The argument to preserve Roe v. Wade inspite of its ineptitude.

The United States Supreme Court held oral arguments on an abortion case on December 1, with the discussion focused on Roe v. Wade.  

Perhaps the most interesting comment came from my least favorite Justice, Justice Sotomayor, who made the comment, in the form of a question

Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?

In fairness to the Justice, the full quote is:

Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.  Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?

Stench, however, is the right word.

And that stench was created by the whopper that the court deposited in 1973 when it flopped down a real stinker of an inept decision in the form of Roe v. Wade.  She even got the source of the fifty-year-old stinker right, sort of.  Roe v. Wade was an extrajudicial act, so it was basically a political act.  Removing the stench and getting it out into the pet walking receptical would require overruling Roe.

To read Roe is a shock. Very few people do, of course, and by this point very few people are really interested in doing it. But the decision is shockingly thin on any kind of reasoning. It makes very little legal sense and next to no scientific sense.

Indeed, it was later learned that the part which is most often noted, the fetal viability portion of the case, was "dicta", i.e., the author really didn't even regard it as important, which shows how badly drafted the entire thing was.

From here, it's easiest to link in some of the quotes and commentary found at one of the Blawgs that's linked in below.

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

So, in essence, Justice Blackman admitted that the entire trimester viability thing was just dicta, science has since shown it to be lacking any scientific viability, and frankly the entire Constitutionally protected right to privacy it found in the "penumbra" is just made up.

This is frankly widely known by anyone whose read the opinion and is pretty much the view in the law.  Nobody really takes the text of Roe seriously.  The question is whether the Supreme Court has the right to create new rights that don't exist, or whether it's restricted to the Constitution.

Liberals who are arguing for Roe don't argue that its text makes sense. Rather, their real argument is that if the Supreme Court should strike it down, then the people, through their state legislatures, will restrict or outlaw abortion.  I.e, democracy on the issue will break out, and liberals don't really trust voters.  

Opponents of Roe argue that it's an immoral decision as it licenses killing based on nothing more than the calendar.  Some abortion proponents are getting frank about admitting that's in fact the case.  They don't tend to argue what liberals fear, however, which is let the people decide the issue.

But I'll state it.

You can't intellectually get to argue that the people should decide some big issues but not others on the basis that nine people in Washington D. C. have an opinion about it.  Like in other areas, you are either for democracy, or you aren't.