Official Election Day “Until There’s a Winner” Liveblog

And here is the liveblog, if you are having trouble viewing email us (mail)…

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2008 Election Results (President, Senate, House)

Here are live, up-to-the-minute, results for the presidential, Senate and House elections…

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Election Day AM Liveblog

8:07: Barack Obama, Joe Biden, and even Bill Ayers have all already voted. Why haven’t you? 

8:09: Morning Joe is pretty dull today.

8:11: Voting turnout is uniformly high, it seems, from early indications. A line in Madison was over a block long.

8:14: Bill and Hillary Clinton, celebrity voters.

8:26: Interesting point on MSNBC: If Obama wins, there’ll be no African-Americans in the Senate.

8:35: Joe Scarborough just said that no Republicans in Congress really supported the Iraq war: that if Bush ever vetoed a budget, they would all turn against it. That’s certainly not what Republicans ran on in 2002 and 2004, and even 2006. It was only after that election that Rumsfeld was replaced, despite wide signs that he needed to be removed before hand. I don’t think Scarborough’s analysis holds up. Also, if someone said that about Democrats, that they didn’t support the war but just did it to get their pork passed, the uproar would be huge, justifiably. Do Republicans care more about pork than war? That’s the implication of what Scarborough is saying. Just a really disingenuous argument, in my opinion.

8:49: Problems in Virginia and elsewhere:

According to reports from OurVoteLive, some precincts in Virginia are equipped with fewer voting machines than expected, while many voters are simply reporting that voting machines are “not working.” In Reston, there have been reports of paper ballot scanners malfunctioning. A few voters in Richmond report that the electronic machines in use told the voters their votes for president had been recored when, in fact, the voters had not voted for president yet.

Get that fixed.

9:07: Morning Joe is shocked that Obama is campaigning in Indiana today. But McCain is also campaigning in a couple of states today.

9:11: Harold Ford talks about unkowns being competitive in state races. Does he regret not running against Lamar Alexander?

9:16: Early non-scientific indications are that turnout is officially insane.

9:17: Joe Scarborough thinks all election lawyers are just out to turn a buck. That’s borderline offensive, and I’m pretty shocked no one on set has nothing to say, especially with voting fraud and problems really high on the minds of both parties.

9:26: More on exit polls: Nate Silver here, Mark Blumenthal here. Ignore them. They are wrong. Wrong, wrong, wrong.

9:44: In case you were wondering, Obama’s grandmother’s vote will count. Philosophically, I think it’s a good idea to count votes by people who subsequently die. I don’t really want the government to be in the business of deciding who lives long enough to be qualified to vote. Anyone voting today could die later in the day. Hopefully not, though.

9:48: How sad is it that Dan Rather has to be a guest on MSNBC to ask Chuck Schumer a question. Also, the question is stupid, asking if the party will move to the left. The new House and Senate members are uniformly more conservative than the general Democratic caucus that exists. The locus of power will move to the left, but the Democrats will move to the right. This is not particularly controversial or hard to understand, unless you’re a discredited former news anchor, apparently.

10:03: Speechless:

But when CNN’s Wolf Blitzer talks with Candy Crowley from the Obama headquarters in Chicago on Tuesday evening, the correspondent could simultaneously appear in the New York studio—at least as a 3-D hologram. Really.

This is too much. Way, way, way too much.

10:07: Sarah palin is voting from a helicopter.

10:14: John McCain is voting, and the camera crews are going nuts. Will he vote for Obama? THat’d certainly be the maverick move.

10:45 No recent updates because there’s nothing more to update. It seems we’ve reached some sort of equilibrium where any new information will be of less and less use. So I;m going to break for a while, pick up some things, and return here later, in a new post.

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2008Central.net Presidential Election Podcast (11/02/08)

In this podcast, we discuss projections for election day and reflect on the campaigns of Barack Obama and John McCain in order to glean insight into how they would serve as president.

[Subscribe to 2008Central.net's Presidential Election Podcast]

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Obama TV Tonight: What Did You Think?

Reminder that obama’s network TV special starts at 8 eastern / 7 central. 

Put your thoughts down in the comments section. We’re going to be watching, but not liveblogging unless something extraordinary happens. 

Do you think the idea is ridiculous? a good idea? 

I’m inclined to shrug at the idea - apparently it was common in the 70s and before. But we’ll see based on the execution if it’s more over the top messianic stuff or pragmatic details and appeals.

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The Final Countdown: 8 Days Until Election Day

With 8 days left until election day, here’s a quick roundup of what’s going on…

• Obama will campaign in Canton, Ohio and Pittsburgh, Pennsylvania today.  Biden will campaign in Greeneville, North Carolina, Greensboro, North Carolina and New Port Richey, Florida today.

• McCain will campaign in Dayton, Ohio and Pottsville, Pennsylvania today.  Palin will campaign in Leesburg, Fredericksburg and Salem, Virginia today.

• Desperation continues to spread in conservative circles.  Rove recognizes the bleak situation McCain is in, but doesn’t really have any good ideas on how he could bounce back.  Hewitt’s blog has a sad post that tries to flip all the election coverage for real: “If MSM Isn’t Trustworthy, Why Are Conservatives Trusting The MSM 8 Days Out?” Because failing to recognize reality is the best way to win this election, right?  Kristol offers some advice for McCain, but not before invoking Foch.  Foch!

• Josh Lyman says that it is your “duty to get Obama elected”.  Oh celebrity endorsements.

• As the election draws near, there is a deafening silence in the liberal blogosphere on Obama’s plans for Afghanistan.  Has that ship already sailed?  Does everyone just blindly accept the need to substantially increase troops there?

• Palin and The View co-host Elizabeth Hasselback sit down with Sean Hannity for an interview scheduled to air tonight.  Hasselback? Really?  Why does the campaign insist on Palin doing this awkward joint interviews?

• Bloomberg’s Al Hunt scolds both candidates for sugar coating reality a bit.

• If Obama wins, is there a role for Axelrod in the administration?  Ben Smith explores this.

• Morning Show summary here.

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Homogenizing The Electorate: Look At The Data, Not an Imaginary Story

 

Data is the lifeblood of not only analysis, but also of conscience. The more information you have, the better informed your opinion can be, presumably. For Jennifer Donohue of the Huffington Post, facts should be disregarded in lieu of a good story, which most often insults anyone who thinks rationally about issues.

Jennifer Donahue supported Sen. Clinton in the primaries, and seems to be upset that she did not win. That’s obviously a fair opinion to have - I have close relatives who feel the same way. But she seems intent of yelling about it at odd junctures. For instance, she wrote the following one month ago,

Young voters, 18-29 years old, are registering at a higher rate than any other age group. They gave Obama the nomination, despite consistent national polling that showed Senator Clinton ahead from the start.

Now the same polling shows a dead heat, after a month of showing McCain ahead. The only way to understand current polling data is to discard it.

Young voters surely helped Obama, but Clinton did not hold leads throughout the process: the Gallup tracking poll was very much split. In the end, the accepted opinion from even inside the campaign is that the failure to contest caucus states cost Obama.

But it’s not just that. The article is about cell phone voters. There’s been some very good stuff done by Pollster and Nate Silver on cell phone voters. But 500 words about how the youth will all send a protest vote on the economy is both useless and pointless, and it seems gratuitous to drag Clinton’s defeat as a jumping off point.

Finally and most importantly, her conclusion is absurd. Disregarding poll numbers is a trap. They should not be disregarded, they should be adjusted, or considered within the margin of error. Polls are not an all or nothing affair - either being accurate or being useless. Quite the opposite. Each poll has a use, but factors including the sample size, question wording, target audience, etc. must be considered. Again, I point to Pollster and Silver, and a number of others. (Tom Jensen’s PPP blog is very informative.)

She continued the trend of marginalizing the data today:

There is still a gender split in New Hampshire. Husbands are shaking their heads, annoyed by what they feel is the hijacking of McCain’s message by the far right. But sleeping next to them are their wives, who shout Sarah and “drill, baby, drill” at the same rallies they drag their husbands to.

These women are not Democrats. They are Republicans and “Undeclared” voters. Four out of five Democrats in New Hampshire have lined up behind Obama, regardless of gender. If McCain were to win New Hampshire, much of the credit would have to go to Palin for energizing Republicans and independent voters.

She’s apparently a big fan of identity politics, which I loathe on face. Moreover, the data just isn’t there to support her strange assertions.

From the UNH poll today, which Jonathan Martin calls the best around. Here are some statistics, aside from the topline numbers showing Obama up 54-39.

Favorability ratings:

Candidate	Favorable	Unfavorable
Barack Obama	61%	29%
Joe Biden	54%	27%
John McCain	48%	42%
Sarah Palin	39%	48%

The poll also broke it down a bit demographically (download the report from the page linked above):

6. Obama and Biden get their highest favorability ratings from Democrats, young voters, those with higher levels of education and proponents of legal abortion.
7. McCain and Palin get their highest favorability ratings from Republicans, older voters, religious voters, and abortion opponents.

To hear Donahue tell it, everyone pails in comparison to the popular Palin. In reality, she’s consistently the candidate with the worst favorability ratings. All that is true is that she has excited the base. That has uses - more excitement will have more turnout. And it would be really useful in a 2004 type election that was only about the base. But that’s not this year. Women are smarter than to just side with Palin because of “drill, baby, drill.” In fact, I’m offended a bit at how Donahue portrays these women voters, who are apparently smarter than she thinks they are.

Specially regarding Obama’s favorability - since Donahue makes it the crux of her argument, here’s some breakdowns:

Demographic	Favorable	Unfavorable
Men	58%	32%
Women	64%	26%
Republicans	22%	59%
Democrats	91%	6%
Independents	65%	22%

Donahue says Palin is the powerhouse in the state. Her numbers:

Demographic	Favorable	Unfavorable
Men	44%	45%
Women	35%	51%
Republicans	77%	13%
Democrats	11%	77%
Independents	36%	43%

Barack Obama is more popular than Sarah Palin by far. Moreover, the lynchpin of her argument is that women are flattered by Palin but men are not. That is also incorrect - she’s consistently more unpopular among women than men is virtually every poll I have looked at.

What Jennifer Donahue does is not journalism. It’s homogenizing the electorate into one story that may or may not be true (in this case, it’s most certainly not true) for the sole purpose of telling a story to fit her agenda. The agenda in this case seems to be questions Obama’s appeal among independents or to promote implicitly the conception of identity politics. Unfortunately for Ms. Donahue, women in real life have not been drawn to candidates solely by identity politics, because they valued principles more. Now, when principles and idealism overlap, THEN you see the results of identity politics (I’m sure GOP women will turn out at a high rate this year, just like the African American vote).

But identity politics is not a component to swing voters. It’s a sweetner at the end.

Frankly, when I think of the GOP base, I don’t think of New Hampshire. It has gone to the GOP when the GOP seems more moderate. When it’s a base election (as in 2004) recently, it succumbs to it’s demographics and tends to be more Democrat. Point being, there’s very man reasons to think John McCain could compete there, under different circumstances. There’s very few reasons to think Sarah Palin in an asset in the state.

Why did she speak to bigger crowds? Because she appeals to the GOP base that was even to the right of McCain in the primary. That’s the reason. But you can’t get a long form essay out of that, so instead we get this hypothetical story about women being turned on like Rich Lowry by Palin. Shameless.

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VIDEO: SNL Obama Variety Show

I’d love to see Bill Clinton’s take on that song.

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Video: SNL Mocks Biden and Murtha

VIDEO: Orlando Based WFTV Interview With Joe Biden

WFTV interviewed Joe Biden and asked some odd questions at times, and this is coming from me, who thins interviews should be incredibly challenging.  But still, some parts of this interview were a bit odd…

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VIDEO: Colin Powell Endorses Obama, Discusses It With Press

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2008Central.net Presidential Election Podcast (10/15/08)

This podcast provides post-debate analysis for the final debate between Obama and McCain at Hofstra University…

[Subscribe to 2008Central.net's Presidential Election Podcast]

Feel free to email us questions/suggestions for our next podcast (you can also email an audio file of your question and we’ll include it in the podcast).

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LIVEBLOG: Third and Final Presidential Debate At Hofstra University (October 15, 2008)

[NOTE: all times are central standard time]

6:40: As usual, we will be live blogging tonight’s final presidential debate between John McCain and Barack Obama.  The debate is taking place at Hofstra University.  It is set to begin at 9PM (eastern time).  It will be moderated by CBS’ Bob Schieffer.  The focus will be on domestic and economic issues.  As usual, we’ll be doing a post-debate podcast.  If you’re interested, take a moment to subscribe to our podcast.

7:23: If you’re looking to watch the debate video online, you can check out C-SPAN’s debate hub.  Just shield your ears from the agonizing call in show that precedes these debates.

7:33: The Executive Director of the Commission on Presidential Debates is talking about the significance of the debates both nationally and internationally.  In discussing the international perception and role of our debates, she said:

In all cases, they see our debates as integral to the democratic process.  And they believe that it’s remarkable that the American public thinks they have the right to expect the candidates for high office will stand in a neutral setting and talk to each other freely about important issues and ideas.

All I can say in response to this is: no.  “Talk to each other freely”?  Hardly.  These debates are incredibly scripted and controlled, with virtually every detail negotiated and agreed to by the campaigns in advance.  I’m not trying to bash the debates, but, let’s at least be honest with ourselves.  Like past debates, tonight’s debate is hardly a “debate.”

7:50: Look, we’re not only a nation of red states and blue states.  We’re also a nation of bright red outfits and bright blue outfits.  Michelle Obama is wearing blue, Cindy McCain is wearing red.  Sigh.  I wouldn’t note this, except, even these kinds of decisions are influenced or controlled by campaigns.  This is our politics.

7:55: Hillary is in the house.  She’s sitting pretty far back from the stage.

8:00: And, it begins…

8:02: First question: Why is your economic plan better than your opponent’s?

8:04: McCain says that primary cause of the economic problem is the housing crisis.  And, he notes his plan to use $300 billion to directly assist with the failing mortgages.  Obama notes the need to address multiple factors.  Neither had nothing new to say here.

8:08: McCain follow-up question: He asks Obama about his recent exchange with “Joe the plumber” and notes that Joe was concerned that Obama’s tax plan would hurt him.  Obama responds that Joe was mistaken, and that his plan would cut taxes for a significant portion of Americans.

8:10: McCain doesn’t understand why Obama wants to raise taxes at all, even if it’s on the richest Americans.  He chides Obama for wanting to spread the wealth.

8:12: Obama mentions Buffet again.

8:14: Question 2: How would you cut spending? (ugh, how many times are they going to ask this question)

8:15: Obama talks about the need to change our culture a bit, and the need for people and corporations to become more responsible.  Obviously, he doesn’t want to answer this question with any specificity.

8:16: What would McCain Cut? He argues that we need to become energy independent by building nuclear power.  Unfortunately for McCain, even if we started building power plants the day he took office, it would not have an effect on power for too many years to actually satisfy the short term need he talked about.  He goes on to talk about an across the board spending freeze.  The one specific example he offered was ethanol subsidies.  That’s not going to go over well in the heartland, even though our ethanol program does need to be reworked totally.  It can’t just be a cut in ethanol subsidies though, there would need to be additional reforms to make up for the losses those farmers would suffer.  Dah well…

8:20: McCain says that he is not President Bush.  Then talks about his fight for reform, ethic and fiscal responsibility.  He then challenges Obama to give examples when he has stood against his own party.

8:22: Obama says that he supports tort reform, charter schools and clean coal.  Each of which, he argues alienate an element of the base.  Pander Alert! The clean coal thing was just added in there to help support

8:24: Question 3: Are you willing to say face-to-face what your campaigns have said about your opponent?

8:25: McCain hits Obama on not accepting his offer to participate in town halls, which he considers to be one of the causes of the current tenor of the campaign.  He also criticized Obama for changing his position on campaign finance.

8:27: Obama says that people expect presidential campaigns to be tough. And adds that 100% of McCain’s ads have been negative.  He also pointed to some negative 527 group ads that are being run against him.  I don’t think Obama needed to bring up the 527s, especially since, this line of argumentation would reflect poorly on him as well given some of the really harsh 527s that are being run against McCain about his age and health.

8:30: McCain criticizes Obama for not criticizing Rep. Lewis.

8:31: Obama retorts by noting that his campaign did criticize Lewis’ statement.  He adds that Palin saying he pals around with terrorists, and the lack of response to some of the strong words from supporters, like “kill him,” that have come out at rallies have not been productive.

8:34: McCain’s response is beyond bizarre.  He says he isn’t going to let Obama criticize the people at his rallies that wear “women for mccain” t-shirts or the men that wear VFW hats.  This is total nonsense.  There is definitley a better response to this and I have no idea why McCain didn’t offer it.

8:36: ACORN and Ayers are discussed.

8:39: McCain continues to try and portray Obama’s relationship with Ayers and ACORN as substantial.  If this is the argument that McCain wants to make, again, the campaign needed to figure out a better way to articulate this message.  However, they didn’t.  It’s inconsistent and somewhat confusing.

8:40: Question 4: Why would the country be better off if your runningmate became president?

8:41: Obama notes Biden’s foreign policy experience and offers some legislative accomplishments he has made.

8:42: McCain says that Americans have gotten to know Sarah Palin. Calls her a reformer and a role model for women.  He cites her experience within the Alaskan energy sector.  McCain also talks about Sarah Palin’s work on behalf of special needs education, like autism.

8:44: Obama circles back to point out that across the board spending, which McCain said he would do in the beginning of the debate, would prevent the advancement of special needs programs.

8:45: McCain criticizes Biden for voting against first gulf war.  Calls his recent partioning plan in Iraq cockamammy.  McCain responds by wondering why Obama is always talking about more spending.  In other words, he wonders why research and development can’t be free.

8:46: How much can U.S. reduce dependence on Foreign Oil?

8:46: McCain says that it would take about 45 nuclear power plants and he gave a target number of 7 years or so before significant gains would be made.

8:48: Obama says that energy independence can happen within 10 years.  He notes that domestic oil will not satisfy our demands.  He talks about a few examples of alternative energy.  One of the things he talked about, which will resonate well in key states like Michigan, is the need to manufacture a fuel efficient car in the U.S.

8:51: McCain criticizes some of Obama’s initiatives as underming of free trade.  He specifically notes that Obama didn’t support the Columbian Free Trade Agreement.

8:53: Obama gives a reason for not supporting the Columbian Free Trade Agreement.  It has to do with human rights abuses.

8:55: McCain responds by saying that Obama doesn’t support the Columbian free trade agreement because of human rights concerns, but is willing to negotiate with Hugo Chavez.  He concludes by saying that Obama is like an isolationist and will raise taxes, then compares Obama to Hubert Humphrey.  The two aren’t exactly the same, it’d be nice if McCain provided a reasoned argument or a syllogism at some point in this debate.

8:56: Question: Do you favor controlling health care costs over expanding coverage?  If I liveblogged this, it would actually be unfair to John McCain.   Obama is simply outclassing McCain on this subject.  He is communicating his plan in more understandable terms than McCain’s.  That’s not to say that Obama’s plan is better, I am not endorsing one plan over another.  But, in terms of performance, McCain’s performance on this subject tonight was simply bad.  Obama’s wasn’t flawless, but at least you could understand his argument, even if you disagree.

9:06: Could you nominate a Supreme Court justice who differs with your view on Roe v. Wade?  McCain wouldn’t apply an litmus test and will appoint strict constructionists.  Obama says he understands that abortion is a difficult subject, says that he supports Roe v. Wade and believes that is important.  He gives an example of the equal pay, for equal work case that just came up.  Too much to get into here, but listen to our podcast for a discussion of it.  This was a very interesting exchange.

9:15: Does poor performance in school pose a threat to national security?

9:16: Obama notes that there is a national security element to education. Says the debate is between more money or reform.  Obama says we need both. Talks about his reforms in primary schools, recruitment of new teachers, recruiting of math and science teachers, etc.  He closes on the need for parents to play a larger role in the education of their children.

9:19: McCain says that education is a civil rights issue.  Adds that there needs to be competition in schools.  Is this a subtle argument for vouchers?  Also, says that charter schools are a good step. Alright…

9:20: Should federal government play a larger role in education?

9:21: Short answers: Obama, yes.  McCain, I really can’t tell based on his response.

9:22: Obama says that he also supports charter schools, but does not support vouchers.  McCain points to the voucher program in DC and argues for vouchers more generally.

9:25: As a debater, I didnt flow rebuttals.  Accordingly, I will not be blogging the closing remarks.

9:28: First thoughts?  Obama was on point, McCain was all over the map. This is not a partisan perspective, it’s not based on the policies that they advocated.  Rather, it is based on the how effective the candidates argued their opinions.

As an aside, this is not the best live blog that I’ve done.  The format was not conducive to a live blog.  We’re going to be posting a podcast shortly with full analysis, so subscribe to our podcast if you’re interested…

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VIDEO: PBS Frontline - The Choice 2008: Barack Obama or John McCain

PBS Frontline recently aired a great documentary on this year’s choice between the two major party nominees - Barack Obama and John McCain. It’s an incredibly informative piece and includes some pretty good anecdotes. In my opinion, it’s a must watch.

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2008Central.net Presidential Election Podcast (10/12/08)

In this podcast we offer a preview of the third and final presidential debate between Obama and Mccain as well as an overview of the state of the campaign. We also discuss our most recent election projection and the polling trends during the last week. Additionally, we criticize both campaigns on their respective weaknesses and offer some unsolicited advice for improvement. And much more…

[Subscribe to 2008Central.net's Presidential Election Podcast]

Feel free to email us questions/suggestions for our next podcast (you can also email an audio file of your question and we’ll include it in the podcast).

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Hear, hear: Dial Groups Are Reckless

Mike Murphy writes:

I was doing some cable TV duty last night and had the bad luck to follow a segment about a focus group of voters being dial tested during the debate. Dial groups are bad enough, but actually putting this madness on television as a verdict of some kind is reckless.

Now, I’m no fool.  Given McCain’s poor performance, I recognize that Murphy has an interest in challenging the accuracy of dial groups.  However, just because he’s an interested party, it doesn’t mean his comments are any less true.

Dial groups are badness for a couple reasons…

• First, they aren’t really reliable.  The sample groups are too small.  Further, by having such immediate responses like dial groups, it’s worth considering what they are actually responding to.  It’s certainly not the idea or argument.  Dial groups encourage people to ignore the forest from the trees.  Instead of processing an entire response to a question, they dial in on words and phrases.  Something about that just seems superficial and anti-intellectual.
• Second, dial groups distort viewers responses to the debate.  Dial groups either separate people by poliitcal affiliation or gender.  Accordingly, viewers watching the debate who may have a reaction to a response that is counter to the dial group may think twice, or be less likely to hold a counter opinion in the first place.
• Third, they’re just annoying.  It’s annoying to watch lines go across the screen.  It’s also annoying to hear some of the insane things people in the dial groups say after the debate.

Indeed, the ultimate effect of dial groups is to tell you or assist you in formulating an opinion about the content that you are watching.  News agencies are to report facts and occasionally offer commentary.  They aren’t supposed to work this aggressively to shape your opinion.  Thus, Murphy is right - they’re reckless.

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2008Central.net Presidential Election Podcast (10/07/08)

This podcast provides analysis of the second presidential debate between Obama and McCain, which was held at Belmont University in Tennessee.

[Subscribe to 2008Central.net's Presidential Election Podcast]

Feel free to email us questions/suggestions for our next podcast (you can also email an audio file of your question and we’ll include it in the podcast).

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Abortion: Enough on Roe; Let’s Talk About Casey

A Google Blogs search (arbitrary, I know) turns up 62,919 results for Roe v. Wade. It turns up only 399 for Planned Parenthood v. Casey. That’s about 158 Roes for every Casey.

A regular Google search is similar. There are 2,570,000 results for Roe v. Wade. There are about 67,700 for Planned Parenthood v. Casey. That’s about 38 Roes for every Casey. Better, but still not good.

Why? For all the talk about about overturning Roe v. Wade, it’s not even good law anymore. It has some stare decisis value, but that’s about it. (Precedence, for you non-Latinites.) Planned Parenthood v. Casey is the law. It also has the advantage of being better written and better reasoned.

Casey isn’t referred to for a simple reason: It’s too moderate for both extremes.It’s a slightly complicated case, but here is a brief description:

[T]he Court (5-4) upheld a 24-hour waiting period, an informed consent requirement, a parental consent provision for minors and a recordkeeping requirement, while striking down the spousal notice requirement of a Pennsylvania statute. Invoking stare decisis, the political need for judicial credibility and a consistent Constitutional vision, the Court’s middle wing (O’Connor, Kennedy and Souter), while retaining the “central holding” of Roe v. Wade, overturned its trimester framework and its “strict scrutiny” standard of review, in favor of a new “undue burden” standard, proposed by Justice O’Connor, and a floating viability line where the state’s interest in fetal life becomes “compelling.” Blackmun and Stevens both dissented in part, favoring upholding more of Roe. Chief Justice Rehnquist, with Justices White, Scalia and Thomas, dissented, arguing that Roe had no Constitutional basis and ought to be overturned and that the “rational basis” standard should be applied to uphold the statute. The dissenter’s reasoned that if Roe was wrongly decided, there is no way to justify upholding it. Scalia also authored a dissenting opinion in which Rehnquist, White, and Thomas joined. Crucial to the survival of Roe in this case was O’Connor and Kennedy’s decision to retreat from their prior holdings that the state’s interest in protecting non-viable fetal life was “compelling.” O’Connor’s “undue burden” standard is a pragmatic compromise, allowing limited (and politically popular) state regulation of abortion, yet effectively preserving the general access to abortion that was the goal of Roe.

The Constitutional standard as interpreted right now, in short, looks at whether there is an undue burden imposed by a law, and looks at the viability of the fetus as a sign of a compelling state interest. The result of this, as stated, is a medium of regulated abortion, with reasonable restrictions available as is the case in most of Europe.

The opinion spends a lot of thought an energy on this topic and is worth reading if you care about this issue. As is the case with most O’Connor opinions, it is also very well written.

A law student commented on Casey:

The Court in the opinion delivered by O’Connor, while vehemently affirming Roe, upheld most of the statute. In my opinion it is an affirmation only in words. Justice O’Connor says the three essential parts of Roe are upheld: a right of a woman to choose an abortion before viability without undue interference by the State; a confirmation of the State’s power to restrict abortion after viability; and third recognition that the State has a legitimate interest in the health of the mother and the life of the fetus at the outset of the pregnancy.
This undercuts Roe. Here we get our first glimpse of undue interference or undue burden. Casey drops the standard of review from strict scrutiny to an undue burden test. In other words, if a requirement is too much of an obstacle to abortion then it is unconstitutional. The only provision considered an undue burden was the spousal consent requirement. Parental consent and the 24 hour waiting period were upheld along with the dissemination of information about other options.
Justice O’Connor affirmed the State’s power to restrict abortion after viability. Roe was very rigid in a trimester scheme with only a slight mention of viability. This scheme was rejected by the Court, but they did not define viability. Without guidance, the States are left to their own definition. Although anything less than twelve weeks might not hold up, the definition of viability could vary widely in each State.
The third essential part of Roe affirmed by the Casey Court, was not really a part of Roe at all. Roe rejected the State’s interest during the first trimester. In Roe, the mother’s interest in her liberty and choice outweighed any state interest in the life of the fetus. In Casey, the State’s regulatory power over abortions can begin at conception, and do not have to wait until the second trimester.
Casey, while affirming the tenets of Roe, actually weakened it. It now allows for more State regulation during the entire pregnancy and lowers the standard of review for other abortion statutes. The lower the standard the more deference is given to the legislature enacting the statute.

Now, to get to my last point: When you hear liberals defending Roe as the middle ground or conservatives looking at the poll numbers of support of Roe or especially when talking about how Roe is badly written or what not, realize that it’s not even the legal standard anymore. It’d be nice if some politicians realized that the great moderate standard of abortion law that the public has been clamoring for already exists.

And if you want fewer abortions? Change people’s minds. That will take care of the law in good time. If an overwhelming amount of people believe all abortion is murder, the law will change. The Supreme Court will not do the work for you.

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