Texas vs Roe vs Wade

[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.

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.

Man, you were really hoping you'd find an excuse to throw around insults like that when this thread started, weren't you?

The question of whether one agrees with legalized abortion, and whether one thinks Roe was good law, good policy, or good function of a constitutional state, are not the same question. I've always been broadly skeptical of the breadth of the Supreme Court's judicial review power (which I note again--is out of sync with much of the world), especially due to our Supreme Court having lifetime tenure with only extremely difficult mechanisms available to curtail their rulings, all of which have only been used very sparingly in our national history.

Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

I'd really like to see gerrymandering eliminated, I'd like to see the Senate changed to at least be partially-population weighted to gut the influence of extremely small population states etc, but we'd have to go through a process to see these things happen, wanting an end run around the process undermines civil government.

[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.

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.

You either did not read or did not understand my post.  Your examples demonstrate my point.  Banning Euthanasia is another good example of a political decision.  It has nothing to do with the efficacy of the treatment to end needless suffering.  The recent court challenges in Canada aptly demonstrated that point. 

[The Brain]

I am not convinced that a gathering of slave owners is inherently a better source of law than democratically elected legislatures.

[grumbler]

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.

Let's be clear:  this statement has no bearing on any discussion here, since no one here is arguing "that one has an unlimited right to do with one's body as one pleases."  Why not?  Because most of us accept the rule of law, which in this case is the clear opinion of the USSC.  It is only you that is arguing that the court was wrong.

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.

Roe clearly establishes that the state has no compelling interest in a woman's pregnancy until the fetus is viable.  Casey does not change that finding.

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.

The court interpreted the right to privacy to include the right to make medical decisions for one's self, absent a compelling state interest to the contrary.  A later court ruling could invalidate an ruling which extended explicit language to implicit cases.  They would need a very compelling reason to do so (as in all cases which reverse precedent), however, unless that particular court is motivated purely by partisan political interests.  It is clearly the latter which created the current court, as Mitch McConnel has admitted.

[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.

Man, you were really hoping you'd find an excuse to throw around insults like that when this thread started, weren't you?

The question of whether one agrees with legalized abortion, and whether one thinks Roe was good law, good policy, or good function of a constitutional state, are not the same question. I've always been broadly skeptical of the breadth of the Supreme Court's judicial review power (which I note again--is out of sync with much of the world), especially due to our Supreme Court having lifetime tenure with only extremely difficult mechanisms available to curtail their rulings, all of which have only been used very sparingly in our national history.

Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

I'd really like to see gerrymandering eliminated, I'd like to see the Senate changed to at least be partially-population weighted to gut the influence of extremely small population states etc, but we'd have to go through a process to see these things happen, wanting an end run around the process undermines civil government.

I really believe that there are things like basic human rights, and it seems pretty blindingly clear to me that the right to make your own decisions about your own body has to be one of them - if there are ANY such basic human rights.

Protected rights, by definition are NOT about the "broad consensus of society". Indeed, that is a bizarre position to take in defense of the current SC dismantling Roe v Wade given that the broad consensus of society today is that abortion ought not to be banned.

But again, you don't get to vote as to whether or not people get to have sovereignty over their own bodies. At least, you should not be allowed to vote over that. You disagree, and think the particular case where the State gets to decide is one that is core to women's fundamental control of their own selves.

The practical effects of such a position is to deny women, and only women, the right to control their own bodies. If you don't like the term misogyny to describe that, I suspect that you being upset with me is the least of our worries over your demand that the State get to choose how and when women (and only women) are allowed to procreate. Remember - we have already established that right along with this is the right to use birth control, which you ALSO are fine with taking away.

[grumbler]

Just because you really believe in something isn't in and of itself enough to make something law, nor should it be. Laws made without the broad consensus of society, in a free society, are often going to cause problems, which is one reason in a free society we tend to let elected officials do the law making.

In principal, I agree, which is why I think that the current USSC's anticipated lawmaking is going to crush the reputation of the Supreme Court for at least a generation, and maybe forever.   The fact of the matter, though, is that the US has a two-party system with one party dedicated to the failure of government.  Expecting good lawmaking out of the current political climate is naïve.  The best we can hope for is gridlock, but the current court will not tolerate that.  They will engage in full-scale reactionaryism, by all accounts.

[The Minsky Moment]

Roe clearly establishes the state has a valid interest in protecting fetal life, whatever wording we want to use

The wording matters because stronger liberty interests require stronger state justifications to overcome.

[Sheilbh]

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.

But the alternative is leave it to courts. It's just displacement.

I really believe that there are things like basic human rights, and it seems pretty blindingly clear to me that the right to make your own decisions about your own body has to be one of them - if there are ANY such basic human rights.

Protected rights, by definition are NOT about the "broad consensus of society". Indeed, that is a bizarre position to take in defense of the current SC dismantling Roe v Wade given that the broad consensus of society today is that abortion ought not to be banned.

But don't those rights have power precisely because they are endorsed by a broad consensus of society? Society defines the limits of those rights and I absolutely agree on this as a defence on the SC dismantling Roe v Wade - but if the decision is made in a court then you only need a consensus of 5 people. I think that is far more vulnerable to fail to protect rights than things that are voted on.

The rights in the constitution are upheld in the way they are because there is a broad consensus of society that supports the constitution (except for when there wasn't) but that leaves the determination of what those rights mean in the hands of the SC who have, at best, a mixed record. A number of those rights have been pretty malleable in the face of social opinion, executive power in a crisis etc. Which, I think, raises a question of how much protection those rights offer (for example for prisoners, for people whose voting is being restricted) and it's fairly common that there's more support in society at large than the offices of SC justices.

If Republicans had to convince voters to ban abortion - they couldn't do it. But they don't they just have to work the courts better than Democrats.

Incidentally recently got - and have not read - a new book that sounds very interesting by Linda Colley - The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (https://www.theguardian.com/books/2021/apr/24/the-gun-the-ship-and-the-pen-by-linda-colley-review-how-the-modern-world-was-made). Sounds appropriate for all this conversation

[grumbler]

"If Republicans had to convince voters to ban abortion - they couldn't do it. But they don't they just have to work the courts better than Democrats."

That isn't the issue.  The issue is that, if Democrats had to convince voters to allow abortion, they couldn't do it.  Nor gay rights, nor same-sex marriage, nor banning miscegenation laws, etc.  Changing laws is hard, especially when the minority has enormous powers to stop change.  Loving v. Virginia didn't arise because the Virginia state legislature was tortured by the idea of miscegenation and would soon have eliminated those laws itself.  Laws against miscegenation would still exist in Virginia today if not for the USSC.

[Sheilbh]

I think that's exactly the point though.

If you're relying on courts and rights then you will occasionally have leaps through a court ruling. But those rights endure either as long as the court remains convinced it was right or until society catches up - and there is always the chance of a sudden overnight reversion. It could be because of a crisis or social views not changing, or a party in a minoritarian system building a huge part of their political identity and power around controlling the court to overturn that ruling. That's the downside of that system as numerous people on the wrong side of Supreme Court judgements over the years have found out when it acts like a mouse under the throne.

The alternative is slower but, I'd suggest more enduring. I think gay rights and gay marriage are under far less risk of being rolled back in, say, Ireland or Australia right now despite taking longer to get there via campaigns and social change and citizens assemblies and, ultimately, a referendum (non-binding but implemented by an anti-gay marriage party in Australia. The same goes for abortion in Ireland now.

Because to get back to this position after a court changes it's mind you either need to win back from this 6-3 court (which took the GOP 40 years to build) or you need to amend the constitution. So either way the end effect is you still need to convince voters. Andyou should get rid of the system giving the minority so much power because it's clear one side intends to rule with only a minority, as long as that's enough to block things especially judges.

[grumbler]

I think that's exactly the point, though.

if you have a written constitution with enshrined rights (even if not enumerated), you are saved from the passing fancies of a government allowed to interpret an unwritten constitution however it pleases.  But a written-Constitution system can only survive when the arbiters of its meaning are in agreement that its meaning has been previously determined by persons as authoritative as themselves.  When you get a court full of people, like the US now has in its USSC, that absolutely consider themselves smarter than anyone on the court before them, you might as well have a Parliamentary system with only six MPs.

The Republicans have not been able to destroy the US political system using the minority.  That would be worse than the current truth, which is that they wrecked it in the majority.

[The Minsky Moment]

Because to get back to this position after a court changes it's mind you either need to win back from this 6-3 court

Difficult to do when nominees of Democratic presidents are not permitted on the Court.

So either way the end effect is you still need to convince voters.

You need to win the Senate seats in 26+ states, a different and more formidable prospect.

[crazy canuck]

The alternative is slower but, I'd suggest more enduring. I think gay rights and gay marriage are under far less risk of being rolled back in, say, Ireland or Australia right now despite taking longer to get there via campaigns and social change and citizens assemblies and, ultimately, a referendum (non-binding but implemented by an anti-gay marriage party in Australia. The same goes for abortion in Ireland now.

Sheilbh, I think you are fundamentally wrong about this.  The alternative is not just slower but likely non existent within the US system.   Australia is a parliamentary system and so more flexible politically in the sense that all you really need is one election to elect one majority government and you are there.  Not so simple in the US system.  The US system is designed to not get things done.

[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.

You either did not read or did not understand my post.  Your examples demonstrate my point.  Banning Euthanasia is another good example of a political decision.  It has nothing to do with the efficacy of the treatment to end needless suffering.  The recent court challenges in Canada aptly demonstrated that point.

That's possible, I often just skim your posts due to your general stupidity.

[OttoVonBismarck]

The core point being made is fundamentally sound--rights that only exist because of a few men in black robes, can be taken away by a few men (and one woman) in black robes.

Let's talk about the right to privacy of the marital bed, one of the things cited in Griswold. There is a very strong argument that right traces itself back to early English common law, and the justices made explicit reference to it. While we inherit a lot of our legal system from the English, it isn't all that common for our courts to cite mid-18th century English judicial rulings in our court system, even though it isn't unheard of, the fact that one did so to argue for a right to privacy of the marital bedroom, suggests that there is a very strong English common law precedent that a man and his wife, have a right to privacy in their bedroom. They have a right to privacy in deciding if they are going to have children, they have a right to privacy in deciding if they are going to take 'actions' within that bedroom that might limit procreation (i.e. pull out method or other alternatives), they have the right to privacy in their papers, possessions et al. The State cannot infringe on that without serious justification under the law, typically as part of a criminal investigation where sufficient evidentiary barriers have been breached.

I would stipulate that much as we might wish it to be so there is no strong English common law precedent to a right to terminate a pregnancy. In fact, an unbiased reading of the history of our laws, practices and customs and then the laws practices and customs of the English legal system the predates our own, suggests very strongly that if there is a common law rule on abortion it is that--it is wrong and should be illegal. In fact in the early 19th century abortion was a capital crime in England.

There is a strong argument to be made that instead of a fundamental right to practice abortion, there is an overwhelmingly strong and historical precedent to the right of society to stop abortions, and to punish people who commit abortion. There was a similar precedent around adultery as well. Changing times change the law, and people elect representatives who pass new laws to reflect that. Roe v Wade short circuited that process and created the legal fiction that there was some ancient right to terminate a pregnancy, where they had never been one.