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Why is Roe v Wade so important?

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23 minutes ago, KarmaPolice said:

Gotcha - you are talking around it, but are saying the same thing, so my point stands and I think it's an ignorant statement.   You've said it a few times now that pregnancy = "living unborn", so that is life no matter what the stage since a woman is pregnant from the get-go.  

Come on, nobody here is talking about something in petri dish...

actually adonis was doing just that - trying to hold a mother accountable for maybe something that happens to an egg etc

my wife is a strong believer in life begins at conception - in a petri dish, outside uteran implantation  - whatever you can throw out there, if its a fertilized egg that's developing, its a human life to her

maybe it is, I'm not 100% certain ... but I do know what a pregnancy is, so talking around it no, I'm talking about Roe V Wade, which has nothing to do with a not pregnant woman and everything to do with one who is.

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In response to the question posed by the OP, I think another reason Roe v Wade is so important is that it gives conservatives something to unite around/fight for/feel virtuous about when they don't want to talk about other stuff. 

See eg this thread and the last week as evidence mounts that the President of the United States is subservient to a foreign adversary.

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1 minute ago, TobiasFunke said:

In response to the question posed by the OP, I think another reason Roe v Wade is so important is that it gives conservatives something to unite around/fight for/feel virtuous about when they don't want to talk about other stuff. 

See eg this thread and the last week as evidence mounts that the President of the United States is subservient to a foreign adversary.

Some folks can multi-task.

I am not in that thread as it is a closed question, for me, while I potentially remain open to changing or refining my position and opinions on this matter. 

For some, many apparently, trump is the singular issue of the day.  Not so for me, which is not to downplay the importance of Trump's actions.

 

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5 minutes ago, Ditkaless Wonders said:

Some folks can multi-task.

I am not in that thread as it is a closed question, for me, while I potentially remain open to changing or refining my position and opinions on this matter. 

For some, many apparently, trump is the singular issue of the day.  Not so for me, which is not to downplay the importance of Trump's actions.

 

I didn't mean to impugn people participating in the thread, I'm one of them. Just noting that the Roe v Wade boogeyman serves a useful purpose for conservatives. How many people have you heard excuse or explain their Trump support based on their passionate pro-life views and desire to see Roe overturned? And it's a great rallying point in addition to being a nice cover story for supporting otherwise questionable politicians. Will be interesting to see how things develop on that front regardless of whether Kavanaugh does help them overturn it (no more boogeyman/cover story) or fails to do so (the boogeyman is a permanent resident now).

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39 minutes ago, Stealthycat said:
1 hour ago, Man of Constant Sorrow said:

My default position on the matter is, measurable neural activity in the brain, because it is the position the majority of the scientific community holds at present. But, it is not unanimous, and correlation does not mean causation.

ok

so the moment before that happens, there is no pregnancy right? I mean there cannot be if the entity you're talking about isn't alive, right ?

and how does such a moment occur in a non-living entity ?

I'm not really sure how your reply here relates to what I was saying.

I was giving my opinion on when consciousness is generally considered to be present in beings capable of consciousness. Further, I stated that not all scientist agree on this matter.

So - in my example, the moment before that happens must be after conception, thus, there must be pregnancy and the entity must be alive.

Also, I never stated that such a moment occurs in a non-living entity. However, there are current theories that consciousness is a product of certain quantum actions and therefore proto-consciousness could be present in what we now consider non-living systems. 

49 minutes ago, Stealthycat said:
1 hour ago, Man of Constant Sorrow said:

Also, in regards to biology, while Bio 101 states things pretty straight forwardly regarding the development of life from fertilization to birth, the post-grad and cutting edge work on the matter contains many disagreements on many things that pop science sometimes paints as more proven than is actually the case

what they cannot say is that its not a living entity - it HAS to be or a woman isn't pregnant - women cannot be pregnant with non-living unborn

Well sure, all biologist I have ever studied under unanimously agree that the germinal stage, the embryonic stage, and the fetal stage are all living. However, there is disagreement on when the "entity" becomes a "human being".

Thus, I have no problem with your position in regards to when you define "human being". But, I also have no problem with others who may disagree with you. That is really the main point I am trying to make: there is room for disagreement and debate here.

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Abortion is one topic I won't bother debating with people.  If you're pro-life, I'm never going to change your mind about the importance and preciousness of every fertilized egg that's ever existed.  IMO, we're all just animals and assign too much value to each life (or potential life) simply because it's our own species.  However, even with that viewpoint, I still struggle with the thought that a fetus is ripped from the womb and terminated.  I understand why someone feels it's murder and not sure I'd ever suggest my S.O. have an abortion even though I'm pro-choice.   

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59 minutes ago, Ditkaless Wonders said:
2 hours ago, Man of Constant Sorrow said:

I was gonna go here myself DW.

I have not yet seen any mention of consciousness.

As one who has tried to study this phenomenon for many years, the major thing I have learned is that there is yet to be any solid consensus on the timing of its emergence. In fact, some serious arguments maintain that all is consciousness - by neuroscience - not just philosophers.

My default position on the matter is, measurable neural activity in the brain, because it is the position the majority of the scientific community holds at present. But, it is not unanimous, and correlation does not mean causation.

Also, in regards to biology, while Bio 101 states things pretty straight forwardly regarding the development of life from fertilization to birth, the post-grad and cutting edge work on the matter contains many disagreements on many things that pop science sometimes paints as more proven than is actually the case.

It is the uncertainty in these scientific things that is my foundation of supporting the right for women to make this choice based on their own moral beliefs with the help of their loved ones and medical providers.  

EDIT: Oh, I should clarify that while I am pro-choice, I am generally against the legality of abortions once the fetus reaches viability (i.e. 3rd term) unless there are medical reasons that support it. 

For me the question is one of the reach of government .  When does government have the right to reach into our private lives and to control our moral decisions.  My resolution of that question places me in the camp that would allow fertility questions to be between a woman and her physician up until the point of birth of a new citizen. Others differ.

 

1 hour ago, Ditkaless Wonders said:
2 hours ago, Man of Constant Sorrow said:

I was gonna go here myself DW.

I have not yet seen any mention of consciousness.

As one who has tried to study this phenomenon for many years, the major thing I have learned is that there is yet to be any solid consensus on the timing of its emergence. In fact, some serious arguments maintain that all is consciousness - by neuroscience - not just philosophers.

My default position on the matter is, measurable neural activity in the brain, because it is the position the majority of the scientific community holds at present. But, it is not unanimous, and correlation does not mean causation.

Also, in regards to biology, while Bio 101 states things pretty straight forwardly regarding the development of life from fertilization to birth, the post-grad and cutting edge work on the matter contains many disagreements on many things that pop science sometimes paints as more proven than is actually the case.

It is the uncertainty in these scientific things that is my foundation of supporting the right for women to make this choice based on their own moral beliefs with the help of their loved ones and medical providers.  

EDIT: Oh, I should clarify that while I am pro-choice, I am generally against the legality of abortions once the fetus reaches viability (i.e. 3rd term) unless there are medical reasons that support it. 

For me the question is one of the reach of government .  When does government have the right to reach into our private lives and to control our moral decisions.  My resolution of that question places me in the camp that would allow fertility questions to be between a woman and her physician up until the point of birth of a new citizen. Others differ.

I respect this even though I draw my line at fetal viability. As I stated before, there are many things that are worthy of respectful debate and disagreement. Oh, and I wholeheartedly agree with keeping government out of this as much as possible.

 

1 hour ago, Ditkaless Wonders said:

I do have some quandary when it comes to the rights of fathers.  How are their interests balanced or recognized vis a vis the rights and decisions of mothers when they are not aligned.  Could a father seek an injunction to prevent a mother from terminating his future progeny, or could he demand the mother undergo an abortion?  I want the answer to be in the negative, but there are ramifications.  For instance if a woman insists on birthing a child the father does not want why should she be then able to collect child support?

Wow - I really don't have anything of worth to offer here. I'm the biologist; you're the lawyer! :P

Seriously though, as long as it is women who carry the child, I am inclined to give them full say on the matter in the normal course of events. If there is something that indicates that a woman does not have the mental capacity to make decisions for herself, I could envision some legal way for others to be involved in the decision, but it would have to be a very high bar.

Oh, irt to child support, as a layman, I believe that she is entitled to it. But, you may be able to sway me with your silver tongue counselor.

1 hour ago, Ditkaless Wonders said:

In the end I have no answers, only questions and feelings.  I might want to pretend my feelings are rationally based, or that they are derived from some universal and ascertainable truths, but they are not. I know this, life means there will be death.  Not all life gets to flourish to its full potential. We humans place value judgments on outcomes and processes, but those are subjective.  Given my thoughts I try to respect the positions of others who vehemently disagree with me.

Wisdom bomb-drop here!

:hifive:

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46 minutes ago, TobiasFunke said:

I didn't mean to impugn people participating in the thread, I'm one of them. Just noting that the Roe v Wade boogeyman serves a useful purpose for conservatives. How many people have you heard excuse or explain their Trump support based on their passionate pro-life views and desire to see Roe overturned? And it's a great rallying point in addition to being a nice cover story for supporting otherwise questionable politicians. Will be interesting to see how things develop on that front regardless of whether Kavanaugh does help them overturn it (no more boogeyman/cover story) or fails to do so (the boogeyman is a permanent resident now).

Understood.

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24 minutes ago, Man of Constant Sorrow said:

 

I respect this even though I draw my line at fetal viability. As I stated before, there are many things that are worthy of respectful debate and disagreement. Oh, and I wholeheartedly agree with keeping government out of this as much as possible.

 

Wow - I really don't have anything of worth to offer here. I'm the biologist; you're the lawyer! :P

Seriously though, as long as it is women who carry the child, I am inclined to give them full say on the matter in the normal course of events. If there is something that indicates that a woman does not have the mental capacity to make decisions for herself, I could envision some legal way for others to be involved in the decision, but it would have to be a very high bar.

Oh, irt to child support, as a layman, I believe that she is entitled to it. But, you may be able to sway me with your silver tongue counselor.

Wisdom bomb-drop here!

:hifive:

I think many draw the line at fetal viability.  That line has changed substantially since Roe v. Wade fist made its appearance.  It is that change which may be the catalyst to revisit the issue.  It will be interesting if that happens if the line is redrawn on the age of viability with continued acknowledgment of the precept of the mother's right to privacy intact, or whether both the line and the precept are altered.

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4 minutes ago, Ditkaless Wonders said:

That line has changed substantially since Roe v. Wade fist made its appearance.

In what sense?

Biologically, legally, socially, etc.?

Sorry, not trying to be argumentative - serious inquiry.

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5 minutes ago, Man of Constant Sorrow said:

In what sense?

Biologically, legally, socially, etc.?

Sorry, not trying to be argumentative - serious inquiry.

Medically.  The age for fetal viability outside the womb has changed dramatically as medical science has improved, or perhaps medical care and intervention is a more accurate manner of expressing the issue.  That issue was taken up in Planned Parenthood and is likely to meet with further exposition.

 

(I wrote a paper in 1986 predicting Planned Parenthood, of course by 1986 many had seen that writing on the wall.).

 

Edited by Ditkaless Wonders

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8 minutes ago, Ditkaless Wonders said:

Medically.  The age for fetal viability outside the womb has changed dramatically as medical science has improved, or perhaps medical care and intervention is a more accurate manner of expressing the issue.

 

Ah - ok.

Last time I deeply checked, it was somewhere around 24 weeks when using statistical methods. But, I've casually seen some new data suggesting 20 weeks may be possible now.

Also, I came across something a while back suggesting that there may be tests that could be done to predict viability on a case by case basis. I know nothing further on this unfortunately.

Thus, I would be for proceeding with the most up-to-date method for determining viably and making changes where necessary and potentially dropping the trimester system.

 

Also, in another thread we were discussing the potential ramifications when/if technology reaches a point for gestation in artificial wombs outside the uterus. I don't really feel like opening that can worms here and now, but it also could create new legal issues.

 

Thanks for clarification and worthy contribution. :suds:

Edited by Man of Constant Sorrow

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2 minutes ago, Ditkaless Wonders said:

Medically.  The age for fetal viability outside the womb has changed dramatically as medical science has improved, or perhaps medical care and intervention is a more accurate manner of expressing the issue.

 

Roe allowed regulation at the third trimester.  So 26 weeks.  The earliest premature baby to survive was at 21 weeks.  Babies born at 22 weeks have about a 6% survival rate.  You have to get to 24 weeks to get the survival rate over 55%.

Now, Roe is no longer the relevant precedent.  Casey is.  But let's assume we go back to the Roe framework and allow regulation including outright bans after viability.  It's hard to imagine that line ever getting to be before 20 weeks.  Six weeks certainly isn't an insignificant period considering the total gestation period, but I'm still not sure I'd classify the change as dramatic.  

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58 minutes ago, TobiasFunke said:

I didn't mean to impugn people participating in the thread, I'm one of them. Just noting that the Roe v Wade boogeyman serves a useful purpose for conservatives. How many people have you heard excuse or explain their Trump support based on their passionate pro-life views and desire to see Roe overturned? And it's a great rallying point in addition to being a nice cover story for supporting otherwise questionable politicians. Will be interesting to see how things develop on that front regardless of whether Kavanaugh does help them overturn it (no more boogeyman/cover story) or fails to do so (the boogeyman is a permanent resident now).

I don't know if I would go so far as to say it's just a boogeyman.  I am one of the few of my tribe without a very hard and fast view on this topic.  But I always look at it as primarily a function of government power and the relationship between the exercise of that power and the fundamental issue of privacy of the body.  Many see it as nothing more than human life and that's it.  And I don't begrudge that position or even doubt it.

But I know that government exercises power and protects rights in certain ways that aren't always clean and easy.  There is living in part of the debate an underlying reliance of thousands of years of human history where women didn't control their own bodies.  It's not a liberal thing to say that so I don't need the resident righties yelling at me for it.  It's just the truth.  And I think that in the process of those that would argue they are fighting for the protection of human life that they are blind to the other human life or lives affected by the action and the debate.

Anyone that says this is an easy topic is wrong, and they aren't being fair to the complexity of it.  Those that use it as political weapon for the sake of weapon don't help either side that they sit on and they dehumanize everyone involved in the argument.  But I can't just say that the militants on either side don't have a point worth considering.

Statistics say that the majority of abortions are had by minority women as one demographic, women in their 20's as another, and a huge percentage of all of them are at or near the poverty line.

If we truly want to end abortions, or get them down to something that happens so irregularly that it isn't a topic of serious debate anymore, we need to focus on the why's of those groups.  Why do minority women, women in the 20's and poor women get them?  The poverty question is a rather easy one to answer, and without getting into arguments over the other two factors, we can clearly see an easy line to draw and try to beat - fight poverty.  Give women a chance to rise out of poverty.  Create programs, protect institutions, and use political will and power to fight for that goal.  However we've been doing it isn't working, so get back to the drawing board and work on that problem.

The problem, though, is that the group that are loudly against abortion, also happen to be the same group that attacks social safety net programs, taxes, governmental intervention into business and education and health care.  You could make a pretty decent argument that a B.I.G. would do more to end abortion than any law or judgment. 

 

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1 hour ago, Ramsay Hunt Experience said:

Roe allowed regulation at the third trimester.  So 26 weeks.  The earliest premature baby to survive was at 21 weeks.  Babies born at 22 weeks have about a 6% survival rate.  You have to get to 24 weeks to get the survival rate over 55%.

Now, Roe is no longer the relevant precedent.  Casey is.  But let's assume we go back to the Roe framework and allow regulation including outright bans after viability.  It's hard to imagine that line ever getting to be before 20 weeks.  Six weeks certainly isn't an insignificant period considering the total gestation period, but I'm still not sure I'd classify the change as dramatic.  

 

1 hour ago, Ramsay Hunt Experience said:

Roe allowed regulation at the third trimester.  So 26 weeks.  The earliest premature baby to survive was at 21 weeks.  Babies born at 22 weeks have about a 6% survival rate.  You have to get to 24 weeks to get the survival rate over 55%.

Now, Roe is no longer the relevant precedent.  Casey is.  But let's assume we go back to the Roe framework and allow regulation including outright bans after viability.  It's hard to imagine that line ever getting to be before 20 weeks.  Six weeks certainly isn't an insignificant period considering the total gestation period, but I'm still not sure I'd classify the change as dramatic.  

Planned Parenthood v. Casey addressed the matter back in what, 1992.  It did away with the trimester standard and went with the viability standard if I recall.  It is more malleable to medical advancement than was Roe which incorporated its own partial demise.  I think those weeks are significant to those who argue for sentience or self-awareness.  A few more weeks in another generation or two of medical advancement will have viability and sentience butting heads pretty good.  That's not necessarily an issue for me given my beliefs and positions, but I am merely acknowledging that I believe it will be an increasing battlefield for some.  Frankly any philosophy or beliefs that depend on demarcations in the gestation process are going to be sensitive to such changes, and when viability and sentience collide I think the debate will powerfully reignite.  

 

I also believe inter-uterine cameras have the ability to influence this debate, particularly if they obtain better time lapse capabilities.  we are visual and visceral creatures.

Edited by Ditkaless Wonders

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4 hours ago, IvanKaramazov said:

For me, this is very easy.  The government shouldn't interfere with your autonomous decision making as long as you aren't harming other people.  (There are some exceptions to this like forcing people to pay taxes against their will to maintain a military and stuff like that, but none of those exceptions are relevant in the case of abortion).

The issue is whether having an abortion harms another person or not.

I think this is a great point and something that I struggle with.   If abortions were outlawed then one could make the argument that forcing a woman to carry a fetus to full term against her will is causing harm to her.

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Kemp to sign anti-abortion ‘heartbeat’ bill on Tuesday

Quote

 

The new legislation would outlaw most abortions once a doctor detects a heartbeat in the womb – which is usually about six weeks into a pregnancy and before most women know they are pregnant.

Doctors who oppose the legislation, however, say what appears to be a heartbeat at six weeks signals the practice motions of developing tissues that could not on their own power a fetus without the mother.

 

 

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On 7/19/2018 at 6:13 AM, IvanKaramazov said:

For me, this is very easy.  The government shouldn't interfere with your autonomous decision making as long as you aren't harming other people.  (There are some exceptions to this like forcing people to pay taxes against their will to maintain a military and stuff like that, but none of those exceptions are relevant in the case of abortion).

The issue is whether having an abortion harms another person or not.

I'm catching up on an old thread.

I think the government often has the authority to interfere with people's autonomous decision-making even if they aren't harming other people. It is generally accepted that the government has the authority to protect not only people, but other organisms as well: bald eagles, red wolves, etc.

I think the state therefore has an affirmative grant of authority to protect fetuses even if fetuses are not people.

The hard question in Roe wasn't about whether states have a valid interest in protecting fetuses. The hard questions were about (a) whether the state's interest in protecting fetuses was merely legitimate or was indeed compelling, and (b) whether a woman's right to reproductive autonomy was merely ordinary or was indeed fundamental.

To oversimplify Due Process Clause jurisprudence just a bit, the state may curb an ordinary right if it has a legitimate interest in doing so, but it may curb a fundamental right only if it has a compelling interest in doing so. Both issues (a) and (b) were contentious in 1973. I think most people today would agree that reproductive autonomy is a fundamental right, but the question of how strong the state's interest is in protecting fetuses remains in greater dispute.

And actually, that latter question largely revolves around whether a fetus should be considered a person ... so ultimately it appears that I'm not disagreeing with your framing after all.

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19 hours ago, Maurile Tremblay said:

I'm catching up on an old thread.

I think the government often has the authority to interfere with people's autonomous decision-making even if they aren't harming other people. It is generally accepted that the government has the authority to protect not only people, but other organisms as well: bald eagles, red wolves, etc.

I think the state therefore has an affirmative grant of authority to protect fetuses even if fetuses are not people.

The hard question in Roe wasn't about whether states have a valid interest in protecting fetuses. The hard questions were about (a) whether the state's interest in protecting fetuses was merely legitimate or was indeed compelling, and (b) whether a woman's right to reproductive autonomy was merely ordinary or was indeed fundamental.

To oversimplify Due Process Clause jurisprudence just a bit, the state may curb an ordinary right if it has a legitimate interest in doing so, but it may curb a fundamental right only if it has a compelling interest in doing so. Both issues (a) and (b) were contentious in 1973. I think most people today would agree that reproductive autonomy is a fundamental right, but the question of how strong the state's interest is in protecting fetuses remains in greater dispute.

And actually, that latter question largely revolves around whether a fetus should be considered a person ... so ultimately it appears that I'm not disagreeing with your framing after all.

I have a question: does Roe protect reproductive autonomy for women, as you put it, explicitly, or basically the right of any person to control what medical care or treatment they receive and reproductive decisions are part of that?

Also, doesn't Roe still draw the line at "viability" as where the state can protect a fetus as a person? And if that's so, isn't that a moving line scientifically?

Edited by SaintsInDome2006

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11 hours ago, SaintsInDome2006 said:

I have a question: does Roe protect reproductive autonomy for women, as you put it, explicitly, or basically the right of any person to control what medical care or treatment they receive and reproductive decisions are part of that?

Also, doesn't Roe still draw the line at "viability" as where the state can protect a fetus as a person? And if that's so, isn't that a moving line scientifically?

Roe was just about abortion, but it was rooted in a right to privacy that had been developed in the context of other aspects of reproductive autonomy such as the right to use contraception (identified in Griswold).

Roe used a trimester framework (28 weeks) that was later modified in Casey into a viability framework (23-24 weeks). Casey was decided in 1992, and I don't think the timing of viability has changed much since then; I think it's still considered to be at around 23-24 weeks.

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Yeah the line hasn’t moved much since neonatology became a specialty and they started using negative pressure incubators.   Before that, they’d blow out the undeveloped lungs of premature babies with ventilators.   After that change, viability moved past lung development, but they can’t move it much, if any, further as the other organs and brain aren’t developed.  

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SC shows that it doesn't really care about precedent, after all.   In Franchise Tax Board of California v. Hyatt, the SC overturns 40 year old precedent for no particular reason in a tortured opinion by Clarence Thomas.   

From Breyer's dissent:

Quote

It is one thing to overrule a case when it “def [ies] practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U. S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next. I respectfully dissent.

It's no coincidence that he cites Casey here.  The writing is on the wall.   Kavanaugh lied when he claimed that Roe was protected by stare decisis.   It's too bad Kavanaugh doesn't care as much about the law as he does about beer.   Thomas is trying to make his mark, and now he has Gorsuch and Kavanaugh willing to throw out cases just because they don't like the outcomes.

Edited by -fish-
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Thomas has to be the worst justice ever. 

He’s a partisan hack. 

He also is a sexual deviant alcoholic who had the nerve to suggest that people who don’t practice a religion have low morals.

And let’s not get into him being an Uncle Tom.

Just a POS who needs to retire already. 

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54 minutes ago, Gachi said:

Thomas has to be the worst justice ever. 

He’s a partisan hack. 

He also is a sexual deviant alcoholic who had the nerve to suggest that people who don’t practice a religion have low morals.

And let’s not get into him being an Uncle Tom.

Just a POS who needs to retire already. 

Don't

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With the historical record and precedent against him, Hyatt defends Hallon the basis of stare decisis. But stare decisisis “‘not an inexorable command,’” Pearsonv. Callahan, 555 U.S. 223, 233 (2009), and we have held that it is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment,” Agostiniv. Felton, 521 U.S. 203, 235 (1997).

The Court’s precedents identify a number of factors to consider, four of which warrant mention here: the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision. See Janus v. State, County, and Municipal Employees, 585 U.S. ___, ___–___ (2018)(slip op., at 34–35); United States v. Gaudin, 515 U.S. 506, 521 (1995).

The first three factors support our decision to overrule Hall.

We have already explained that Hall failed to account for the historical understanding of state sovereign immunity and that it failed to consider how the deprivation of traditional diplomatic tools reordered the States’ relationships with one another.

We have also demonstrated that Hall stands as an outlier in our sovereign-immunity jurisprudence, particularly when compared to more recent decisions.

As to the fourth factor, we acknowledge that some plaintiffs, such as Hyatt, have relied on Hall by suing sovereign States. Because of our decision to overrule Hall, Hyatt unfortunately will suffer the loss of two decades of litigation expenses and a final judgment against the Board for its egregious conduct.

But in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question. Nevada v. Hallis irreconcilable with our constitutional structure and with the historical evidence showing a widespread preratification understanding that States retained immunity from private suits, both in their own courts and in other courts. We therefore overrule that decision.

Because the Board is thus immune from Hyatt’s suit in Nevada’s courts, the judgment of the Nevada Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

- I thought it would be interesting to look at Thomas' reasoning in overturning Hall.

- On the fourth factor, Thomas just says, 'Whoops, sorry?'

- I guess I'm also kind of amazed on the face of things that the Hall case meant that a private citizen can sue a state agency for an overly aggressive audit, which I don't get, but that that cannot be done in another state's court, which I do get.

There's not exactly a lot of sense for understanding why this is now permissible.

Edited by SaintsInDome2006

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Moreover, Hyatt’s ahistorical literalism proves too much. There are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice—including, for example, judicial review, Marbury v. Madison, 1 Cranch 137, 176–180 (1803); intergovernmental tax immunity, McCulloch, 4 Wheat., at 435–436; executive privilege, United States v. Nixon, 418 U.S. 683, 705–706 (1974); executive immunity, Nixon v. Fitzgerald, 457 U.S. 731, 755–758 (1982); and the President’s removal power, Myers v. United States, 272 U.S. 52, 163–164 (1926). Like these doctrines, the States’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.

- That's Clarence Thomas saying hey don't take the Constitution so literally, guys. Amazing.

Edited by SaintsInDome2006

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13 minutes ago, SaintsInDome2006 said:

- That's Clarence Thomas saying hey don't take the Constitution so literally, guys. Amazing.

I can't speak to the issue of sovereign immunity specifically, but Thomas is obviously correct in his reasoning more broadly.  Judicial review, for example, appears nowhere in the body of the constitution, but it is very clearly implied by the inherent structure of government created by the constitution.

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Just now, IvanKaramazov said:

I can't speak to the issue of sovereign immunity specifically, but Thomas is obviously correct in his reasoning more broadly.  Judicial review, for example, appears nowhere in the body of the constitution, but it is very clearly implied by the inherent structure of government created by the constitution.

Well he is, but as we all know Thomas is a strict constitutionalist. I find his adaptability undercuts the principle here. I doubt he will take such a penumbral view on Roe.

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Just now, SaintsInDome2006 said:

Well he is, but as we all know Thomas is a strict constitutionalist. I find his adaptability undercuts the principle here. I doubt he will take such a penumbral view on Roe.

Of course he wouldn't.  He thinks Roe was wrongly decided.  I'm sure he probably thinks that Marbury v. Madison was rightly decided.  There's nothing inconsistent about that combination.

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Yeah, Marbury is grounded really strongly in the Constitution. Article VI says that the Constitution is the supreme law of the land. It has priority over other laws. Article III says that the judiciary shall resolve legal cases and controversies. That necessarily includes deciding whether other laws are inconsistent with the Constitution.

The argument in Roe is not structurally similar.

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