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March 06, 2006

The End for Roe v Wade: It would be a victory for sound constitutional principles but a disaster for ordinary Americans, argues Prof. Christie Davies

Posted by Christie Davies

Following the introduction of tough new restrictions on abortion by the State Legislatures in South Dakota and Mississippi, Christie Davies predicts that the US Supreme Court with its new reactionary majority will restore the right of individual states to introduce restrictive laws on abortion. Prof. Davies argues that this will be a crushing and welcome repudiation of liberal judges who arbitrarily act as politicians and invent unconstitutional rights. However the consequences for ordinary people, argues Prof. Davies, will be disastrous.

The views expressed in this article are those of Prof. Davies, not those of the Social Affairs Unit, its Trustees, Advisors or Director.

The row in the US Senate over President Bush's nomination of Samuel Alito to the Supreme Court has shown how abortion is still an issue at the very heart of American politics.

In 1973 in the case of Roe v Wade the Supreme Court - with only justices Rehnquist and White dissenting - struck down all state laws restricting the availability of abortion in the first six months of pregnancy. They were, it said, an invasion of the pregnant woman's right to privacy, a right not to be found in the American Constitution, one that was arbitrarily manufactured by putting together dubious inferences from a number of clauses and amendments, rather as had been done in Griswold v Connecticut (1965).

It was a victory for judicial activism, feminism and the metropolitan liberals over the wishes of the American people expressed through their state legislatures. It denied the autonomy of the individual states in matters of this kind that lay at the very core of the agreement to form the United States in the first place and the key principle on which the Constitution is based. In effect the Supreme Court said that the difficult and delicate question of balancing the interests of a woman who was pregnant against the future life of the foetus should not be decided by the people but by a group of elderly, out of touch, liberal judges with their own political agenda. The aged judges of the Supreme Court substituted their balancing of these competing rights and interests for any and all local resolutions of the problem. Their personal values were to prevail over those held by everyone else. It was an arbitrary exercise of power by an unelected and unaccountable group of lawyers.

Liberals celebrated this victory of judges over politicians and people, forgetting that the last time this happened, when the Supreme Court had struck down several pieces of Roosevelt's absurd New Deal legislation as unconstitutional, their liberal forebears had wanted to undermine the Supreme Court's independence through the presidential nomination of extra judges until there was a liberal majority. This threat sufficiently alarmed the Supreme Court that one of the Justices resigned to be replaced by a Roosevelt appointed liberal and the others hurriedly changed their minds and decided that the New Deal was constitutional after all. When it suits liberals they are happy to pack the Supreme Court and to see that guardian of the Constitution and preserver of rights frightened by the politicians into acquiescence in the name of popular democracy.

In the case of Roe v Wade the liberals argued that people and the politicians should be ignored and the Supreme Court be praised for its creative accountancy, for its plucking of new rules from the air to please the chattering classes and agitating harpies of New York and Washington D.C., angry that America had been outflanked on abortion by the progressive British. If a Republican president had obtained legislation to pack the Court with super-numerary judges and over-turn Roe v Wade as Roosevelt had threatened to do over the New Deal, imagine the squeaks of rage there would have been from the liberals.

Successive conservative American presidents have, when vacancies have occurred through death or retirement, tried to nominate new and more Conservative judges to the Supreme Court. Sometimes they have been blocked by trouble-makers in the Senate who reject nominees who hold illiberal views on abortion, capital punishment (which is clearly constitutional) and affirmative action (which is a denial of equal protection of the law) on purely political grounds even if they are the best candidates.

Now for the first time we have a conservative President and a conservative Senate determined to put in place judges who will reverse Roe v Wade. Bush has cunningly and deliberately chosen Roman Catholic nominees who will not go soft on abortion after they join the court. The Pope and many of the American bishops have made it clear that it is the duty of American Roman Catholic judges to obey the party line and reverse liberal legislation, if necessary finding secular grounds on which to do so. Not to do so would be the heresy of "Americanism" denounced by Pious IX, Pio Nono, as a no-no. Roma Locuta est – Causa Finita est . Rome has spoken. The matter is closed. Previous Protestant Conservative justices nominated to reverse Roe v Wade have, when in office, proved equivocal on abortion but Roman Catholic judges will do as they are told. They will prove as determined to impose their own values and preferences as the liberals have been. Roe v Wade is doomed.

After the end of the era of Roe v Wade there will not be a uniform shift to illiberal abortion laws. Rather the five states that enacted liberal laws on abortion before Roe v Wade will remain liberal. Other godless states on the East and West Coast will use their freedom to legislate in a liberal way. Only in the God-fearing Bush heartland and in states with large and influential Roman Catholic populations will abortion be banned in all cases except where the mother's life is in danger or where she has been raped. The rustics of South Dakota and Mississippi have already moved in that direction.

That is how American democracy works, much as Roman Catholic Ireland has a constitutional ban on abortion, God-fearing Ulster has Britain's restrictive pre-1967 legislation, Britain and Scandinavia few restrictions and France and Germany rather more, forcing many women to travel to anti-clerical Spain, Europe's centre of commercial abortion. The European Court of Human Rights dare not intervene because the restrictive countries would exercise their right to remove themselves from its jurisdiction, something the American states could not do without a civil war. It is called national sovereignty. The Irish decided not to quit the European Convention on Human Rights in the case of the striking down of their laws against homosexual relations but they would do so over abortion. It would mean the end of that wretched court and the cowardly judges on the ECHR know it. They will not touch abortion even though they are addicted to imperial meddling.

When Roe v Wade is over-turned there will be great rejoicing among right-thinking Americans. They will parade with placards and marching bands to celebrate their victory. They will march through Washington DC singing Happy Days are here Again and congregate in a mega-church to sing Now Thank we all our God. That is the American way. In fairness it is what all politics is about, the imposition of a particular set of values through law such that the winners revel in their triumph and the losers grovel in despair and humiliation. The chief purpose of politics is to induce revelling and grovelling as one set of values and symbols prevails over another. All the fury of pious, populist, Darwin-hating, middle America that has previously been expended on denying all funding to poor women seeking abortions, putting grotesque pressure on women seeking abortions to change their minds and violent attacks on abortion clinics will now turn to joyous celebration. A humiliation will have been reversed and the humiliators humiliated.

In Europe this assertion of a distinctive set of un-European values by the most powerful nation on earth will cause the same despair and bitterness as America's defiant determination to execute thousands of murderers at both the federal and the state level. The confident Americans believe in life in a way that demographically dying and militarily and economically feeble Europe does not and can not. Americans believe in morality, in the protection of the innocent including the life of the innocent, and the punishment of the guilty, particularly by executing murderers who have by their murders denied the sanctity of life.

The Europeans will be confirmed in their own powerlessness and inferiority by the collapse of Roe v Wade. Imagine the frustration and despair and rage of the Guardian readers at seeing their entire way of life scorned by the United States and of realising their impotence to do anything about it. They will feel much as Britain's Muslims feel when their co-religionists are crushed in Chechnya, Kashmir or Sin Jiang or when the Prophet is mocked in Denmark and Norway. It will be a good time to rub the Guardianistas noses in it and to relish this, their most recent defeat and betrayal. After their years of arrogant hubris the Guardian swine have been brought low. It is a famous victory.

Yet the practical consequences will be disastrous, particularly for the poorest Americans in restrictive states - those women who will not be able to afford to travel to states where abortion is available. A rich woman can book herself into a clinic in New York and get on a plane, much as a pregnant middle class Dubliner can take the ferry to Liverpool and go home as an "empty". A poor woman can not do that.

The poor will resort to unsafe, amateur abortions carried out by nurses with a drug habit, struck off chiropractors or simply some woman in the slums known to help her neighbours out. Rich women are fitted with IUDs that are a form of very early abortion or take kinds of contraceptive pill that are in effect abortifacients. Poor women lack the money, the intelligence, the knowledge and the foresight to do this. If they live in a state where in addition to abortion operations, abortion pills and morning after pills are also banned, they will be doubly trapped. Their already difficult circumstances will become worse. Their over-crowded lodgings will become more over-crowded. The despicable man who has got them pregnant to boost his own macho ego will disappear in true under-class fashion to escape all responsibility. Their dependence on welfare will be intensified at a time when welfare rules are being tightened up.

We know what will happen from the experience of socialist countries such as the old Soviet Union or Romania, where the law on abortion was used to regulate the size of the labour force. When the planners wished to force peasant women into the factories, abortion was made freely available, almost compulsory. When the birth rate fell, depriving the central planners of cheap labour, the socialists banned abortion completely. For a time the birth rate rose and women suffered frightful deprivation in these socialist countries, where urban housing was grossly inadequate, wages low and men drunks. Then the women found their own illegal solution and the birth rate fell again.

For the poor, the stupid and the impulsive abortion is their preferred - indeed often their only - method of birth control. Other methods require money, intelligence and fore-sight. When it is not available, some will resort to illegal abortion and damage themselves in the process. Others will have more illegitimate children which will be a disaster both for them and for society.

One curious side effect of reversing Roe v Wade is that the American crime rate including the murder rate will go up. Eminent University of Chicago economist Steven Levitt has famously argued that legalised abortion has contributed significantly to the recent fall in crime in the United States. [John J. Donohue III & Steven D. Levitt, "The Impact of Legalized Abortion on Crime", Quarterly Journal of Economics, 2000]

What might the reasons for this be? Most crime is committed by the members of the underclass and this class will produce more potential criminals. Also criminality is inherited, not in the sense that deviant behaviour is directly transmitted, but because the qualities that dispose a person to crime are to a substantial extent genetically determined – stupidity, impulsiveness, an inability to learn self-control or to concentrate one's attention. These are the personal qualities that both mark out the feckless women who will have more children if denied access to abortion and also mark out criminals such as rapists, muggers and those who stick up small shops and gas stations. Feckless uncontrolled mothers produce feckless uncontrolled children.

The demonstration of this lies in the fall of the American crime rate, after a fifteen year interval, following Roe v Wade. The criminals were no longer being born, no longer growing up to join the crime conveyor belt 15 to 20 years on. The real proof lies in the fact that the fall in crime in America from an all time high began earlier in the five states that already had liberal abortion laws before Roe v Wade than in those states that only dismantled their restrictions when forced to do so by Roe v Wade. It is also worth noting that the five states provided funding for poor women who wanted abortions but the other states usually did not. One law for the rich - that's the American way.

American attitudes to abortion also have implications for other countries. The rapid growth in personal incomes in the East Asian countries as in Japan after the Second World War and more recently capitalist China has been based on abortion. These countries have grown rapidly. Japan is rich; China is on its way there. Because of the fall in their birth rates, the increase in their national income has not been swallowed up by a rapid rise in population. Their income per capita has increased. It would have been better to bring about this fall in the birth rate through birth control but it would have taken far longer and might not have happened at all.

If there had been no fall in the birth rate in Japan and China there would have been famine, like the periodic famines in high birth rate Ethiopia or in Mao Tse Tung's China when millions of people died. Mao believed that a socialist economy could feed any population of whatever size and however fast it was growing, much as left-wing development economists do today. The population of China grew from 400 million when he came to power to a billion by the time he died. The immediate causes of Mao's famines were economic incompetence, political malice and an unwillingness to import food or ask for aid but behind it lay a Malthusian crunch that scared his successors into the draconian one child per family policy. Abortion was the only way in which to bring about a reduction in the universal grinding poverty in China. In this respect it is an example to the rest of the world but not one that appeals to George W. Bush, who has withheld funding from all family planning agencies that even countenance abortion. Everyone agrees that liberals are stupidly closed-minded - but many conservatives also share this kind of outlook.


What do you think about Roe v Wade?
George W Bush:
Row? Wade? Why should I care how they got out of New Orleans?

At the end of the day we can see that on all sides of the problem is the absurd and destructive American insistence on debating every issue in terms of rights. Women must have a right to choose even if it means the wanton destruction of a healthy, viable foetus at a late stage and for a trivial reason. There must be a right to life even for a blastocyst, regardless of how much individual misery or indeed mass poverty this causes. Nonsense on stilts.

Christie Davies is the author of The Strange Death of Moral Britain, (Transaction Publishers 2004), which discusses the changing laws relating to abortion in Britain and Ireland, and sees them - in contrast to Roe v Wade - as a product of social change and an the assertion of national identity.

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Is this a serious column? A Bush Derangement Syndrome joke? And a repetition of the canard about a drop in crime after abortion was legalized? That has been thoroughly debunked by Steve Sailer among many others. Of course even if it's true it means that we should encourage the poor and the minorities to kill their children so they won't grow up to be violent criminals. What a good thing you care so much about the poor and you're so not a racist, Christie.

Posted by: Robert Speirs at March 6, 2006 07:51 PM

If Roe v. Wade were overturned, the issue could be sent to the Congress, or to the States.

If the issue is held to be within the power of Congress, as may happen in the partial birth abortion case now pending, then the legislative body representing the people of the nation will determine the issue.

If the issue is held to be within the power of both Congress and the states, then the issue will go to Congress, to the state legislatures and to a state governmental body not often raised in these discussions: the state courts.

The genie of judicial legislation will not go completely back into the bottle.

It is reasonable to expect that the court will be quite careful when dealing with this issue. But the legislative and state judicial bodies may have a valid role in determining how the issue of abortion is to be treated in the USA.

Posted by: rich at March 7, 2006 02:43 AM

"Question: What do you think about Roe v Wade? George W Bush: Row? Wade? Why should I care how they got out of New Orleans?"

For those of you who are unfamiliar with the United States of America. The bit of raillery quoted above was a line from a comedian's skit on a late night television show. It was intended to play to the prejudice of an audience who believed that the President is not an intelligent man.

It didn't really happen.

Second, the United States is a very large country, but it is very wealthy*. There are few people, even poor people, who do not own, or have easy access to automobiles. This is important because in a place like South Dakota, many services that are found in urban areas are not available. This includes abortions, but it also includes other gynecological services, as many counties in that sparsely populated state** do not have hospitals with full time gynecologists.

*GDP per capita in US is $41,800, 35% higher than the UK $30,900. Further cars and gas are much cheaper. Typically the same model car in the US and the UK will have the same numeric price, but in the separate currencies. E.g. a $20,000 car in the US will run £20,000 in the UK or about 80% higher. I paid $2.40/gal of gas today. the UK gallon is 20% larger. A US gallon is 3.8 liters.

**South Dakota has about 10 people/sq.mi. Great Britain about 650. Much of South Dakota is just plain empty.

Furthermore, at present there is only one abortion clinic in South Dakota, and it is not staffed full time. So any woman in South Dakota who wants abortion right now will probably have to journey out of state for it anyway.

It is very easy to talk about things if you have no idea what you are talking about.

Posted by: Robert Schwartz at March 7, 2006 06:25 AM

Like poster Robert Schwartz, I too was dismayed to see the 'Row? Wade?' quip reproduced here without a clear indication that it is a comedian's idea of satire and not an actual quote.

In times past, this might have been clear - but it surely does appear that the UK is now overrun with Bush Derangement Syndrome, to the point where no story about President Bush is so outrageous that it will not be believed.

As to the abortion-in-the-USA question, I always find it it amusing to see liberals squirming when their cherished desire for democracy falls foul of what the people actually want. How dare the voters choose to outlaw abortion? Don't they know better? Well, welcome to democracy, folks, in all its flawed glory.

Fortunately, of course, the US system has a balance mechanism to try and prevent this sort of mob rule, and if Roe v. Wade is overturned by the US Supreme Court, the issue will work its way through 50 different State legislatures and judiciaries - and advocates of abortion-on-demand will actually have to persuade the voters of their position, instead of just having to persuade 9 Justices of the Supreme Court. As they should. Roe v. Wade is cr*ppy Constitutional law and should never have been held as it was. Time and enough that this issue went back to the states, the vast majority of which will legalize abortion in some form anyway.



Posted by: llamas at March 7, 2006 11:53 AM

This is the most disgraceful betrayal I have ever read. It begins with a splendid destruction of the Supreme Court that cheated us all with Ror v Wade , an acknowledgemrnt of the key role of Catholics in reversing it and of the rejoicing there will be at this crushing of rotten liberalism. Then it turns into a vile utilitarian apologia for abortion. I denounce the the author for secret Benthamism.

Posted by: David Williams at March 7, 2006 01:09 PM

This is quite bizzare, a woman who wrote on the strange death of moral Britain seems to have no interest in the morality of abortion beyond the convenience it can afford to the 'poor, the stupid and the impulsive'. I might suggest that if an evangelical believes that an abortion is murder the crime rate would not matter much if it does not include the thousands of murders that occur every year due to Roe vs Wade. The argument that crime is reduced by abortion is essentially a side issue, even if it is true it has no impact on how I, or any moral person, should view abortion.

The Bush joke just seemed pointless, as if the author had read it, had a good chuckle and thought it would make a good addition to the article without any clear reason to be added. It seems to suggest Bush doesnt care about Roe v Wade enough to remember it as far as it suggests anything which goes against the rest of the article which suggests Bush in fact cares a great deal about abortion in his wish to ban it. I could be wrong but it seems a meaningless addition that moves away from the point of the article.

Posted by: Jordan Thursby at March 8, 2006 11:00 AM

Jeremy Bentham
"He argued in favor of individual and economic freedom, including the separation of church and state, freedom of expression, equal rights for women, animal rights, the end of slavery, the abolition of physical punishment (including that of children), the right to divorce, free trade, and no restrictions on interest. But, he was not a libertarian, and supported inheritance tax, restrictions on monopoly power, pensions, and health insurance." -- from wikipedia

Which aspect of "Benthamism" did you find objectionable?

Posted by: jj mollo at March 8, 2006 03:47 PM

jj molio implies that I should not attack the Benthamite Davies even though Davies quotes Bentham's quip, 'Nonsense on Stilts', in dismissing natural rights and natural law. Like Bentham, Davies lacks all respect for the wisdom of our ancestors and for hierarchical authority . I do not mind his joke about George Bush but to make fun of the Holy Father Pope Pius IX with that pun on nono was abominable. It is the return of Pius IX's ideals that will now rescue America from rationalism and the scourge of abortion. Bentham like Peter Singer would have been in favour of abortion for the same reason he championed animals . Bentham was a materialist and an upholder of the sensate society . He was refuted by Cardinal Henry Newman who rightly saw that pain and pleasure are less important than the avoidance of sin. Abortion, is a sin and can not be justified by Benthamite utilitarian arguments.
It is equally wrong to justify it in terms of equality for women. Authority has been vested in the hands of ordained men, a status to which women can not aspire and it is they who must decide about abortion,not women

Posted by: David Williams at March 9, 2006 08:43 PM

Our Welsh author should beware of expressing eugenic ideas. See what Darwin had to say in his Descent of Man:

Given a land originally peopled by a thousand Saxons and a thousand Celts – and in a dozen generations five-sixths of the population would be Celts, but five-sixths of the property, of the power, of the intellect, would belong to the one-sixth of Saxons that remained. In the eternal “struggle for existence”, it would be the inferior and less favoured race that had prevailed – and prevailed by virtue not of its good qualities but of its faults.

Do not classify people as inferior, but look rather to dysgenic policies and practices. I have in mind that of moneylenders basing a mortgage on two persons’ salaries. This pressurizes those couples who wish to provide a decent next for their offspring into delaying procreation. Here, it seems, money is playing the part of a “virtual species” parasitizing its hosts and reducing their ability to reproduce.

Posted by: Robert H. Olley at March 10, 2006 06:45 PM
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