if there is no REASONABLE lawful alternative, and the other prongs of competing harms are satisfied. My analysis remains the same despite this slight lessening of the competing harms standard.

Brian H.

I would like to recommnend use of the word "woman" instead of "mother" in the context of this topic, as a pregnant woman is not a mother before she gives birth, and a pregnant woman gets an abortion, not a mother. I believe it is the fairest and most accurate term, and I promote it through my own everyday conversations, and hope others will, too.
Thanks for your consideration.

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