• Michael
    11.1k
    It stands to reason that if the fetus is a person, it cannot be deprived of liberty either.Hanover

    By the State. But like with the First Amendment it might not apply to non-Government institutions. Whereas the Ninth and Fourteenth Amendment might imply that a woman has the right to an abortion.

    So perhaps it is unconstitutional for a State to outlaw abortion and for a State to provide/fund abortion services, meaning it must be left to individuals and private health care providers.
  • Benkei
    5.7k
    The point about the article is quite clearly that a literal interpretation doesn't exist and any reading of it needs to be backed up with additional interpretative techniques. Especially a law that is quite clearly silent on the case both in language as in its historical context of its lawgivers requires more. The intent of the lawgivers becomes meaningless but the teleology of a constitution, which we hope is a living document rather than ancient letters, and a systematic interpretation of all laws could support a decent interpretation. The US has ratified the Convention on the Elimination of all forms of Discrimination Against Women, which would've made an excellent basis for broadening the scope and context for intepretation of the constitution but instead it looks at... checks notes... 1866 when the 14th Amendment was passed instead of 1980. This is again wilful stupidity at best but as we all know what it really is: conservative mendacity and bad legal reasoning.
  • Hanover
    8.5k
    The point about the article is quite clearly that a literal interpretation doesn't exist and any reading of it needs to be backed up with additional interpretative techniques.Benkei

    It's sort of funny that we're debating how the article ought be interpreted, with you thinking it should be more broadly interpreted and me more narrowly.

    The US has ratified the Convention on the Elimination of all forms of Discrimination Against Women, which would've made an excellent basis for broadening the scope and context for intepretation of the constitution but instead it looks at... checks notes... 1866 when the 14th Amendment was passed instead of 1980. This is again wilful stupidity at best but as we all know what it really is: conservative mendacity and bad legal reasoning.Benkei

    Americans generally don't care about documents outside their specific tradition, but you know that. At any rate, it wasn't like the liberal wing argued from the Convention. They too stayed within the generally defined lanes of what was considered persuasive authority in the US.

    The key to this whole matter, from my perspective, is when fetuses are people deserving of rights, which has less to do with women's rights than fetal rights, which, alas, has never been addressed by the courts.
  • Benkei
    5.7k
    Why is a ratified treaty outside of your tradition? That requires representatives of the people to agree to it. Seems rather relevant...

    Anyway, I'm not arguing this specific case, just pointing out literal interpretations don't exist and that literal and originalist interpretation are not suitable. These are aberrations resulting from tradition but have little to do with logical rigour and even less with justice and fairness.
  • Hanover
    8.5k
    By the State. But like with the First Amendment it might not apply to non-Government institutions. Whereas the Ninth and Fourteenth Amendment might imply that a woman has the right to an abortion.

    So perhaps it is unconstitutional for a State to outlaw abortion and for a State to provide/fund abortion services, meaning it must be left to individuals and private health care providers.
    Michael

    The 14th Amendment specifically states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    That indicates that if a "person" is within the jurisdiction of a state, that state cannot deny him equal protection under the laws. If a fetus is a "person," then that person would be afforded the same rights as any other person, meaning if it's illegal to kill you, it's illegal to kill that fetus. That Amendment, especially in light of when and why it was passed, cannot be read to mean anything other than every person must be equally protected under the law.

    The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    Note that this specifically applies to Congress (although later extended to the individual states, through the 14th Amendment ) making laws from prohibiting speech. It's for that reason it's limited to what the government can do but not what private companies could do.

    Again, all this goes to original intent when contextualized to time and place. The First Amendment wanted to protect against a tyrannical centralized government (which is why it was not originally extended to the individual states) as had been rebelled against in the recent war.

    The 14th Amendment was providing additional protections to the slaves freed under the 13th Amendment.

    And apparently it was ensuring the right to abort a fetus in the 1st and 2nd trimesters from 1973 to 2022.
  • Hanover
    8.5k
    Why is a ratified treaty outside of your tradition? That requires representatives of the people to agree to it. Seems rather relevant...Benkei

    Your criticism isn't aimed at the right, but at the left as well because no one used this as an argument.

    Anyway, I'm not arguing this specific case, just pointing out literal interpretations don't exist and that literal and originalist interpretation are not suitable. These are aberrations resulting from tradition but have little to do with logical rigour and even less with justice and fairness.Benkei

    This has nothing to do with logical rigor. Intellectual honesty requires you reach the opposite conclusion you have.

    I could easily lay out what progressive morality demands in terms of abortion rights, gay marriage rights, transsexual rights, and those rights highly valued by all secular humanists. I think we could find general agreement in what they are.

    Step two is the part that's a bit disingenuous. It's the part where we start finding every one of those rules in the Constitution, as if the framers had the foresight to have written such an expansive and malleable document capable of foretelling good from evil. What makes step two particularly problematic is that those who subscribe to a whole different set of morality, who don't see any wisdom in the progressive morality we laid out, are able to find the Constitution entirely silent to what we think is obviously there.

    So then this comes down not to constitutional interpretational schemes as much as public policy. The power of the Court is used like any political institution, which is to lend its power to those capable of securing it. That's what seems like is going on to me. Let's just admit that the reason we see abortion in the 14th Amendment is because that's the only way we can protect it because we're not going to get that protection from many of the legislatures.
  • Michael
    11.1k
    The 14th Amendment specifically states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    That indicates that if a "person" is within the jurisdiction of a state, that state cannot deny him equal protection under the laws. If a fetus is a "person," then that person would be afforded the same rights as any other person, meaning if it's illegal to kill you, it's illegal to kill that fetus. That Amendment, especially in light of when and why it was passed, cannot be read to mean anything other than every person must be equally protected under the law.
    Hanover

    Yes, so as I have been saying, it is up to the Supreme Court to decide what counts as a person as the Constitution doesn't spell it out.

    And apparently it was ensuring the right to abort a fetus in the 1st and 2nd trimesters from 1973 to 2022.Hanover

    It protects against laws that would limit liberty and privacy and unenumerated rights. It is up to the Supreme Court to decide what counts as a "liberty", what matters are "private". and what those unenumerated rights are, as the Constitution doesn't spell it out. In Roe and Casey they decided that medical procedures like abortion are covered by this, but that the ambiguity regarding personhood warranted some restriction, and that the point of viability is a reasonable time to consider the rights of prenatal life to take precedence over the mother's.

    Your phrasing of it seems like a strawman appeal to ridicule.
  • Hanover
    8.5k
    It protects against laws that would limit liberty and privacy and unenumerated rights. It is up to the Supreme Court to decide what counts as a "liberty", what matters are "private". and what those unenumerated rights are, as the Constitution doesn't spell it out. In Roe and Casey they decided that medical procedures like abortion are covered by this, but that the ambiguity regarding personhood warranted some restriction, and that the point of viability is a reasonable time to consider the rights of prenatal life to take precedence over the mother's.Michael

    Consider, though, the other argument, from Justice Scalia in Toxel v. Granville (2002):

    “In my view, a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims “all Men…are endowed by their Creator.’ And in my view that right is also among the ‘othe[r] [rights] retained by the people’ which the Ninth Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or disparage.’ The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.”

    I don't agree with your analysis of Roe or Casey in terms of the Court ever having considered the rights of the fetus.

    Roe specifically held:

    "The Constitution does not define 'person' in so many words. Section 1 of the Fourteenth Amendment contains three references to 'person.' The first, in defining 'citizens,' speaks of 'persons born or naturalized in the United States.' The word also appears both in the Due Process Clause and in the Equal Protection Clause. 'Person' is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art, I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3;53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emoulument Clause, Art, I, § 9, cl. 8; in the Electros provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application. All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn."

    Note as well that the Court's analysis refers to intent of the authors with its reference to 19th century practices (tagging @Benkei on this, as this is an example of original intent being used by the liberal wing to establish the right to abortion).

    My reason for pointing this out is that the Court found no ambiguity with the term "person," and they have never afforded rights to the fetus or even attempted to weigh the rights of the fetus against those of the mother. The Roe Court admitted "If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment." That is, the Roe Court indicated that if the fetus were a "person," abortion would be prohibited under the 14th Amendment, which is why it was critical for the Court to find the fetus was not a person.

    The analysis of Roe is a bit convoluted, only arguing that the State may regulate abortion to the extent it protects the health of the mother, with no reference to the fetus:

    "With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

    This means, on the other hand, that, for the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State."

    The closest it comes to referencing the rights of the fetus is in the statement:

    "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

    But even here the Court is very careful to refer to it as "potential life", and not "the fetus," which would be a very different statement. The former referencing a general view that the State has the right to encourage life to come about, while the latter would indicate that an actual, particular fetus is endowed with rights.

    The Casey opinion didn't change this basic framework of Roe, but instead abandoned the strict trimester framework of Roe with an evolving viability standard based on recent science.

    Your phrasing of it seems like a strawman appeal to ridicule.Michael

    I'd call it just snarky, not really attempting to make any important point.
  • Michael
    11.1k
    I don't agree with your analysis of Roe or Casey in terms of the Court ever having considered the rights of the fetus.Hanover

    I was paraphrasing this:

    "Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term."

    So perhaps I should have said the interests of prenatal life can take precedence over the woman's right to privacy.

    Consider, though, the other argument, from Justice Scalia in Toxel v. Granville (2002):Hanover

    The Constitution doesn't tell anyone how to interpret the Ninth Amendment. The Supreme Court has to interpret it by other means. Some, like Scalia, will interpret it as "the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them" whereas others, like Goldberg, will interpret it as "the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement."

    So my point still stands. You can't just look to the text of the Constitution to interpret it.
  • Hanover
    8.5k
    You can't just look to the text of the Constitution to interpret it.Michael

    But no one has done that. The determination of what a "person" is was obviously outside the text because, as acknowledged, there was no definitions section and reference was made to other uses when the document was written. I also made repeated references to the context in which the documents were written, with the 1st Amendment being after the Revolutionary War and the 14th after the Civil War in order to decipher meaning and intent.

    I'm curious as to what the Constitution cannot be read to mean. If I interpret "person" to mean a fetus, then abortion is murder. The problem is that a fetus that is traveling down the birth canal is to me very much a person, and I don't at all find the Roe Court's claim that no fetus is to be considered a person at all persuasive or complete. It's as much nonsense to me to claim that personhood begins at conception as it does to claim it begins when the umbilical cord is snipped. These bright lines just don't exist as much as we may want them to.

    So, I'm all aboard an analysis that takes seriously the personhood question. That should be done from a Constitutional perspective, and I would be fully opposed to any law that restricted a woman's elective medical procedure to remove a non-person mass of cells from her uterus.
  • Michael
    11.1k
    I don't quite understand what we're talking about now. My only point has been that even though the Constitution doesn't explicitly say "it is unconstitutional to outlaw abortion" it is reasonable to interpret the Constitutional right to privacy and liberty as including such things as having an abortion.

    The Constitution doesn't explicitly list which things are covered by the right to privacy and liberty and so it is for the Supreme Court to use their best judgement. They did so for abortion (until recently), and have done so for contraceptives, sexual activities, and many other things.
  • Michael
    11.1k
    No exception for life of mother included in Idaho GOP’s abortion platform language

    By a nearly four-to-one margin, Idaho Republicans at the state party’s convention in Twin Falls rejected an amendment to the party platform on Saturday that would have provided an exception for a mother who has an abortion to safe her life.
  • Michael
    11.1k


    But the GOP splintered after the rape and incest exceptions remained in the bill Thursday when an amendment failed that would have stripped out those exceptions.

    Some of these people are fucking insane. They wanted to strip exceptions for rape and incest?
  • jorndoe
    2k
    , seems like radicalism is gaining. :/
  • Pie
    553
    Some of these people are fucking insane.Michael

    :up:
  • Xtrix
    3.7k
    59 to 41% — in Kansas.

    The GOP have to face reality at some point about the unpopularity of their policies.
  • Fooloso4
    3.3k
    “In my view, a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims “all Men…are endowed by their Creator.’Hanover

    Is this compatible with the claim that a fetus has the right to life, liberty, and the pursuit of happiness? Or, for that matter, that children have these rights? According to this a child does not have right to determine the course of life, liberty, or happiness. More so, an early stage fetus, which does not and cannot exist except as part of the mother, does not have these rights.

    How does Scalia's claim square with the next statement of the Declaration? To wit:

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...

    The consent of the governed does not include the consent of fetuses, or children, or, at the time it was written, women.

    This is followed by:

    That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

    Again, fetuses, children, and women were not includes among the People who had this Right. Further, "the People" is not the same thing as an individual person. An individual person does not have the right to alter or abolish or institute new Government.

    If one is to interpret the Constitution as an originalist then one needs to take a look at abortion practice and prohibitions at that time. It was legal and practiced without prohibitions. This changed in the mid-1800s.
  • Hanover
    8.5k
    Is this compatible with the claim that a fetus has the right to life, liberty, and the pursuit of happiness? Or, for that matter, that children have these rights? According to this a child does not have right to determine the course of life, liberty, or happiness. More so, an early stage fetus, which does not and cannot exist except as part of the mother, does not have these rights.Fooloso4

    Your questions aren't pertinent to the issue being discussed. Specifically, Scalia was simply acknowledging that people have rights and that the Declaration says as much. He then explains that the Declaration is not a legal document that can be relied upon as authority for the protection of rights. He then states that the 9th Amendment similarly supports the notion that there are rights, and that it is a legal authority, but he clarifies that he does not believe the Constitution empowers the Court to declare what those rights are. Keep in mind that no where in the Constitution does it say the Supreme Court has the power to strike down laws or to declare what rights exist, especially not those that are unenumerated. Scalia suggests that the legislature can decipher what those rights are and can then decide how best to protect them, but he denies that power is within the purview of the Court.

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ...

    The consent of the governed does not include the consent of fetuses, or children, or, at the time it was written, women.
    Fooloso4

    Again, this is not a legally binding document, but to the extent you're arguing laws have been passed that don't comport with the ideology of the Declaration, that's true, but it really has nothing to do with what we we're talking about.
    Again, fetuses, children, and women were not includes among the People who had this Right. Further, "the People" is not the same thing as an individual person. An individual person does not have the right to alter or abolish or institute new Government.Fooloso4

    The Declaration is stating very clearly that there are rights that exist independent of the government and that the government is required to protect those rights, and if it doesn't, the government is unjust and should justly be abolished. Under this reasoning, any single person who abolished an unjust government would be just.
    If one is to interpret the Constitution as an originalist then one needs to take a look at abortion practice and prohibitions at that time. It was legal and practiced without prohibitions. This changed in the mid-1800s.Fooloso4

    No, that's not what an originalist position would hold. No one suggests that you should interpret the Constitution by looking at what the various laws of the states held at the time.
  • Fooloso4
    3.3k
    Your questions aren't pertinent to the issue being discussed.Hanover

    My questions are very pertinent to the larger issue being discussed according to the thread title. If what follows doesn't interest you please skip it. Maybe someone else might find it interesting.

    Theories of personhood are essential to the question of abortion.If we are to look to the Constitution, then we have to look at how it is interpreted. Scalia's originalist interpretation continues to be influential in Supreme Court decisions. It is, however, problematic. It does not support the overturning of Roe. That decision was a religious one masquerading as a Constitutional issue.

    The question is whether a fetus counts as a person. If we look back to the time the document was written (which is what originalists do), we find that at that time abortion was not a legal matter. It has since become a legal matter. An originalist interpretation simply does not properly apply to something that was not originally a legal matter.

    The question is, who counts as a person. If we are to look at original documents, like the Declaration, in order to see how terms were used then fetuses, children, and women were not persons. If a fetus is to count as a person it is based on a theory of personhood that is not found in the Constitution.

    Keep in mind that no where in the Constitution does it say the Supreme Court has the power to strike down laws or to declare what rights exist, especially not those that are unenumerated.Hanover

    And yet strike down laws is what the court did, even with all its empty talk of stare decisis.

    No, that's not what an originalist position would hold. No one suggests that you should interpret the Constitution by looking at what the various laws of the states held at the time.Hanover

    Originalism is a theory of interpreting legal texts based on what how the Constitution was understood at the time it was written. To this end, it does look to such things as the various laws of the states held at the time, as well as such things as the Declaration, as evidence of how terms were understood at the time of the ratification of the Constitution.

    Today's court has been shaped by the Federalist Society. Although they are careful not to take an official position, this paper, published by them, represents the prevailing opinion of its members regarding the interpretation of the Constitution.
  • Hanover
    8.5k
    Scalia's originalist interpretation continues to be influential in Supreme Court decisions. It is, however, problematic. It does not support the overturning of Roe.Fooloso4

    Of course it supports the overturning of Roe. He indicated that the Court lacks the authority to declare the unenumerated rights implicit in the 9th Amendment, and since abortion is most certainly not an enumerated right in the Constitution, it cannot be used to strike down state laws related to abortion.
    That decision was a religious one masquerading as a Constitutional issue.Fooloso4

    The validity of the legal justifications has to be addressed even if you think you've uncovered some pretextual basis for the position. I do think there is an absurdity in the position that it is absurd to think the Constitution does not speak to abortion. That is, I can accept those arguments that extrapolate the right to abortion from the general theme of the document and I can even buy into the idea of substantive due process as being within the realm of reasonable analysis. What I cannot accept is the opposite, which is that any argument to the contrary is patently irrational. It's simply not the case that the Constitution clearly and unequivocally protects the right to abortion, meaning there is plenty of room of reasonable argument for either side. Assuming we don't care about outcome, we can at least admit that the question of whether abortion is a matter of Constitutional right or not really isn't all that clear.

    The question is whether a fetus counts as a person.Fooloso4

    That might be your question, but that has nothing to do with the over-turning of Roe v. Wade. Dobbs was based upon there being no Constitutional right to abortion, not upon a finding that fetuses were people fully endowed with Constitutional rights and therefore worthy of protection.
    And yet strike down laws is what the court did, even with all its empty talk of stare decisis.Fooloso4

    You're conflating case law with statutory law. In a common law system, a court will always have the power to rule on the meaning of a law and they will always have the power to reconsider their own precedent. How the courts rule when interpreting law is called "case law" No one has ever challenged the courts' power to create and later reverse its own case law. The question of whether a court is authorized to strike down a statute is a different matter. "Statutory law" references a law that has been democratically passed law through the legislative process. If a court can declare a law is unconstitutional, then that court will be considered a Constitutional Court. Not all Supreme Courts in all countries have that power.

    So, my point was that the US Constitution does not state the Supreme Court is a Constitutional Court. That is a power the Court conferred upon itself. I am not challenging that decision, but I am pointing out that it is well within reason for the Court to limit the authority it conferred upon itself, which was the point of Scalia's comment when he said he would not expand the Court's authority to declaring what the unenumerated rights of the 9th Amendment are.

    What the Court did in Dobbs was to refuse to strike down the Mississippi statute on the basis of unconstitutionality. Reversing Roe is not the striking down of a law. It's a reversal of precedent.
  • Mr Bee
    463
    The GOP have to face reality at some point about the unpopularity of their policies.Xtrix

    No they don't. They've gotten away with it for decades by making people focus on the culture war.

    Just call abortions "woke" and the self described libertarians will line up to vote away their freedoms.
  • Fooloso4
    3.3k
    Of course it supports the overturning of Roe. He indicated that the Court lacks the authority to declare the unenumerated rights implicit in the 9th Amendment, and since abortion is most certainly not an enumerated right in the Constitution, it cannot be used to strike down state laws related to abortion.Hanover

    Roe was not based on an unenumerated right to an abortion. It was based on a right to privacy. The Texas law at issue in Roe was based on the theory that a fetus is a "person" protected by the 14th Amendment. Where in the Constitution do we find that a fetus is a person?



    It's simply not the case that the Constitution clearly and unequivocally protects the right to abortion ...Hanover

    What is clear is that a woman is a person (even though on a strict originalist interpretation this may not be the case). The right to liberty means the right to make choices. The fact that there is no law protecting the right to undergo a medical procedure, does not mean that the state is free to decide that a medical procedures is illegal under the questionable assumption that an early stage fetus is a person.

    The majority decision in Dobbs was based in part on the claim that abortion is not "deeply rooted" in the country's history. But it is, as I pointed out in a previous post. It was common practice at the time the Constitution was ratified. It was not until the mid 1800's that the American Medical Association pushed for laws prohibiting abortion. In addition, Roe was federal law from 1973 - 2022.

    Reversing Roe is not the striking down of a law. It's a reversal of precedent.Hanover

    Legal precedent is an important part of the law. Overturning established legal precedent is overturning how a law is to be understood and applied. In this case it struck down the protection under law to have an abortion.

    One need only read the transcript of the Kavanaugh confirmation to see the hypocrisy of how stare decisis was used to hide his anti-abortion intentions. What the legislature would not do was done by other means through the court.
  • Hanover
    8.5k
    Roe was not based on an unenumerated right to an abortion. It was based on a right to privacy.Fooloso4

    It's hard to make progress here because you're too focused on trying to contradict me than in listening to what I'm saying and you're not even paying attention to what you're saying.

    The right to privacy was found to encompass the right to an abortion, and the right to privacy is NOT an enumerated right. That means that abortion, under Roe, was found to be based upon an unenumerated right.

    From Roe:

    "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

    The discussion of the 9th Amendment related more specifically to our discussion about Scalia's views on Constitutional interpretation, limiting the Court's power from enumerating the unenumerated rights.

    The Texas law at issue in Roe was based on the theory that a fetus is a "person" protected by the 14th Amendment. Where in the Constitution do we find that a fetus is a person?Fooloso4

    Now you're just making stuff up. You've not actually looked up the Texas criminal code articles 4512.1 through 4512.6 as it pertained to abortion in the early 1970s and found within that code section a statement of intent of the legislature where they announced that they were passing a law based upon their understanding of a term within a post-civil war amendment to the US Constitution.

    You've not found that because it does not exist. That's not how statutes are written. The legislature doesn't have to explain its basis when it passes laws.

    The Constitution doesn't say anything about fetuses. That fact is entirely irrelevant. You have apparently begun to think that the amendments to the federal constitution have some bearing upon what laws a state can pass. Not only is that false due to the distinction between the state and federal authorities, but it's also not the case that the amendments empower Congress to pass laws.

    What the legislature would not do was done by other means through the court.Fooloso4

    This makes absolutely no sense. It is the legislature and the legislature alone that has illegalized abortion. No Court has ever declared a fetus a person. If it had, then the Court would be striking down laws permitting abortion. It has never done that. Never. What the Court has clearly said is that the right to abort does not exist, which means the states are free to decide whether to legalize it or not.
  • Xtrix
    3.7k
    No they don't. They've gotten away with it for decades by making people focus on the culture war.Mr Bee

    Touché.

    I guess for a second I forgot how cynical they really are.
  • Fooloso4
    3.3k
    The right to privacy was found to encompass the right to an abortion, and the right to privacy is NOT an enumerated right. That means that abortion, under Roe, was found to be based upon an unenumerated right.Hanover

    And what follows from this?

    There is a long and evolving history regarding the right to privacy in the United States. In the context of American jurisprudence, the Supreme Court first recognized the “right to privacy” in Griswold v. Connecticut (1965). Before Griswold, however, Louis Brandeis (prior to becoming a Supreme Court Justice) co-authored a Harvard Law Review article titled "The Right to Privacy," in which he advocated for the "right to be let alone."

    Griswold and the Penumbras

    ​In Griswold, the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution. The Court found that when one takes the penumbras together, the Constitution creates a “zone of privacy.” The right to privacy established in Griswold was then narrowly used to find a right to privacy for married couples, regarding the right to purchase contraceptives. [https://www.law.cornell.edu/wex/right_to_privacy]


    Now you're just making stuff up.Hanover

    Nope:

    In the early 1970s, when lawyers representing the state of Texas argued Roe v. Wade before the U.S. Supreme Court, they argued that a fetus is a person. [https://time.com/6191886/fetal-personhood-laws-roe-abortion/]

    Texas's lawyers had argued that limiting abortion to situations where the mother's life was in danger was justified because life began at the moment of conception, and therefore the state's governmental interest in protecting prenatal life applied to all pregnancies regardless of their stage. The Court said that there was no indication that the Constitution's uses of the word "person" were meant to include fetuses, and it rejected Texas's argument that a fetus should be considered a "person" with a legal and constitutional right to life.

    This makes absolutely no sense. It is the legislature and the legislature alone that has illegalized abortion.Hanover

    It is not quite so simple. Abortion was legal and protected. It did not become illegal simply because of state legislatures, but because the Supreme Court overturned its long-standing precedent. It removed that protection. And it is this than enabled states to implement "trigger laws" banning abortions.
  • Hanover
    8.5k
    And what follows from this?Fooloso4

    What follows from this is that abortion, if a right, is an unenumerated right, and that unless you believe the Court has the power to enumerate the unenumerated rights, you cannot hold abortion to be Constitutionally protected right under the 9th Amendment.

    Now you're just making stuff up.
    — Hanover

    Nope:
    Fooloso4

    You argued that the basis for the Texas anti-abortion law was to provide the fetus with 14th Amendment protections. I said you were making that up. You responded by telling me that that the lawyers argued there was a legitimate state interest in protecting fetuses, as if the two have something to do with each other.

    If there were an argument that fetuses have 14th Amendment rights, the remedy wouldn't be to pass duplicative anti-abortion statutory law reaffirming that right, but it would be to bring a claim on behalf of a murdered fetus pursuant to his rights being violated when he was aborted.

    It is not quite so simple. Abortion was legal and protected. It did not become illegal simply because of state legislatures, but because the Supreme Court overturned its long-standing precedent. It removed that protection. And it is this than enabled states to implement "trigger laws" banning abortions.Fooloso4

    A quick history:

    Abortion was statutorily prohibited in some states. The Court struck down those statutes and the statutes became void. The Court reversed its ruling and those statutes became valid. The Court illegalize abortion. The legislatures did. If the Court illegalized abortion, no legislature could legalize it.
  • Fooloso4
    3.3k
    ...unless you believe the Court has the power to enumerate the unenumerated rights ...Hanover

    This really does not make sense. It is not a matter of enumerating unenumerated rights but of recognizing that not all right are enumerated.

    you cannot hold abortion to be Constitutionally protected right under the 9th Amendment.Hanover

    It is odd that you cite the 9th amendment because it undermines your position.

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. [9th amendment]

    Rights are not limited to those that are enumerated. To not protect a right retained by the people, is to deny that right.
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