So, they should have included a basic civics lesson in that tweet?
If people want to protect reproductive rights, then electing Democrats is the way to do it. That there are not enough Democrats to do so at this time is why they asked people to vote for them.
I’m not really seeing why voters would be frustrated with the Democrats here. I agree that I imagine that there is some, but that’s due to the fact that I imagine that there are ignorant people expressing their frustration rather than educating themselves, not due to what the Democrats have actually done.
If electing Democrats protected abortion, something would have been done as a response to Casey in 1993. They’re as useless on abortion as they are on everything else in the last 30 years.
And also explain how, even if they got all Democrats on board on this hypothetical legislation, it would get past the Republicans filibustering it.
They’ve done a pretty good job of preventing the fall of our economy, country, and even civilization in spite of Republican’s best efforts over the last 30 years of destroying them.
That they’ve not managed to make all the progress we would like while constantly cleaning up after the irresponsibility and downright negligence of the Republicans really shouldn’t be as damning an accusation as you seem to want it to be.
Maybe if the Republicans focused on what the country wants and needs, rather than focusing on trying to retain power against the will of the majority, they’d have some actual ideas that benefit the nation, and the parties could work together to solve issues, rather than one party making a mess, and people like you complaining that the other party isn’t cleaning it up fast enough.
None of what you said counters my point. The common law prohibited abortions after quickening. It does not follow that there existed some fundamental right of women to control their bodies prior to quickening. Indeed, the common law did not give women many rights at all so to suggest that abortion was such a right is silly. The absence of regulation for a period of time does not gel into a fundamental right.
This is the most widely criticized point in Roe because it is tautological. A liberal law professor said that it mistakes a definition for a syllogism. It simply does not support itself, but repeats what viability means. It is in no way derived from the common law because viability is not related to quickening at all. This statement could just as easily justify state restrictions on abortion because the fetus needs the mother’s support when it is not capable of life outside the womb, and it therefore tips the balance to the state.
It is not an argument but a decree.
Then seat belt laws, drug laws, drinking age laws, adult incest laws, building permit laws, and a thousand other things must also be unconstitutional for this to be true. If you disagree, then you must find a constitutional footing which distinguishes, historically, the greater privacy interest one has in an abortion. And it cannot be done because nobody has ever suggested that there is such an interest (prior to Roe).
She did not say it was “like” a mandatory vaccine as you claimed. Of course she and everyone else in the entire world can see the difference between a mandatory jab in the arm and the carrying of a pregnancy to term. In an attempt to make her look stupid, you worded your claim in an incorrect way.
As I said, all she was saying is that the “her body, her choice” position is too simplistic and not true, therefore more is needed.
why didn’t they federally codify roe in 2009-2010? not only did democrats control the federal government, they had lots of trifecras on the state level. they could’ve passed it then.
During the 111th Congress, Democrats only had a sixty seat (i.e. filibuster proof) majority for about five months between when Al Franken’s election was finally confirmed and Scott Brown won the special election to replace Ted Kennedy.
If not five months, how long would they need to have such lopsided numbers before you’d say okay, that’s more than enough time; why haven’t you managed to put something together yet?
And that majority included senators who were either overtly anti-choice or who were certainly not going to vote to rock the boat given the states they came from. I’m not sure Bob Casey would do it now, let alone in 2009 when he was much more overt in his support for restrictions on abortion.
There might well be more votes to “codify Roe” in the current Senate than there were in 2009, despite the much smaller majority.
In addition to what everyone else said, they didn’t need to – abortion was considered a fundamental right protected by the constitution. Casey, which reaffirmed Roe wasn’t that far in the rear view mirror, and was decided with a couple of conservative justices adding their votes.
They were also dealing with the fallout of the most serious economic and financial crisis since the Great Depression and trying to pass the most wide-sweeping reform to health care in decades. Abortion rights, which at that point were not under any kind of threat, weren’t a priority.
But @Lord_Feldon has the right of it. That Democratic majority included Senators from numerous “red states” including Louisiana, Montana, Indiana, Iowa, South Dakota and Nebraska who were either on record as being pro-life or certainly didn’t want to have to vote on it. Pro-life Democratic Senators are now almost entirely absent from the chamber, with Bob Casey being the only prominent example and even he voted to repeal the Mexico City policy
I disagree with your analysis. As you note, women traditionally had few rights. So, the fact that traditional laws didn’t create any laws against abortion until the baby started moving (e.g. quickening) reflects a notion that a woman had bodily autonomy during that portion of the pregnancy before this point.
And that, ultimately, is what Roe provides. It’s not a right to an abortion; rather, it’s a right of personal privacy that the government doesn’t have a compelling interest in intruding upon. Included within this zone of privacy is the traditional idea that - before there is evidence that the fetus is alive independent if the woman (which is what the baby’s movement signified in olden times, before there were things like ultrasounds) - a woman is in charge of her pregnant body.
As Roe explained, quickening (e.g. the baby’s kicks) was the first sign that the baby was “alive” inside the mother, and therefore prohibiting abortion at that point reflected respect for the existence of that life.
This remains a big point in the debate, after all. The pro life crowd takes issue with abortion because they assert that it is the ending of a life.
Roe doesn’t discount this interest in protecting for life; to the contrary, it acknowledges that the state has a compelling interest. But it says that the state can’t have this interest in a being’s life until it has viability, which is to say, the potential to actually being alive.
I don’t see how you don’t see this connection between viability and the traditional standard - abortion should not be used when the baby is otherwise alive; quickening was when that was originally determined, but viability is the more modern scientific benchmark of when we can have a live birth.
Sure, but this is the point that the court deemed that the woman’s personal privacy interests override the state’s interests in the life of the unborn. I get that it is subject to disagreement, but I do find it logical. Prior to viability, there can be no protection by the state of the fetus’ life without the state forcing the woman to endure a medical condition (pregnancy). I think this fairly justifies granting her a personal choice at this stage free of government regulation.
I don’t follow you. The state can invade personal privacy when it has a compelling interest. Plainly, protecting people is such an interest. That’s why all of those laws you list aren’t overridden by a notion of the right to privacy.
So what distinguishes abortion? First, I again remind you that the court didn’t assert a constitutional right to an abortion so much as assert a right of privacy, which includes this decision about when to have a child, from which the decision to abort a pre-viability fetus is included.
Why is that different then, say, drug laws or building permit laws or the others you mentioned? I won’t be able to articulate it better than the Roe court did.
We continue to disagree because IMHO you have not supported this position. The absence of a regulation does not imply any sort of right or notion to the unregulated portion. We have started on the wrong foot to even begin our debate. By your definition any new law would have to survive heightened scrutiny because the conduct outlawed was previously legal.
But again, how is that meaningful from a legal standpoint? If the Court had set quickening as a benchmark, then at least it would have common law support, but viability is just an arbitrary line. Legislatures create arbitrary lines, but the Court just threw one out there without any justification IMHO. Without seriously engaging in this “personal privacy interest” they then apply it in a subjective way. I see your argument for viability, but it cuts both ways. Why does the Constitution adopt one view or the other on this hotly debated issue?
The Court’s analysis is not poor, but non-existent. It notes prior cases and says that the right of privacy is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” That’s the end of the analysis. How and why is it “broad enough”? Why is injection of heroin not “broad enough”? The string cite to cases regarding marriage and procreation only beg the question of whether abortion is the same as contraception. The whole argument that the Court was presented is that abortion was fundamentally different and required a different analysis. A good opinion does not conclude with “Meh, we think we are right.”
The more I think about it, the more I think that the court will overturn Roe by arguing that the Roe decision understated the State’s interest in protecting life and overstated the burdens of an unwanted pregnancy.
As to the first point, I imagine that the court will note that the US constitution does not define life, so the states are free to do so. So, if a state wants to define life as beginning at conception, they can do that. And, since even Roe acknowledges that a state has an interest in protecting life, a state is entitled to do this by passing laws protecting life at the moment of conception, if that is when life is deemed by that state to begin.
Meanwhile, Roe said you have to balance this state interest with the woman’s burdens of an unwanted pregnancy or child. As Barrett has noted, though, a woman who has a child can give it up for adoption (and oftentimes with legal immunity if they do it immediately), so I bet the court will say that the burden of unwanted child rearing is not a valid concern.
And as to an unwanted pregnancy? Well, here I bet the court invokes vaccine legislation. A state can (but does not have to) require vaccines, even though they may pose some health risks, based on a determination that the general health of the community justifies it. In the same way, the court might say that the state can compel a woman to experience the side effects of pregnancy for the larger goal of saving a life. (And under this logic the court will still provide for a “exception to save the life of the mother”, analogizing it to a vaccine treatment that does provide for severe health risks which the state would not be able to mandate)
We shall see…but abortion rights are definitely in flux, and Roe’s holding is not long for this world.
Can it? I know it can pose such mandates in order to participate in certain things, like public school and such, but can a state really simply declare it to be illegal not to be vaccinated?
And vaccines are about public health and safety, less about the individual.
Of course, this means that a doctor who claims it is done for the health of the mother is going to be questioned, and probably have to justify the abortion to a panel largely made of non-medical experts who are specifically looking for doctors skirting the lines of the law. Miscarriages and stillbirths will be investigated as potential homicide. We will have to decide what risks the mother must be required to endure. If carrying the pregnancy to term has a 10% chance of killing the mother, is that justifiable? If not, what level of risk does the mother have to undertake in order to satisfy the state? If it won’t kill her, but will harm her, what level of harm does she have to accept on behalf of other people who value the group of cells in her body more than they value her?
The analogy to vaccines isn’t too useful, as pretty much any doctor could give you a medical exemption, and no one would question it. Any doctor that claims that an abortion is necessary to protect the life or to prevent undue harm to the mother will be questioned.
On that I agree. The anti-abortionists seem to be in place to win on this issue at this time.
“ It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of the public health.” Jacobson v Massachusetts, from 1905.
I believe this legal maxim will be invoked, based on Justice Barrett’s comment about requiring a woman to continue her pregnancy:
“ And insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood would hinder women’s access to the workplace, and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy—why don’t the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly. There is without question an infringement on bodily autonomy, for which we have another context like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden…” (my emphasis)
I think the reasoning for overturning Roe is largely the same as Rehnquist’s dissent in Casey:
In Roe v. Wade, the Court recognized a “guarantee of personal privacy” which “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” 410 U.S., at 152-153, 93 S.Ct., at 727. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly. Unlike marriage, procreation and contraception, abortion “involves the purposeful termination of potential life.” Harris v. McRae,448 U.S. 297, 325, 100 S.Ct. 2671, 2692, 65 L.Ed.2d 784 (1980). The abortion decision must therefore “be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.” Thornburgh v. American College of Obstetricians and Gynecologists, supra,476 U.S., at 792, 106 S.Ct., at 2195 (WHITE, J., dissenting). One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus. See Michael H. v. Gerald D., supra,491 U.S., at 124, n. 4, 109 S.Ct., at 2342, n. 4 (To look “at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people [is] like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body”).
343
Nor do the historical traditions of the American people support the view that the right to terminate one’s pregnancy is “fundamental.” The common law which we inherited from England made abortion after “quickening” an offense. At the time of the adoption of the Fourteenth Amendment, statutory prohibitions or restrictions on abortion were commonplace; in 1868, at least 28 of the then-37 States and 8 Territories had statutes banning or limiting abortion. J. Mohr, Abortion in America 200 (1978). By the turn of the century virtually every State had a law prohibiting or restricting abortion on its books. By the middle of the present century, a liberalization trend had set in. But 21 of the restrictive abortion laws in effect in 1868 were still in effect in 1973 when Roe was decided, and an overwhelming majority of the States prohibited abortion unless necessary to preserve the life or health of the mother. Roe v. Wade,410 U.S., at 139-140, 93 S.Ct., at 720; id., at 176-177, n. 2, 93 S.Ct., at 738-739, n. 2 (REHNQUIST, J., dissenting). On this record, it can scarcely be said that any deeply rooted tradition of relatively unrestricted abortion in our history supported the classification of the right to abortion as “fundamental” under the Due Process Clause of the Fourteenth Amendment We think, therefore, both in view of this history and of our decided cases dealing with substantive liberty under the Due Process Clause, that the Court was mistaken in Roe when it classified a woman’s decision to terminate her pregnancy as a “fundamental right” that could be abridged only in a manner which withstood “strict scrutiny.”
The interesting part is this was to be the opinion of the Court until Kennedy’s famous flip flop.
This strikes me as the sort of activism the court has criticized Roe over. Why does the court need to take a position on the value of a fetus as a potential life? Although the constitution uses the word life, it doesn’t define it.
Wouldn’t a more intellectually honest position be to defer to the states to define this relationship between a fetus and a life, then?
This would mean that a state can decide that a fetus is a potential life that should be protected by abortion laws without requiring the federal court to take such a definitive stance on the issue.
Also, do you see any potential significance to Justice Barrett analogizing pregnancy to vaccines? Do you think that will play into the eventual holding at all?