Sure. That’s reasonable, but also a debatable point and one that legislatures should make. It is also a huge red herring in Roe because the state’s power to regulate does not depend on a finding of whether the object that will be harmed or destroyed is a “human life.”
They torched an easy strawman to make a simple judicial decree, a policy choice that pretended to be law.
I feel like the democrats are reactive. They sit on their hands and wait for the GOP to declare war on some established right people enjoy, then maybe they fight back. Its not a good strategy. It isn’t like the GOP hasn’t been declaring war on abortion for decades at this point. Democrats need to expand rights every time they have the power to do so, even the rights that the GOP hasn’t successfully declared war on yet.
We already have this sort of situation for several other things–methods of voting, age at which a person can get a driver’s license, etc. To a very large degree, that is the entire point of living in a federation, so that the various jurisdictions can do things differently (if desired) than other parts of the country.
But if State A says that is reinstituting the practice of slavery, it can’t, as slavery is an infringement on human rights. The States interest can only extend so far.
Except as a punishment for crime whereof the party shall have been duly convicted, right?
A crime yes, but a protected human right is not a crime.
That’s not a strong argument. The prohibition against slavery is expressly codified in the United States constitution, via the 13th amendment,
No such right relating to abortion (or even privacy) is also found written within the constitution.
It’s not “human rights” that restricts slavery, its an actually expressed statement found in writing.
Privacy, meanwhile, is argued to exist by implication via several amendments, but it is not actually written in the document.
But if the State is deciding what parts of your body it has ownership of, what is that except slavery?
Regulating your body is not the same as “having ownership” of it. The government tells you what you can and can’t do with your body all the time, and we don’t jump to describing that as slavery.
Sure, if the State regulated that you needed to keep your index finger forever fully extended forever, that’s not slavery, that’s a regulation.
Correct. And if you were to challenge such a law as violating the prohibition against slavery, you’d lose.
However, under the jurisprudence of the 14th amendment’s due process clause, the government must have a basis (which, depending on the freedom it restricts, might range from “rational” to “compelling”) for the law and must draft that law to achieve that purpose.
So, it’d be hard to justify a law that required people to extend their finger. But seatbelting their body when in a car? That’s an example on another end of this spectrum.
And there’s the rub. How compelling is the state’s interest in protecting life, or ensuring the health of the mother, or regulating good medical practices versus a woman’s right to personal freedom? The abortion debate struggles to answer this question.
Even though we disagree on the issue, I think this is an excellent summary. In addition, it highlights perhaps why there is disagreement, and that is because the tests themselves aren’t really good.
For example, what is a “compelling” state interest? That is as subjective as can be and not capable of judicial determination. For instance, in the affirmative action cases, the Court has held that diversity in higher education is a compelling state interest. For much of our history the Court would have said that maintaining separation of the races or maintaining “social order” or “social custom” by keeping segregation would have also been compelling. Or likewise as it actually did do with eugenics or forced relocation of Japanese citizens.
The abortion debate is much of the same. I would guess that I believe the state interest in protecting a fetus/unborn child/potential life is far more compelling than you believe it to be, and likewise you believe a woman’s interest in being able to have an abortion is far greater than I believe it to be. But we are both simply making value judgments based on our concepts of morality. I don’t see how the “compelling” or “substantial” tests do much for objectivity or advancement of the law in this area—they simply answer one question to raise another. They pretend to be law while hiding subjective value judgments.
I actually oppose abortion, and I think it’s disingenuous to simply label it a “choice”. I expect that for the women involved it’s basically the least worst option.
But, like with drug addiction, I don’t think that we solve the problem with prohibition. Abortion rates are reduced through comprehensive sex education and ready access to contraception. And given that there always will be people who do end up desperate enough for an abortion, I think it is most humane to offer them a safe and effective procedure.
But, with that having been said, what strikes me about Roe is what I believe to be the very wise line it drew - once a fetus has the ability to survive independently of the mother, the state has an interest in protecting it. Before that point, it is dependent on the mother, so she is given autonomy.
Because that is really the right at issue - personal autonomy, at a level free from government intervention. The law says that this only applies to those most personal choices about how to live, and I think it is fair to include childbirth; at the risk of “mansplaining”, I imagine that this is probably the most significant decision of a woman’s life.
And therefore it’s just to give her control over that moment.
But personal freedom is not unfettered; it can’t be in an orderly society. We wouldn’t tolerate a person killing their toddler in the name of parental rights, nor should we. So some line must exist - And it’s my personal opinion that “viability” is a proper compromise between a woman’s sacrosanct personal privacy rights and the incredibly compelling interest the government should take in preserving innocent life - since, historically, innocent life was an actual separate being functioning in the world, that’s a fair standard to adapt.
It might be argued instead that the Supreme Court should have simply deferred on the issue, leaving it to the states. While that was undoubtedly tempting, I think it would be a shirking of responsibility - jurisprudence over the right to privacy, coupled with the self-evident importance of the choice to carry a baby to term, demanded some sort of opinion.
You may personally agree with that line, and it may be rational, but I don’t see how it is any sort of judicially discernable rule derived from the Constitution. It makes too many unsupported assumptions:
That the fetus is not a human life. Sure, it is not a 14th Amendment person, but they are making a bald declaration that it is not a human life. Just because the common law used quickening as a dividing line, it doesn’t say anything about why the common law cannot be modified as it almost always is, and it doesn’t explain why it at least didn’t just adopt the common law.
It assumes that cases talking about contraception are identical to abortion. Or more precisely, it just declares, without support, that the privacy right of the contraception cases is “broad enough” to require legal abortion. Ipse Dixit. Sure, abortion can be put in the category of child rearing, but so can killing your toddler or letting your 10 year old drink whiskey.
For the reasons you say that the viability line makes sense because the entity is “dependent on the mother” that could be argued (and is by me) all the more reason why the state has an interest in taking that decision away from the mother. It is extremely vulnerable and needs the mother in that situation; almost a defense of necessity. Further, a newborn child is equally as dependent on a human caregiver as one would certainly die in short order without care. The act of physical separation between child and mother, although good enough for a personal dividing line, shows no support in a constitutional decision.
It fails to cabin this so called “right of privacy” or explain its broad application here but stingy application elsewhere. Why can’t a woman use heroin in her home or view child pornography or own a machine gun in her home. This expansive view of privacy is a sort of “good for abortion only, no refunds or rain checks” when it comes to other issues. Just saying how immensely personal an abortion decision is compared to those other things is more ipse dixit. What test do we use to determine how personal something is? Maybe to me as a man, my heroin use is far more important, personal, and secretive than any abortion right. Maybe I just want to work 60 hours per week in a bakery and that is more important to me than having consensual sodomy. Where does the Constitution make a distinction?
Roe boils down to the statement that abortion is a deeply personal choice and that many women want to be able to legally make that choice. Any petitioner could say the same about anything. This is something I really, really want to do is the crux of almost any case. The Roe Court just did not justify its conclusions.
Does being “secretive” enter into this? I thought Roe discussed the right of a woman to get an abortion regardless of whether she announces it to the world ahead of time — maybe she takes out an ad in the paper, maybe she puts it up on a billboard, you name it — and then drives to the clinic in a car decked out with bumper stickers advertising her intent: explicitly talking the whole thing over with TV reporters at the front steps before heading in, and doing likewise on the way out, and, I dunno, having something or other livestreamed during, even?
Well, so much for that!
Don’t worry, Obergefell v Hodges is never getting overturned.
And on that note: