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January 27, 1983 - Image 4

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Publication:
The Michigan Daily, 1983-01-27

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4

OPINION

Page 4 Thursday, January 27, 1982 The Michigan Daily

A better argument for Roe v.

Wade

i

Ten years ago last week the
Supreme Court, speaking through
Justice Harry Blackmun, legalized
abortion in the highly controversial
case of Roe v. Wade. The abortion
debate was a hot topic of discussion
before Roe, and has been even hot-
ter since. Daily staff writer David
Spak interviewed University Law
Prof. Donald Regan this week
about the Court's decision and sub-
sequent rulings in related cases.
Prof. Regan is an expert on con-
stitutional law and has testified in
Congress on the abortion issue.
Dialogue
Daily: Should the Supreme Court
have decided Roe v. Wade and the
question of abortion, or should that
have been left up to the state
legislatures?
Regan: It seems to me clearly up to
the Court to decide the case. Obviously,
one possible result was to hold that it
was a matter for the state legislatures
to decide. I happen to think they had the
right to decide it. I don't think the
opinion was particularly good, but I
think they got the right result.

Daily: If you were to rewrite the
decision, how would you go about
strengthening the arguments?
Regan: I'd change it entirely. I will
give you a brief sketch of an argument,
but I will say at the same time that the
argument tends to be extremely un-
persuasive when stated as a brief sket-
ch.
The basic problem with the Court's
opinion is that they don't deal
adequately with the question of whether
the fetus is a person. A great deal of the
controversy is over that issue. The
Supreme Court sort of waffles about
that.
As I said, Blackmun waffles. In some
places he says, "Well, we aren't going to
decide to issue of whether the fetus is a
person because it's too controversial."
Other places he effectively says the
state of Texas cannot treat a fetus as a
person. It is essential to his argument to
do that. And the Constitution does not
say Texas can't treat the fetus as a per-
son. Obviously, his argument won't do.
What we need is an argument that
gets to the same conclusion without
depending on any argument about
whether the fetus is a person. Now the
sketch of the argument is this:
It is a premise deeply entrenched in
American law, and in the common law
tradition more generally, that people
are not required to volunteer aid to
other people. There are lots and lots of
exceptions to that principle, but that is
nonetheless a deeply entrenched basic
principle. So, point number one is to
argue that for a woman to continue her

pregnancy, that is to say not to have an
abortion, is in effect to volunteer aid to
the fetus. You may not find that
plausible but that is the first premise of
the argument.
The second premise is that, although
there are many cases in which we
require people to give aid to others, the
case of the woman carrying a fetus is
distinguishable in a substantial variety
of ways from each of these other cases.
None of the standard arguments for
requiring people to volunteers aid in
other situations are really terribly per-
suasive as applied to the woman.
Having said all of those things, it
seems to me that there is essentially an
equal protection argument against anti-
abortion laws. In other words, an equal
protection argument in favor of the
position that the woman has to be
allowed to have an abortion because to
compel her to carry the fetus to term is
to compel her to give aid in circum-
stances which are quite unlike ordinary
circumstances, even though they are
very various, in which we compel other
people to give aid. And it is also to com-
pel her to give aid of a kind that we
never think of in other circumstances.
It is true that there are many circum-
stances in which we compel other
people to give aid. But that covers up
the important facts of what we actually
require them to do. And what we
require them to do is in almost every
case essentially trivial.
Daily: Has the Court been trying to
contract the ruling in Roe v. Wade in

subsequent decisions, most notably in
Harris v. McRae, which upheld the
Hyde amendment?
Regan: I don't think so. Roe v. Wade
deals with the fundamental question of
whether a state can genuinely forbid an
abortion. It always happens that as
soon as the Court decides an issue like
that, large numbers of subsidiary
questions arise that wouldn't arise
otherwise.
There is a fundamental difference
between the question whether the state
can forbid an abortion and whether the
state has to be willing to fund abortion.
I don't think there was any substantial
argument that the states have to fund
"ordinary" abortions just because they
can't forbid them.
Daily: There are several cases
coming through the courts now dealing
with some of those subsidiary questions
specifically and abortion generally.
With what generally is a more conser-
vative Supreme Court, is there a chan-
ce that Roe will be overturned in the
near future?
Regan: I don't think there is any
chance that Roe v. Wade will be over-
turned. I could be wrong, but I don't
think there's any significant chance of
that.
There is a chance that the Court will
make decisions in some of these cases
that proponents of Roe v. Wade don't
like and that proponents will claim are
nibbling away at Roe in the same way
they made that claim in Harris v.
McRae. These new cases present

4

4

Doaily Photo by JUN SNOW
Regan: I don't think there is any chance that Roe v. Wade will beJovertur-
ned. I could be wrong, but I don't think there's any significant chance of that.

genuinely complicated new issues.
Some of the most interesting issues in
these new cases aren't even essentially
issues about abortion at all.
All these cases are complicated on
their own bottoms and whatever the
Court does I don't think that it will
signal necessarily any tendency to
overturn Roe.
Daily: Justice Blackmun said he felt
the ruling in Roe would go down as
either .one of the Supreme Court's

biggest mistakes or one of it's greatest
triumphs. Using that basis, how would
you rate the decision?
Regan: Well, I wouldn't accept his
terms. I think he is giving in to the un-
derstandable tendency to over-
dramatize. It was obviously a very im-
portant decision. I think it was rightly
decided.
Dialogue is a weekly feature of
the Opinion page.

d

Edited and managed by students at The University of Michigan

Stewart

Vol. XCIII, No. 96

420 Maynard St.
Ann Arbor, MI 48109

BEFORE,
WE WOULD IOUND YOU
ENDLESSLY FOR DoNATIONS-
BUT WE WANT TO CHANGE
OUR WAYS.,.,

TO MORE OF AN

Editorials represent a majority opinion of the Daily's Editorial Board
Two empty petition drives

IyU S,-y

THE PUBLIC Interest Research
Group in Michigan is at it again.
This time, though, they have some
organized opposition.
As it did two years ago, PIRGIM is
trying to convince the Regents to
change PIRGIM's already advan-
tageous funding system. PIRGIM wan-
ts the University to add a $2 charge on
each student's tuition bill - a charge
the student can refuse to pay.
PIRGIM is now on campus collecting
signatures on petitions that support the
new plan. But the Student Committee
for Reform and Progress has also
collected signatures on petitions. Their
petitions call upon the Regents to not
allow any non-University group to
have donation slips attached to Student
Verification Forms, as PIRGIM has
now.
Each group wants to show that it has
a mandate from students because it
has gathered thousands of signatures
on a petition. But each petition drive
shows the other does not have a man-
date from students.
The Regents should realize that

neither group has the support it
claims. Many students will sign just
about anything without taking a close
look at it so they can hurry along to the
next class. No doubt many students
have signed both petitions.
Neither of these self-styled "man-
dates" deserves consideration.
Despite its faults - and the refusable/
refundable idea is one of them -
PIRGIM deserves the special treat-
ment of being on the SVF. It maintains
excellent programs, works for ad-
mirable causes, and has a wide
following in the student body.
But PIRGIM's success does not en-
title it to impose the refusable/refun-
dable plan on students. PIRGIM's new
plan, by its very nature, would place
an unfair burden on the students
PIRGIM is supposed to be helping.
As it stands now, students who wish
to support PIRGIM may elect to do so
with minimal effort. Students who
don't want to don't have to do anything.
The current system is the most
equitable for both PIRGIM and studen-
ts.

PIRGIM

I

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4

LETTERS TO THE DAILY:

Getting sick of Krell and donuts

IAI

To the Daily:
C. E. Krell - (enter: anger,
amusement, apathy). Controver-
sy reigns about this young writer
for the Daily. Princelike con-
troversy over the fundamental
question: Does Krell cut the
cheese? (or, rather, can the
technique of Monet be applied to
journalism?).
Granted, normalcy is dull and
ubiquitous. But "pompous prin-
tings and generic column filler"
must point to a predetermined
concept. Take that Bow Wow
stuff. I'd like a bunch of puppy-

dog Annabellas to come and lick
me all over too, but does that con-
stitute the basis for a musical
preview? And yet in a rag people
pay for?
Actually, I figured out the pen-
driving motivation that lurks in
the strange and evil mind of
Krell: "What can you say about
music that isn't Martha-oh-gee-
wow-neat-Quinn MTV mish-
mash?"
Notice one basic question un-
derlies nearly every Krell hate-
letter: Is he on drugs? I take this
a step further: What drug?

Please tell us, Mr. Krell. Then we
can all take it and read your stuff
and find Krellmeaning. Or the
lack of.
I used to like Krellprint, like
big glazed donuts. But notice that
if you eat too many, they get icky

and you want a new flavor.
Conclusion and point of letter:
God, this letter is beginning to
sound stupid (but it sure was
whirlyfunsville to write).
-Fred Smith
January 20

Praising Folk Fest review

A funny cartoon, but.

0 0

To the Daily:
I thoroughly enjoyed the Brad-
burn and Gamson review of the
6th Annual Ann Arbor Folk
Festival ("Folk Festival: Good
vibrations and music flow," Jan.
18). Tuesday morning while
drinking coffee I relived the
"energetic tone" of Saturday
evening.

One minor detail overlooked by
the reviewers however, was that
the purpose of the festival was to
benefit the Ark - Ann Arbor's
center for folk music. I'm glad to
see attention given on the Arts
page to a broad arena of musical
currents.
-Hildie Lipson
January 20

To the Daily:
Despite our long period of un-
certainty during the review
process, many of us in the School
of Education retain enough sense
of humor to appreciate the
creativity demonstrated in the

through study in all colleges of
the University of Michigan have
been women.
In addition, the cartoon's effec-
tiveness might have been enhan-
ced had the female School of
Education held a dark-skinned

Uncionnrl vrlitnri171r 7nmozir;"a n tl n I ft t, ;,4,-, -,f

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