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I think if it were permitted by the Supreme Court it could but alas, the radicals on the court prevent that. So if we tried it, they'd paint us as anti-Roe fringe, and bury us.

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

The public's lack of knowledge about Roe is part of the problem. If people knew just how extreme Roe and other decisiosn are, and how the overturning of it would not equal a banning of abortion, then it would enjoy far less public support.

I know some think that the GOP will face a deep and nationwide rout if Roe were overturned because it would unleash an otherwise tame pro-choice majority. But the problem with this is that a Sup Court that remains pro-Roe is likely to be horrible on a whole host of other issues.

So overturning (or disregarding if we really want to get bold) should remain a goal.

The first state that tries to overturn Roe should pass a law that:

1. Allows abortion on demand in the first trimester [this law wouldn't have a specific exception for rape, but any rape victim could get an abortion in the first trimester]
2. Prohibits abortion in the second trimester except to save the life of the mother or in cases of severe birth defect/genetic disease
3. Prohibits abortion in the third trimester except to save the life of the mother; requires caesarean section instead of abortion when either procedure would save the life of the mother.

Such a law wouldn't actually affect the "right" of a woman to have an abortion much, except that it would require her to make up her mind early. Only the most rabidly pro-abortion people would oppose such a law. People who believe life begins at quickening or viability would support such a law. It would be difficult to generate much sympathy for anyone who could not get an abortion under this law.

However, this law gets rid of the "health" loophole, and it does restrict abortion more than allowed by Roe. The Supreme Court could not uphold this law while staying with the Roe precedent. If this law was upheld, then other states might pass laws with greater restrictions on abortion and reasonably expect their laws to be upheld too.

I find myself wondering if it has a change in aitch-ee-double-hockeysticks of passing.

The far left will, of course, scream about how this will kill women.

The more moderate left will argue that, as reasonable as it seems, it's the nose of the camel and should be fought against for that reason.

The muddled middle would like it if they heard about it, but they will instead get their descriptions of the plan from the moderate and far left.

The moderate conservatives will like it because, hey, it's the nose of the camel.

And the far conservatives will argue against it because, hey, it says that abortion is okay.

All that to say: I love it. It'll never happen.

Man is free at the moment he wishes to be. --Voltaire

The South Dakota legislature recently passed a law that prohibited abortion except to save the life of the mother - it didn't even have a rape exception. However this law also had to be approved by a referendum and it lost at referendum something like 47% to 53% - hardly an overwhelming loss. I think the South Dakota law would have passed if it had a rape exception and if people didn't feel hopeless about having their law overturned by the Supreme Court.

A much less restrictive law that allows abortion on demand in the first trimester but allows abortion only in very exceptional circumstances after that should pass any number of state legislatures easily. Whether it would pass the Supreme Court is another matter, but I think the Supreme Court is more likely to uphold a law that focuses abortion restrictions on 2nd & 3rd trimester abortions than a law that prohibits abortion entirely.

I cannot think of any good pro-choice arguments against a law that allows abortion on demand in the first trimester, and only restricts second & third trimester abortions.

As for pro-life people, such a law would not be the desired ultimate goal, but it would be an improvement over the laws we have now.

BTW- anyone who believes abortion should be "safe, legal, and rare" should hope that Roe is overturned and that most, but not all, states then prohibit abortion. Then legal abortions would be accesible enough that nobody should get a dangerous back-alley abortion, but they would be inconvenient enough that it would discourage abortion as a means of birth control.

"I cannot think of any good pro-choice arguments against a law that allows abortion on demand in the first trimester, and only restricts second & third trimester abortions."

I don't know if it's a good argument or not, but the argument that this law, however reasonable, is the noses of the camel will be out there.

The fact that there will be a number of people who actively support the law because it's the nose of the camel will bolster this argument.

Man is free at the moment he wishes to be. --Voltaire

I've seen abortion thrown around as the football, but not gays. So I don't really think that's a key either way. Maybe in San Francisco, but not statewide.

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Neil

You're right I think about the gay issue being a decider, but it does go to painting a picture of CA Republicans who run on the party's platform being intolerant and out of touch with the majority of voters in CA. In my view most people could care less about gay rights, expect when the Republican party in CA tries to take them away.

I would also remind you that the last two initiatives to restrict abortions in CA failed and neither one was very strict. I forget the details, but one was parental notification, something I am all in favor of and voted for.

But the Balbreakerian turn of the CA Republican party to the Hard Right, away from fiscal and law and order matters to one of legislating morality has done very little to stop the state from turning increasingly Democratic. The term irrelevant comes to mind.

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Proud member of the Barry Goldwater wing of the party !

This issue is a big winner for California Republicans. Lots of Hispanics are social conservatives and family-oriented. And they make up a huge chunk of California.

Ant

Prop 22, by Pete Knight was the CA DOMA law and it did pass quite well. Flash forward to this past year and the Son of DOMA by Pete's wife was collecting signatures to appear on the ballot. It failed miserable.

Don't confuse middle America's wanting to preserve what the definition of what a marriage is to hard core social conservative adjendas that would do away with domestic partnership laws, outlaw adoption by gay couples and get in the middle of custody battles. The two are not the same.

The faction controlling the CA Republican party right now leans more to the hard core social conservative agenda and makes sure candidates for state wide office are nominated that toe that line. Those candidates loose "Big Time" in state wide elections to Democrats pretending to be Centralist.

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Proud member of the Barry Goldwater wing of the party !

I'm opposing a leftward change to the state platform. :-)

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

...which is why Neil's title states "California Republicans Reject Abortion". So I don't see the dispute.

What Neil went on to say, is that the specific actions that the platform identifies as the initial means to that end involve steps that fall short of advocating a statute or constitutional amendment that constitutes a flat prohibition of abortion.

And Rightly So!

The point I was disagreeing with:

The platform does not even call for a broad ban on abortion: its plan is not a ban except the save the mother's life, not a ban with the three-exception rule, and not a ban after the first trimester. The state party platform actually takes the moderate position of only banning abortions on minors without parental consent, partial birth abortion, taxpayer funded abortion, sex-selection abortion, and reversing Roe v.Wade (and presumably successor cases such as Planned Parenthood v. Casey).

What I meant by "outlawing abortion" was a "broad ban on abortion". Lots of people who call themselves pro-choice support most or all of the restrictions the platform supports.

So the point you and I agree on, and perhaps Neil agrees, is that the California Republican Party platform advocates a "broad ban" outlawing abortion when/if a time comes when that's politically attainable, but doesn't take a position on that in the short run while that's politically unpopular.

I read Neil as interpreting the platform to not take a position for or against a "broad ban on abortion" period. Maybe he meant it didn't take any position on that in the short run, but supports a broad ban in the long run.

That's what I like about it. We don't give up our ideals, even if we set a relatively low set of goals.

There are those here in California who would have us become Democrats-lite.

And there was an actual dispute here over the platform. Some of the Democrats-lite wanted to gut the abortion, marriage, and probably some other parts of the platform to stick it to the conservatives (because we keep winning primaries).

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

Yep Neil, the Balbreakerian forces in CA do keep winning primaries and do keep nominating hard right conservatives who do keep loosing state wide elections. Been doing that sense Pete Wilson and Prop 187 passed.

I guess if you're into making statements about issues through who you nominate folks and not actually governing by getting elected to state wide office that's fine and you're happy. The rest of us..not so much.

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Proud member of the Barry Goldwater wing of the party !

Also, I'm not willing to turn our party into Democrats-lite because that would also destroy our state and national legislative delegations.

If the Republican party folds, then helloooooo massive tax hikes in Sacramento, and helloooooo left-shifting Congressional caucus.

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Neil

As long as the CA Republican party keeps nominating Hard Right folks for state wide office, they will loose. CA is not SC and hard right social conservatism as preached by the CA Republican party does not sell to the general electorate worth a darn.

CA R's are not leaders in assembly on illegal immigration, taxes (other than saying no new taxes), but they are all over social issues with legislation, which never passes out of committee anyway.

Might as well rename the party the Irrelevant Republican party.

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Proud member of the Barry Goldwater wing of the party !

Please, document for us what 'hard right' positions these nominees have taken. Have they gone beyond the compromise platform?

Show us, please.

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

You seem to love using this word to describe what you consider the far-Right denizens of the California Republican party, but what do you mean by this term (since Google searches come up rather empty)? Obviously it's not complimentary, and the association that comes to my mind is "Neanderthal".

Did you drop one of the l's to make the term more family friendly (thought the meaning is still obscure)?

Or are you referring to a charcter in the Porky movies (in which case I guess one has to have watched the series to appreciate the reference, which I haven't - though I suspect they may have dropped an "l" too and there's probably some weird sexual innuendo)?

Or does it have some other cryptic meaning?

And Rightly So!

I tend to agree with you, especially if it were to be overturned well ahead of election time. All those who have been duped by the media/Left into thinking that overturing Roe equals outlawing abortion would realize quickly that abortion has not in fact been outlawed in most places.

I disagree that most states will have abortion on demand. I think most would end up with some compromise that pleases neither side too much, with abortions remaining mostly legal in the first trimester, and most illegal thereafter.

Does the state or federal government have any right to regulate the use of contraceptives?

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The case was about Conn State law.

The SCOTUS holding opened the door to federal constitutional right of privacy with this case - and it was also the origin of the famous "emanating penumbras" of Justice Douglas.

Of course when it comes to contraception most ordinary folks don't believe the Feds or a State has the right to regulate the use, but when you open the door to undefinied "rights of privacy" the law of uninteded consequences kicks in right quick.

Let me reiterate that the post was totally my opinion. As far as I am concerned Connecticut making contraceptives illegal was wrong. Again the prescribing of drugs to prevent conception should be private, between doctor and patient. And tying it to abortion is illogical as far as preventing conception is obviously different that ending conception.

Again my humble opinion.

( 1.50, -1.08)

As a matter of personal opinion, we are in agreement.

But as a matter of constitutional law, our opinion should not trump the positive law of the Connecticut (or any) polity unless our opinion is enacted as positive law.

I do think this is an interesting issue because Griswold is the one "activist" Court opinion that even conservatives most often try to justify. But if you can justify Griswold on constitutional grounds, I do not see how you cannot also justify Roe v. Wade, Lawrence v. Texas, and even Kelo v. City of New London. Ultimately, the only difference between the decisions becomes, you like "this" one but you don't like "that" one.

Con Law is highly nuanced. You can easily differntiate these cases on numerous grounds. For one, Griswold did not involve an unrepresented third party - the baby. A

lso, the Court did not legisilate from the bench in Griswold to the extent they did in Roe. Abortion aside, Roe is a horrible ruling. It's just bad law. The Court had no business dividing pregancy up in trimesters and basically legislating from the bench.

In the end, the failure Roe and of the reputation of the Warren Court will be their own meddlesome hubris. Science is rapidly making the Roe decision look foolish. The Court should have stuck to the higher principles of Constitution and civil rights instead of delineating arbitrary markers for life.

I know quite a few law professors (and their students) that would argue with me there but, truth be known, most of Constitutional Law is not that nuanced. The problem is "we" try to justify activist rulings that we like (e.g. Griswold) while simultaneously trying to condemn decisions that use the exact same logic to reach conclusions we do not like (e.g. Roe).

Indeed, you assertion that Griswold did not involve an unrepresented third party is very problematic, at best. What about contraceptives that work by making the woman's uterus so that a fertilized egg cannot implant in her uterine wall?

If you believe that life begins at conception, and you define conception as when the egg and the sperm unite to create a unique genetic being, then many current contraceptives involve an "unrepresented third party." Should Griswold have made that distinction?

As a political matter, I agree with the results of Griswold even as I abhor the results of Roe. But as a constitutional matter, I am constrained to confess that both rest upon the same (unconstitutional) foundation. You cannot justify the one without justifying the other.

Your response that Con Law is not nuanced is rife with examples of nuance. A Supreme Court decision can rest upon one word, one sentence, one precedent. I too am an attorney in the heart of American jurisprudence and the devil is always in the details. Constitutional case law decisions are not essays, gut reactions, or common sense treatises. They are nuanced, exacting, precise applications of the Constitution based on thoroughly researched precedent as applied to a very unique and distinct set of facts.

In one context I agree that ConLaw is very nuanced.

My point, and I admit I could have made a better [more nuanced {grin}] argument, is that many of the frameworks of the basic constitutional questions are not nuanced. We, as in all Americans, make them "nuanced" because we like the results they bring us sometimes while we hate the results they bring us at other times. Thus, we spend so many brain cycles (and waste so much paper writing legal papers and law journal articles) trying to create differences and distinctions when there are none.

What end? If the Dems win in 2008, or if McCain wins and is unable (or unwilling) to get through good judges, then Roe will be upheld yet again, and then it would be hard to envision Roe ever being overturned.

Science is not going to make activists, leftwing judges like Ginsburg and Breyer reexamine their positions, because neither science or the Constitution has anything at all to do with their rulings on this subject or any other hot-button issue. They practice outcome-based jurisprudence. They want abortion on demand, so they construct ridiculous decisions to impose it. Its as simple as that, and that is not going to change so long as the public remains to the right of the elitist, far-left sensibilities of people like Ginsburg and Stevens.

I gave you reasons why "I" thought both were wrong. The problem is that all points seem to want to control the issue instead of letting the persons/people involved deal with it themselves. It seems to be a natural inclination for people to think they know better and want to inflict those beliefs on others. That shouldn't be allowed as far as I am concerned particularly when it comes to something as personal as reproduction. It's a basic small government thing. Is very intrusive.
I also believe if that abortion were left as the private matter
it should be it would lose it's hot button status and make it easier to move forward on other issues.
Anyway, As I had stated in the post that they were my opinions and since I also stated why I felt that way I guess I had already answered your questions in the first post.

( 1.50, -1.08)

I think Griswald v. Connecticut, 381 U.S. 479 (1965), was wrongly decided and that state and federal governments do have the right to regulate the use of contraceptives. Unless, of course, specifically forbidden by positive law (as opposed to the whims of the majority of nine lawyer wearing black robes in Washington).

Though mine is probably a politically unpopular opinion, probably even amongst conservatives, but I think it is the only legitimate textualist or originalist conclusion.

Yes, a strict originalist argument clearly leads one to conclude that a state (not federal) law can regulate the use of contaceptives.

However, I would argue it is not rational. The old Connecticut law did not have a rational basis. In fact, with the existence of STD's there is a far more rational reason for the state NOT being able to regulate the use of contraceptives then there is for the law to exist - regardless of the privacy arguments one may make on the issue.

The state obviously did have the power to regulate contraceptives, whether that reason is considered rational or not, and the SC should have ruled that way. There is no trump at all to that argument.

The SCOTUS said so. Connecticut did not have the power - plain and simple.

The supreme court could have used the rational basis test to declare the law unconstitutional, but did not.

They went much further.

They "discovered" a right to privacy not defined in the document.

Had they stuck with the rational basis argument the pandoras box of "emanating penumbras" would not have been opened.

See, this is a perfect example of how a conservative court and a liberal court can arrive at the same result for very different reasons which turn into very different progeny (Griswald yielded Roe) - whereas a holding based simply on rationality does not lead to Roe.

You are now saying the High Court said that Connecticut did not have the power to regulate the use of contraceptives, therefore Connecticut did not have the power to regulate contraceptive use because the High Court said so.

That's not an argument; that's a tautalogy.

SCOTUS was wrong - that does happen occasionally, you know. Connecticut certainly did have that power under the 10th Amendment and to argue otherwise is certainly not arguing from a textual or originalist position.

We don't worship the SC here.

Now, if you want to debate that Connecticut had a rational basis to regulate contraceptive then by all means make your argument.

I'd love that debate.

I'm not saying that technically Connecticut had a rational basis for the law. That is immaterial. I am saying that they had the power under the 10th to do so, and that as such the SC had no reason to overrule them.

Where in the world do you find a reference to a rational basis relative to state power in the Constitution?

Connecticut cannot make everyone wear red on Monday and blue on Tuesday unless it has a rational basis to do so (and clearly there is no rational basis for such a law).

And I take note or your conceding that Connecticut had no rational basis for regulating contraception.

and I won't play that game. I never said that Connecticut had a rational basis - you keep injecting that into the conversation like it means something. It does, I know, but not in this context.

I refer you back to my 10th Amendment question.

Connecticut can regulate anything it wants. It doesn't matter if it is rational, so long as it does not violate civil liberties.

And more to the point, define why your understanding of what is rational should supersede the understanding of the Connecticut polity who duly-enacted the law through their elected representatives?

And then, once you've done that, explain to me why the Supreme Court, or any court, for that matter, should accept your definition of "rational" as opposed to theirs?

Quite frankly, Werewolf of London, you do not know the difference between the function of a legislature and that of a judiciary. The argument you wish to engage in about what is "rational" is the argument of a legislature, not a judiciary. A judiciary does not (or at least, should not) sit as a "super-legislature." The question the judiciary should ask is simply, does the law in question violate a greater positive law?

Once you get in the area of the judiciary arguing what is "rational," you allow it to argue that it is "rational" not to prevent a woman from terminating her pregnancy because she wanted a child of a different sex.

And as horrid as I persnally find that, it is perfectly "rational" to many Americans.

Constitutionality is the question. And who are you to argue that the people of Connecticut did not have a "rational" reason for duly-enacting their anti-contraceptive laws?

Why should your (indeed, our, since I also think the law was uncommonly stupid) concept of "rationality" overrule their's?

Historically speaking, the real travesty of Grisworld is that the Connecticut legislature was in the process of repealing that law when the decision came down. Indeed, in Poe v. Ullman, 367 U.S. 497 (1961), just two years before Griswold the High Court ruled that no one had standng to challenge the Connecticut anti-contraceptive law because the law had been enforced.

Someone has to rule on whether a state has a rational basis for a law.

And that someone, like it or not (and I guess you don't like it) is the Supreme Court.

Someone has to rule whether the law violated a constitutional right. Determining whether a civil right has been violted requires the court to apply the ratinal basis test. The COourt just doesn't go around applying the ratinal basis test without an underlying claim of a constutional right.

And the ruling in Griswold, just like the ruling in Roe, was not.

Sorry, but you cannot justify the judicial usurpation of power in the one case (i.e. Griswold) without also granting the High Court the power to make a decision not based on the text, its original meaning or understanding, in the other (i.e. Roe).

Is for the voters to decide, not the Supreme Court. If the people of CT want to ban the sale of contraceptives, alcohol, sparklers, or whatever, they should be able to. You may not think the law is rational, but it is hardly unique in that respect. I don't think it is very rational that you can't pump your own gas in NJ. That isn't a basis for SCOTUS to throw it out. If the people of NJ want to pay more for fuel and spend more time waiting at the gas station, let them do it.

Griswald was wrongly decided by an imperialist court bent on substituting its own judgment for the law and we've been paying for that bit of creativity ever since, as bad (judge made) law has been built higher and higher on that rotten foundation.

Griswald is not a tough call.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman

Either a woman is killing a human being who has a right to live, which is a crime and deserves punishment, or she is not, and it isn't a crime. You can't say that abortion is wrong because it the the undeserved taking of a human life and then say that it should be a private matter. The taking of a human life is never a private matter, ever. That argument makes absolutely no sense. To carry it to its logical conclusion, we could never punish any crime, because ultimately God will judge.

My belief that abortion is wrong is based on my personal religious beliefs. I also believe that though I can share those beliefs I can't force them on people.
I believe that as far as pro-creation the government should stay mum. I mean this in as far as yes or no to having the baby, sex of the baby, number of babies.

I have no conflict.
Very libertarian of me I know.

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My beliefs on abortion are also partially based on Christianity, but by no means completely. If the only reason that you believe a baby's life is of value is religion, have you completely ignored scientific advancements in prenatal care? You have to make a choice at some point - is a human life intrinsically valuable or not? You are saying yes and no. That isn't a position, thats the abandonment of a position. Is the killing of a baby that has been born also a matter between the mother, her doctor, and God? Would you hesitate to push your beliefs on her at that point?

And all Prenatal care means is taking care of mother and baby before its born so I have no idea what you mean.
If you are talking about the research that seems to show that a fetus feels pain I'll concede the point. I could say some callus things about other things that feel pain also but I won't because none of that has a thing to do with what I said.
I don't and never will agree that any government has a right to dictate reproductive rights. It's wrong and sets a horrible precedent.

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