July 29, 2005
Why Kelo Should Be A Comfort to Liberals
With the nomination of John Roberts to the Supreme Court, liberals remain breathless in their fear that the addition of Roberts to the Supreme Court will spell doom for Roe v. Wade. But the 2005 decision in Kelo v. City of New London should provide rest for the liberals running around like chickens with the heads cut off. Despite the arguments about the merits of Kelo, the foundational principles underlying the decision mean that Roe will probably survive the appointment of Roberts to the Court.
Ask any law student or legal professional and they will tell you that perhaps the most important foundational principal of legal decision-making is stare decisis, Latin for "let the decision stand." A plain English definition is that stare decisis means that the Court will not overrule itself without a substantial legal reason. The longer the line of decisions founded on or referring to a previous decision, the more difficult it becomes to find a legal reason for the overturning of a precedent.
The majority opinion in Kelo found its premise in two key cases. In 1954, the Court decided the case of Berman v. Parker. In Berman, the Court sustained a D.C. development plan to redevelop a blighted residential area. The area included a department store the city admitted was not blighted at all. However, the Court reasoned that the proper role of the judiciary was to defer to the judgment of the executive and legislative that the entire area be developed and planned as a whole. Thirty years later in Hawaii Housing Authority v. Midkiff, the Court ruled as permissible a series of land transfers ordered by the state of Hawaii from one set of landowners to another in order to break apart the oligarchy of land ownership in the state.
In each case, the Supreme Court found the activities to be in furtherance of a public purpose. Thus the Kelo decision, which authorized a transfer of land from one set of owners to another set of owners under a considered plan, is an amalgamation of the Berman and the Midkiff decisions. The principle of stare decisis meant that the current Court was bound by Berman and Midkiff decisions unless there was a sound legal reason to change the interpretation of the law to this point. However, the facts in Kelo did not support an alteration of the understanding of the eminent domain.
So what does this have to do with Roe and the debate over abortion. Simply put, the Court no matter what its current composition is to a certain extent, bound by the decisions of past Courts. The purpose of stare decisis is to provide predictability in the law despite the current personnel on the Supreme Court. Even if a majority of the members of the Court decide to take a case on abortion, itself not necessarily a given, the fact that over thirty years of decision founded on the legality of abortion means that the court will need a solid reason for overturning Roe.
Since Roe, Casey, and even recent decisions, including Stenberg v. Carhart in 2000, the Court, despite changes in personnel, have assumed the legality of abortion. Even if Judge Roberts believes abortion to be immoral on a personal level, there can not be overturning of Roe without a sound legal reason, a series of facts or law that some how justifies the overturning of thirty years of decisional law. Stare decisis will not let the Court just alter law willy-nilly.
The entire point of stare decisis is to provide society and the law with predictability. The predictability of the law continues without regard to the composition of the Court. The Supreme Court was bound by prior decisions in Kelo and they would similarly be bound by the prior law in the abortion line of cases, even with Judge Roberts on the Court.
Matt:
Nice article. Are you by any chance the user who has been commenting as mattLaw?
A few questions, though: in the doctrine of stare decisis, what level does the series of facts or law need to rise to in order to overturn existing law? Is there a set standard they would have to surmount? Is there even a precedent for the supreme court overturning one of their own decisions and what that would entail? Finally, other than customs which have perhaps risen to the level of common law at this time, what prevents the Court from ignoring the doctrine of stare decisis itself if they decide the previous decision was in error for whatever reason?
Posted by: Jarandhel at July 30, 2005 01:01 AMMatt:
Nicely done. A question about stare decisis as is relates to Roe v Wade. Originally abortion was considered illegal, and Roe changed that. Do I assume that there was not enough legal precedent in keeping it illegal via the concept of stare decisis? In other words, under stare decisis, decisions would most likely NOT change, yet Roe did make a fundamental change.
Posted by: joebagodonuts at July 30, 2005 06:57 AMThe previous test case of Roe v. Wade upheld RvW 6 to 3. Even if Roberts voted to overturn finding a compelling change in society to justify it, that would still leave RvW upheld by 5 to 4. And that is the main reason RvW is not endangered at the moment. Not stare decisis which any justice can refuse to observe if they believe they have a compelling constitutional reason (e.g. civil rights) or defensible reason based on changes in the nation’s behavior or circumstance which cause a previous law(s) to act against the people’s or nations interests outlined in the Constitution (Miranda.)
The next nominee after Roberts constitutes the potential threat to RvW based on voting numbers which could go 5 to 4 to overturn. This is precisely why the majority of Americans who support RvW, should desire that the Democrats keep their filibuster powder dry until Bush’s next nominee to the court after Roberts.
Posted by: David R. Remer at July 30, 2005 07:29 AMMatt,
I think Roe V Wade can, and will be overturned, and when it is the case will be based on the rights of the father.
I’m not an attorney, so I can’t cite the exact laws, case law that will be used, however…
The laws on child support are quite clear, the father will pay reguardless of whether they wanted the child born or not, married, unmarried, planed or not, they must pay.
Ok, How can a court say that the father has no say if a child is born, and has no rights whatsoever in the matter, and turn around and say they must pay child support for any child that is born, when they had no say in the matter??
Somewhere there is a “dead fish in the soup” in one of those laws/rulings.
Its not rape or insest, both were adults, both willing and smart enough to know the result might be a child.
If the fathers sperm is considered a “free gift” to the mother, to do with as she will, his obligation ends at that point.
If I give someone a bucket of walnuts, and they choose to plant one and it grows, would any sane judge rule that I must pay for the care and feeding of the tree?
Sorry, you can’t have both, its a gift or it isn’t.
Womens groups would never give up the child support(rightly so),but I predict that a clever attorney will at some point in the future argue, and win, a case along those lines.
Taxation without representation ?
Civil rights? Who knows, but Roe V Wade is toast in the near future INHO.
Beagle,
RvW is based on the premise that an embryo or fetus within the first six months of gestation is a part of the mother’s body. Just like any other body part, no one - not her family, not her friends, not the potential father of the child, and certainly not her government - can tell her what she can and cannot do to her body.
Because the embryo/fetus is legally part of the mother’s body within the first six months and then protected by the 14th Amendment (IMO) during the last three months, the potential father’s interests are wholly immaterial - unless the potential mother chooses to involve him in her decision-making process.
Posted by: Chuck Hanrahan at July 30, 2005 11:10 AMRoe will probably survive the appointment of Roberts to the Court.
Sure. That’s why Senate Democrats are concentrating on Robert’s attitude toward civil rights and labor.
BTW, the headless chicken description is amusing, but completely without basis.
Oh, and if you have any questions for Roberts, Senate Democrats are inviting the public to submit them. Fire away! :)
Chuck,
With all due respect, you’re dancing around what I posted.
I can agree that an embryo may be owned by the mother its growing in.
Can you agree that you can’t force someone to pay for something they dont own?
Posted by: Beagle at July 30, 2005 11:25 AMWhy is it that the woman at the center of this case has no legal right to have it overturned given her life experience since she had the abortion? Should she have it?
She can’t bring the baby back but she wants to have the decision overturned.
What happens to this arguement when science can sustain the life of an embryo outside the mother from the point of conception?
Will the government be taking them and raising them as ‘their own’? Should they?
Its saturday noon, the crickets are chirping.
Does that mean its gonna rain?
Posted by: Beagle at July 30, 2005 12:11 PMBeagle,
I argree with you 100%. The potential father doesn’t have any parental responsibilities whatsoever for an embryo or early-term fetus.
Once that fetus enters the final trimester of gestation and becomes a viable human being, however, the father and mother must assume parental responsibility for its well-being, including fiscal responsibility.
Hope this clears things up.
PS. The father has a “say in the matter”. Immediately before coitus, he can just say “No”.
Posted by: Chuck Hanrahan at July 30, 2005 05:31 PMWhere does this idea of the third trimester now having the father part of the action come from?
The fetus is a viable human being very early on. The labs have taken whatever your choice of language is to describe the human form, and have removed it from the mother and processed it as if it were a full term pregnantcy. This timing thing that so many people get turned around on is so nonsensical. When a man and woman have come together to procreate and that act is accomplished, then the only viable date to consider is about nine months later when the mother delivers the baby. There is a father and a mother at the time of conception, not started at the delivery date. The reason there is such a debate on abortion, childbirth, and other related subjects, is that the theologians, lawyers, feminists, sectularists, and anybody else that wants to side in are arguing about substance that was established thousands of years ago. Some people have come to a conclusion that they are the all knowing and all wise of all time. They need a large dose of humility.
Ask any law student or legal professional and they will tell you that perhaps the most important foundational principal of legal decision-making is stare decisis, Latin for “let the decision stand.” A plain English definition is that stare decisis means that the Court will not overrule itself without a substantial legal reason. The longer the line of decisions founded on or referring to a previous decision, the more difficult it becomes to find a legal reason for the overturning of a precedent.
Well…this isn’t exactly true.
Stare Decisis means the very least on Constitutional issues before the Supreme Court. That is, justices on the Supreme Court generally offer little to zero deference to past court decisions that they don’t agree with.
Posted by: mattLaw at August 1, 2005 01:48 PMNicely done. A question about stare decisis as is relates to Roe v Wade. Originally abortion was considered illegal, and Roe changed that. Do I assume that there was not enough legal precedent in keeping it illegal via the concept of stare decisis? In other words, under stare decisis, decisions would most likely NOT change, yet Roe did make a fundamental change.
Roe v. Wade wasn’t overturning a past decision (to my knowledge), it was simply invalidating state laws prohibiting abortion as unconstitutional.
The term ‘stare decisis’ refers to previous decisions of the Court (and generally refers to the reason that LOWER courts must abide by those decisions).
Posted by: mattLaw at August 1, 2005 01:54 PMAs a woman who was born and adopted shortly after RvW, whose best friend growing up was adopted as well and was the product of rape, I was pro-choice in my youth, got pregnant at 16, gave the baby up for adoption, became anti-abortion, registered to vote at age 18 as a Democrat, had 2 kids of my own, then changed at 22 to Independant, I can honestly say I’ve sat on both sides of this RvW/legalized abortion issue. My decision against abortion in ALL cases (yes, even rape) was made at just a few weeks of pregnancy, thanks to the sterile, scientific process of a prenatal visit. Listening to baby’s heartbeat, seeing him kicking his stubby little legs… I could no longer proclaim Abortion to be about a “woman’s right to choose”. This was not “just tissue”, nor was this creature a part of my body. This was a whole and seperate PERSON, alive and literally kicking. Am I the ONLY person who thinks that new, modern equipment showing movement, emotion, expression -LIFE- inside the womb from the earliest days of pregnancy, and the latest technological advances in sustaining life outside of the womb, will create a higher level of scientific discussion? Forget religion, forget moral reservations about “sin”; these subjects are irrelevant, and not conducive to an intelligent discussion in this woman’s opinion. What IS relevant is that we have proof of life, proof that even though they can’t stage a protest or “spin” information for their political purposes, these tiny citizens are alive and deserving of any and all protections that we enjoy under our Constitution. Why is it that the Left in this nation are SOOOOOO-OOOOO-OOOOOO concerned about Civil Rights until the object of discussion can’t, or won’t, side with them politically?
Posted by: missjoy at August 1, 2005 02:44 PMI think people are opposed to laws prohibiting abortion for different reasons.
I don’t ‘like’ the practice (who does?) and I have NEVER advocated its use to anyone in a position of considering one, but the control over a fetus that cannot exist outside of a woman’s body should rest in that woman, not the government, in my opinion.
Whether it’s a “life” or “potential life,” or whatever, I don’t feel that a fetus should have ‘rights’ under the law until it is capable of existing apart from the body it is within.
That said, advances in birth control and an increased dissemination of education regarding birth control could ultimately practically negate use of the practice.
(and missjoy, you would have the government force a woman who was raped to carry such a pregnancy to term? What if she were the victim of incest? What if doing so would put her own life in danger?)
Posted by: mattLaw at August 1, 2005 02:56 PMmattLaw, those are three fabulously loaded questions!
To answer your question of wheter I would “have the government force a woman who was raped to carry such a pregnancy to term”, let me preface this by saying that he who frames the question wins the debate, and perhaps you will grant me the idea that there is at least a little inherent bias in the way that question was framed. To answer: I do not believe abortion should be legal, even in the case of rape. I believe I am (horror of horrors) ‘out of the mainstream’ in this belief. Most pro-lifers, even the crazed bible-thumpers will usually concede that mothers should be able to abort if the pregnancy was the result of a rape or of incest. However, I believe this subject should not be considered in terms of emotion. The “product” of that rape is still a living human being, or at least everyone must at least acknowlege that “it” has the same chance of being as healthy and viable as the baby conceived in the height of domestic bliss. To build in a loophole allowing for “rape” and “incest” simply opens a doorway for legal chaos. There is a feminist theory that all intercourse between a man and a woman is “rape”, see the following link: http://www.fathers.bc.ca/feminist_quotes.htm
So what would stand in ANYONE’S way of demanding an abortion if that woman claims rape? Also, what standards would be put into place to “force” the woman to “prove” that she was the victim of rape? Is her word good enough? Or do we have the social backbone to say that no abortion could take place unless (1) a police report were filed, (2) a rape evidence kit secured within 24 hours after the rape, and (3) charges pressed if/when the alleged perpetrator is caught? No, I didn’t think so. Sadly, I don’t believe for a minute that the abortion industry would be slowed down a bit if this loophole were built into an overturning of RvW. I also realize that no law will ever be enacted that excludes this loophole, as I do live in reality.
You ask “What if she were the victim of incest?” I feel the same way about incest as I do rape, since incest is a sick subset of rape. I’d say that upon claiming incest (through simple paternity tests and newer technologies) charges must be pressed against the incestuous molester (who should go to prison and never be let out until he or she has assumed room temperature). Let me also say that I believe abortion due to pregnancy arising in the cases of incest be so very small a percentage (in the scope of the millions of abortions committed each year), and so completely heinous a crime, that it should never be tossed about and used so lightly in the argument for the wholesale free-for-all market of abortion.
And finally, you ask “What if doing so would put her own life in danger?” I will not apologize for the fact that, even in my pro-choice days,
I have never bought into the argument of aborting “for the health of the mother” because you will always find unethical physicians willing to state, and even testify, to the fact that a woman needs an abortion for her “health”. “Health” can mean many things, and can mean NOTHING. Before the Abortion industry, before RvW, not one but THREE physicians informed my mother that if she did not terminate her pregnancy, neither she nor the baby would survive. They gave her a ZERO PERCENT chance of survival. They handed her a death sentence, and informed my father to prepare for the death of his wife, as she (for her own reasons) decided to continue with the pregnancy. I now have a very live, very normal, very healthy brother who recently turned 41. Doctors make mistakes. I’m sure our story is one of many, and only matters to us and not to anyone else. Mistakes happen. But, unfortunately, Doctors also will lie in order to aid and abet the bustling $500 million dollar per year business of abortion. This goes almost without saying. I submit that women are more at risk of death by choking on a piece of food http://danger.mongabay.com/injury_death.htm than they are at risk of dying because they couldn’t walk into a Planned Parenthood and demand an abortion.
If you really want to tickle your intellectual funnybone, try reading through this article. I just came across it moments ago, during a search on abortion rights, but found it utterly enjoyable because it is a discussion based on facts and logic, not religion or superstition. I would have found it enjoyable even in my Planned-Parenthood Pro-Abortion Protesting days, just because I would have chewed on it for hours looking for a hole in the logic. I’d be interested to see what you think. I almost hesitate to include the link because of its catholic origin and my own agnostic belief system… nonetheless, it was interesting so here it is: http://www.catholiceducation.org/articles/abortion/ab0045.html
As for your declaration “advances in birth control and an increased dissemination of education regarding birth control could ultimately practically negate use of the practice.” Are you serious? You can’t be. If this were the case, there would be fewer abortions now than before the advent of The Pill and Sex Education. Do you have any data to back up such a supposition? There is a plethora of statistical data to suggust just the opposite, but I have gone on far too long already.
Missjoy—
To build in a loophole allowing for “rape” and “incest” simply opens a doorway for legal chaos.
I think that you’re right (concerning the “legal chaos”), I don’t think such a loophole would work, and I actually like the fact that you’re completely consistent on your belief, here.
octors make mistakes. I’m sure our story is one of many, and only matters to us and not to anyone else. Mistakes happen. But, unfortunately, Doctors also will lie in order to aid and abet the bustling $500 million dollar per year business of abortion.
You seem to possess a distinct distrust for doctors. Are you asserting that a woman who WANTS to carry a child to term might be falsely and maliciously told by her doctor that she needed to abort her pregnancy…because he wanted to aide in this vast abortion business? That would be implicating doctors who are in the business of caring for pregnant women and seeing them through to the birth of their children. That doesn’t make a lick of sense!
Sure, doctors make mistakes. You couldn’t possibly claim that the situation does not arise where carrying a child to term presents a high level of risk to the mother’s health. It most certainly does, even though your mother’s doctor was wrong.
As for your declaration “advances in birth control and an increased dissemination of education regarding birth control could ultimately practically negate use of the practice.” Are you serious? You can’t be. If this were the case, there would be fewer abortions now than before the advent of The Pill and Sex Education.
Yes, I’m serious. You can’t dismiss a relationship between sex education (or birth control dissemination) and abortion rates, nor can you necessarily imply that a negative relationship exists. There are countless of confounding variables involved, there!
Posted by: mattLaw at August 1, 2005 06:51 PMThank you for your compliment on my consistency. It’s not an easy belief to hold or defend, so I’ll take quarter when and where I get it.
I don’t have any inherent distrust for doctors. I manage a practice for two very ethical doctors (albeit neither are OB/Gyn) in whom I have the utmost of trust and respect. I feel the same way about my OB/Gyn and for 99% of the hard-working, excellently educated, American physicians out there. I certainly did not, in any way, insinuate any wierd conspiracy theory that my mother’s doctor, or any doctor in that position, wanted her to abort for financial or political reasons. I stated that he and two of his peers made a very grave mistake in judgement, ie: my comment “Doctors make mistake” followed by the statement that in addition to sad mistakes, there ARE doctors who, for financial gain, will claim an abortion necessary for the sake of “the mothers health”. Of course it doesn’t make a lick of sense… and I didn’t say it. Once again, however, I submit that the cases where the mother’s health would be seriously at risk, and I mean actual health, are very VERY rare; rare enough that a messy loophole should not be created.
Prior to the widespread legality and use of The Pill, abortions were nowhere near as proliferate as they are now. I don’t have a link, but I’m reasonably sure there have to be some hard statistics on this. I agree with you that there are too many factors involved to make this a simple clear-cut statement, but I think the past 30 years have proven that birth control and sexual education have not improved the abortion figures, and sadly I don’t believe they ever will. As long as abortions are cheap and easy, and human life retains no value, we will continue to see abortions due to careless, willfull, selfish misuse of a breath-taking power.
Of course it doesn’t make a lick of sense… and I didn’t say it.
I apologize then, I misunderstood you.
As long as abortions are cheap and easy, and human life retains no value, we will continue to see abortions due to careless, willfull, selfish misuse of a breath-taking power.
I admit that my feelings on the legalities of the practice are not concrete, and you’ve certainly made a compelling argument.
I know people in ANY discussion similar to this online generally claim strong convictions, but I honestly am on the fence with this one. Being gay and a male, it’s nothing that could possibly arise in my life accidently.
As I tend to lean towards keeping the government OUT of the lives of the citizens it governs as much as possible, I still believe that, in comparison to the mother that carries it, a newly formed fetus that cannot exist outside of the mother’s body should not possess “rights” in the eyes of our laws.
The one sticking point for me is something you’ve basically pointed out…the idea that stricter abortion laws could make some act more responsibly. That is certainly something to think about.
Posted by: mattLaw at August 1, 2005 08:15 PMEverything in this debate turns on one issue.
Is the conceptus/embryo/fetus/baby a living human? In ‘73 SCOTUS dodged and said “we don’t know.” 30 years later, the little bit of doubt they hung onto has been erased. The answer is that it is. The first job of government is to protect life. We might debate what the best policy is in order to protect life in the “hard cases” and life in an imperfect world with perverted people will create hard cases, but the way to handle them is by being rooted in principles and seeking to honor the highest principles in the hard cases, not using the hard cases to throw out the principles. RvW is detached from (what should be) its principles and that is why it keeps coming back like a ghost to haunt us.
Not to sound critical, but has anyone actually read the Supreme Court decision on Roe v Wade? After all these years, I just did a few weeks ago. I thought I knew what it was about, but was surprised that I didn’t.
link to the decision here
There is much in there about the woman’s right to privacy. It seems that it was one of the overriding factors. That surprised me.
When I was younger, I fully agreed with legalized abortion. As I’ve gotten older, I’m no longer so sure. It’s not about when the fetus becomes a person, etc. It’s more about making decisions that can’t be reversed.
I think about those children that never were born, who may have been really wonderful kids.
Missjoy is absolutely right. The argument that the government would be forcing a woman to carry a child is designed to excuse irrational behavior. If the government forces a woman to refrain from killing a baby, they are just doing what they exist to do. My adopted son is the product of rape, and he is more human and viable than the entire abortion crowd put together. Killing babies has always been, and always will be wrong, regardless of how the government characterizes it, and regardless of how callous society’s sexual conscience becomes. Wake up and smell the bloodshed. By the way, the birthmom is a better person for having that baby, not worse.
Posted by: John M at August 3, 2005 05:35 AM
