IvanKaramazov
Footballguy
It seems like this might make you rethink your theory about suburban women suddenly flipping elections.
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Will Roe vs Wade be overturned? Make your prediction. (1 Viewer)
- Thread starter timschochet
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Stealthycat
Footballguy
how can someone be charged with double murder when an unborn is killed? How can prenatal surgeries work without there being an independent life there? I believe every law we have on the books protects the unborn's life except one Supreme Court ruling that allows the mother to go to a doctor and have that unborn's life extinguished thus, ending the pregnancy
Stealthycat
Footballguy
I don't mean an amendment - a ruling like Roe v Wade
Most people think there is a right to abortion. There isn't. There is a ruling and another SC ruling would trump the current one
Snotbubbles
Footballguy
timschochet
Footballguy
Roe vs Wade hasn’t been overturned yet. My whole point has been that this could be the wake up call which a slow series of creeping actions has not.
It would be simple to overturn Roe by ruling that the constitution doesn't protect the right to an abortion.
Without a new constitutional amendment, it would be impossible to rule that babies have a constitutional right not to be killed by their moms or doctors. (Your post said "unborn babies need constitutional protection and right to life.")
The federal constitution doesn't address moms or doctors.
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Stealthycat
Footballguy
that's all true - I meant the Supreme Court can rule their interpretation of who can be afforded Rights .... and unborn babies are recognized in many ways as living individual human beings
will this SC rule differently than the one did 49 years ago ? I hope so
Bottomfeeder Sports
Footballguy
No matter what I doubt the Supreme Court will rule differently than they did with Roe (at least as modified by Casey).
They will not find that abortion was banned by English Common Law or the laws in place during the writing of the Constitution. So it isn't something that was just understood through out time. Unlike "murder" in the typical sense.
They will still think that the fourteenth amendment limits the state's ability to interfere with the mother's private health care decisions.
If they rule as expected they will most likely just rule that Mississippi has expressed a compelling enough state interest to clear whatever level of scrutiny they now say applies that the law in question would be an allowable form of interference in the mother's personal autonomy. But that is expressing that the state has a right as opposed to expressing the unborn has a right that the state must protect.
What you are wishing for (not saying you expect) seems to be a declaration that the unborn has a "claim" to "live" that would supersede the mothers "entitlement" to her own healthcare (and most anyone else's liberty). While I am not saying that could not happen, what I, and maybe others are asking where would the justices root such a claim?
The only way I can see it is to extend the "equal protection clause" of the 14th in such a way that would seem to open all kinds of cans of worms. Like I said maybe they can creatively thread this needle in a way I'm struggling to imagine. The rights expressed 49 years ago were rooted in precedent and the Constitution. Where does this "right" come from - especially if you reject the "living" Constitution. (A "it was always there" is easier if you aren't limited to what the authors wrote ...)
(I'm still not a lawyer nor have any law school type education. So I'm sure I butchered with my expression some of the concepts, but hopefully got the point across. )
Stealthycat
Footballguy
very good post and we'll see
of course, I'm pro-life, I hope the SC bans abortion but i'd be shocked if they did
There is really no possible way that the Supreme Court can ban abortion. The closest thing they can do is allow states to ban abortion.
Amused to Death
Footballguy
IvanKaramazov
Footballguy
This is my preferred outcome as well, but I think having SCOTUS discover a constitutional right to life is approximately the same kind of logical leap as discovering a constitutional right to abortion. People like me are perfectly capable of waving our hands and muttering something about penumbras too.
I'd invite you to take your best shot at coming up with some such penumbras.
I don't think it's workable.
Roe was workable because the Constitution really does say that the government is not allowed to do certain things to people without a sufficiently good reason. We can argue about whether restricting abortion is one of those things, or about how good the reason must be. But the basic framework of protecting individual liberties against government encroachment is in the document.
Contrariwise, there's nothing in the federal constitution about protecting individuals against being murdered by other private individuals. The Supreme Court can decide that fetuses have all the same constitutional rights as teenagers, but teenagers don't have a federal constitutional right not to be murdered by their parents (or by their parents' doctors). If a mom murders her teen daughter, there's a good chance that it will violate state law, or possibly even a federal statute (though probably not); but I can't think of a way that it would violate the United Stated Constitution, with or without penumbras.
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IvanKaramazov
Footballguy
It only takes five justices to decide that obviously parents can't be allowed to murder their children, so therefore abortion is illegal under some sort of goofy "equal protection of the law" argument. That's a ludicrous argument, but it's no more ludicrous than arguing that a right to privacy -- which is mentioned nowhere in the constitution -- somehow protects a decision made between a woman and her doctor that affects a third party.
BladeRunner
Footballguy
Or the same logic leap that classified Obamacare as a "tax". If they can do that, they certainly can find a constitutional right to life.
I don't think we'd ever get more than zero votes for that proposition, if by "can't" we mean that it's forbidden by the federal constitution. That would be way more ludicrous than saying that liberty includes privacy. The Roe argument was that the Constitution protects individual liberties against state interference, that individual liberties include privacy, and that privacy includes abortion. I understand thinking that the chain of reasoning is far-fetched (I agree), but at least it's a chain of reasoning. I don't think there's any comparable chain of reasoning that gets us from anything in the Constitution to "parent's can't be allowed to murder their children." If someone else can come up with something, I'll be impressed.
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IvanKaramazov
Footballguy
You're a lot more heroic than I am when it comes to circumscribing people's creativity.
I love creativity and would enjoy reading a remotely plausible argument concluding that the constitution forbids run-of-the-mill murder. The more creative, the better.
So far as I know, nobody has ever come up with such an argument -- not because I've gone around circumscribing the creativity of anyone who's tried, but because the task is impossible.
rockaction
Footballguy
Mmm...I get the argument that the Constitution really only prevents states from enacting and enforcing certain laws against citizens, but there's nothing to stop the unbridled creativity of justices who found a necessity for an affirmative prescription like Mirandizing suspects in a criminal case.
They came up with an entire verbal prescription for how to properly arrest someone that emanated from no penumbra, but was rather a policy prescription the states had to follow to jibe with due process. For every state actor in the country. Presumably they could come up with a health of the fetus right out of whole cloth, too.
Creativity like Miranda can't simply be bound to merely prevent states from enacting and enforcing laws against their citizens.
They came up with an entire verbal prescription for how to properly arrest someone that emanated from no penumbra, but was rather a policy prescription the states had to follow to jibe with due process. For every state actor in the country. Presumably they could come up with a health of the fetus right out of whole cloth, too.
Creativity like Miranda can't simply be bound to merely prevent states from enacting and enforcing laws against their citizens.
fatguyinalittlecoat
Footballguy
I don’t think the Supreme Court will find an abortion ban hidden in the Constitution but there are a lot of thorny constitutional issues to be worked out in the aftermath of striking down Roe.
For example, can a state make it illegal for a pregnant woman to go to a different state to get an abortion?
Or, can a state make abortion pills illegal even though the pills have been approved by the FDA?
For example, can a state make it illegal for a pregnant woman to go to a different state to get an abortion?
Or, can a state make abortion pills illegal even though the pills have been approved by the FDA?
rockaction
Footballguy
Wouldn't this conflict with the right to travel that's considered a substantive right even if not explicitly granted by the Constitution? I mean, you're a much better former lawyer than I would be potential one, but I remember something like that in our Constitutional Law class in college. The right to travel and receive welfare benefits was implicated in the caselaw, I believe.
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fatguyinalittlecoat
Footballguy
States can make it illegal to kidnap a person in their state and take them to another state to be murdered. That arguably conflicts with the right to interstate travel in the same way.
rockaction
Footballguy
That doesn't seem quite on point. The Mann Act, the closest thing to that scenario, is federal law, isn't it?
Kidnapping is the crime committed in one state. Doesn't the transport to another state implicate federal laws against kidnapping rather than that state's law? I find it hard to believe that a state could make it illegal to transport a fetus across state lines where the point of the criminal act is in the transport itself. It has to be in the commission of the kidnapping, doesn't it?
I don't know. It seems like restricting the right to travel across state lines to commit a legal act in another state implicates three things: the inherent rights promised by the Constitution (a right explicitly recognized by the Articles of Confederation and maintained by the Constitution though not explicitly codified), the rights granted by the P & I clause in Article IV of the Constitution, and the rights granted by the P & I clause of the 14th Amendment. I'm using the three-prong framework as I read in Wiki as handed down by the Court in Saenz v. Roe (1999).
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rockaction
Footballguy
I could be wrong. Every time I play lawyer on these boards I wind up with people more knowledgeable than I about it. I'm just thinking that implicates a right a travel and that the Constitutional right to travel would be the issue brought up in a court case by any defense team worth their salt.
fatguyinalittlecoat
Footballguy
Missouri has apparently considered testing this question
Under Coleman's measure, anything from driving women across state lines for abortions to internet providers allowing access to certain abortion-related websites would be outlawed. She said St. Louis-area billboards advertising easier-to-get abortions in neighboring Illinois would be banned, too.
"It's trying to evade the laws of the state of Missouri," said Coleman, a St. Louis-area Republican. "Abortion is a really brutal practice and Illinois has chosen not to, in any way, provide protections for the unborn and women, and so we're trying to do everything we can to make sure Missourians are protected."
***
While some legal experts doubt that Coleman's proposal is constitutional, they also worry that the Supreme Court might refuse to intervene to stop it — just as it did with the Texas law.
Under Coleman's measure, anything from driving women across state lines for abortions to internet providers allowing access to certain abortion-related websites would be outlawed. She said St. Louis-area billboards advertising easier-to-get abortions in neighboring Illinois would be banned, too.
"It's trying to evade the laws of the state of Missouri," said Coleman, a St. Louis-area Republican. "Abortion is a really brutal practice and Illinois has chosen not to, in any way, provide protections for the unborn and women, and so we're trying to do everything we can to make sure Missourians are protected."
***
While some legal experts doubt that Coleman's proposal is constitutional, they also worry that the Supreme Court might refuse to intervene to stop it — just as it did with the Texas law.
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rockaction
Footballguy
Oh, I'm sure they want to test it. The question is whether or not it's Constitutional. I find it hard to believe the Court, even in its current composition, would uphold restrictions on travel and prior restraint. That seems, like the article suggested, throwing it at the wall to see what will stick with the current Court.
But I think it's covered by precedent. We'll see if they want to overturn precedent to make it easier for pro-life states to enact and enforce their laws as they see fit.
I see it as a blatant violation of the Constitution, and I used to be pro-life and anti-Roe and Casey. (Until I started thinking of things regarding enforcement. This has the potential to be ten times worse than the drug war.)
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IvanKaramazov
Footballguy
Another way of putting it is that people who leave the state of Missouri to get abortions are obeying the laws of the state of Missouri. Abortion is (hypothetically) illegal in MO. Getting an abortion in MO would therefore be illegal. Going to NY and getting an abortion would be legal under NY law, and MO law doesn't apply there. People who go to another jurisdiction to something that's perfectly legal in that jurisdiction are fine.
Would MO punish somebody who goes to Las Vegas to play a few hands of blackjack? How about somebody who visits a legal brothel in NV? How about somebody who visits a legal brothel in Amsterdam?
This discussion strikes me as being similar to structuring, where people are punished for obeying financial reporting requirements in a way that annoys the government. I think I'm hard-wired to hate this sort of thing, because it triggers me more than it rationally should.
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rockaction
Footballguy
In all seriousness, I know you're pro-life, but these sort of things are coming from people who are evangelicals in both religion and deed. These sort of enforcement mechanisms will be pushed and will alienate those supporting an otherwise defensible pro-life position. It'll be like those sympathetic to the drug war's aims in spirit and deed who look around a little more deeply, seeing first-hand the wreckage of Constitutional liberties and coming to view the whole thing as a no-go and a full-stop.
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Rich Conway
Footballguy
The bolded sure seems like a violation of the First Amendment and a pretty clear violation of Section 230 as well.
fatguyinalittlecoat
Footballguy
It’s illegal to advertise all sorts of illegal stuff on the internet. Do those laws all infringe the 1st Amendment and Section 230?Rich Conway said:
Rich Conway
Footballguy
Seems like there's a huge difference between "John can't advertise his illegal meth lab" and "Comcast must prevent its subscribers from accessing John's advertisement". Your link says the bill will do the latter.*
* Naturally, I recognize the possibility that the reporter got this wrong.
IvanKaramazov
Footballguy
I get that share, and I understand where you're coming from. In a ton of other contexts, I would agree with you completely. It's just that for me personally, abortion has enough moral gravity that I have to put up with the religious extremists in my ranks. I know I'll probably break with them when it comes to actual policy and especially enforcement mechanisms, but I'll cross that bridge if we ever get there.
rockaction
Footballguy
Yeah, I'm just re-stating what is already pretty obvious and already considered by you. I appreciate the moral gravity of the pro-life position; I've just come around to the point of view that without any enforcement mechanism that doesn't make a woman a ward of the state while she's pregnant, I can't abide any law regarding abortion.
I think our own moral conscience should be our guide when it comes to life, but it's the 20th and 21st Century we're talking about here, so perhaps external restraint is necessary for any sort of real consideration of life qua life. Perhaps pro-lifers will be right that their normative stance regarding the innocent will filter down to the rest of society and increase the value that we place on life in general. I sort of doubt it. I see lots of confused teenage girls desperately seeking help because our modern, information-laden and -driven society has placed an enormous delay on normal child bearing and pubescent longings. It's a bad cocktail.
TL;DR I get your position. I'm sure you've given it the necessary consideration. I was really writing for other people who might be reading.
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timschochet
Footballguy
This is called dealing with the Devil. And there’s been far too much of this going on IMO, on your side. Despite our differences, I regard you as a rational, intelligent, thinking person of good will. But I fear that because this issue affects you so profoundly you have been willing to ally yourself with extremists (I think I can recognize this because I’ve been guilty of the same sin with regard to some other issues, such as immigration and racism.)
Bottomfeeder Sports
Footballguy
I haven't read the draft decision so maybe this is incorrect, but I guess I got this wrong. At least from my reading that Alito spends a good deal of time on the history of bans, So maybe he does not try to prove that "it was understood" but that "it was allowed?" Anyway it sure doesn't seem from the news reports like Alito had any interest in threading any needle.
GordonGekko
Footballguy
If there is a dispute about traveling out of state to get an abortion and it gets to SCOTUS, which looks likely at some point, then it will be protected under Article I Section 8.
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)
https://supreme.justia.com/cases/federal/us/397/137/
https://caselaw.findlaw.com/us-supreme-court/397/137.html
The Pike test is built around a nondiscriminatory alternative. The alternative matrix changes dramatically once you get into potential late term abortions and how they are handled/context of where they are prohibited within their respective states. The funding/insurance/cost issue is also going to crop up.
SCOTUS will never rule in a manner that has no practical public administration pathway. To try to do so would undermine the general public perception of their actual authority. Trying to ban people from leaving their state to enter another state to get an abortion would be impossible to enforce on the ground.
Too many lawyers try to parse down the law as if it's going to be test run in a wind tunnel. What SCOTUS does has to be weighed against actual "functional governance" If there is no practical public administration pathway, then the general public will hit an attrition point.
Look at In And Out simply shutting down locations instead of being put in the position to hard card people for being vaccinated or not. They just got plain sick and tired of being asked to be party to stupidity. Legal authority when you factor in the public's willingness to buy in is quite fragile. SCOTUS is not immune to that.
Coney Barrett's position on this would be the most interesting to observe. Reading anything by Gorsuch is just plain exhausting. It's like someone gave Jose Canseco a word processor and somehow convinced him he was David Mamet. If someone told me Gorsuch secretly wrote Battlefield Earth, I'd believe them.
rockaction
Footballguy
I don't think this current court particularly cares about functional governance. Both the liberals and the conservatives. The case where they considered large swaths of Oklahoma still to be Indian lands because Congress must deal with Indian treaties fairly is one case that gave me pause. Another was refusing to hear the enforcement mechanism claim of the Texas abortion law. That seemed to me, on its face, contravening a "functional" government.
I understand what you're saying in terms of jurisprudence. Practical considerations often trump more idealistic or rigid ones when courts deliberate. I'm not sure that will happen with this court.
I'm apparently wrong about this in a way that I anticipated as a possibility but dismissed because it's not technically an argument that abortion is forbidden by the constitution -- it's just an argument that if a state is going to ban infanticide, it has to ban abortion as well.
There's an amicus brief that made an equal protection argument saying that unborn babies shouldn't be treated differently from born babies under the law. There's some speculation that Thomas will write a separate concurrence to endorse that position.
Rich Conway
Footballguy
I definitely got part of this right. Fox News is saying this is no big deal, women can still get abortions if they want, they just have to go to another state. MSNBC is (correctly) saying this overturned 50+ years of precedent and now allows states to outlaw abortion. MSNBC is also saying it's the end of times, which is probably a little overboard.
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