Sloppy Pro-Abort Reasoning: Muh Polls!
Law Professors Aren't Immune from Foolish Legal Logic, especially Mary Ziegler
Here is her writing, both the original link and an archive.ph link:
https://www.theatlantic.com/ideas/archive/2022/06/roe-overturned-dobbs-abortion-supreme-court/661363/ - or - https://archive.ph/ZMr1K
You might be wondering why I am complaining about this random person:
This is not some average law professor, she’s being elite-groomed to fight the abortion wars in academia. Here’s her bio:
Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law. She specializes in the legal history of reproduction, the family, sexuality, and the Constitution. In the spring of 2022, she is visiting at Harvard Law School.
Her most recent book, Abortion and the Law in America: A Legal History, Roe v. Wade to the Present, was published by Cambridge University Press in 2020, and received positive reviews in outlets from the Washington Post to the Christian Science Monitor. Her new book, Dollars for Life: The Antiabortion Movement and the Fall of the Republican Establishment, will be published by Yale University Press in the summer of 2022. She also has a forthcoming book with Routledge, Reproduction and the Constitution. Her next project, What Roe Means: A History, will be published by Yale in 2023.
Ziegler's first book, After Roe: The Lost History of the Abortion Debate, was published by Harvard University Press in 2015 and won the 2014 Harvard University Press Thomas J. Wilson Memorial Prize for best first manuscript published by the press in any discipline. Her second book, Beyond Abortion: Roe v. Wade and the Fight for Privacy, was published by Harvard University Press in 2018.
One notable tactic of those advocating for child murder is that they rarely actually discuss the merits of the procedure itself.
They don’t bother possibly generating a normal human response of revulsion at the concept of coercing women into tearing their unborn child apart piece by piece, or chemically burning them to death, or delivering them head first and cutting their brain stem, instead they use nice codewords and euphemisms in lieu of talking about the actual topic.
Privacy!
Rights!
Autonomy!
Here’s a summary of her argument:
‘Roe’ as broadly understood by the public is popular in polls
The Court has the audacity to change prior rulings
People relied on access to child murder, what are they supposed to do now?
The Court seems to be indifferent to the people whom polling suggests want to keep the ability to kill their kids
Polling should determine your constitutional rights.
It’s tough to take this kind of reasoning seriously. The holes in this logic are big enough to drive a truck through.
The original ‘privacy’ rulings, such as Griswold v. Connecticut, which were invalidating the Comstock laws weren’t argued on the basis of their popularity.
Should gun rights be predicated on and expanded because of the millions of gun owners and guns within the country?
If wars are popular, should we empower the Presidency to start more of them?
The Court as an institution, should be avoiding popularity and polls altogether. And not only because most polls are rigged by their drafters, but because your rights don’t depend on the flawed interpretations of your neighbors.
Anyway, Ziegler has some real gems in this article.
Here’s some fun internally inconsistent logic:
Ziegler says:
This [pro-life] movement has been brilliantly successful in its efforts to control the Supreme Court, influence the rules of campaign spending, and remake the GOP.
Isn’t that, oh I don’t know, a proxy for popularity? If pro-lifers utilized the existing legal and political framework for 50 years to accomplish this result, did they do so in private? Did they hide their agenda? Or did they patiently chip away at Roe, engage lawyers, candidates, Presidents, non-profits, to change the result?
The only popularity Ziegler cares about is one conducted by Gallup using the narrative frames she postulates. But the pro-life movement did not cheat their way to this victory, they elected Senators, Presidents, and influenced party politics to accomplish this result.
They followed the system’s rules and achieved a ruling she did not like. That effort, over decades, reflects the inherent popularity of the pro-life position.
Ziegler says:
One might have expected any such guardrails to be particularly effective at protecting Roe, the best-known of any Supreme Court decision, and one that many Americans seem to support. The Dobbs decision makes plain that those limits are gone. In their place is a kind of constitutional partisanship, dictated by the interpretive philosophies and political priors of whoever currently has a majority on the Court and nothing more.
A 6-3 decision typically isn’t seen as a partisan decision. And even if it does, why doesn’t the 3 vote minority reflect the abortion obsession of the modern American left? Was there any doubt Breyer, Kagan, and Sotomayor were going to protect abortion?
It’s ‘partisan’ when the left loses, but it’s somehow not partisan for the remaining dissents to assume their position. Ziegler is just denigrating her opponents by assuming they are blind partisans, oblivious to the fact that argument runs both ways.
Ziegler says:
By peeling doctors away from the people Roe protected, lawmakers in red states and in Congress were able to sever abortion rights from access to the procedure, eliminating Medicaid reimbursement and then erecting a seemingly endless number of barriers to exercising the right that people theoretically had.
This tired left-wing meme just, again, shows how vapid Ziegler is and how dishonest her framing. The advent of abortion restrictions were not, initially from ‘red states’ but rather, from a broad coalition opposed to subsidizing abortion.
The Hyde Amendment was broadly supported by both parties until just recently.
Even Joe Biden was for the Hyde Amendment until 2020.
This kind of sloppy reasoning and logic betrays how timid and tame the Dobbs ruling is, in that Dobbs merely reverts abortion laws and regulation back to the states.
If you want abortion-on-demand, organize for that result. If you want to ban all abortions, fight that battle in your state legislature.
What is really happening today, and will continue to happen, is that the reigning neoliberal elite ability to dictate results to the country, to consistently control outcomes, is slowly slipping away. They will either fill that void with apathy or coercion, but their unquestioned power is slipping and they clearly don’t like it.