Roe vs Wade----Overturned goes back to the states? Are you sure?

Great Debates
81

Polycarp, I believe the “reasonable man” yardstick has its application in the legislature. The democratic process, by definition, produces the very best approximation of the “reasonable man’s” expectations regarding what is legal and fair. The role of the judiciary is to ensure that no collective conclusion of reasonable men violates a right guaranteed by a higher legislative authority.

So, if a given state (and many did) had laws on their books prohibiting abortion, then that was the expectation of “reasonable men” in that locale. That society’s sensibilities were best served by that legislation–how could it be otherwise? It is the democratic process in action.

A higher court should step in only if the sensibility being served was one proscribed by a higher law–in our discussion, the U.S. Constitution.

Perhaps I’m an extremist. Someone on this board asked me once if a law demanding that people only walk on their hands (or something like that) was constitutional. I supposed it was, however unlikely the scenario is. From a practical perspective, I believed you’d have trouble finding any police who would enforce it, and the dopes who passed the ordinance would be bounced out at the next election (if not sooner), but there seemed to me to be no constitutional proscription against communities compelling their citizens to walk on their hands. Guess that tells you something about my literalist leanings.

A majority of Americans do not believe in evolution (as if it were Santa Claus). If that were to lead to a conclusion in a given society that only creationism should be taught in public schools, what should be our reaction? After all, this is the “reasonable man” standard. In my opinion we would rightly invoke the establishment clause and tell the rascals to peddle their papers elsewhere.

That’s my problem with using “reasonable men” as the standard to decide what ought to be explicit in legislature, whether it’s local law or the U.S. Constitution. “Reasonable men” can conclude something that is unconstitutional on its face–an obvious first amendment violation, for example, could be enthusiastically endorsed by the majority. Why in the world would we let the same “reasonable men” detect the nuance and shadings possible within the boundaries of the ninth amendment? I believe the ninth amendment is shapeless to the point of being without real weight. It can support anything, and therefore should be used to support nothing.

82

Be consistent. If they are not “anti-abortion” because they allow some exceptions, then by that same argument they are not “anti-choice” either. (And what about those who do not allow exceptions?)

Self-applied propaganda terms
Pro-life / pro-choice

Inaccurate name-calling
Pro-abortion / anti-choice

Neutral terms
Anti-abortion / pro-abortion rights

83

Sorry, but granting an exception to a generalized prohibition does not make one pro-choice; the thrust of the prohibition is to take the choice out of the woman’s hands.

Are you proposing that to be consistently anti-choice they would need to FORCE abortion of the rape/incest fetus, with or without the informed consent of the patient?

84

That said, of course I framed the original term with forensic goals in mind.

85

Well, once again, your argument suggests the opposite. If you use a “thrust of” argument, the thurst is against abortions, not against choice.

86

Probably true, since I suspect that those in the camp I would term anti-choice may well accede to the named exceptions only as a matter of political convenience, and had they their druthers, (and I believe this situation obtained back in the day) the incest/rape fetus gets protected and the endangered mother has to roll the dice.

Query:if medicine reaches the point where an abortion at any time in the pregnancy produces a viable fetus which can be supported in a petri dish and then an incubator, where will we be?

By which I mean to say, would an aborting woman have any vindicable interest in avoiding the status of mother per se, absent the burden of carrying and delivering the baby?

87

No need to look it up.

prec·e·dent
n.
Convention or custom arising from long practice.
Since all 50 states had enforcable abortion laws prior to Roe it would seem a precedent was overturned.

Actually, it is consistently pro-choice, just not for abortion rights… It is not consistently anti-abortion or pro-life if you prefer. The choice comes in when a woman decides to have sex. If sex was forced upon her, then she never had a choice. Hence, the acquiescence. I understand the incest clause as basically a rape by a family member. Not consensual adult sex.

88

Choice, as a “term of art”, generally refers to the choice to terminate, as opposed to initiate, the pregnancy.

89

Depends on how you want to define an abortion law. Non-therapeutic abortions were available in California (1967) and New York (1970) before Roe v. Wade (1973). And that case did not overthrow all state abortion laws, only those concerning the first two trimesters.

90

this was the state of precedent before Roe: The second set of cases represents precendents that Roe overruled.
It does not look from the cites that there had been a prior supreme court case upholding a state abortion statute in the face of a privacy right challenge, maybe because none had ever gotten that far.
“We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
We note that those federal and state courts that have recently considered abortion law challenges have reached the same conclusion. A majority, in addition to the District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle, 342 F.Supp. 80c0 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle, 351 F.Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v. Bolton, 319 F.Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v. Scott, 321 F.Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v. Menghini, 339 F.Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F.Supp. 1048 (NJ 1972); Babbitz v. McCann, 310 F.Supp. 293 (ED Wis. 1970), appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P. 2d 194 (1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So. 2d 431 (Fla. 1972).
Others have sustained state statutes. Crossen v. Attorney General, 344 F.Supp. 587 (ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of Medical Examiners, 318 F.Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42; Corkey v. Edwards, 322 F.Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92; Steinberg v. Brown, 321 F.Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah 1971), appeal docketed, No. 71-5666; Cheaney v. State, Ind. , 285 N. E. 2d 265 (1972); Spears v. State, 257 So. 2d 876 (Miss. 1972); State v. Munson, 86 S. D. 663, 201 N. W. 2d 123 (1972), appeal docketed, No. 72-631. c
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approcach.”

91

Now your just splitting hairs. Did the SCOTUS forbid all states from outlawing those abortions? It was a state’s choice. The precedent was that the state got to decide what was legal wrt abortion.

Wait, your whole argument was whether you could call “pro-life” people anti-choice based upon the strict definition of the term(s). And then you want to say that we can only describe pro-choice as how those that describe as such themelves mean? :rolleyes:

92

No, I was distinguishing the use of “choice” as restricted to the moment after a pregnancy was determined to be unwanted. Obviously the wanted pregnancy is never reaches the question of the right to terminate. Nor is the question of whether the sex which caused the pregnancy was wanted or not determinative… One might, after all, conceive of a situation (no pun intended…)where unwanted sex nonetheless leads to a wanted pregnancy.