The Roe case hinged on abortion being a right under privacy right. It was a very weak argument and even Ruth Bader Ginsberg (a very left leaning justice who died recently) didnt like that reasoning and thought it was weak: https://www.washingtonpost.com/history/2022/05/06/ruth-bader...
This simply says "Abortion is a legislative matter - the constitution does not say that abortion must be legal until the moment of delivery".
Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
This was upheld very recently in 2019. [0]
[0] https://en.wikipedia.org/wiki/National_Coalition_for_Men_v._...
Not to mention that when a war threatens the country you being drafted is taking the lion's share of the risk, because someone not doing it is also risky and to everyone.
Here women have to risk their lives and jail because a bunch of religious extremists and fascists have nothing better to do. There is no logical, philosophical, moral or even religious reason for it. It's tyranny for tyranny's sake. It's a demonstration of the power these people have over society.
Funnily enough, it's literally not in their original job description. Judicial review, like so many things about the Supreme Court, is just based on precedent [1].
But wouldn't that introduce the issue of whether or not the foetus should be entitled to equal protection (which most anti-abortion voters would suggest is a child and should be protected/have rights)? Seems odd to make it a man/woman equality issue.
For example, i have two lungs. You are in a car accident and both your lungs have failed. I could donate a lung and save your life.
Your right to live comes up against my right to control my own body. My right overrules your right. Even if I was the one who caused the accident that damaged your lungs. I can be found to have broken laws causing the accident, but I can’t be forced to donate an organ.
People do not have the right to physically attach themselves to another person, and leach blood, oxygen, nurturant etc off the other person. Period. Fetuses would not be an exception.
I feel that a person who wakes up with another person surgically attached to them by some sort of mad-scientist doctor could have surgery to have the second person removed, even if this means certain death for the second person. I don't view abortion as any different.
I could support a ban on abortion methods that directly kill the fetus, but as long as the method is primarily about severing the connection to the mother and removing it from the body, I see nothing wrong with that, even if removal means certain death for the fetus.
If people feel fetuses have human rights, I could also support laws or medical ethics requiring doctors to attempt to save the fetus after it is expelled (if the condition was such that saving them might be possible) just like they would try to save any other person.
> Weird because the courts striking down laws as unconstitutional is literally their job description.
Not really, because the question is actually "what makes something unconstitutional." Should the standard be "we nine unelecteds don't like it, and can read whatever we want into text that is actually silent on the issue"?
> Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
That frankly doesn't make any sense. The law doesn't say that men are permitted to get abortions but women aren't, and the law clearly must be able to regulate things that one sex is incapable of doing (e.g. penetrative rape, and please don't waste time trying to argue the illustration instead of the point). Also, I believe most, if not all, anti-abortion laws apply to people other than the woman getting the abortion.
I mean that’s what every ruling is. The court exists because the text isn’t clear. No text is clear enough to handle reality. There are always exceptions, shifting definitions, changing technology. No document can be the full representative of its meaning - a system of rules based on documents will always have a layer of interpretation built on top of it
> I mean that’s what every ruling is.
No, it clearly isn't. If it was, you might as well abolish the other branches of government, because the government is really an oligarchy of judges.
> The court exists because the text isn’t clear. No text is clear enough to handle reality. There are always exceptions, shifting definitions, changing technology. No document can be the full representative of its meaning - a system of rules based on documents will always have a layer of interpretation built on top of it
That's true, but only to a point. Take it too far, and you are just using an oligarchy of judges to bypass the legislative process.
https://www.history.com/topics/united-states-constitution/ma...
The law also compels men to carry fetus's to term against their will, should they happen to become pregnant somehow.
Just because men can't get pregnant doesn't mean that the law doesn't apply to them.
Yes it does.
I don't think it's the court's job to equal the playing field on biology.
But since you put it like that, wouldn't that mean the father also has the right to decide for or against the abortion of his child?
https://en.wikipedia.org/wiki/Judicial_review_in_the_United_...
"Unconstitutional" is never as straightforwardly defined as one would like. For example, protesting against the draft was ruled by the Holmes court as unprotected speech. Today, you can burn a flag with impunity.
> Equal protection under the law would be my first pick for constitutional protection of abortion.
While I'm supportive of the, for lack of a better term, "spirit" of Roe vs Wade, it was never premised on equal protection under the law. After all, men don't have an acknowledged right to avoid parenthood. The opinion itself only justifies abortion on a limited right to privacy and explicitly rejects the "my body, my choice" justification that it is mythologized to have:
"The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization)."
https://www.law.cornell.edu/supremecourt/text/410/113
> There are very few life threatening things that the law compels men to do.
Selective service and compelled paternity.
> Yet the law can compel a women to carry a fetus to term against her will?
The law can compel a man to support a child even if he man is not the biological father. It can compel one be vaccinated against his/her will. It can also compel sterilization if it determines that one is mentally defective.
Child support isn’t a matter of bodily autonomy.
Both of those apply to both men and women.
The law can theoretically compel everyone to be vaccinated, not just men. That’s equal protection under the law. It’s also only available in public health crises - not routine.
Again sterilization has been applied to men and women.
Selective service is maybe the only analog to forced birth, and even that has carve outs for religious and moral beliefs.
>Child support isn't a matter of bodily autonomy
A man can be ordered by a court to obtain a job to pay for the child or risk being thrown in prison for refusing to comply. Even terminating parental rights does not remove him from the obligation of paying child support. There has never been a case of compelled maternity (compulsion to mother a child) as every state, even the ones that will now be able to criminalize abortions, allow a mother to surrender her child within a period of at least 72 hours.
> The law can theoretically compel everyone to be vaccinated, not just men. That’s equal protection under the law. It’s also only available in public health crises - not routine.
Equal violation is not equal protection. Otherwise slavery would be OK as long as you could find a persuasive or compelling enough interest for it and found that it could be equally applied to men and women. That's not how rights work. They're inalienable. You either have them or you don't.
> Again sterilization has been applied to men and women.
Same as above.
> Selective service is maybe the only analog to forced birth, and even that has carve outs for religious and moral beliefs.
Carveouts and concessions only make the violation of a right palatable, not reasonable or justifiable. Several states that oppose abortions have carveouts for incest, rape, and/or threats to the health of the mother. In spite of these carveouts, I reject that states or even the federal government should have a say on what one does with one's body in the first place with "special" cases being negotiated after the fact.
> Well then we mostly agree.
What is it that you don't agree with?
which is also why 2nd amendment is relevant. if the people responsible for the creation of laws is sufficiently corrupted, then the public have the right to form a militia and replace them. Which you cannot do if those same corrupted people are the ones deciding who is allowed to have guns or not.
The Supreme Court has taken on relevance because Congress is worthless. When no laws can be passed, courts act as clever compilers to keep society working despite the source code being ancient. The programmers of the law have not updated it to match the reality on the ground nor the features users want. This is a far better outcome than an uprising against the government, but it will only work for so long. Ultimately Congress needs to become functional again, which will require compromise and pork barrel trading.
>Ultimately Congress needs to become functional again
Yes exactly. I keep seeing rhetoric that we "lost 50 years of progress". we didnt. We band-aided our government and had 50 years to make the proper correction and havent been able to yet. More importantly, though, I dont think we have really tried to
the group that was keeping that band-aid on is now out of power and we want to blame the other side for simply upholding separation of powers. I mean, it is tone deaf to do it now at best, but Mississippi pushed the issue. the court is obligated to uphold the law, not dictate it. Abortion as a privacy right has always been a weak stance.
Anecdotally, I have felt a growing disinterest in local politics growing for the past decade. I can name so many people who "didnt want to talk politics" 2 weeks ago who are now non-stop politically charged over roe v wade. I could roll my eyes about it all, but honestly I just hope it serves as enough of a wake up call for people to stay involved.
The 9th amendment of the United States reads:
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This was added as an Amendment, because many founders were deeply concerned that the introduction of a bill of rights would create the impression that if they enumerated some rights, people would consider that list to be complete.
That is, they recognized that there were many rights not explicitly enumerated by the constitution that were still important rights. Nearly everyone agreed that the enumeration of rights was not intended to capture every right.
So, relying on "what rights are explicitly mentioned in the constitution" is antithetical to the entire concept of the bill of rights. It's an incorrect place to start reading the constitution.
If you followed the absolute letter of the law in the current US legal code, females should be disqualified from owning guns: https://uscode.house.gov/view.xhtml?path=/prelim@title10/sub...
George Mason, coauthor of the second amendment, was asked "Who is the militia?" He's been asked this several times and at one point said it was everyone except our politicians. He typically responds: "I ask, sir, what is the militia? It is the whole people, except for few public officials." (George Mason, 3 Elliot, Debates at 425-426) - https://www.madisonbrigade.com/g_mason.htm
The scope of the second amendment is the same scope as all other amendments which is to say it's an unlimited, and natural right. Anything else is just playing stupid games with lawyers.
So the current argument might be that since the constitution does not give the federal government the power to regular abortions (or to prevent states from regulating them), then that power to regulate them or not is reserved for the states to do as they please.
The prior argument (from Roe vs Wade) is that the US Constitution provides a right to privacy and that prohibiting or otherwise restricting abortions violates that right to privacy.
While there's no explicit right to privacy in the constitution, it could be implied by the 14th amendment: "... nor shall any State deprive any person of life, liberty, or property, without due process of law ..."
From the original Roe vs Wade opinion: "A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception." https://supreme.justia.com/cases/federal/us/410/113/
The viability condition is one of the legal arguments people tend to attack. Justice Blackmun even wrote in a memo when drafting the verdict for Roe vs Wade: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."
They did end upon a viability criteria. The exact week has also changed since medical science has advanced in the last 50 years.
The US Constitution does not contain the word abortion, and so decisions by the Court on abortion either way are only indirectly guided by applying other parts of the Constitution.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
To the people == legislative branch. to the states means the states legislative branch.
> [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Which is the go-to argument for federal control over things. If you pay for it, and buy it from another state, then the feds can regulate it.
It seems perfectly legal to make a federal law that states don't have the power to block access to medications produced in elsewhere. Nor do they have the power to prosecute people for buying such medications, regardless of the effects, from businesses which have locations in multiple states.
But since we don't yet live in that world, we need every argument we can find, no matter how flimsy or contrived. Because, despite having a solid foundation sitting right there, we are forced to build on top of a patchwork of whatever else we see laying around.
Remember that the supreme court has a somewhat checkered history. IT is the least of the democratic branches, but has unarguably limitless rights.
What is the supreme court decided that I had a in-numerated constitutional right to have slaves? Or a un-enumerated right to not have Japanese or Chinese in my state. These are not hypothetical.
This is the first time I've seen that assertion.
The problem with saying technological change invalidates the 2nd amendment, is that you have to also explain or accept that the 1st amendment only applies to letters written with a feather and a pool of ink.
A constitutional amendment could easily ban nukes. It's not like there isn't a process to get them out of private hands the legitimate way. It probably wouldn't even be difficult amendment to pass. Similarly an amendment should be required if you want to exclude certain technology from the 1st amendment.
I think was this was meant to mean was: Any citizen has the right to join their local/state militia, and keep their service rifle and uniform with them at home.
Obviously this should probably be expanded to include women generally, but their 2nd Amendment rights are not predicated on their membership in the militia.
if able-bodied or militia is defined by the law does that mean they can include and exclude whoever they wish by redefining it?
Seems sensible. But the court is saying that if you look at what laws were passed / in force at the time, and what courts said about them around that time, you'll see that to contemporaries of ratification the second amendment meant a right to carry arms, not just to be in a militia, or whatever. That too seems sensible. Now what?
While the first part of the sentence says why should care, the explicit right is owned by the people.
What people don't often consider is that one can infer that rights might be infringed. The second amendment just says, "We can't fringe this right".
...however in the absence of militias in the US today, it makes sense that even if that requirement was initially envisioned (which is very debatable), it's no longer reasonable.
It's historically interesting to note that different versions of the amendment were ratified, both including and not including that last comma.
The New York carry case seems like it was probably decided correctly, what's interesting to me is that the courts gun law doctrine relies on deciding whether the law is "consistent with the nations historical tradition of firearm control." The court decided this law was not, even though it is over a century old and 7 states have had similar laws for decades. At what point does it become part of our historical tradition?
The court has to be allowed to undo precedents once in a while. Otherwise we'd have to fight a civil war over every Dred Scott case.
I'm NOT saying this case, or yesterday's, was rightly decided. I'm only pointing out that the court has changed its mind a number of times in the past, and will again in the future.
Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution. Roe vs Wade did not happen in vacuum, it's part of a larger understanding of the Constitution that recognizes a right to privacy and recognizes that there are unwritten rights.
This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences.
How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...
Roe v Wade was controversial since it was decided. It was never settled precedent. People have tried to overturn it from the start.
This is aside from the founders not being presented with a firearm that can put 6" holes into a kindergartner's body at the rate of 45 rounds per minute.
We're never going to fix the gun issue in this country but the reading of 2a has always been absolutely absurd.
RE: SCOTUS the powerful will always protect the powerful. Sotomayor just went on the record the other day to call Clarence Thomas 'a man who cares deeply about the court as an institution.' Clarence Thomas, whose wife was supporting and funding the January 6th insurrection and effort to overturn a legal election.
Every now and then I ctrl-f the constitution to find the words "supreme court" and somehow come up blank every time.
Citation required... the only way you're going to get a 6" hole in a human body is with something like a .50 BMG (which is an anti-material rifle) or maybe a .45-70.
With regard to abortion, the constitution guarantees us a right to privacy, which is closely linked to bodily autonomy. The argument being that there is constitutionally no legal way for the government to involve itself in your personal health decisions. There is an interesting ideological reversal here with regard to the recent vaccine debate with liberals arguing the government should be able to compel vaccination, and the conservatives against.
If one were to die tomorrow without being an organ donor, the state still cannot compel one to give up their organs, even if it would save lives. Why should a woman’s body have less autonomy than a corpse?
On the other hand, I don’t think many people would support 39-week abortions either, absent some explicit medical necessity. At some point, which is inherently a gradient, our legal system has to afford protection to what is a viable person.
Americans have a tendency to go for the most extreme positions on everything and I think the court reversing Roe is an incredibly shortsighted decision that will cost it decades of legitimacy. The institution is more damaged now than possibly ever. Even the Chief Justice had wanted to uphold Mississippi’s law but preserve Roe, which would’ve been a much better solution than where we are today.
Extremism is a cancer destroying this country.
We have a system that allows for changing laws - it's called a republic. We have a system that even allows for changing the constitution.
Upholding Mississippi's law but preserving Roe is intrinsically a political decision. Politics belong with legislatures, not judges.
My interpretation of that ideology is that liberals want the government to protect public health by restricting personal freedom of participation in certain aspects of the public sphere by those who choose not to be vaccinated, and conservatives want to put their own personal choices above the public health by allowing them to do without restriction all the things they did before the pandemic regardless of their vaccination status. There was never serious debate about blanket compelling of vaccination.
(1) Stare Decisis and Reliance: two legal standards that had restrained even right-wing courts for years. It's legal, but "bad", for the Court to overturn a long-standing law that people organize their lives around (as they did post sexual-revolution). So the standard isn't "is it wrong," it's "is it egregiously wrong." And the court has found multiple times that Roe is fine.
(2) The decision doesn't take aim at _just_ abortion. It takes aim at the right to privacy. This right is pretty strong, overall: the 9th Amendment says "just bc a right is not explicit, that doesn't mean it isn't real"; the 3rd, 4th and others say "the gov't can't just meddle in your affairs without real justification;" the 14th says "this right is universal." Implying this right is weak is iffy at best, and DEFINITELY doesn't meet the "egregiously wrong" standard.
(3) The new tests are, uh, speculative.
(3a)They rely on historical analysis that is contextually-driven at best. Are we talking abortion, reproductive healthcare, or women's rights? That's a matter of framing, not law, and will lead to dif conclusions, which makes it a bad test. [Note: more on this when Obergefell is inevitably challenged...]
(3b) The tests lead to dif conclusions than Alito reached. Abortion has been legal in the US for longer than it's been illegal; it wasn't banned nationwide until the 20th century, because it was explicitly legal under british common law. Even 19th century regulations were effectively just regulations of methods (poison control), not abortion itself. I'd argue "a cultural practice referenced in Shakespeare, explicitly addressed in 400 years of british common law, and that we kept for 100+ years in the US, including when the Constitution was written" is pretty deep. Besides, it's applied differently in different cases (how far back is "deeply rooted," anyway?). TLDR: arbitrary = bad test.
All this to say: I'm pissed bc it's bad policy, but I'm ALSO annoyed at the bad legal analysis. Like - there are better arguments! It feels like an F U.
(2) Roe vs Wade is not premised on the 9th amendment (as much as I would have liked that) or cases involving substantive due process (Lochner vs New York), but on Griswold vs Connecticut, which relied an unsubstantiated argument of "penumbras" and "emanations", as though rights can be "found" in the same way that one summons Captain Planet. Roe vs Wade does not make a protestation to the defense of bodily autonomy as a fundamental right. In fact, Roe explicitly rejects such arguments.
None. Roe was based on pure vapor, constitutionally speaking.
>You should be able to trust a court to make a decision based on the law, not their personal preferences.
That is in fact what the Supreme Court has just done, by overturning Roe.
The role of a court is to interpret law. While not preference, but "opinion" is entirely the point of a court.
> I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves.
Sure was interpreted differently when black people started carrying in public! [0].
The Constitution is or was a band-aid and it's reached its EOL.
The Congress has abrogated their duty here and we're seeing the consequence of this.
You answered your own question. It's the interpretation that matters. The Supreme Court is a joke.
Political debates have not been done in good faith in the US for decades. It's no longer about the people - it's about fooling the people into getting amped up about things and voting one way or the other. It's like a wrestling match. Does it really matter who wins if it's all fake? Actually I take this back: being a wrestler actually needs some sort of prep and physical conditioning. Wrestling is better than politics.
>> "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
So anyone, including children, the insane, felons etc has a right to bear "arms". And there is no clear limit to say that a gun is "arms" but a kilo of C4 or a ground-air missile launcher or a fully armed attack helicopter is not. In fact, in 2022 any militia that could be even slightly useful will need at least some air support. Yet SCOTUS has routinely banned these items from personal procession.
I say this not because I am some crazy gun nut or I think that those an actual right to bear arms would be a good idea.
I say it to point out that the courts job was always to rule what people wanted and what was practical was also legal. Just like a politicians job is.
Actually arguing actual constitutionality is a red herring. A lawyer's job is to find a loophole and all judges start as lawyers...
Most Americans don't realize that, at least until recently, you could buy a kilo of C4 with cash, no questions asked. It is outside the experience of most Americans to buy high explosives retail, but that's actually a thing depending on where you live.
Yes, the courts generally lag public opinion, but eventually side with it. Whether regarding interracial marriage, birth control, gun control, and many other things. If anything, Roe was an outlier because in 1972 the public was probably mostly unconcerned about abortion and, if pressed, probably not broadly for it to be legal.
If, indeed, more than half the States were to legalize civilian possession of heavy weapons, then the courts might rule that to be covered by the second amendment. And since none do, the court will feel safe ending the second amendment's shade at small-caliber firearms.
One might wish for the courts to act very differently than this, but then we'd probably see large majorities in favor of reforming them to be as they are.
It's a problem, though, that we have such disparities in public opinion between various States.
By the way, this decision may well cause the end of Republican rule in many Republican States if their legislatures get too excited about banning more abortion options than the people of those States want them to. It might well usher a multi-decadal Democrat majority in the State legislatures and in the Federal government. It could very well be a Pyrrhic victory for pro-life activists.
My understanding is these rulings are both based on the constitution. The one on guns seems really straightforward:
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
I know this can be interpreted differently but to me it reads that nobody should be restricted from arming themselves.
Regarding abortion, what aspect of the constitution would cover it?
I'm asking in good faith here btw.
Edit: separately, it is insane to me that these big decisions can be completely split along political lines. A 'supreme court' should be apolitical. There are so many issues with the way the US Supreme Court works. It needs total reform. You should be able to trust a court to make a decision based on the law, not their personal preferences.