I have read the decision, many times. And there is absolutely an arbitrary aspect to this part of the decision. Why 3 months? Why not 3 months plus 2 weeks? Why not 2 and 3/4 months? And, again, where in the Constitution is the “quickening” clause? I must have missed that part.
Yeah, this is definitely what I see being the biggest thing to hit the abortion debate in the coming years.
Planned Parenthood of Southeastern Pennsylvania v. Casey actually altered the Roe decision by introducing the concept that the state has an interest in protecting neonatal life once said neonatal life has reached viability.
Theoretically if neonatal medicine reaches the point that basically any fetus can be saved then abortion would be de facto banned without any decision from the SCOTUS at all.
Asserting what rights? If they are based on the 14th amendment then you still need state action. If not, you need to identify another constitutional provision. If there is no federal claim, the Supreme Court won’t even be involved.
There is little that is outside the realm of possibility. The issue remains the source of the obligation. I can see lots of claims being made under state law (I’d run through a few of them, but I suspect that this is uncontroversial). But constitutional law. You still have not explained where or how.
I’m not familiar, from the detail provided, with either of these cases. But I know that receivership is a matter of state law. Again, nobody is arguing that people can’t make state law claims about duties of protection and the like, but getting a federal court to intervene against a private party on constitutional grounds? That’s a lot rarer.
Well, there was Bush v. Gore (not a standing case, but one in which many believe justiciability issues were ignored), but other than that, Scalia is a pretty strong believer in standing requirments, and Roberts (at least mostly) agrees with him. SCTNominaton.com - Guide To The Automotive Sport
Regarding state action requirement in the context of receiverships and injunctions:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=10th&navby=case&no=961461 (state court’s denial of injunction and receivership not state action).
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=989542OPN (denial of medical privileges at privately managed state-owned hospital not state action).
Here is a good case on the state action requirement, generally. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=457&invol=922
I am not implicating state action because the hypothetical case involves an attempt to coerce state action rather than enjoin it. That’s why the concept of receivership becomes relevant. I am postulating an extension of a duty already accepted by the state (child welfare) and its subsequent failure, if you will, to meet that duty.
Certainly the early action in any of these cases occurs in state and not federal court, so I guess the issue could only arise on certiorari from a state supreme court refusing to grant receivership.
As to the willingness of the supremes to snatch jurisdiction from a state court where all prior jurisprudene militates otherwise, see Bush v Gore.
I’m not saying that it would be good law; merely that clever lawyering.
You have not identified any federal law that the Supreme Court could adjudicate. The Supreme Court does not decide state law issues. So you are basically saying the Court will contradict centuries of doctrine simply to reach a state law issue? Why? How? You haven’t really explained anything yet.
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You mean like they did in BvG? Well, I guess that was a one-time frolic…
BTW, the supreme court role might only be in the initial case, where the 14th amendment implications arose from an initial filing in Fed. District Court.
Subsequent litigation, although limited to state courts, could rely upon the personhood definition to challenge a failure of the state legislature to protect the right to life of the (now) person/fetus.
Like I said, the first trimester distinction was the definitive point they gave to a event that lacks one. Why 3 months and not 3 months and a day? Simply becuase 3 months is a convinent demarcation point.
What is your point.
I agree with this. I can see states giving a broad reading to a case overruling Roe, and grounding their decision on both state and federal constitutions. Such cases might never reach the Supreme Court because they would present an independent state ground. http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=324&invol=117#126
What’s with the “anti-choice groups”?
Yes, it is. And that’s my point. It’s a convenient demarcation point that they created out of the air–and by that I mean that they had no constitutional basis, not that the decision is void of any other logic. My point is that SC Justices ought rightly to limit their logic to that which proceeds from a constitutional foundation.
Was it really that tough to spot? OK, see above. To summarize: the “right to privacy” evoked in the Roe v. Wade (i.e., NOT the 4th amendment), like much else contained in that decision (e.g., first trimester boundaries), had no specific text in the Constitution to support it. The decision could have come out in a thousand different variations as to why abortion cannot be restricted as states had previously restricted them, and there would have been nothing in the Constitution to specifically recommend one version over another. To me, this is a major drawback in a SC decision, but I’m funny that way.
I saw nothing wrong with the usage. “Pro-life” groups are not, as a rule, out demonstrating against the death penalty or raising money to find a cure for now-incurable fatal diseases; they’re opposed to abortions because in their eyes it terminates a life. In other words, they’re opposed to the idea that a woman may have a choice whether to continue or terminate an existing pregnancy, or ‘anti-choice’ for short. And it aptly describes the groups that would be instituting such suits. (There are “pro-life” groups around that focus not on preventing abortions but on providing alternatives to them.)
Stratocaster, thanks for taking my hyperbole in the way it was intended. With reference to the “trimester clause of the Constitution” 
, may I submit that, however right or wrong you feel his analysis to have been, Justice Blackmun was in fact attempting to do what Justice Brandeis had sixty years previously begun advocating: taking judicial notice of existing conditions in the real world that might have a bearing on legislative or individual decision-making. The idea that a maximum hours without voluntary overtime law might be valid is to be decided not on the exclusive basis of abstract legal concepts like retained powers and “liberty of contract,” but on the practical fact that people get sick if they’re forced to work in 120-degree heat for fourteen hours daily, is the product of Brandeis arguing incessantly for the propriety of taking such judicial notice. In Roe, Blackmun was, however incompetently he may have gone about it, trying to take judicial notice of the gynecology and social custom of the time and integrate that into the freedoms which he understood the Constitution to guarantee. You don’t have to agree with the result or the methodology he used to grasp the underlying purpose.
It seems to me that this is like saying your car can be searched because the Constitution doesn’t have any explicit mention of automobiles. To wit: with a right to privacy established, there are particular guidelines in which it is applied.
Perhaps this is not a good analogy, which is due to a very informative recent thread about car stops, but I hope the analogical similarities are enough to make my point. On preview, Polycarp has said much the same thing.
The guiding principle is against abortion, not against “choice”. And in fact, many work to offer a variety of abortion alternatives. So how about “anti-abortion”?
English common law has weight in our legal system and the Justices cited it heavily. Despite your continually saying that the Justices created it out of thin air is simply not true. There is hundreds of years of legal history demarcating the status of a fetus at quickening.
Well that simply isn’t how it works. Common law and precident have weight in determing the constitutionality of a statute.
If you are expecting direct constitutional support for SC rulings you are going to be sadly disappointed. The Constitution is shorter than this thread and simply was not intended to be a list of rules encompassing every possible situation. Expecting it to be ignores the purpose and intent of the Constitution.
I used the term advisedly.
The groups in questioh ar not, acrsss the board, anti-abortion.
They frequengtly acceede to its use in cases where the mother’s life iis endangered, and, with perfect inconsistency, where the innocent fetus is the product of rape or incest.
They object, therefore, to permitting the pregnant woman to make the choice, not to the intervention itself.
No problem!
I’m sure that was his purpose. And I’m sure you have already surmised that I would argue that the SC can feel free to take judicial notice of gynecology and social custom to integrate against the freedoms guaranteed by the Constitution; I just personally think those freedoms ought to have a textual basis–some phrase, for cryin’ out loud, that can be pointed to as the basis for the guarantee.
No, the 4th amendment guards against such an abuse. You see the difference? There is a specific amendment in the Constitution one could base a decision against unlawful search of cars. Here, for your review:
Okay, now it’s your turn to play. Where’s the wording that supports the notion that a 2-month old pregnancy cannot be prohibited by abortion laws, but a 7-month old pregnancy can? Where’s wording (beyond the fourth amendment) that says there’s a right to privacy?
What I said is that they created it without regard to the actual words in the Constitution. I personally think that’s a fundamental flaw in constitutional reasoning, but feel free to subscribe to whatever judicial philosophy you’d prefer. And your point is ridiculous. Common law that is inconsistent with the Constitution would be ruled…wait for it!..unconstitutional. And do you really want to use precedent and common law as support for an SC decision that overturned state and prior case law? Wanna try again?
Okay, so since you state this a second time, I assume your respect for precedent means you really do think the decision a poor one.
Tell me about it.
Nonsense. The Constitution, by definition, covers all constitutional issues. Period. How could it be otherwise?
They do reference the constitution on numerous occsasions. However, despite your insistance that the Justices rely on the Constitution I would have you note that nowhere in the Constitution is person defined. I would be interested in how you would reference the Constitution in determining what a person is.
Try what again?
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You know, perhaps if you turned off your smart ass switch you might get better answers. Regardless, becuase the Constitution does not define its terms it is necessary to look elsewhere to for those definitions.