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[1].
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.
[1]: The idea of unenumerated rights is clear and sound. The Ninth Amendment suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.”
Clarence Thomas' concurrence explicitly calls for these cases to be re-examined "For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell."
For reference: Obergefell allowed equal-marriage, Lawrence decriminalised sodomy, and Griswold decriminalised buying contraceptives.
Clarence Thomas said the quiet part out loud. He publicly challenged anyone to send them a case on gay marriage or birth control and they would happily oblige and overturn those rulings as well.
Pace v. Alabama said equal protection was not sufficient. Perez v. Sharp and Loving v. Virginia require both equal protection and due process, the latter of which is now in question.
(It's all bullshit! The court will rule ideologically how they want, regardless of precedent.)
Pace v Alabama was from 1883. Perez v Sharp was a California case from 1948--an odd case to cite since it had no controlling authority outside of California.
Regardless, Loving v Virginia (1967) was decided by unanimous decision--and that's back in the 60's--just three years after the passage of the Civil Rights Act. I don't know of anyone seriously suggesting that the holding in Loving is in jeopardy today; it's literally the direct application of the 14th Amendment.
Pace v. Alabama rejected equal protection as justification. Perez, then later Loving, are relevant because they overturn that on the basis of due process as well - Perez being the first, Loving being the highest. You can't get Loving on equal protection alone; you certainly can't get Obergefell or Lawrence.
The parent asked why equal protection is not sufficient to protect interracial marriage. I answered. You don't like the answers, either:
a) Make a legal argument. To the extent you agree with this current decision, "it's old" lends it strength. But "it's old" isn't actually a legal argument, despite what the Supreme Court thinks. (That's how you know their purported theories of jurisprudence are bullshit.)
b) Make a real moral argument not rooted in made-up shit like textualism - and admit moral arguments for abortion rather than hiding behind "this is just jurisprudence."
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So if a right is not explicitly enumerated, it still exists and is retained by the people, NOT the States, the PEOPLE! A right to privacy, to control ones own body is fundamental to freedom.
Read the Thomas concurrence, lots more individual freedoms are going to be killed off by these theocratic fascists on the court.
"The largely limitless reach of the dissenters’ standard is
illustrated by the way they apply it here. First, if the “long
sweep of history” imposes any restraint on the recognition
of unenumerated rights, then Roe was surely wrong, since
abortion was never allowed (except to save the life of the
mother) in a majority of States for over 100 years before
that decision was handed down. Second, it is impossible to
defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were
critically different for a reason that we have explained:
None of those cases involved the destruction of what Roe
called “potential life.”"
That's Common Law 101 for you: rights are not "given", they are "discovered".
Pretty much as Newton's laws existed before Newton, the "rights" exist regardless of the laws (so is the philosophy underlying Common Law). The legislature can "discover" these laws, or — failing that — a judge can.
Well, those of us who believe in a textualist definition of the constitution believe the process for adding constitutional rights is a constitutional amendment and we control the court.
I'm not arguing with that, since any argument about "beliefs" is pointless. I'm just saying that "legislating from the Bench" is there by design. If you disagree with the design, it's fine — but this application "works as designed", even if you or me don't like the outcome.
The Continental law is based on another philosophy — you have no rights except the ones that are explicitly given to you by law, and the only way to have more rights passes through the legislature. There are many countries that employ Continental law, but the US is not one of them.
Common Law interpretation sure, you need to use the logic and decisions of the court to inform future decisions, but those decisions must be grounded on actual text and insofar as bad decisions are made they should be corrected. Should we have left all of the bad decisions on slavery and Jim Crow because of stare decisis?
Uhm, no — “precedent” is a judicial decision which may not be grounded on any text whatsoever. It’s a common thing in Common law, and of course it doesn’t exist in Continental law.
Well when your job is to interpret the constitution, it should be grounded on the text. That's why there are textualist who disagree with your interpretation of the role of the court. It is supposed to be the foundation.
From the dissenting opinion: Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights...When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
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This country couldn't pass a constitutional amendment making spam calls and email illegal. And didn't pass an equality amendment making women equal.
There is no prior example of a right being conferred and then taken away like this. That the Court now has a 25% approval rating following this past week, which rivals that of Congress, it is deeply delegitimizing to representative democracy that the minority keeps making the rules, and the majority keeps having to acquiesce, per the rules.
In Lincoln's 1st inaugural address he pointed out that in all constitutional disputes, either the majority or minority must acquiesce, or the government ceases. The majority can't be expected to suck it up all the time, it's just too obvious we don't have anything approximating a representative democracy so what's the incentive to acquiesce?
Apparently it’s now illegal to get an abortion in Missouri, my state.
I’ve thought a lot about this, and it does make sense for it to be up to each individual state. I don’t like it, but it’s in line with the principles that the country was founded on.
It’s strange suddenly waking up one day and not being able to do a thing that you used to have an option to do.
That's not at all what they're doing and I'm sorry you've fallen for the propaganda. They are absolutely planning on banning abortion nationally the next time they're in power, they already have the bills written.
It is possible they could without a direct vote. FDA just banned juul for not having adequate studies on effects of their products and how they market them. No vote, not much public discourse. Looking at that in another way they banned a drug/substance that damages cells in your body. Abortions drugs/procedures damage cells in your body. I'm sure if if someone really wanted to at fda they could start requesting abortions federally stopped until they can prove some unprovable concept.
Anything is possible, but I think it's a stretch that they'd use a Federal agency in that way. That would be a big uproar that would guarantee reversal in the next cycle's elections, anyway. Moreover the Republicans complain about the Federal agencies having too much power.
Do you not understand that the "Federal agencies having too much power" is a superficial complaint they use when things work against them, but are happy to flip when it's in their favor?
One easy example, the Trump EPA attempted to ban states from setting their own fuel economy standards via an administrative ruling: https://www.epa.gov/newsreleases/trump-administration-announ.... It also went further banning other states from adopting California's standards for vehicles by unilaterally deciding that emissions rules can't apply to greenhouse gases that are emitted from cars....
> I’ve thought a lot about this, and it does make sense for it to be up to each individual state.
Many believe, myself included, that women should have the right to control their own bodies, and access to abortions is part of that right. You don't leave rights up to the states. Rights are supposed to be guaranteed at all levels of government.
I'd welcome a debate on rights of mothers vs. rights of unborn humans. I feel like both sides take their argument for granted, or preach to the converted.
I can see how, if you are absolutely convinced that the unborn human is a human just the same as anyone walking on the street, you'd mirror the argument you made and say, you don't leave it up to the states to protect the lives of the unborn humans, and ban abortions.
I'm not taking a side here btw. I feel like the pro-life vs. pro-choice argument is low on arguments targeting the opposite side, only more and more rallying its own supporters.
I don't see why you'd debate that. You could debate what the rights of the mother vs. the rights of the unborn baby are until you're blue in the face and you'd be unlikely to convince the other side that they're wrong. What matters is that a large group of people think the abortion is an acceptable procedure and those that disagree aren't directly impacted by the decision. That alone should be enough to enshrine it as a right. We're a free country after all, which generally means people can do as they please so long as it doesn't negatively impact others.
I disagree, without taking a side in the debate. If someone truly and really believes a fetus is a human then they do have an interest in protecting them.
Its like being against slavery. You could say, what's that to anyone, if you're against slavery then dont own slaves but don't stop others. And yet it's reasonable to be against other people enslaving others.
Your comment suggests you think abortion is "obviously" ok and perhaps you'd agree that slavery is "obviously wrong and different". Perhaps because enslaved people are "obviously" humans with rights and fetuses are "obviously" not. I don't know of course but it seems like a reasonable guess.
But so long as the debate is about what people hold as obvious and naturally correct, all you get is more polarisation.
Again, there is no debate to be had. Those who are against abortion are saying the the fetus has rights. That is unfalsifiable. There is no point in arguing about it.
If you question whether or not a slave is a person, then I don't know what to tell you.
Have you heard of the butterfly effect? You can't predict what would happen if you go back in time and change something. Maybe Apple wouldn't exist, or maybe it would exist and would be even better. Or some other company would exist in its place and would be better / worse. Or maybe Apple wouldn't exist, but because it didn't exist, TSMC would never rise to prominence, which would make Taiwan less of a powder keg, which would avoid WW3 when China inevitably takes control of Taiwan. Or maybe...
> It is the same argument used to justify any opinion without proof
You offered an opinion without proof, which is that Apple wouldn't exist. This is why these "debates" are so unproductive. Both sides have unfalsifiable positions.
Maybe some people believe women (and men) who are alive but haven’t been born yet have the right to control their bodies and not be killed, so they can exercise their autonomy one day. They would probably agree with you that “you don't leave rights up to the states. Rights are supposed to be guaranteed at all levels of government.”
Seems strange that most pro-abortion advocates would probably be in favor of tenants rights to protect them from being evicted from a rented house but are fine with a living human being lethally evicted from a womb as long as the “owner” says so.
In both cases there are two humans, both of which have rights and whose interests have to be balanced - I don’t think it’s helpful to pretend otherwise. One might also want to consider other situations where humans have decided other people are “not really” human in order to justify doing terrible things to them, including killing them. In every situation I can think of, that thinking was wrong - seems unlikely that abortion is an exception somehow.
> Many believe, myself included, that women should have the right to control their own bodies, and access to abortions is part of that right.
I won't argue with your belief, but please share your opinion (if you don't mind, of course) on this: whether a homicide of a woman and a homicide of a pregnant woman should receive the same punishment?
It might be better for the country if those principles were applied to other questions, like "How should a militia be regulated?" and "Which plants can adults consume?". Unfortunately the loudest proponents of states' rights don't seem to think the principles should go quite that far.
You do remind me that, when people claim that the Civil War was fought over states' rights and not slavery, I like to ask them to name three such states' rights. The more interesting follow up is to name one states' right that wasn't prohibited for states to decide by the Confederate constitution--every answer I can give for the first question was also precluded by the Confederate constitution.
The primary motivation for states' rights seems to be not to actually let states decide, but to enact policies at the broadest possible level they can do so.
I was worried that using the word "regulated" would clash with the term "well-regulated", as I am aware of the interpretation you mention, but I still wanted to bring the second amendment to mind.
My point was that the Constitution might (or maybe just should) allow individual states to apply their own regulations to the militia within their jurisdiction, beyond the minimal Constitutional requirement/justification that the militia be readily functional.
State supremacy is a thing, but only for matters the Constitution does not speak on. You'd have to pass a new amendment to allow something like that. Not the easiest task, especially in this climate.
States rights is the key world in this. They don't believe in the rights of the people, they believe in the rights of the states to do what they see fit to their people.
I mean, their core argument is what you said, but the reverse. It is, of course, bullshit.
And, of course, the rights that they always take issue with are when the federal government is permissive with them. Apparently, in some strange backwards logic, the federal government granting you a right is tyrrany, but the state taking it away from you is not.
> it does make sense for it to be up to each individual state
The same argument was made about slavery, but a large and powerful subset of the country decided that slavery was not tolerable even in neighboring states. I don't see a reason that forcing a woman to expose her medical records to the government or forcing her to carry a baby (at the risk of her own life) is not on similar moral ground.
> I don’t like it, but it’s in line with the principles that the country was founded on.
The country was also founded on disenfranchising women and minorities, and it's deeply undemocratic in the way that land votes rather than people.
The founders strongly urged the country to allow laws to evolve and to amend the Constitution. That is also a "founding principle".
>The same argument was made about slavery, but a large and powerful subset of the country decided that slavery was not tolerable even in neighboring states.
And they didn't do it through the Supreme Court, but through an amendment. If abortion is a right then it should be passed as an amendment declaring it as a right.
I'm not saying it isn't a right. The Constitution / amendments do not create rights. I'm saying if you want to guarantee you are allowed to exercise the right you need to pass an amendment.
Read Thomas's opinion. He wants to overturn tolerance for homosexuality, contraception, and interracial marriage (Whoops, he left that one out, despite it being the fruit of the same tree, I wonder why...) on the same grounds as RvW.
Also, Mike Pence is already calling for a national abortion ban. So much for the party of 'states rights'.
Congress is limited to what it can legislate with the remainder defaulting back into the jurisdiction of the states as part of the Federalism system of checks and balances.
Check out Article 1 Section 8 of the United States Constitution, which enumerates the primary law-making jurisdictions of Congress.
It makes no sense for a state to be able to deny people their rights. Generally in this nations history leaving it up to the states has been a very bad idea
If the argument is "well, we have to draw a line somewhere," then pray tell, why does it happen to be in conveniently located where it leaves the most people with the least freedom?
Side note, I never thought I would see the federal government give authority back to the states.
It's almost mind-blowing considering I've spent my whole life observing the push to federalize everything: Healthcare, College, UBI, Transportation, Wages, Firearms, Infrastructure, etc...
Pretty much. Roe V Wade took authority from the state and gave it to the individual. Repealing Roe V Wade potentially takes the choice away from the individual and gives it to the state.
It's interesting how conflated the federal government is with 'the people' while the state is assumed to be adversarial to the people.
This is what I was hinting at. The marketed solution to Americans is that local government is always bad and we need a single government entity to rule universally.
The issue is Roe V Wade gave the federal government a negative power, not a positive one. The Fed government did not have the power to force or prevent people from getting abortions. The Fed government had the power to prevenet States from claiming the power rather than individuals regarding their choice to abortion.
By removing the federal governments negative power, the states have de facto been given a positive one to decide whether people receive abortions, rather than people deciding themselves if they will get abortions.
But the power to ban abortions has not been moved from the Federal government to States, because the Federal government never had that power to begin with.
Rather the power to decide to have an abortion has been moved from the individual to the state.
Because that is the common case in our nations history especially with civil rights, leaving it up to the states lets bad state governments infringe on their citizens rights
This argument would be more convincing if the rest of the law treated the unborn as people, but largely it does not. You can't even deduct an unborn child as a dependent on your taxes.
Incorrect. Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution and recognizes a right to privacy from the government.
This takes rights from people and gives it to individual States.
I think there's a little bit more to it than that. The Supreme Court justices are appointed for life, based on appointments by people previously voted into office.
Thanks for enlightening me. /s
I never said change would come fast.
But if the basic act of voting at every election appears like such a burden for many progressives, there's no point in lamenting at the outcome.
There's the quite silly assumption that the non-voters are somehow magically Progressive.
And that being Progressive is even a pre-requisite for voting for abortion rights.
Moreover that voting is a solution to anything. As an independent, I find both parties particularly despicable. And it doesn't matter what I vote for, since with the Electoral system my vote doesn't count, and due the closed primary system and dominance of one party statistically, my vote doesn't count for local elections. Our ballot only has one party on it ranging from mayoral to city council to judge and DA elections.
Blaming non-voters for all the bad decisions of government is a scapegoat.
No. That's a temporary status. They went out of their way to ensure that a nationwide abortion ban was still 'constitutional' but the nationwide right to one was not.
The Supreme Court didn't fix a damn thing. They made bodily autonomy subject to majority votes in state legislatures. Bodily autonomy is too important to be trusted to a majority vote, and Democrats failed the country miserably by not pushing to amend the Constitution to guarantee the rights of all Americans to ownership over their own bodies.
But amending the constitution is also done by majority vote. There's nothing about legislating at the federal level that makes it more likely to produce the right laws than at the state level. For example, there's the federal marijuana ban, sending countless non-violent drug users to prison.
It's this way by design. In retrospect, we could have probably avoided the problem of the party in power trying to appoint 'their' judges by requiring a three-quarters majority in the Senate for appointments, but that didn't happen and never will.
> The Supreme Court is an unelected political entity. Can this be fixed?
Not really. The Senate and possibly House are expected to flip this fall. Our supreme court is taking a crack at reducing civil liberties and empowering conservative culture war positions. Precedent doesn't matter apparently. Only literal, conservative-justice interpretations of the constitution matter now. They're unqualified and unfit to run our nation's highest court. Radical and idealogical. Libertarians should be angry about this development of encroachment upon personal liberty and rights.
"Most of the federal government’s authority over the economy derived from a clause in the Constitution empowering Congress to regulate interstate commerce, but the court construed the clause so narrowly that in another case that next spring, it ruled that not even so vast an industry as coal mining fell within the commerce power."
The "regulation of interstate commerce" now is a joke of a catchall which basically is modernly interpreted as "government can damn do what it pleases in every avenue of our lives" from its original interpretation which was "you can make sure horses can get from point A to point B".
The ruling with regards to interstate commerce was obviously correct. Local businesses even vertically integrated ones are part of a national marketplace
Many people disagree with that interpretation so its not at all obviously correct. It was not interpreted that way at all until FDR threatened to pack the court.
Courts should be the most liberal part of a government. Otherwise the will of the majority is total and the minorities get royally screwed. Now, the sc is looking like the least liberal part, dragging existing laws and precedents down. Will be ugly. And now, it’s fair game when things reverse to rule the shit out of the 2nd amendment. Sauce for gander.
The court interprets the laws. This was a bad ruling when it was made. If you want a law, then the legislative branch can try to pass one. That's how our government was setup to work.
> Want a gun, sign up for the militia.
All able-bodied citizens are already part of the militia. The Militia is just The People.
the right of the people to keep and bear Arms, shall not be infringed.
The militia was what became the national guard. If you read the founding father's word on the subject that's clear. Any other reading of the 2A is wishful thinking and SCOTUS rulings on the subject are an example of judicial activism.
Liking it when good things happen and not liking it when bad things happen is not hypocritical. You can argue which decisions were good or bad, but you can't claim what's happening now is good while also acting like politics is an inconsequential team sport.
From a Christian conservative point of view the past 80 years were bad and the current polar opposite direction is good. Christian conservatives cheering for the current decisions after complaining about the previous decisions aren't hypocrtical either.
Not that "you're hypocritical" is even an argument. Even if it were hypocritical, so what?
Nominations of the justice is done by people who have been elected though. According to you, does that make them less legitimate that if they were directly elected?
Not OP, but yes, adding additional layers of indirection makes an election/nomination less representative of the will of the people and thus "less legitimate" if you think legitimacy is based on representing the will of the people.
Of course the bigger problem according to this perspective is that there are many more layers of indirection before it even comes to the point where "your" elected representative nominates a judge. Some of them are more prone to "shaping" than others (e.g. via gerrymandering, disenfrachisement, voter suppression in all its forms) but the goal is generally to generate "favorable" election results regardless of what the people currently want.
You can't vote them out. There are only two ways to get rid of a Supreme Court judge: they retire or they die.
As I assume you aren't asking for ways to bring about either of those scenarios in ways that would incur legal issues, the more appropriate answer is that the government can appoint additional judges, which I think is called "packing". Right now the general consensus among Democrats seems to be that they don't want to do it because it would set a precedent Republicans could exploit, although history has shown that the Republicans don't require precedents to "play dirty" (e.g. while Obama refused to appoint a replacement judge because he was on his way out of his second term, Republicans happily appointed replacement judges when Trump was on his way out, not to mention that a significant number of Republicans supported the claim that Biden "stole the election" and Trump was the real winner).
If you're asking for a systemic long-term solution: no, it can't be fixed. The problem is that the Supreme Court lacks a clear mission statement and effectively acts to reinforce whichever party is in power at the time. The current SCOTUS majority leading to these decisions are "constitutional originalists". While you can argue that this is bad (or that this is still relying on interpretation and inferrences), it's impossible to say that this is wrong because it's an entirely valid interpretation of what the SCOTUS is for.
If you want to "fix" the SCOTUS because it's undemocratic, the problem is that it's only one of many aspects of the structure of US government that's undemocratic. The system was never meant to allow all people to equally influence the government. The system exists as much to curtail the power of the ruling politicians as to curtail the direct power of the people.
In other words SCOTUS isn't broken, you just don't like the political system itself. That's fine, but it requires a different framing in order to understand your goals and options.
That would require them to have commited impeachable offenses. That bar seems to be extremely high considering the kind of conduct that doesn't seem to meet it.
Apparently the wife of one of them was instrumental in attempting to overthrow our Republic. Is that not an impeachable offense? How is fucking treason not impeachable? I feel like I am losing my mind here, people.
Well, if we go back to 2000, said justice refused to recuse himself from ruling on the presidential election despite his wife being on the winning candidate's presidential campaign and transitional administration.
Seems a fair reason for the house to conduct an investigation to decide whether to send the matter to the senate for trial. Note none of that actually depends on Gore having won the vote, BTW.
I'd also like to know more about said justice's wife's role in the last election and if she involved her husband in any way to prepare for yet another Supreme Court intervention.
That's what it was when they came down with Roe originally, they are just returning to NOT being a legislative body and returning this decision to where it belongs.... the legislature.
Like it or not, ever since SCOTUS seized the unconstitutional power to overturn legislation, they have been a political entity, effectively legislating.
The difference with recent rulings is that they've abandoned any pretense of political independence or legitimacy.
If that is your position, you think that when the came down with Roe V Wade that WAS political independence and legitimacy and when overturn it its not? You can't have your cake and eat it too. It's not "illegitimate" when they don't "legislate" the way YOU want.
To be clear I am very moderate on abortion, I believe in the first trimester. But this is a states right issue and is a made up constitutional right.
Acknowledging that SCOTUS has always been political is not controversial. But until recently, they "legislated" in a fair way, in order to maintain the appearance of neutrality. I am specifically objecting that change away from the appearance of neutrality, starting circa 2000 in Bush v Gore.
its fair when you get your way, its unfair when you don't? You think "Roe v Wade" is the appearance of neutrality but Dobbs isn't? What is your standard of fair vs unfair?
Roe was clearly a compromise, which was unsatisfactory to nearly everyone at the time. I don't like Roe, but it's better than what we have now, which is nothing.
I always thought the US was about freedom of choice but this appears to be against freedoms in general. The people voting for this must love being told what to do?
Abortions were introduced through a court precedent (which was vague based on what I read) and now it is overturned with a 200+ pages document explaining why they came to that conclusion.
Abortions where derived from the right of peoples privacy.
With same logic the right to bear arms doesn't mean all kind of arms.
And the people are precisely those who are now no longer allowed to decide if they get an abortion.
If the current decision that states may decide is not a restriction on privacy rights, then it would not be a restriction on gun rights if the same applied to the bearing of arms.
Time for every equality-minded US corporation to move as much capital as it can to Canada / Canadian assets / banks. Moving HQs, even better. Politicians will notice if hundreds of billions evaporate.
If the assumption is made that abortion supporting companies were already donating to the left that would have opposite effect by empowering the right. To be effective would need to change positions/donations of right donating businesses
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.
Some states are even more radical than current SCOTUS. They have sodomy laws considered invalid that can be activated. How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...
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[1]: The idea of unenumerated rights is clear and sound. The Ninth Amendment suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.”