Thursday, January 26, 2006

Just What Do They Teach Law Students These Days: Yale Students on Roe v. Wade

The lonely libertarian wonders whether the New York Times would publish an op-ed by a second year law student equally as intellectually dim if the argument had been anti-abortion, and anti Roe v. Wade. Evidently being a Yale Law Student has its benefits.

The gist of Mr. Baude's piece is this: Roe v. Wade can't be overturned on principled grounds because of the disastrous consequences of such a reversal. What are those consequences?

1) States could make it illegal to cross state lines in order to abort a fetus.

2) If states can decree that life begins at conception, they might also be able to use child custody laws to curtail the movements of pregnant women.

3) Anti-abortion states could forbid their residents to obtain or perform abortions, even while out of state.

4) Just as Utah could make it a crime for a resident to go to Rhode Island for an abortion, Rhode Island could forbid Utah's law-enforcement officials from interfering with her decision to get one. Similarly, if an anti-abortion state places a fetus in protective custody, an abortion-rights state might do the same for the woman.

Before even delving in to the substance of these claims, it's interesting to note that Mr. Baude, a law student, makes no effort to defend Roe on any principled grounds. Utilizing similar logic, that overturning Row would lead to chaos, one could make the exact same argument in regards to Brown vs. Board of education overturning Plessy v. Ferguson. In fact, Brown did lead to a great deal of chaos, but that doesn't change that it was right in both a moral sense and a legal sense. Abortion is undoubtedly divisive morally, but the thought that abortion is Constitutionally protected is a fatally flawed premise.

On to the substance of Mr. Baude's claims. Basically, all of his concerns about chaos stem from worries that states would pass laws restricting the ability of woman to obtain abortions outside of their particular state of residence. Even assuming the worst, I can imagine ways to skirt such laws- mainly through the use of woman's shelters and the like, and the tinkering of notions of residency. (Just imagine the following claim- "No, I intended to move to California, and I just happened to have an abortion while I was staying at the Planned Parenthood there. Then I changed my mind, and decided to come home to good ol' red state America.")

In reality, such measures would not even be needed. First, there are the practical concerns of enforcing such laws. Would doctors have to report all pregnant women in non-abortion states? Would such states have to actually monitor the activities of all pregnant women? Beyond being a complete waste of time and resources, such thoughts are beyond the pale of the rational world.

Secondly, there is the legal matter-of-fact that no Court would ever allow a single abortion banning state to behave so drastically. For those of us remembering our history, the situation Mr. Baude describes, with states feuding over large scale moral issues amounts to a sort of reverse Dred Scott type of case. But rather than the issue being the rights of the party with questionable legal standing, the issue would be the rights of the woman accused of committing a crime. And as opposed to the horribly decided Dred Scott, in which fugitive slaves were forced by law to return back to the South, any Court today would repudiate any principle that would allow for criminal prosecution of an activity that was perfectly legal in the state where it occurred. There is a very important difference between Mr. Baude's example of kidnapping and murder, which are illegal in every state, and abortion. The point is, there is no justice today that has articulated logic that would allow for anything remotely approaching the concerns that Mr. Baude articulates.

The worst aspect of Mr. Baude's piece is its fundamental misunderstanding of the pro-life movement. Mr. Baude assumes evil motives from those who would restrict abortion. He assumes that those opposed to abortion are primarily motivated by the persecution of women. This of course, is preposterous. The concern for pro-lifers is saving what they believe to be human lives. It's very tempting to say something about blue state Connecticut liberals who attend Yale Law, but I'll hold my tongue. Fear mongering and irrational assumptions should hold no place in any debate about abortion, be it in the legal or the moral realm.

The lonely libertarian is a second year law student and a Constitutional scholar at Quinnipiac University School of Law.


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