Don't worry, Roe v. Wade is never getting overturned

Great Debates
81

This is a gross oversimplification. The war 160 years ago was about whether a state had the power to unilaterally withdraw itself from the Union. Nobody then or now seriously questions the basic idea that the feds are still supposed to be of very limited and enumerated powers with the vast residue of powers resting with the states. Nothing about the Civil War or anything else changed that basic structure of our government.

First, despite this argument from the left, there is absolutely no way that any state comes close to banning contraception, even in the absence of a Griswold case. No state in the 1960s seriously enforced their ancient bans on contraception. Griswold was a manufactured case to get the ruling from the Supreme Court. Nobody even then was in danger of being prosecuted for contraception use. Nobody besides the tiniest minority of people today seriously wants to ban contraception. This whole line is an entire red herring.

But even if not, this was addressed at oral argument by the State. Even if Griswold, or Obergefell, or Lawrence are reexamined or many of the other parade of horribles would be looked upon and asked to be overruled, the stare decisis factors counsel keeping them. Even if Obergefell, for example, was wrong as an original matter (which I believe it was) it created a settled, easily administrable body of law that many people have structured their lives around and rely upon. If I was a judge, believing as I do that Obergefell was wrongly decided, I would not overrule it for these reasons. Society needs stability.

Roe and Casey are unique in that the “right” they found derives from, let’s face it, nowhere, and that the constitutional argument to privacy or autonomy which would allow for abortion would logically have to allow for a host of undesirable things. The cases decided without support what the status of a fetus/unborn child was by simple judicial fiat and no serious analysis. Those are the types of cases that in order to preserve the legitimacy of the Court need to be overruled because with the stroke of a pen they subverted a facet of democracy that rightfully belongs to the people themselves to decide at the ballot box.

She did not say that “forced pregnancy is like vaccines.” A good argument does not begin by misstating the argument. The basic ten second soundbite is that “a woman has a right to choose what to do with her own body.” A mandatory vaccine is but one example to say, “No she doesn’t.” Jury service, conscription, witness subpoenas, prohibitions on recreational drug use, incest laws, seat belt laws, and drinking age laws are but a few more examples that destroy such a bald declaration that our Constitution provides absolute bodily autonomy in law. You can argue differences between those things and pregnancy, just like you can argue differences between any two things, but the general principle of bodily autonomy has failed. One must then present a different argument that is more focused and also supported by text, history, and/or tradition. The right to elective abortion simply fails that test by any measure.

82

Have you ever read the opinion? You may quibble with its logic or reasoning, but it is only fair to acknowledge that it didn’t derive from nothing. Indeed, the notion of articulating a zone of privacy that is protected by the Constitution began in the 19th century with Judge Brandeis. By the 70’s, there was quite a lot of jurisprudence supporting the idea.

“ The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.”

ETA: The opinion also goes into common law history and the traditional right of having an abortion before “the quickening.”

83

Name one.

84

Of course I have read it. Nobody disputes that privacy is an important ideal in the United States or in any free society. One could cite a hundred more cases than that brief did. But Roe said:

  1. Privacy is protected and very important.
  2. Something.
  3. Therefore, a woman has the right to terminate a pregnancy.

The Something in #2 is what is unsupported and many left wing commentators agree. To say that a person has a right to marry, raise a family, use contraception, control the education of children and so forth is undisputed but simply does not answer the sui generis question of what happens when a pregnancy results in that relationship. Is that a human life? Partially a human life? Do husbands get a say?

All of those are open questions and one possible answer is that as the woman has to carry the child, she gets an absolute right to determine what happens to the unborn child/fetus. But to say that privacy cases constitutionally compel such a result is wholly unsupported.

One could just as easily use every one of those cases to say that I have a right to beat my children to the point of breaking bones because all of the above cases assign a zone of privacy to child rearing that the government may not enter.

85

I listed a bunch. If the argument for a 20 year old having an absolute right to an elective abortion is “it’s her body” then why can’t she drink a beer?

86

She CAN. She cannot purchase a beer.

87

Let’s not fight the hypo too much and get in the weeds. In many states, she may not drink a beer. Let’s say she cannot snort cocaine up her nose.

ETA: And even if a state permits her to drink a beer, it isn’t a constitutional right of hers.

88

Treating drug use as a crime is indeed stupid; I’m not sure changing that policy to target possession and distribution instead would be “undesirable”.

89

The privacy argument also fails because when one talks about privacy, he or she is talking of the right to be left alone, to come into your home, lock the doors and keep others out. Abortion is travelling on the public highways to purchase a commercial services, regulated, licensed and taxed by the state and done by a professional. It just doesn’t lend itself to a “privacy” label. Something else perhaps, but definitely not privacy.

90

What states would those be?

91

I’ve read some stupid shit on the Dope over the years, this is this month’s winner and is in contention for the year’s prize.

92

Really? This is what your careful reading of the opinion led you to conclude? You should be able to entertain an argument even if you don’t agree with it. From my reading (and ignoring the procedural issues), Roe basically said:

  1. There is a traditional right of women to end a pregnancy before they can feel the baby move.
  2. This has been restricted over the years over social concerns (largely relating to the health of the mother and, later, concern about the life of the unborn)
  3. We must balance these concerns.
  4. On one hand, the constitution values respecting privacy in areas of family planning and child rearing.
  5. On the other hand, the state has a vested interest in protecting life.
  6. So, the fundamental privacy rights will be balanced with the state’s interests; a person’s right to an abortion shouldn’t be restricted before the baby is viable outside the womb.

Again, you may disagree, but it’s disingenuous to suggest that the logic isn’t articulated.

Except it has also been applied far more broadly than that. It even includes personal decisions about family planning.

93

If they overturned it, I could always fly to Sweden if I had to do so, but the less financially fortunate women in this nation don’t have that option. They will once again become slaves to the reproductive process.

94

Again, you are making arguments that were addressed in Roe. The short of it is that rights to privacy are not absolute, and that an argument that a woman is entitled to an abortion whenever she wants is not protected by the constitution.

“ appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant’s arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, are unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate.”

I trust you realize that Roe did not confer an absolute right to an abortion.

95

That sounds like a reasonable prediction although I could also see Roberts having his own dissent saying that while the majority has some compelling points, they aren’t self evident enough to justify ignoring stare decisis.

Yes, which is one of the reason the original OP is incorrect. Overturning Roe v. Wade doesn’t stop abortion rights from being a political issue, it if anything ramps up the politics even further. Now it just isn’t an indirect, elect us so we can put another justice on the court to get it over turned at some point in the future. Its elect us so we can directly ban it today and keep out the Democrats who want to make it legal tomorrow.

96

Elect us because then you will never have to worry about any of those people ever getting elected again.

97

Considering the response the DSCC got yesterday to their “Vote Democratic to protect abortion” tweet, I wouldn’t be convinced that it will work well as a campaign point.

98

Sotomayor has complained in oral arguments that a decision overturning Roe will look like nothing more than political maneuvering that will completely undermine the legitimacy of the court. I wonder if any of that will sway Roberts, because I think it’s a lock that all of the other conservative justices are going to vote to unwind the opinion.

“ The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said we’re doing it because we have new Justices on the Supreme Court,” the Justice said, getting personal about the newest members of the Court, Brett Kavanaugh and Amy Coney Barrett. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? . . . I don’t see how it is possible.”

(Of course, if their argument rests on a legal declaration that life begins an conception, an answer that Roe addressed but sidestepped, are they opening up a new can of worms?)

https://www.google.com/amp/s/www.wsj.com/amp/articles/sonia-sotomayor-gets-political-supreme-court-dobbs-v-jackson-abortion-roe-casey-11638400452

99

It may not matter since there’s five conservatives even without him, and their minds are likely made up.

100

This is not what Roe said, nor is it true. Roe noted that traditionally and at common law abortion was prohibited after “quickening.” Only later did many states expand the laws to outlaw abortion entirely.

Such an observation is a far cry from saying that a woman had a “traditional right” to “end a pregnancy.” The absence of a regulation does not suggest a constitutional right to freedom from such a regulation. From the beginning of automobiles until 1984, no state had passed a seat belt law. Does that suggest a constitutional or traditional right to ride in a car without a seat belt? The Roe Court’s suggestion could prohibit any new regulation of anything because its newness would suggest the existence of a prior right. Absurd.

Roe went off the rails from the beginning because nothing in the common law suggested that its prohibition on abortion after quickening was a suggestion of some personal privacy right to an abortion before quickening.

Roe doesn’t even go so far to say that there was this traditional right but continues as if it did. And if one observes that traditionally abortions were prohibited after quickening, then how do they get to a viability line and a trimester line? Which leads to:

Even if all that preceded was true, viability just came from nowhere.

This is true enough, but there is no logical connection between this statement and abortion, any more than this statement and the “right” of a parent to shoot a 6 year old in the head. You cannot have a logical argument that begins by begging the question. It is not that I don’t agree with the argument, it is just that it is logically flawed. It doesn’t engage itself on its own terms.

I think we are just quibbling about semantics. Roe and Casey hold that pre-viability a woman can have an abortion on demand, whenever she wants, for any reason.

Indeed it has. But that again begs the question. Sure, I can have children or choose not to have children. But if I have a child or have conceived a child, can I terminate that child’s existence? Is an unborn child a child? What is it? The prior privacy cases shed absolutely no light on those questions.