That wasn’t her intent, of course–Greenhouse was famously rebuked by her editors at the New York Times for marching in an abortion rights rally in 1989 in D.C.–but consider her recent blog post:
Earlier this month, the American Bar Association traveled north to Toronto for its annual meeting. Doing some homework for a panel I was to moderate, I came upon Section 1 of the Canadian Charter of Rights and Freedoms, added in 1982 to the country’s mid-19th century constitution. Section 1, the “limitation clause,” makes the Charter’s many guarantees subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A Canadian judge assured me that this requirement of “proportionality,” as various European constitutions with a similar principle refer to it, is invoked constantly and forms the basis for Canadian constitutional interpretation.
Proportionality strikes me as worth considering in preference to the arid absolutism that seems to have taken hold of the United States Supreme Court.
Greenhouse is alluding primarily to the Court’s recent First Amendment cases, but surely Roe v. Wade is the most absolutist case the Supreme Court has ever issued, on a variety of levels–it invalidated the abortion laws of all fifty states; created a regime that permitted virtually no regulation of abortion for the next eighteen years, giving the U.S. the most liberal abortion laws in the world; was significantly out of line with public opinion; gratuitously went well beyond what the Court needed to say to rule in favor of Jane Roe; and invented a right to abortion that’s awfully hard to justify based on either the Constitution’s text or American tradition.
So if the principle of “proportionality” should apply to freedom of speech, an explicit and enumerated right, surely the same principle should apply to allow “reasonable” limits on the unenumerated right to abortion. And surely the USSC should interpret reasonableness in the abortion context with the same leniency that the enlightened Canadian Supreme Court has applied to freedom of speech. Right Ms. Greenhouse? Ms. Greenhouse?
UPDATE: Of course, I’m aware that Casey limited Roe to some degree, and that Carhart v. Gonzalez allowed further regulation of abortion, importantly by not allowing the “health of the mother” exception to trump otherwise acceptable regulations on partial birth abortions (in practice, this exception would swallow the rule). This is why I wrote “for the next eighteen years,” i.e., between Roe and Casey. But in 1989, Greenhouse was marching in favor of Roe, and of course even in Casey the Court’s liberal wing continued to defend Roe. If someone can provide me with some evidence that Greenhouse nevertheless in fact thinks Roe went too far and is comfortable with significant limits on abortion rights [this “news analysis” from 2007, this Q & A from 2008, and this very recent defense of Roe against liberal “backlash” critics, are evidence to the contrary], I’ll be happy to recant. Otherwise, the point–not that the Court is currently “absolutist” on abortion [or, as a couple of commenters who obviously didn’t read the Canadian link, bizzarely conclude, that I actually support both speech restrictions and abortion restrictions], but that Greenhouse consternation over “absolutism” is really just a reflection of her own political beliefs–stands.