Obama Adviser--and Obama Supporters' TV Ads--Wrongly Whip Dems Into Frenzy That "Women Will Be Jailed For Having Abortions"

Cass Sunstein, the brilliant and incredibly prolific constitutional law scholar, who just left the University of Chicago for greener pastures at Harvard, has written an editorial warning us about the dangers of electing McCain and Palin, who would most certainly, we are told, pack the federal courts with extreme right-wing ideologues.

However, in his attempt to scare us about a McCain-packed Supreme Court, he engages in a certain degree of intellectual dishonesty that is, frankly, beneath a man of such intelligence and nuance.

He starts with abortion, and what might happen if Roe v. Wade were overturned as the result of McCain appointees to the Supreme Court:

We might well return to a period in which states threatened to subject pregnant women, and their doctors, with jail sentences for exercising the right to choose. Alaska Gov. Sarah Palin opposes abortion even in cases of rape and incest, and there is no doubt that many states would attempt to enact that belief into law.

First of all, in the states that prohibited abortion prior to Roe, the law rarely implicated the mother. Either the law punished only the abortionist (as was the case in the Texas law struck down in Roe) or the law was enforced (if ever) only against the abortionist. Examples of women actually being fined, much less jailed, for obtaining an abortion are few and far between. Sunstein either doesn’t know his abortion history, or knows it and is trying to shade the truth with the phrase "threatened to subject pregnant women." [emphasis mine]

Second, while it is true that "Palin opposes abortion even in cases of rape and incest," Sunstein is being nothing short of disingenous when he states that there is "no doubt that many states would attempt to enact that belief into law." With the overwhelming majority of Americans supporting abortion in cases of rape and incest, and even the solidly conservative South Dakota failing to preserve such an abortion prohibition against a state-wide referendum, I doubt that any state would attempt to prohibit abortion in such cases, much less "many states."
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In Professor Scott Gerber's article, The Court, the Constitution, and the History of Ideas, 61 Vand. L. Rev. 1067 (2008), Gerber notes that while Sunstein champions deciding moral issues by democratic processes, instead of by wide-sweeping judicial fiat, he does so only when those democratic processes yield the results he likes.
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[Sunstein's] article closes

Cass Sunstein is … an informal adviser to the Obama campaign.

No … really?

From the astute research of Nugent's Law blog's Nicholas Nugent.

What a great find, that blog. Do go peruse and learn a great deal. Adding it to the sidebar under LEGAL FOLK.

We (un)covered this canard that Democrats relentlessly scare people with, for at least the past three years. Senator Barbara Boxer whipped people into frenzies again in 2005, and we wrote to The San Francisco Chronicle about her histrionics on this and other related issues:

"[Boxer] conveniently leaves out that the fact that for abortion to be totally criminalized again, not only does Roe v. Wade have to be overturned, but also Doe v. Bolton and about 10 or so other Supreme Court decisions, plus each of 50 states has to pass laws also abolishing legal abortion," wrote Annie Banno, a contributor to the blog. "So just the overturning of Roe doesn't shatter the earth like she portends it will."
~ Potential abortion deaths in dispute as Senate girds for high court battle, The San Francisco Chronicle , Tuesday, July 19, 2005