Texas vs Roe vs Wade

[OttoVonBismarck]

To crib the West Wing (episode where the Martin Sheen President is interviewing a popular candidate for a Supreme Court nomination, one he ultimately opts against) "Do I think a state could ban adding cream to coffee?" "Yes, I do. As someone who enjoys cream in coffee, I believe that would be unwise, but there is nothing in the constitution that forbids the State banning cream in coffee."

I don't see a lot of evidence there is a Federal constitutional principle that should say States are prohibited from regulating medical procedures. In fact, aside from abortion which has been very specifically carved out as a medical procedure the state can regulate only under certain conditions, I believe the States currently regulate all other medical procedures based on the laws passed in those states, and the operations of Boards of Medicine etc in those states.

There is a right listed in the French Declaration of the Rights of Man and of the Citizen that reads:

Article V – The law has the right to forbid only actions harmful to society. Anything which is not forbidden by the law cannot be impeded, and no one can be constrained to do what it does not order.

That's a great principle, and actually one that I think should inform lawmakers in making laws. I would be in favor of this being enshrined in the Federal constitution. However, it is not.

The Federal Constitution creates a system of divided power, the Federal government has enumerated powers, and the States largely can pass whatever laws they please as long as they don't violate the Federal Constitution.

I have a strong personal opposition to abortion, which I believe is gravely immoral. But like BB I've always felt it should be legal and rare, because of the history of how abortion has operated and the simple practicalities. Banning abortion is a big mess, and it doesn't "solve" the problem.

But despite believing abortion bans are unwise, I do believe that there isn't a clear argument that our Federal Constitution really should prohibit States from passing laws banning abortions.

From a procedural/political perspective, I also think our entire country would be a far better place had Roe never been decided. A few states allowed elective abortions at the time Roe was decided, which is a good indicator Roe was way out ahead of where society was. In the decades after, had Roe not been decided, you'd have steadily seen more states liberalize abortion laws. You would eventually get to the point where, just like Ireland was often the target of bad press and bad stories about its abortion ban, the "hold out" states would be frequently featured in horror stories about women dying needlessly and other things of that nature. I think you'd start to see even conservative states begin to liberalize laws.

Would we have legal abortion on demand in all 50 states today? Probably not, but I think we'd have it in way more states than most people assume, I think 40 years of running side by side systems would actually significantly change many people's opinions on abortion law, even if it didn't change their opinions on abortion's morality.

Instead we got the Roe decision, which I think did exactly what Berkut said it did--it is the main driver of the Republican party becoming hopelessly fascists and insane, with deleterious effects for the whole country.

Now let's be clear, without Roe, I'd view it as a tragedy when stories would occur where some woman was denied a medically necessary abortion in say, Mississippi, and died. But I just don't think this was a problem for the courts to solve, and I think the court solving it created huge societal problems that have rendered our country nearly inoperable.

[Berkut]

I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

[OttoVonBismarck]

I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

Where you are wrong, and "I do not have it exactly backward", is our constitution doesn't establish that the States are limited by some Federal constitutional principle as to what areas of society they can regulate. The Federal government is restricted, and when Federal and State laws clash in areas in which the Federal government is empowered to make law, Federal law trumps state law. The only real exception to this, is due to a series of post-Civil War Supreme Court cases that have "Incorporated" large parts of the Bill of Rights and a number of other Federally enshrined rights, the States do have limitations around constitutional rights. They are not generally bound by the Federal constitution in their own lawmaking in the manner you have suggested.

The first thing binding them would be their own state constitutions--which in a great many cases, enshrine more constitutional rights than the Federal, and often have more limiters on legislative power, but not always. But barring that, State legislatures are largely allowed to pass whatever laws they want as long as they do not infringe on Federal prerogatives or explicitly violate incorporated Federal constitutional rights.

[Berkut]

Okay, a recent one is conversion therapy - it's being banned in lots of places.  Even if you want to receive conversion therapy you can't get it.

Regulating medical procedures is certainly one of the powers of the state.

So you do think the State has the Constitutional right to decide what medical procedures people should be allowed to get in general, and abortion is not "special". They could, constitutionally, say that women are not allowed to be on birth control anymore, for example?

Sure.  The government has long regulated medicine.  It's not as if hormonal birth control is without risks either.

Just returning to this - it is odd how selective you are in your respect for "established law", since it has been in fact established Constitutional law since 1964 that in fact the State does NOT have the right to ban birth control.

[Berkut]

I think some members of the radical right realized that this was a path to power, and have been riding this, and THAT is what has caused the country to become a mess.

They have had a lot of help from people calling themselves moderates and going along with the crazies.

This was not inevitable once the SC decided that women had the right to make choices about controlling their own bodies, and plenty of other countries have shown that to be true.

Blaming the SC for continuing to promote liberty for the tantrum from a bunch of religious fanatics who hate the idea seems rather an odd take.

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

If you want to take down Roe v Wade, you have to take down Griswold v Connecticut as well. Which of course we've already heard Beebs say was bad law as well, so I guess that is in fact where this is going.

Where you are wrong, and "I do not have it exactly backward", is our constitution doesn't establish that the States are limited by some Federal constitutional principle as to what areas of society they can regulate. The Federal government is restricted, and when Federal and State laws clash in areas in which the Federal government is empowered to make law, Federal law trumps state law. The only real exception to this, is due to a series of post-Civil War Supreme Court cases that have "Incorporated" large parts of the Bill of Rights and a number of other Federally enshrined rights, the States do have limitations around constitutional rights. They are not generally bound by the Federal constitution in their own lawmaking in the manner you have suggested.

The first thing binding them would be their own state constitutions--which in a great many cases, enshrine more constitutional rights than the Federal, and often have more limiters on legislative power, but not always. But barring that, State legislatures are largely allowed to pass whatever laws they want as long as they do not infringe on Federal prerogatives or explicitly violate incorporated Federal constitutional rights.

Griswold v Connecticut, 1964. You are wrong.

[OttoVonBismarck]

As far as the French Article V - our Constitution does in fact have that. Indeed, it is a foundational idea of our Constitution that the government ONLY has the powers given to it (and that includes the States) and absent the explicit granting of those powers, they have no power to violate the privacy right of individual citizens. You have it exactly backward.

Please keep track of what you're posting--Griswold does not remotely establish a principle such as this. Griswold held that there is a right to "marital privacy" that prohibits laws like the Comstock Law in Connecticut that forbade using "any drug, medicinal article or instrument for the purpose of preventing conception." Griswold notes, but didn't really establish that there are fundamental rights that are not explicitly stated in the constitution. I'm not sure if that's what you are extrapolating to mean that there is some sort of U.S. Constitutional provision that prohibits passing any laws that restrict things that aren't harmful to society. Griswold is one of the first extremely clear elucidations of the "right to privacy" and directly lead to Roe, but the right to privacy isn't synonymous with a purported concept that States can only pass laws preventing things "harmful to society." There is no such constitutional principle, and States absolutely can pass a great many laws regulating a great many things that are not specifically harmful to society. States broadly do not have the onus of demonstrating that what they are regulating is harmful to society. I do think there may be a broad constitutional principle that there must be a "compelling public interest" for State intervention, but that's fairly broad.

Also, procedurally in truth "harmful to society" is a squishy concept that could be argued almost any way about almost anything.

Also note that under Griswold, it would have still very likely have been legal to prohibit the manufacture and sale of contraceptives. I'm not sure if any states ever pursued that tack, but laws against contraception were actually quite unpopular in general by the 1960s, so it may have just been politically undesirable to do so, I'm not sure.

Also note the passage in Griswold that maybe comes closest to the very broad claim you are making cites a 1765 British case as having precedential importance: Entick v Carrington, but the effect is much more limited than what you are asserting:

'The principles laid down in this opinion (by Lord Camden in Entick v. Carrington, 19 How.St.Tr. 1029) affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth and fifth amendments run almost into each other.' 116 U.S., at 630, 6 S.Ct., at 532.

[The Minsky Moment]

Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

[Berkut]

The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

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.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

[OttoVonBismarck]

Griswold, Roe and Eisenstadt were all explicitly based on a holding the the 14th amendment bars the states from intruding on fundamental rights absent compelling state interest.  If that principle is repudiated, the consequences would be very significant, as other cases rely on the same constitutional concept - including Obergefell v Hodges - the gay marriage case, and even Loving v Virginia - the case that invalidated state miscegenation laws.

The question of what unenumerated rights are "fundamental" rights, is not one with a black and white definition. Society functioned for many years in which abortion was not considered one of those fundamental rights, same for gay marriage. A jurist can certainly find that abortion or let's be honest here "the oddly limited practice of procuring an abortion from a doctor, due to an inherent right of privacy in medical affairs, except when the fetus reaches a certain point, and also we aren't including other medical procedures like euthanasia or delusion-based voluntary amputations in this category" to not be a fundamental right, but for marriage to still be one.

[OttoVonBismarck]

The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

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.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

"Privileges and immunities of the citizens of the United States" is a category of things that do not include many, many, many things that states regularly prohibit or regulate. You continue to read far more into this than is appropriate.

[Berkut]

The cases you are citing agree with me, and disagree with you.

The restriction is not based on "harmful to society" in this case, it is based on violating and individuals right to their own body, possessions, and privacy.

The state can certainly violate that, but they have to show some compelling need to do so. Getting a bunch of people to vote for something is not a compelling need.

And yes, Griswold did not establish that there are rights not expressed in the Constutution, it notes that such rights exist and have always existed, and are in fact explicitly stated as such in the 14th Amendment.

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.

It's right there.

States most certainly DO have an onus to show that their laws do not violate the 14th Amendment, ie, that they do not abridge the "privileges or immunities of the citizens of the United States....or deprive and person of life, LIBERTY, .....etc. etc."

"Privileges and immunities of the citizens of the United States" is a category of things that do not include many, many, many things that states regularly prohibit or regulate. You continue to read far more into this than is appropriate.

I understand that you are one of those that does not think a woman has the "privilege" of deciding if she wants to use birth control.

I think if you don't read into what I am reading into it, the phrase means nothing at all.

If it doesn't cover a basic right to decide what medical procedures one has the right to avail oneself of absent some state shown compelling interest, then what DOES it cover that matters at all?

If it doesn't cover that, then how does it in fact cover your right to marry someone of another race?

[OttoVonBismarck]

Also "compelling state interest" is not fixed in stone either, Roe already established there was a compelling state interest in fetal life, it just limited at what point it could intercede on it, you can change the metric without upending all of our constitutional jurisprudence, frankly. In fact the court has done so with a number of post-Roe holdings in some ways.

Roe was a tortured ruling that was ill considered.

[OttoVonBismarck]

I understand that you are one of those that does not think a woman has the "privilege" of deciding if she wants to use birth control.

I think if you don't read into what I am reading into it, the phrase means nothing at all.

If it doesn't cover a basic right to decide what medical procedures one has the right to avail oneself of absent some state shown compelling interest, then what DOES it cover that matters at all?

If it doesn't cover that, then how does it in fact cover your right to marry someone of another race?

Those are complicated questions that don't have easy answers. Legislatures are the preferred vehicle for resolving such questions, courts as a last resort.

FWIW I still do not see that Griswold would prohibit a ban on the manufacture and sale of contraceptives, but it does block laws that prohibit their use, which is different. Maybe there is subsequent rulings that have fleshed out that it can't limit manufacture/sale, I don't know.

And how can it cover one thing but not another? Because not everything is a fundamental right, Minsky's own words open up that can of worms. When the court has to decide what unenumerated rights are "fundamental", it has to engage in a study of legal history and basically apply its best judgement, but that judgement will be neither perfect, infallible, or without dispute. For a general right to privacy in one's person, home, and possession, there is a good history dating back to the mid-18th century from English common law. For other things, you may be able to extend it out to those things from that basis, or maybe some other basis. For other things, maybe you cannot easily demonstrate that it is any kind of fundamental right. Those are the hard ones, and the ones courts should be hesitant to rule on.

[OttoVonBismarck]

Something that to my mind undermines Roe is that if there is a fundamental right to privacy that means the state cannot intervene in medical decisions about your body, the state would be powerless to regulate things like euthanasia, gender-affirming surgery, amputations for people who have dissociated disorders where they believe specific limbs of their body are "foreign" agents and need removed etc. Yet as far as I know states have at various times regulated all of those things, and most states still regulate euthanasia and "voluntary amputation." Several states ban electroshock therapy, despite continuing evidence it is helpful in some circumstances and has continued to be used in most states.

[crazy canuck]

There is an important distinction the BBs and Ottos of the world miss when they lump decisions made by medical boards/colleges of physicians or whatever the medical regulatory body is in your jurisdiction and legislation which makes medical procedures illegal.  In the former case, the question is the efficacy of the procedure.  It is not, or should not, be a political decision.   The later case is of course a political decision.  Those important distinctions get lost when the debate gets reduced to a question of the powers of the state.  But that is where the inhinged right gets to hides. 

A good example is in this thread when BB equated regulation of birth control pills (a question of efficacy) with the regulation of abortion.  The regulation of abortion in the US has nothing to do with the health of the mother.  It has everything to do with what BB has characterized as the health of the fetus - a purely political question.  It gets so ludicrous that the right talks about of fetal heart beat before the fetus which they claim occurs before an embryo (the proper term at 6 weeks) develops the necessary heart valves to have anything resembling a hear beat.