# The Constitution does not address abortion? Really? **URL:** \ **Category:** Great Debates\ **Created:** [October 12, 2012, 10:23pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570 "2012-10-12T22:23:50Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![stevenova](https://avatars.discourse-cdn.com/v4/letter/s/4bbf92/32.png) [@stevenova](https://boards.straightdope.com/u/stevenova)\ **Post date:** [October 23, 2012, 12:39pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/101 "2012-10-23T12:39:31Z")
> [@zoid](#): > > Since you already started another thread on the smoking issue why don’t you link to it and we can discuss it there. Fair enough? Why do you have a right to kill your own child, a “choice” to do that if it’s inconvenient to you, but you can’t choose to sm oke in your own home? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 23, 2012, 12:58pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/102 "2012-10-23T12:58:26Z")
Because my neighbor having an abortion won’t give me emphysema? Anyway - the smoking thread is here: [The Nanny state increases: CA town bans smoking in all non detached private residences - Great Debates - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=669702) I’m going to restrict my comments on this topic to that thread from now on. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 23, 2012, 1:19pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/103 "2012-10-23T13:19:11Z")
> [@jtgain](#): > > A couple of points: > > 1. No way in hell would the Court today uphold Buck v. Bell. It’s just one of those old cases that is a footnote of history that would have no more precedential value today than Plessy. > > 2. Even if you uphold Buck v. Bell, one would be hard pressed to argue that procreation among healthy people in a marriage is not deeply rooted in our history and tradition. > > 3. You obviously disagree that the “deeply rooted” test cannot be the end of the analysis, and I would assume adopt the living constitution argument. When you do that, there is no end to the number of “rights” that are created out of thin air. That turns the Supreme Court into a super-legislature deciding rights based on personal opinion instead of being rooted in the constitution. It doesn’t matter if today’s court would uphold Buck v. Bell. The point is whether Scalia would. After Buck, 42 states had compulsory sterilization programs. I’ll buy the second argument, but that just means legislatures are free to force abortions on people if they aren’t married. Is _that_ a better result? I disagree that there is no end to creation of rights based on the living constitution argument. That said, even if I didn’t, at least it attempts to find an objective basis for the creation of rights. Textualism and originalism rely on vague legislative pronouncements, often spotty historical scholarship and… personal opinion. Take Scalia’s pronouncement about the “prefatory clause” in the 2nd Amendment for example. ---
**Author:** ![stevenova](https://avatars.discourse-cdn.com/v4/letter/s/4bbf92/32.png) [@stevenova](https://boards.straightdope.com/u/stevenova)\ **Post date:** [October 23, 2012, 1:20pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/104 "2012-10-23T13:20:12Z")
> [@zoid](#): > > Because my neighbor having an abortion won’t give me emphysema? > Anyway - the smoking thread is here: [The Nanny state increases: CA town bans smoking in all non detached private residences - Great Debates - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=669702) > > I’m going to restrict my comments on this topic to that thread from now on. What causes more deaths? Second hand smoke or abortion? Should automobiles be banned given the health risks their exhaust causes? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 23, 2012, 1:24pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/105 "2012-10-23T13:24:30Z")
Let’s try this again… > [@zoid](#): > > Anyway - the smoking thread is here: [The Nanny state increases: CA town bans smoking in all non detached private residences - Great Debates - Straight Dope Message Board](http://boards.straightdope.com/sdmb/showthread.php?t=669702) > > I’m going to restrict my comments on this topic to that thread from now on. ---
**Author:** ![stevenova](https://avatars.discourse-cdn.com/v4/letter/s/4bbf92/32.png) [@stevenova](https://boards.straightdope.com/u/stevenova)\ **Post date:** [October 23, 2012, 1:30pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/106 "2012-10-23T13:30:03Z")
> [@zoid](#): > > Let’s try this again… And if I brign up abortoin in that thread, you’ll direct me to this one. What kills more? Second hand smoke or abortion? Which one is a liberal sacrement? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 23, 2012, 1:39pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/107 "2012-10-23T13:39:10Z")
How do you know the home smoking ban was passed by liberals? Your link doesn’t reference any party affiliation. ---
**Author:** ![stevenova](https://avatars.discourse-cdn.com/v4/letter/s/4bbf92/32.png) [@stevenova](https://boards.straightdope.com/u/stevenova)\ **Post date:** [October 23, 2012, 1:48pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/108 "2012-10-23T13:48:12Z")
> [@Really\_Not\_All\_That\_Bright](#): > > How do you know the home smoking ban was passed by liberals? Your link doesn’t reference any party affiliation. > **[San Rafael, California](https://en.wikipedia.org/wiki/San_Rafael,_California#Politics_and_government)** > > District 2: Katie Rice > San Rafael (/ˌsæn rəˈfɛl/ SAN rə-FEL; Spanish for "St. Raphael", .mw-parser-output .IPA-label-small{font-size:85%}.mw-parser-output .references .IPA-label-small,.mw-parser-output .infobox .IPA-label-small,.mw-parser-output .navbox .IPA-label-small{font-size:100%}Spanish pronunciation: \[san rafaˈel\]) is a city in and the county seat of Marin County, California, United States. The city is located in the North Bay region of the San Francisco Bay Area. As of the 2020 U.S. ce... Do you need me to prove water is wet too? ---
**Author:** ![zoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zoid/32/336_2.png) [@zoid](https://boards.straightdope.com/u/zoid)\ **Post date:** [October 23, 2012, 1:52pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/109 "2012-10-23T13:52:34Z")
> [@stevenova](#): > > Which one is a liberal sacrement? That’s just inflammatory. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [October 23, 2012, 2:02pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/110 "2012-10-23T14:02:32Z")
**stevenova** , you’ve made your point about smoking. Let’s steer this back to the original thread topic. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 23, 2012, 8:29pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/111 "2012-10-23T20:29:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It doesn’t matter if today’s court would uphold Buck v. Bell. The point is whether Scalia would. After Buck, 42 states had compulsory sterilization programs. > > I’ll buy the second argument, but that just means legislatures are free to force abortions on people if they aren’t married. Is _that_ a better result? > > I disagree that there is no end to creation of rights based on the living constitution argument. That said, even if I didn’t, at least it attempts to find an objective basis for the creation of rights. Textualism and originalism rely on vague legislative pronouncements, often spotty historical scholarship and… personal opinion. Take Scalia’s pronouncement about the “prefatory clause” in the 2nd Amendment for example. 1. Scalia’s point would probably be that the democratic process works. The “evolving standards” have manifested themselves in legislation that have outlawed compulsory sterilization. No need for judges to dictate the law. 2. Okay, there is a “deeply rooted” right for healthy people, married or not, to procreate. Better? 3. I dispute that there should be a “creation of rights.” Either the constitution recognized them at the founding (or at the time of ratification of an amendment) or it didn’t. If it didn’t, then a new amendment is in order to recognize a new right. Sure originalism and textualism might have some gray areas, but Scalia is absolutely right on the big issues of the day like abortion, sodomy, SSM, and the like. It strains logic to say that the 14th amendment protects either when the authors of that amendment didn’t address either and continued to outlaw them for a hundred years afterwards.. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 23, 2012, 9:51pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/112 "2012-10-23T21:51:49Z")
> [@jtgain](#): > > I dispute that there should be a “creation of rights.” Either the constitution recognized them at the founding (or at the time of ratification of an amendment) or it didn’t. If it didn’t, then a new amendment is in order to recognize a new right. Do you feel that the original text of the Constitution civil rights to corporations? Does the Second Amendment cover automatic sidearms or does it only protect muskets? Are television, radio, and internet media entitled to freedom of the press or does it apply only to printed media? Does freedom of religion apply to Mormons or Hasidic Jews or Scientologists? I think the Constitution outlines a set of general principles and then we apply those principles to our contemporary situations. And I think this was the intent of the Constitution’s original authors. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 23, 2012, 11:47pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/113 "2012-10-23T23:47:57Z")
> [@Little\_Nemo](#): > > Do you feel that the original text of the Constitution civil rights to corporations? Does the Second Amendment cover automatic sidearms or does it only protect muskets? Are television, radio, and internet media entitled to freedom of the press or does it apply only to printed media? Does freedom of religion apply to Mormons or Hasidic Jews or Scientologists? > > I think the Constitution outlines a set of general principles and then we apply those principles to our contemporary situations. And I think this was the intent of the Constitution’s original authors. I don’t think I disagree with any of the forward presumptions you make. But when a specific thing (like abortion or sodomy) was proscribed at the founding, you can’t really say that it’s part of the constitution. Sure, freedom of the press meant newspapers in 1776. It means blogs in 2012. The right to keep and bear arms meant muskets in 1776. It means pistols and revolvers in 2012. That’s a natural flow of technology. But you can’t take something that was clearly prohibited and say, “Well, we have evolved past those old, tired thoughts.” The thoughts were there. If there is evolution in those thoughts, the legislatures can deal with them. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2012, 12:06am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/114 "2012-10-24T00:06:34Z")
If you interpret the Constitution to protect only that which the founders explicitly intended it to protect, it’s less a source of rights than it is a horrible blight on our society. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 24, 2012, 12:54am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/115 "2012-10-24T00:54:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If you interpret the Constitution to protect only that which the founders explicitly intended it to protect, it’s less a source of rights than it is a horrible blight on our society. If you interpret the Constitution as meaning whatever the current crop of federal judges wish it to mean, it’s less a source of rights than it is a complete evisceration of our notion of elected self-governance. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2012, 12:55am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/116 "2012-10-24T00:55:20Z")
I was about to point out how big the excluded middle is there, but my arms aren’t long enough. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 24, 2012, 1:55am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/117 "2012-10-24T01:55:20Z")
> [@jtgain](#): > > I don’t think I disagree with any of the forward presumptions you make. But when a specific thing (like abortion or sodomy) was proscribed at the founding, you can’t really say that it’s part of the constitution. Pretty sure there’s no mention of abortion in the Constitution. For that matter, abortion isn’t mentioned in the Bible either. People read the Constitution and the Bible and they interpreted what they thought it meant. ---
**Author:** ![ruadh](https://avatars.discourse-cdn.com/v4/letter/r/d2c977/32.png) [@ruadh](https://boards.straightdope.com/u/ruadh)\ **Post date:** [October 24, 2012, 7:01am UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/118 "2012-10-24T07:01:02Z")
> [@jtgain](#): > > I don’t think I disagree with any of the forward presumptions you make. But when a specific thing (like abortion or sodomy) was proscribed at the founding, you can’t really say that it’s part of the constitution. > > Sure, freedom of the press meant newspapers in 1776. It means blogs in 2012. The right to keep and bear arms meant muskets in 1776. It means pistols and revolvers in 2012. That’s a natural flow of technology. > > But you can’t take something that was clearly prohibited and say, “Well, we have evolved past those old, tired thoughts.” The thoughts were there. If there is evolution in those thoughts, the legislatures can deal with them. Abortion wasn’t clearly prohibited in 1776. It wasn’t even controversial, at least prior to “quickening”, until around the 1860s. That’s when the state anti-abortion laws started to come in. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 24, 2012, 2:17pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/119 "2012-10-24T14:17:55Z")
> [@jtgain](#): > > A couple of points: > > 1. No way in hell would the Court today uphold Buck v. Bell. It’s just one of those old cases that is a footnote of history that would have no more precedential value today than Plessy. > > 2. Even if you uphold Buck v. Bell, one would be hard pressed to argue that procreation among healthy people in a marriage is not deeply rooted in our history and tradition. > > 3. You obviously disagree that the “deeply rooted” test cannot be the end of the analysis, and I would assume adopt the living constitution argument. When you do that, there is no end to the number of “rights” that are created out of thin air. That turns the Supreme Court into a super-legislature deciding rights based on personal opinion instead of being rooted in the constitution. 1. But until _Buck v. Bell_ is overturned it is still the law of the land is it not? You cannot definitively say what SCOTUS will do. And if you study the history of _Brown_ you’ll see that it wasn’t that SCOTUS woke up this morning and said “Holy crap! Separate ain’t equal!” but it had to be chipped away slowly and even then _Plessy_ is still a precedent if you could somehow come up with a separate but equal scenerio like separate bathrooms for men and women in public facilities. 2. And the right to own property and not have it seized and given to a private individual simply because they will pay more property taxes is “deeply rooted” in our history until _Kelo_ tossed that into the shitter. And what is your definition of healthy because according to our history of procreation laws it would be people who do not display behavior outside of societal norms (wayward girls or wild childs) and people not having sex with someone of another race (miscegenation). 3. Let’s look at the Ninth Amendment > [@](#): > > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. I don’t see anything that states that the right must have been in effect at the time of the amendment’s passing or has to be “deeply rooted” in our history and traditions. I would argue that once The Pill was invented and women had a safe contraceptive to use, that a right to use it was created. In fact, I believe Sarah Weddington made a similar arguement in _Roe v Wade_ in that the nature of abortions had changed and this was not reflected in the law. I agree it is difficult to ascertain when exactly something is a right and I do believe it reflects societal attitudes BUT I do not believe it should reflect the judge’s personal beliefs. That is a very thin line I admit and whereas _Griswold_ I believe correctly determined contraception usage as a right I am not wholy convinced that abortion is properly a right\* and instead I believe _Roe_ was ruled on the way it was because the Warren Court being pro-choice. - For the record I am pro-choice. Wait Cad I thought you were a Republican. I am. :eek: ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 24, 2012, 2:35pm UTC](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570/120 "2012-10-24T14:35:55Z")
> [@Saint\_Cad](#): > > 1. But until _Buck v. Bell_ is overturned it is still the law of the land is it not? Kind of. Skinner v. Oklahoma established that compulsory sterilization _of men_ required strict scrutiny analysis because procreation was a fundamental right, but actually struck down Oklahoma’s sterilization law only because it was stupid\*, rather than because it infringed on convicts’ rights. \*the law provided for sterilization as a punishment for an essentially random selection of crimes; a third strike for larceny could lose you your balls, but a fiftieth strike for embezzlement couldn’t. [Previous page](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570.md?page=5) [Next page](https://boards.straightdope.com/t/the-constitution-does-not-address-abortion-really/637570.md?page=7)