Our undemocratic system of government that allows a minority of voters to impose their will on the majority, originally created to ensure the free states wouldn’t vote slavery away from the slave states, and used for other odious ends since
Shall we let states make their own laws regarding segregation, miscegenation, contraception, Free Speech, search and seizure, and all the rest of the Constitutional rights that exist?
Are you asking me, or Alito?
As a pure matter of policy, I have always thought it better handled at the State level. As a matter of law and the constitution–it is a lot stickier.
Something that I think is not often fully recognized is that 5 of the 7 justices who were in the majority in Roe were Republican justices who were philosophically, personally conservative–by the standards of the 1950s and 1960s-early 1970s when they were appointed. It is unlikely that even a single one of those justices personally agreed that it was moral to get an abortion.
However, they also came from a somewhat rosy period in Supreme Court history–that note, has not been the case on that court before or since, where you had justices that just genuinely really cared about legal and constitutional principles far more than personal beliefs or personal politics.
Note that most likely that one of the two Democrats in the 7 justice majority probably felt the same way about abortion, (I refer to William O. Douglas, who was raised by a Presbyterian missionary and made several very pro-religion personal statements in his life outside the Church–the other Democrat in the majority, Thurgood Marshall, I can find no significant record on his personal feelings on abortion and he was apparently a fairly apathetic Episcopalian) it is largely unlikely anyone in the majority actually was morally in favor of abortion.
However, they were in a legal quandary with the case primarily because most of these same justices had been in the majority in Griswold (or agreed with its holding.) Griswold set a strong precedent, based on fairly sound legal reasoning, that the plain text of at least two of the amendments that make up the Bill of Rights indicate the unenumerated right to privacy is tacitly enshrined in the constitution.
If you accept that premise, you need some compelling reason to say “okay, well it doesn’t apply in the case of getting an abortion.” You also, due to First Amendment jurisprudence, and general constitutionalism, have to make this argument without a simple appeal to religious belief–the Supreme Court isn’t a theocratic body. [At least it is not intended to be.]
And I thought the decision was about Roe v Wade.
Boy was I wrong.
Note very carefully the rights weighing that occurred in Roe–and even that by Alito in his draft, do not actually address the rights of the fetus. This is because that opens a constitutional black hole, from which nothing might escape. The reason the Roe court could not simply conclude that abortion is unconstitutional because it violates the fetus’s right to life, is there is no constitutional, traditional, or legal history affording the fetus any personhood rights at all in 1972. Some States have been deliberately attempting to establish the legal concept of “fetal personhood” ever since, but that is a movement that essentially exists solely as a reaction to Roe.
It would have been essentially crazy, legally speaking, for them to have invented fetal rights out of thin air. Additionally, it would have put the Justices in the position of deciding at what point in human gestation a fetus inures those rights. As you can see, that isn’t a good place to be legally, and would almost invariably devolve into a theological debate, which the Supreme Court isn’t supposed to be involved in.
Ruth Baden Ginsburg in her criticism of Roe, wishes that if you were going to enshrine abortion as a protected constitutional right, to have done it out of the bodily autonomy rights of the woman. There is actually significant constitutional jurisprudence about bodily autonomy. That is not the route that the Roe justices went, they were frankly much more concerned about the privacy implications of the Texas law, and the rights of the States. The bodily autonomy rights of the woman, and any theoretical rights of the fetus, just weren’t a significant element of their deliberations.
FWIW–if the court held the mother had a general right to an abortion on grounds of bodily autonomy (which is actually a well-supported right straight out of the rights conferred in the constitution), and concluded that the fetus has “some rights of personhood”, the conclusion would not automatically have been that the woman could not have gotten an abortion. The traditional way to handle competing rights at law is through “rights weighing”, which gets complicated and technically precise, but the competing rights would have to be spelled out in very specific circumstances with specific constitutional justifications involved.
While I don’t agree with his conclusions, Sam Brownback once said that under the law, anything that exists in an uncertain state between property and person, creates serious legal / constitutional issues. His examples were chattel slaves and fetuses. He is right largely that that core conflict creates a very sticky constitutional issue. The only way the court could ultimately resolve the competing concerns of property and humanity for slaves, was to come down firmly that slaves were not people, in Dred Scott. That decision was monstrous beyond belief and is frequently cited as the worst Supreme Court decision in history. However, the logic of Dred Scott makes sense even though it was bad law–if you want to really settle slavery, you cannot have jurisprudence that quibbles on if a slave is a person or a thing, if they are a thing then slavery is logical and legal and makes perfect sense. If they are any kind of person, it can never make legal sense under our constitution. The pro-slavery justice behind the Dred Scott decision realized that, and simply made a horrifically unconstitutional ruling in favor of slavery. Note–such behavior is historically normal for the Supreme Court, a noxious institution that only rarely has been governed by forbearance and integrity.
I mean you probably need to read what Roe v Wade was about–it was specifically about whether Texas could pass a law criminalizing abortion, the court found that said law violated the fourth/fifth amendment rights of the claimant, and the States don’t get to pass laws that violate those rights. You cannot separate Roe in an isolation chamber that is unconnected with larger arguments about the right to privacy, unenumerated rights, and the power of the court to protect citizens from infringements of due process, equal rights, and enjoyment of constitutional rights under the law.
It would seem legally, logically and morally supportable for a Court in the past to have thrown up their hands and say that the determination of fetal humanhood is a moral/theological question that the Court cannot definitively answer. However, we will draw a line – in the first trimester the fetus has no rights. After that, it does (subordinate to the mother’s in extreme cases). If you don’t like it, don’t get an abortion.
That’s interesting. How many states have laws on the books that would prohibit abortions twelve weeks or earlier into the pregnancy?
~Max
But why?
The 9th amendment says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
So what is Alito’s problem? Where does it say there must be history to support it? (not digging on you…just shouting at the wall)
Yep, in the US. See the earlier cites from The Atlantic that @Kimstu and I posted. And here’s a cite from the Guttmacher Institute. It’s from February of this year. Perhaps your cite is older?
And here’s another from this 2/2022, referring back to 2020:
And one more:
Since that one’s paywalled, here’s one relevant bit:
In December, the FDA made permanent a covid-era policy allowing abortion pills to be prescribed via telehealth and distributed by mail in states that permit it. Even before the FDA action, abortions induced by pills rose to more than 54 percent of all U.S. abortions in 2020, according to the Guttmacher Institute, a research organization that supports abortion rights.
You’ve already had a number of replies, but I’ll give you my version.
The problem is threefold. First, even if the implied conclusion from your two statements was true – and it definitely is NOT true – that would still leave potentially millions of citizens in at least some states deprived of the basic human right to bodily autonomy.
But the second problem is that the effects will be even more far-reaching than that, because in fact the distribution of demographics and voting patterns is such that nearly half of US states are likely to completely ban abortion if Roe is overturned, and some are considering even more onerous laws that would try to ban travel out of state for purposes of abortion.
And finally, the subjugation of such a basic right opens the floodgates to the trampling of other basic human rights under the jackboots of emerging authoritarian Christian theocracy, like the right to same-sex relations, marriages, or even civil unions.
I’ve mentioned elsewhere the rulings of the Supreme Court of Canada on abortion, which I realize have no legal relevance here at all, but the fundamental values certainly have moral relevance. The final and most important of these came in 1988, when the Court ruled that all abortion laws were unconstitutional because they “violated section 7 of the Canadian Charter of Rights and Freedoms. Section 7 states that: ‘Everyone has the right to life, liberty, and the security of the person, and the right not to be deprived thereof, except in accordance with the principles of fundamental justice’.”
The bolded part is what Alito and fellow wingnuts are willing to flagrantly violate, even though it’s implicit in the US Constitution and in the nation’s founding principles.
Again, you’re making me eat glass, but Alito makes a distinction between a “right” and a “fundamental right”. It’s a distinction that’s been made for a long time in Supreme Court caselaw. For example, economic/environmental rights, for the most part, are non-fundamental. If a state action only violates non-fundamental rights, they need only have a rational basis for the legislation. However, if a state action violates a fundamental right, then they apply a different standard, strict scrutiny, to decide if the state action is constitutional. Strict scrutiny requires the state to show its action is to meet a compelling state interest and the means to meet that interest is necessary and there are no better alternatives.
What Alito concludes is, even if there is a right to abortion, it is not fundamental.
Completely? Cite?
~Max
Already posted and seen by you:
Heck, they can’t take the kidney even if the donor is dead without permission. Again, even if it means you die.
I disagree with the part I’ve bolded. The Morgentaler decision did not say that. The Court held that the particular law in front of them violated s. 7 because of the impact it had on women seeking an abortion, but they did not say that abortion is a constitutional right. The decision was carefully linked to the particular Criminal Code provision that was challenged.
Since that decision (back in 1988), the Supreme Court has steadily advanced its s. 7 jurisprudence, to the point that several commentators have suggested that if the issue of abortion were to come up again before the Court, they likely would conclude that abortion laws per se infringe s. 7 (thinking, for instance, of their s. 7 case on assisted suicide, which turned on bodily integrity, which the majority in Morgentaler did not address). But the Morgentaler case did not say that all abortion laws would infringe s. 7. Some commentators have suggested it was much closer to Doe v Bolton, the companion case to Roe.
OK, once again I defer to your knowledge of law. However, the main point remains: as a result of that ruling, there have been no legal restrictions against abortion in Canada since 1988.
AFAIK, the only limitations to abortions in Canada are (a) lack of availability in specific geographic regions, and (b) medical ethics concerning late-term abortions (but not legal limitations).
Well the big issue even doing that is again–there is not much constitutional precedent for the court making a determination that a fetus has any personhood at all. It would also open up a massive gate to a number of other complex legal issues–the Supreme Court almost always takes into some consideration the practical effects of its decisions, it is not realistic to believe that is not true.
Oh if you’re looking for a quality legal argument I don’t think you’ll find one. Alito is a partisan hack, he doesn’t care about the law as it pertains to this issue, he wants to nuke Roe, and he’s doing it. His opinion represents his draft of a “best attempt to give this political decision I am making the veneer of legal respectability.” Now, I actually have never liked Alito, I generally don’t like the blatantly partisan justices (RBG was blatantly partisan, just so people don’t complain I only pick on one side.) Alito is a genuine legal mind and smart guy based on his long career leading up to the bench, but he isn’t remotely impartial, and he uses his position as a Justice to advance his personal political agenda which is…unfortunately common in SCOTUS history, and why I am innately skeptical of SCOTUS place in our society.
It’s fine to use a government office to promote your political agenda–that’s what elected office is for; I’m much less comfortable with it being done by people with life tenure.
Not a bad description of his opinion, but the spoilage in the pudding is demonstrated when you get to its innards. Alito, for what I think most neutral parties would agree are political reasons, dances around the number of other important privacy precedents that he isn’t explicitly overruling, and even uses phrases like “assume for the sake of argument Griswold is a valid decision.” But those little rhetorical quibbles are, of course, not binding, and four years from now it would not surprise me at all to see Alito writing a majority opinion overturning Griswold.
Alito has a few things going on–one is he does not want to explicitly say he doesn’t believe in a right to privacy because that is real bad politics, so he basically says if there is a right to privacy it doesn’t really cover abortion anyway. Two, he fairly obviously doesn’t actually believe in a right to privacy either, even though a plain understanding of the fourth and fifth amendment, and basic history of our country, English common law, writings of the founders et al. clearly provide for a right to privacy. Right to privacy isn’t a far out belief, it is grounded very strongly in a fairly obvious analysis of our actual enumerated rights. Saying there isn’t a right to privacy is probably on par with saying there isn’t a right to property since it isn’t clearly written in black letter text.
It is to laugh.
- The GOP is already planning on a nationwide Federal ban.
- Several states are making it illegal for it’s residents to get an abortion in another state.
The idea here is to make abortion banned.
Sadly I concur. Gorsuch seems to have been picked for Gun rights and as an almost compromise Justice. He votes with Roberts mostly. Conservative, yes, the both of them, but reasonable.
To a large extent that is how it is with Guns, ins’t it? But yeah, there are rights you can’t leave up to each state. All those things, also abortion, gay sex**,Privacy** and yes, guns.
This ruling will lead to us having no right to privacy. The Gov’t can wiretap at will.
Oddly, there is absolutely nothing in the New Testament, and only a couple of verses much open to interpretation in the OT about abortion. Note also that Jesus said nothing about gay sex and was even forgiving about adultery. The Early Church was against abortion almost for women’s rights, as it often led to death.