I suspect you are correct in guessing that Barrett and her co-religionists on the court will employ that analogy (comparing state interest in requiring vaccines with state interest in forcing all implanted fertilized eggs to be carried to full term).
As you have said (or implied), it is a poor analogy. For example, in the 1905 case you cite (which is the one likely to be cited by Barrett et al.)–Jacobson v. Massachusetts–the state required either smallpox vaccination OR the payment of a $5 fine.
Even if we grant that $5 was worth more in 1905 than it is now, there is NO analogy with forced childbearing. No state is likely to tell women they can either carry a pregnancy to term or pay a $150 fine.
Of course the Court’s right wing will find no difficulty in ignoring this aspect of the supposed precedent, nor in ignoring the differences between communicable disease and pregnancy.
Sotomayor, though raised as Catholic, is not a member of a Catholic parish and does not regularly attend Mass. More to the point, her rulings do not (as Barrett’s do) conform to the teachings of that church, to which, again, she does not belong.
Barrett has ruled–and spoken officially–in ways that do conform to Catholic Church dogma, and this makes it reasonable to mention her beliefs. For example, a few days ago Barrett made news by referring to the “Jewish-Palestinian conflict”—implying that all Jewish people oppose Palestinian people or Palestinian claims. (Which is not factual, despite what Barrett may believe.)
I think Roe vs Wade will just become less and less relevant as the years go on. It won’t be overturned in any “dramatic” fashion. But, I’m talking about the next several decades. And I doubt abortion will become broadly illegal. There may be limitations in some states.
I don’t see any activism here. The Court (if this was the opinion in an alternate universe) is not defining when life begins. It is stating the indisputable (I think) fact that there is a separate thing inside a pregnant woman, definitely a fetus, definitely a “potential life.” It doesn’t say it is a “human life” or take the pro-life position.
What is says is that because this “separate thing” is also involved, it makes the previous privacy cases about marriage, procreation, and child rearing not on point because none of those involved a destruction of a “thing” in the relationship.
The whole opinion would allow a state to have unfettered abortion or outlaw it, so I dispute the notion that such a thing is judicial activism. It is the opposite.
I tend to agree with others here. She is certainly teeing up that comparison. I don’t know what she will make of it and I’m sure it will be bitterly disputed, but it seems like because of it she is a vote to overrule Roe, and I don’t see anyone else for Roberts to pick off to save it.
I think it is also interesting how the Court has turned away vaccine mandate cases fairly summarily. It seems like they want to be able to claim consistency on that front. Make a statement like how bodily autonomy is an important value, but it is not absolute. The state can require people to get vaccines and carry children to term just like they require conscription, jury service, witness subpoenas and the like. Again, the analogy is not one I would use, but she is going in that direction.
You could use the same reasoning to make the case that a cancerous tumor is “something there that is different” from the host body. That doesn’t mean that the tumor’s existence needs to be protected.
The key issue with abortion is not whether the embryo/fetus is some kind of “separate thing” from the body of the pregnant woman (which itself is debatable), but whether it counts as a separate human person. That is a metaphysical question that you can’t settle with simplistic biological arguments.
Overturning almost 50 years and multiple cases of legal precedent isn’t activism. Intriguing definition of activism you have there.
I’m curious. What are your thoughts on overruling those “privacy” cases? Suppose this same court decides marriage is not a fundamental right and overrules Obergefell. Then, it decides sexual relations are not a fundamental right and overrules Lawrence. Then, it decides reproductive control isn’t a fundamental right and overrules Griswold. Then it decides making your own medical decisions isn’t a fundamental right and overrules Cruzan? Is there any principled difference between overruling those cases and Roe? And how far do we go before we get to “activism?”
“ 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).”
To suggest that the court isn’t taking a position with regard to the life of a fetus is disingenuous. As Kimstu noted, this isn’t a tumor that the court is worried about protecting simply because it’s a “thing” that is growing inside the woman.
In fact, for the distinction between abortion and contraception to hold, you have to ignore the word “potential” altogether. Birth control also involves the “purposeful termination of potential life”, but it somehow still manages to be within the zone of privacy. The only distinction to be made is if the “potential life” of a fetus is imbued with actual humanity at the time of its formation, and not sometime later (such as when it is born). Otherwise, destroying “potential” life is as controversial as disposing of a prophylactic.
Of course this is judicial activism, unless you are claiming that the constitution defines when life begins. Otherwise, the issue is not addressed and, according to strict judicial construction, this is therefore a states’ rights issue.
Why does this matter as a constitutional issue? It’s the way that the Roe Court framed it, but it makes no sense to say that a law can only be passed if a living human being is destroyed. The Roe Court deftly destroyed a strawman of its own creation. Are laws against animal cruelty unconstitutional because a dog is not a living human being under the 14th Amendment?
That is my whole point. It is a states rights issue. The Constitution does not define when life begins, therefore it is left to the states to do so.
My cite was the dissenting Justices’ reasoning for saying that this case is NOT like Griswold or Loving. It is not judicial activism to take notice of clear facts. No disrespect to any poster, but a pregnancy is something that throughout history has been widely seen in this and every society as something qualitatively different than a man’s ejaculate. Therefore the Roe Court was simply wrong for treating it as like it was mere contraception as in Griswold–human experience teaches us that with pregnancy in every other context than when we are discussing legal abortion.
Let’s say a couple is trying to conceive and they buy a pregnancy kit. It comes back positive and they celebrate. Is their celebration silly because they should have equally celebrated when the man ejaculated or they had vaginal sex? Of course not.
Further, it cannot be judicial activism because such a ruling would remove power from the judiciary and return it to the elected bodies.
So how does this work in a federation (Country X)? State A says life begins at conception, State B says at 16 weeks. You now have citizens of Country X (there being no such thing as citizen of State A or State B) having differing rights to when life begins.
If State A says life begins at conception, then it must treat similarly situated people (defined as all of those conceived) equally after conception. If State B says that life begins at 17.5 weeks, then it must treat similarly situated people (defined as those 17.5 weeks) equally beginning 17.5 weeks after conception. If State C says that life begins only at live birth, then it must treat all similarly situated people who have been born alive the same.