# Roe vs Wade----Overturned goes back to the states? Are you sure? **URL:** \ **Category:** Great Debates\ **Created:** [December 2, 2005, 7:45pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797 "2005-12-02T19:45:59Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 4:30pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/21 "2005-12-03T16:30:46Z")
We discussed this issue before. > **[What happens if the supreme court overturns roe vs wade](https://boards.straightdope.com/sdmb/showthread.php?t=283721)** > > Will abortion automatically become illegal in all 50 states or will it be up to the states to determine what they want to do. If it is up to the states can people just travel across state lines for abortions. > **[If Roe v. Wade were overturned, what would be the practical results?](https://boards.straightdope.com/sdmb/showthread.php?t=323944)** > > If the post-O’Connor Supreme Court were to have a chance to review Roe v. Wade, and if it were to reverse that decision – and I think that prospect is the main reason the political battle lines are being drawn before Bush has even named Justice... There are a couple of issues: First, is there any possible ruling that would make abortion \*illegal \*in every state? Probably not. Here is my answer from the first thread linked above: > [@](#): > > Substantive Due Process rights are rights against state action. The 14th Amendment[’]s proscriptions apply to states–not individuals. [http://caselaw.lp.findlaw.com/data/...ent14/18.html#3](http://caselaw.lp.findlaw.com/data/...ent14/18.html#3) In the death penalty cases, the state was attempting to execute people. The privacy cases all deal with state laws that prohibitted various conduct. The state was trying to enforce those laws through criminal prosecution. > > Here a state would have either repealed an abortion statute, not enacted one, or declined to prosecute. These are almost certainly insufficient to constitute state action. Second, could Congress pass some sort of legislation that prohibits interstate travel for the purpose of getting an abortion? While the analogy to the sex tourism laws is tempting. Those laws were passed pursuant to a treat, and therefore are governed by the doctrine of [Missouri v. Holland](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=252&invol=416)(Congress may regulate according to a treaty on a subject that it could not regulate absent the treaty) and its progeny. But Congress pretty clearly has the power to regulate interstate travel under the Commerce Clause.\* E.g.\*, [Katzenbach v. McClung](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/mcclung.html); [Heart of Atlanta Motel](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/heartofatlanta.html) (interstate commerce includes the movement of persons through more States than one). Third, could Congress simply outlaw abortion? The Commerce Clause jurisprudence seems to be heading that way . . . ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 3, 2005, 5:22pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/22 "2005-12-03T17:22:39Z")
> [@Fear Itself](#): > > Is there some legal instrument already in place that would prevent it? I would be curious why it doesn’t apply in the SSM example. Yep, it’s called the Constitution. It’s pretty simple - an abortion is an action, not a status. An act that is legal for citizens of a state must also be legal for out of state visitors. If, for example, the drinking age in Colorado is 20, both in and out of state residents can drink at age 20. Marriage, OTOH, is conferrence of a bundle of rights. If your home state denies you the opportunity to obtain that bundle of rights, for whatever reason including SSM, the Mass. law says that you cannot come here to obtain those rights if you intend to exercise those rights in the state that forbids you to have them. Sua ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 5:31pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/23 "2005-12-03T17:31:29Z")
> [@Polycarp](#): > > Look, in the strictest of senses, which I realize nobody means in this context, _Roe v. Wade_ will **never** be overturned. We know this because Norma McCarvey, the woman who was “Jane Roe” in the original case, petitioned the Supreme Court to hear arguments to reverse her case a few years back, and they declined to do so. **Polycarp** is disginguishing between over **turned** and over **ruled**. McCorvey sought to revisit the actual case of _Roe v. Wade_. She filed a motion in the original case, in a Texas District Court, asking the court for relief from the judgment entered in that case under Federal Rule of Civil Procedure 60(b): > [@](#): > > (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. > > On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. [http://www.law.cornell.edu/rules/frcp/Rule60.htm](http://www.law.cornell.edu/rules/frcp/Rule60.htm) The rule requires the motion to be made within a reasonable time, and the District Court found that the motion was not filed within a reasonable time. An easily defensible conclusion. For instance, the rule provides a fixed time limit of one year for motions based on fraud and newly discovered evidence. Here is the opinion of the court below: [http://caselaw.lp.findlaw.com/data2/circs/5th/0310711p.pdf](http://caselaw.lp.findlaw.com/data2/circs/5th/0310711p.pdf) The Court of Appeals found that the case was moot because the statutes that \*Roe v. Wade \* invalidated had since been repealed. The Court did not address the question of whether she had standing. But she pretty obviously did not. In the original case, she was seeking an abortion and the state was preventing it. Now the state permits abortion, and she isn’t even seeking one. The Supreme denied _certiorari_. A denial of \*certiorari \* has no precedential value. [http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=439&invol=940](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=439&invol=940) OTOH, the Supreme Court overrules cases every now and then. [Here is a list](http://www.gpoaccess.gov/constitution/html/scourt.html). ---
**Author:** ![Walloon](https://avatars.discourse-cdn.com/v4/letter/w/fbc32d/32.png) [@Walloon](https://boards.straightdope.com/u/Walloon)\ **Post date:** [December 3, 2005, 5:39pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/24 "2005-12-03T17:39:25Z")
I just want to pop in to say that this thread is surprisingly non-partisan and informative. It’s almost a General Questions response! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 6:22pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/25 "2005-12-03T18:22:29Z")
> [@SuaSponte](#): > > Yep, it’s called the Constitution. It’s pretty simple - an abortion is an action, not a status. An act that is legal for citizens of a state must also be legal for out of state visitors. If, for example, the drinking age in Colorado is 20, both in and out of state residents can drink at age 20. > > Marriage, OTOH, is conferrence of a bundle of rights. If your home state denies you the opportunity to obtain that bundle of rights, for whatever reason including SSM, the Mass. law says that you cannot come here to obtain those rights if you intend to exercise those rights in the state that forbids you to have them. > > Sua Hmmmm . . . I’m not sure this nomenclature finds support in the cases. First, the Constitutional Clause in question is Article IV, Section 2 of the Constitution: > [@](#): > > Section. 2. > The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. The Court has held that states may discriminate bewteen residents and non-residents as long as it does not encumber fundamental rights in the process. [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/piper.html;](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/piper.html;) [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/priv&immart4.htm](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/priv&immart4.htm). _Roe_, of course, held that abortion was a fundamental right. But if it is overruled, a party challenging such a regulation will not be able to rely on _Roe_. OTOH, the Court seems to be using the term fundamental right differently in two different contexts. It has held that occupational opportunities are fundamental rights in the privileges and immunities context. The test appears to be whether the privilege “is important to the national economy.” Or whether the “activities . . . play an important part in commercial intercourse.” Similarly, the Court does not really distinguish between status (or grant or denial of a license) and action. In [Baldwin](http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/baldwin.html) for instance, the Court upheld a statute that discriminated between residents and non-residents with respect to hunting licenses. > [@Bryan Ekers](#): > > Looks like MA is just trying to dodge the hassle of having to demand full faith and credit. Actually, full faith and credit does not really come into play here. Full faith and credit applies to judgments–not licenses. > [@](#): > > Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. “In numerous cases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded.” Milwaukee County , 296 U.S., at 277 . The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/522/222.html)** > > FindLaw's searchable database of United States Supreme Court decisions since > [@](#): > > It has often been recognized by this Court that there are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. . . . And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events. . . . Although Massachusetts has an interest in safeguarding the compensation of Massachusetts employees while temporarily abroad in the course of their employment, and may adopt that policy for itself, that could hardly be thought to support an application of the full faith and credit clause which would override the constitutional authority of another state to legislate for the bodily safety and economic protection of employees injured within it. Few matters could be deemed more appropriately the concern of the state in which the injury occurs or more completely within its power. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/440/410.html)** > > FindLaw's searchable database of United States Supreme Court decisions since ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [December 3, 2005, 6:44pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/26 "2005-12-03T18:44:08Z")
> [@saoirse](#): > > I’m pretty sure the difference between the abortion and the marriage lies in the fact that the state isn’t performing the abortion. If a woman gets an abortion at a public hospital, the state is performing the abortion. Sua ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [December 3, 2005, 8:08pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/27 "2005-12-03T20:08:41Z")
> [@Gfactor](#): > > Actually, full faith and credit does not really come into play here. Full faith and credit applies to judgments–not licenses. Then it avoids the messier matters of divorces. I can imagine someone on the losing side of of an alimony settlement fleeing to a non-SSM state. Massachusetts doesn’t have a good reason to limit their laws to residents, it looks like a way to avoid hassles. I’m hoping for a test case. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [December 3, 2005, 8:32pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/28 "2005-12-03T20:32:01Z")
(IAAL). The court could frame a decision that went beyond simply returning jurisdiction to the states: eg: Utah Woman seeks to abort fetus; father objects, seeks injunction based upon personhood of fetus, alleges standing as parent to litigate the prospect of harm to his child. Matter races up the appeals ladder; Supremes support father, find that fetus is “person”, therefore entitled to the protection of the state. Anti-choice groups file in 50 states to enjoin named doctors from performing abortions alleging personhood of fetus. (question re:standing, given current jurisprudence re:challenge to general harm, but this is a piffle). ---
**Author:** ![ombre3](https://avatars.discourse-cdn.com/v4/letter/o/da6949/32.png) [@ombre3](https://boards.straightdope.com/u/ombre3)\ **Post date:** [December 3, 2005, 8:43pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/29 "2005-12-03T20:43:44Z")
> [@alaricthegoth](#): > > (IAAL). The court could frame a decision that went beyond simply returning jurisdiction to the states: > > eg: > > Utah Woman seeks to abort fetus; father objects, seeks injunction based upon personhood of fetus, alleges standing as parent to litigate the prospect of harm to his child. > > Matter races up the appeals ladder; Supremes support father, find that fetus is “person”, therefore entitled to the protection of the state. > > Anti-choice groups file in 50 states to enjoin named doctors from performing abortions alleging personhood of fetus. (question re:standing, given current jurisprudence re:challenge to general harm, but this is a piffle). Excellent post. This is what I am worried about. If a fetus is declared a citizen, with all rights --------then he or she has just as much a “right to privacy” as the mother. ==the state must “leave me alone” You leave a fetus alone you tend to create born babies. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 10:17pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/30 "2005-12-03T22:17:40Z")
> [@alaricthegoth](#): > > (IAAL). The court could frame a decision that went beyond simply returning jurisdiction to the states: > > eg: > > Utah Woman seeks to abort fetus; father objects, seeks injunction based upon personhood of fetus, alleges standing as parent to litigate the prospect of harm to his child. He’s still going to have to come up with some kind of state action. Possibilities: 1. Failure to enact and enforce a criminal statute. 2. Failure to craft a common-law rule prohibiting the conduct. Got any authority for either of these being state action? > [@](#): > > Anti-choice groups file in 50 states to enjoin named doctors from performing abortions alleging personhood of fetus. Ditto, but even weaker claim of state action. > [@](#): > > (question re:standing, given current jurisprudence re:challenge to general harm, but this is a piffle). If it’s a piffle, perhaps you could share a cite that makes it an easy case? ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [December 3, 2005, 10:19pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/31 "2005-12-03T22:19:32Z")
> [@ombre3](#): > > Excellent post. This is what I am worried about. > > If a fetus is declared a citizen, with all rights --------then he or she has just as much a “right to privacy” as the mother. ==the state must “leave me alone” > > You leave a fetus alone you tend to create born babies. In this circumstance, it’s not a right to privacy, it’s a right to live. No one has a universal right to be left alone, not even one defined by the phantom “right to privacy” observed in the Constitution by SC Justices (readable only with their secret decoder eyeglasses). I think it’s in the part right after the “Right to party” section. Never give up the fight, folks. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 10:20pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/32 "2005-12-03T22:20:43Z")
> [@Bryan Ekers](#): > > Then it avoids the messier matters of divorces. I can imagine someone on the losing side of of an alimony settlement fleeing to a non-SSM state. Massachusetts doesn’t have a good reason to limit their laws to residents, it looks like a way to avoid hassles. I’m hoping for a test case. It’s kinda complicated, actually. [http://caselaw.lp.findlaw.com/data/constitution/article04/04.html#7](http://caselaw.lp.findlaw.com/data/constitution/article04/04.html#7) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [December 3, 2005, 10:24pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/33 "2005-12-03T22:24:30Z")
> [@Stratocaster](#): > > In this circumstance, it’s not a right to privacy, it’s a right to live. No one has a universal right to be left alone, not even one defined by the phantom “right to privacy” observed in the Constitution by SC Justices (readable only with their secret decoder eyeglasses). I think it’s in the part right after the “Right to party” section. Never give up the fight, folks. Would you be so kind as to place your full real name and address, and hours that you will be away from home and your probable destination, in this thread, so that some of us can go search your house and others can stop and strip-search you? (You will cooperate, right? No right to privacy, after all!) :smack: ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 3, 2005, 10:25pm UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/34 "2005-12-03T22:25:25Z")
> [@ombre3](#): > > If a fetus is declared a citizen, with all rights --------then he or she has just as much a “right to privacy” as the mother. ==the state must “leave me alone” If a private physician is doing the abortion without state funding, how is the state not leaving the fetus alone? Isn’t that actually the complaint: the state is being asked to intervene on the fetus’s behalf, right? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [December 4, 2005, 12:18am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/35 "2005-12-04T00:18:54Z")
> [@Gfactor](#): > > He’s still going to have to come up with some kind of state action. Possibilities: > > 1. Failure to enact and enforce a criminal statute. > > 2. Failure to craft a common-law rule prohibiting the conduct. > > Got any authority for either of these being state action? > > Ditto, but even weaker claim of state action. > > If it’s a piffle, perhaps you could share a cite that makes it an easy case? State action is not at issue in the hypothetical I gave–rather the extension to the fetus of personhood which permits the father to litigate on “its” behalf against the mother. What the consequences of such a formulation would be in the absence of such a particular claim from a specific man vis-a-vis a specific abortion is problematic. It would not be outside the realm of possibility, however, for a non-governmental agency to seek to force the child protective services in such a jurisdiction to move to interdict abortion (even in states that have as a matter of public policy decided to permit them) on the grounds that their mandate to prevent harm to children was being subverted by their failure to do so. The New York City example, and the present controversy seeking receivership for the New Jersey DYFS (I forget exactly what the acronym stands for, but its their cps) are cases where the ABSENCE of action on the part of the state forms the basis of intervention by parties otherwise strangers to the case or controversy. By “a piffle”, I was trying to describe the unlikelihood that Scalia & Co. would allow a small matter of intellectual honesty stand in the way of a result they were determined to achieve. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [December 4, 2005, 12:20am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/36 "2005-12-04T00:20:20Z")
> [@Polycarp](#): > > Would you be so kind as to place your full real name and address, and hours that you will be away from home and your probable destination, in this thread, so that some of us can go search your house and others can stop and strip-search you? (You will cooperate, right? No right to privacy, after all!) > > :smack: Actually, in my glibness I didn’t clarify my position, as I did in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=343047) (in fact, you actually responded to it): > [@](#): > > Everyone should have the right to do whatever legal activity they want in private, without intrusion or interference. They already do. If something ought to be legal (that isn’t), then tackle that issue. But “something I can do that involves only consenting adults that I can conduct without my neighbor seeing” does not, to me, equal “a private matter that in every single instance is exempt from legal interference.” > > Would you permit a brothel to operate in your neighborhood, so long as they kept the shades drawn? Can someone operate an opium den, as long as they paint the windows black? I realize it’s a buzzword that people use to gauge one’s position on Roe v. Wade. So, nominees must tread lightly, but I needn’t: there is no constitutional right to privacy beyond limits like the 4th amendment, nor is there a need for one. More than that, I believe it would not be a constant talking point as well as a question for SC nominees except for a single decision that relies on it. Even the 4th amendment can’t possibly be construed to grant the sort of broad “right to privacy” people seem to have such affection for these days, right? Do you believe the “right to privacy” evoked in the Roe v. Wade decision has a textual basis? If so, I’m missing it. That was my point. I’m also missing the part of the Constitution that says 2 months into a pregnancy, for example, it would be wrong for states to interfere in a mother’s decision to have an abortion, but beyond 3 months there could be a basis for some forms of prohibition. That the SC could actually state this in the decision is the textbook example of the court pulling something out of their collective judicial ass. Would the internal logic of the decision have been comprimised to any degree if, as another example, they had decided the boundary was not the first but the second trimester? And if not, what does that say about the objective constitutional basis for the decision? To paraphrase George Will, what would their decision have been if the human gestation period was a prime number, say 11 months? The constitutional foundation for their decision would have required some spectacular algebra then, I’m sure. No matter, the right to privacy is so powerful, it exists in all its splendor without regard to logic or the actual words in the Constitution. ---
**Author:** ![kanicbird](https://avatars.discourse-cdn.com/v4/letter/k/5f8ce5/32.png) [@kanicbird](https://boards.straightdope.com/u/kanicbird)\ **Post date:** [December 4, 2005, 12:39am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/37 "2005-12-04T00:39:24Z")
> [@](#): > > If a private physician is doing the abortion without state funding, how is the state not leaving the fetus alone? Isn’t that actually the complaint: the state is being asked to intervene on the fetus’s behalf, right? Well to be fair, this would be like the state allowing a husband to hire a hitman to kill his wife- the state is leaving the wife ‘alone’. ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [December 4, 2005, 12:43am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/38 "2005-12-04T00:43:40Z")
> [@Stratocaster](#): > > I’m also missing the part of the Constitution that says 2 months into a pregnancy, for example, it would be wrong for states to interfere in a mother’s decision to have an abortion, but beyond 3 months there could be a basis for some forms of prohibition. That the SC could actually state this in the decision is the textbook example of the court pulling something out of their collective judicial ass. > > Would the internal logic of the decision have been comprimised to any degree if, as another example, they had decided the boundary was not the first but the second trimester? And if not, what does that say about the objective constitutional basis for the decision? To paraphrase George Will, what would their decision have been if the human gestation period was a prime number, say 11 months? The constitutional foundation for their decision would have required some spectacular algebra then, I’m sure. No matter, the right to privacy is so powerful, it exists in all its splendor without regard to logic or the actual words in the Constitution. I don’t think the trimester formula was quite that arbitrary (although the neatness of the arithmatic is suspicious) but was based upon the premise that independent viability was a precondition for the accrual of personhood rights that the state might permissibly vindicate by prohibiting abortion. This, of course, raises a multitude of issues as neonatal medicine pushes the point of independent viability earlier and earlier into the pregnancy ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [December 4, 2005, 12:47am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/39 "2005-12-04T00:47:03Z")
> [@Stratocaster](#): > > Would the internal logic of the decision have been comprimised to any degree if, as another example, they had decided the boundary was not the first but the second trimester? And if not, what does that say about the objective constitutional basis for the decision? To paraphrase George Will, what would their decision have been if the human gestation period was a prime number, say 11 months? The constitutional foundation for their decision would have required some spectacular algebra then, I’m sure. No matter, the right to privacy is so powerful, it exists in all its splendor without regard to logic or the actual words in the Constitution. If you would read the decision you would find that the distinction is not an arbitrary date rather quickening of the fetus. The first trimester rule is simply the concrete rule of the fuzzy concept of quickening. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [December 4, 2005, 12:52am UTC](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797/40 "2005-12-04T00:52:35Z")
> [@alaricthegoth](#): > > I don’t think the trimester formula was quite that arbitrary (although the neatness of the arithmatic is suspicious) but was based upon the premise that independent viability was a precondition for the accrual of personhood rights that the state might permissibly vindicate by prohibiting abortion. This, of course, raises a multitude of issues as neonatal medicine pushes the point of independent viability earlier and earlier into the pregnancy Let’s concede this point. Where in the Constitution is the “viability clause”? Suppose they had said that abortions are verboten beyond the point where certain brain functions typically emerge. Not arbitrary either, but a substantially different opinion than the one they fashioned. Which one’s right? What part of the Constitution would you point to to support your choice? [Previous page](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797.md?page=1) [Next page](https://boards.straightdope.com/t/roe-vs-wade-overturned-goes-back-to-the-states-are-you-sure/333797.md?page=3)