Texas vs Roe vs Wade

[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.

The question of what unenumerated rights are "fundamental" rights, is not one with a black and white definition.

Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

[Berkut]

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.

The bar to regulate is rather different then the bar to ban.

It is well established that the state has a compelling interest in the regulation of all manner of things on the basis of protecting its citizens from quackery, fraud, and dangerous procedures.

That is a very, very different bar from the State making the argument that some number of its citizens finds some activity immoral, and hence ought to be banned for others.

It is not at all difficult to understand that distinction, which is why I am skeptical that those pretending that regulating hormonal birth control in order to make sure the products are safe and effective is the same thing as banning them because they think using birth control is against the will of God are making such an argument in good faith.

[Berkut]

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.

Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

If only there were some body, some principled group of sober, non-political scholars who could decide such issues!

[Barrister]

Welcome to constitutional law.  If everything was black and white, we wouldn't have to study it so carefully and the Supreme Court could take more vacations.

If only there were some body, some principled group of sober, non-political scholars who could decide such issues!

You have far more faith in the non-political nature of judges than I do (and not to mention their sobriety too!).

[grumbler]

Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

[Sheilbh]

You have far more faith in the non-political nature of judges than I do (and not to mention their sobriety too!).

Especially in the context of the US. When was the Supreme Court ever a sober, non-political group of scholars?

I actually do believe judges have an important role to play and we damage that if we just turn to "rights". Courts are adjudicatory bodies and shouldn't be there for politics, it's damaging because it makes it more and more difficult to believe they're sober, non-political scholars which is part of the magic of making courts work at all.

I'm not sure what people mean by can the state do x or y.

[OttoVonBismarck]

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.

Euthanasia and electroshock are banned by actual statute, not medical board regulations. ECT is banned by four states by legislative statute, for example in Colorado, Texas etc.

[OttoVonBismarck]

Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

[grumbler]

Here is a thought experiment:  if the state can pass laws regulating abortion where no compelling state interest exists, can the state mandate abortions?  Are there any limits to its power to mandate abortions?  If so, how do those limits differ from the state's power to ban abortions?  Assume in all of this that the state's mandates for abortion cannot be demonstrated to be based on any form of illegal discrimination.

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

I "lost" you because you don't understand Roe v Wade.  The compelling state interest decision was worded thus:

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.

So, the state lacks compelling interest until some point in the pregnancy, while the woman's right always exists but 

that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

Now, I noted that you quoted my thought experiment but attempted to weasel around answering it.  How would you answer it?

[OttoVonBismarck]

I guess I lost you because the phrase sufficiently compelling all but confirms what I had already said, suggesting the person confused about the holding of Roe is not myself. If there is a sufficiently compelling situation where the State's interests' triumph, it would mean in other scenarios the State still has compelling interests, just not ones that are sufficiently compelling to outweigh the mother's interests.

FWIW your analogy/hypothetical would not have any direct bearing--as stated, the courts have to look at legal history, precedent etc to come to their best decision about whether something is an unenumerated fundamental right. I think it is easier to come to that decision about something like "the right to procreate" than it is "the right to abort a pregnancy", one has been a basic natural right of humans in almost all societies, the other has been prohibited (albeit often with significant lack of enforcement enthusiasm) for thousands of years in almost all societies.

And again, the courts need to be a little careful of their role in society, fleshing out such things is very often better left to legislatures as a matter of policy.

[The Minsky Moment]

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

The holding of Roe was that the state lacked a compelling interest before viability: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability."

Roe was decided in the 70s when there was also great concern about explosive population growth.  So taking grumbler's hypothetical, let's imagine a state adopted a law imposing a 2 child maximum akin to the Chinese measures adopted in this period.  What federal constitutional provision, if any, would prohibit this?

[OttoVonBismarck]

You lost me at "where no compelling state interest exists", because one of the core tenets of the Roe decision was that the State does have a compelling state interest in protecting fetal life; but that before viability a woman's rights essentially trumps that. In Roe they specified a trimester system, in Casey they set it to fetal viability. So the constitutional jurisprudence already holds that there is a state interest in protecting fetal life, it is fiction to imagine there is no such interest, at least if you accept current precedent. The question is how should it be weighted against the right's of the woman, and I don't think it's nearly the slam dunk you guys do that the state can't intervene.

The holding of Roe was that the state lacked a compelling interest before viability: "With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability."

Roe was decided in the 70s when there was also great concern about explosive population growth.  So taking grumbler's hypothetical, let's imagine a state adopted a law imposing a 2 child maximum akin to the Chinese measures adopted in this period.  What federal constitutional provision, if any, would prohibit this?

Let's be clear:

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. 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.

Roe clearly establishes the state has a valid interest in protecting fetal life, whatever wording we want to use, that interest doesn't "not exist" until the third trimester, it is simply not sufficient (under Roe) for the State to intervene, come the third trimester it is. This framework was amended in Casey.

The court has never held that the right to privacy gives women absolute rights of her body in the context of pregnancy, subsequent jurisprudence has likewise not held the same.

Further this phrase in Roe:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

The court created the bolded right out of thin air that day, it did not invent the right to privacy with Roe, nor did it invent the conception of the court being able to protect unenumerated fundamental rights. Whatever one's opinion, a later court could hold that the bolded text was bad law, without throwing out all other jurisprudence on privacy and rights that are "suggested" by the "penumbras" of the constitution. It was a judgement call that found such a right in the first place, and one that should have been best left to legislatures.

[Berkut]

The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

[OttoVonBismarck]

The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

[Berkut]

The power to deny women, and of course only women, control over their own bodies is definitely not one that ought to be left to legislatures.

It was left to legislatures in almost the entire world.

Most of human history is a story of humans not having the right to their own bodies. That isn't a compelling reason to justify your misogyny today.