Law: February 2006 Archives

South Dakota has now passed an almost complete ban on abortion. Four other states are doing similar things. Pundits are agreed that this is an attempt to force the Supreme Court to revisit Roe v. Wade. I have to register my complaint that this is an utterly stupid and potentially counterproductive move from a pro-life point of view. There are five people currently sitting on the Supreme Court who voted to uphold the central holding of Roe v. Wade (while completely gutting its justification) the last time it came up. There's no guarantee that any change will take place in membership of the court before these cases could come before them. If that happens, these states will just have put one more nail in the coffin of the idea that Roe could easily be overturned. The more times a decision is upheld, the stronger the precedent becomes, and South Dakota and these other states may well be setting events in motion to strengthen the standing of Roe v. Wade. Chief Justice Roberts and Justice Alito both affirmed this principle at their hearings, and Justice Scalia seems to treat precedent in this standard way as well in many cases. Only Justice Thomas would consider this irrelevant.

There have been several comments assuming Justices Ginsburg or Stevens would be gone by the time these cases come before the court, but even if that's so (and there's no guarantee of it) we have no idea if they would be replaced by people who would overturn Roe. If Hillary Clinton appoints their replacements, you can be sure they would vote to uphold it no matter the merits. She has said numerous times that she wouldn't appoint anyone who wouldn't promise to uphold it (though perhaps an argument for recusal would then be warranted). But what's worse is that we don't really even know if Justice Alito or Chief Justice Roberts would overturn Roe. Many on both the left and the right are assuming they would, but they both hold precedent in high regard. They both seem to be particularists and not as much originalists (though I think Alito is more of one), which means the individual facts of the case are primary. Alito in particular advocated a slower process of limiting Roe as the best method for serving pro-life interests. I admit that this was twenty years ago, but it says something about how he might approach a case like the ones these lawmakers are seeking to raise.

But there's a third possibility that might be even worse for those who want Roe overturned. The case might come before the court as it stands, and the four conservatives on this issue might try to convince the others not to hear the case because they don't want a further precedent on Roe. The majority might give in, thinking it's not worth the bother to repeat what they've already said several times. What we'd then end up with is a precedent on not even hearing cases that challenge Roe, and then it will be that much harder to get a case to the Supreme Court once there is a conservative majority on abortion.

So what are these state legislatures thinking? Or are they simply not thinking? It doesn't serve the pro-life cause in any way to do this sort of thing in our current situation.

Eugene Volokh presents a paradox about blackmail in response to a letter someone sent a senator who was planning to vote for Alito that threatened to reveal that the senator was gay unless he voted no, a pretty despicable act (whether the senator is gay or not). The paradox is as follows.

1. Free speech rights allow me to publish embarassing information about someone (in many cases).
2. There's nothing immoral or illegal about asking for money in exchange for a service (in most cases).
3. But when 1 and 2 are combined, we call it blackmail and make it illegal. How can it be that the combination of two legal acts could make something illegal?

As I said in the comments on Eugene's post, there is a moral issue that comes in once you combine the two issues. That issue is what we call coercion. It's not coercion to make an offer to do something positive for someone if they do something for you. If they turn you down then you are no worse off. If it's wrong, it would have to be on other grounds. But if someone threatens you with a negative consequence if you don't do something for them, you are indeed worse off if you turn them down. That undermines the consent of your doing the action and thus puts it in a category with coercion. It's not coercion in the sense of being forced to do something with absolutely no choice, but it's like being forced to choose between a negative consequence and doing the unawanted action. That's indeed what happens when someone puts a gun to your head, so it's coercion in that exact sense. You can risk taking the bullet and not do what they ask, but it's a huge risk. The greater the risk, the greater the coercion.

As a non-lawyer, I can't comment on the legal issues, but that's the moral issue that makes combining 1 and 2 immoral while 1 alone or 2 alone is at least less immoral or even not immoral (depending on the circumstances, perhaps). These are the sorts of moral issues that laws often rely on. So I don't know if it's really counts as a paradox, or at least if it does then it's one that's easily solved.

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