And where is that retraction? You said, "Quote:
Originally Posted by Naive Evian
Meaningless gibberish that has been endorsed by the Supreme Court?
Please cite the Supreme Court ruling your statements come from.
I will gladly retract my statement when you show me where your statements are “endorsed by the Supreme Court”.
If you cannot provide a citation I expect an apology."
And since you saw fit to tell me what you expected, I don’t expect an retraction; I expect seppuku. Fair is fair.
Completely wrong. You assume the 10th gives the government has any right it wants unless expressly forbidden. The entire pint of the 10th is to specifically state to the government “You can’t do SHIT unless we SAY you can!”
As I said, this is more the legalist argument rather than the moralist one. A moralist would argue no government can allow abortions because it’s an immoral act. But that’s not a legal argument.
I agree that many people who are putting forth the legalist argument are actually moralists who just think the legalist argument will be more effective.
No, I read the 10th as giving the power to govern in areas not covered by the Constitutuion to the states or the people, but the areas do not have to be specifically or expressly mentioned. Due process is a general term that has to be filled in by things like protecting liberty, abortion rights, parental rights, etc. And when it comes to rights, the Constitution specifically and expressly says they go beyond those enumerated in the Constitution.
And the federal government has powers, not rights; people have rights.
Edit - By the way, since I gave you SC cites, when are you going to get down to some seppuku (in place of retraction).
So we agree - it’s an issue NOT covered by the Constitution and under the 10th it’s left to the sates
Edited to add - It’s late and I need to get some sleep; FYI Naive Evian I will respond to whatever you have to say but It may be a day or two.
I respect your opinions even-thought I disagree…
It is covered, just not specifically or expressly. The right to choose is part of due process.
That rule should also apply to the death penalty and war, that is taking lives. Many innocent , that are now called collateral damage. A woman should have the right to self preservation,and not just what some one else’s beliefs dictate!
The church wasn’t so interested in “Life” when it was during the Crusades, or in the Inqusition, when people were burned at the stake! It seems to me just one way of controlling women. Sexism doen’t seem to bother them any in my opinion. and why it can’t be seen that “Life” began eons ago, even if one believes the people who think God created adam and Eve a few thousand years ago!
No matter how one looks at it his/her ancestors that passed on life to him/her in reality is when his/her life began.All those thousands of sperm also contained human life, many sperm died trying to get to the ova first. Hence the human race!
Presumably, with this argument, you are addressing state action, not federal action. It is important to keep these two different possibilities separated in the discussion.
Your premise is that, if Roe v. Wade and its progeny cannot be supported constitutionally on the theory that the Constitution does not “address abortion”, then this silence requires concluding that the Constitution does not preclude forced abortion by states, either. The premise is flawed, because the argument of Justice Scalia, et al., is not that the Constitution doesn’t “address abortion”, but rather that the Constitution does not recognize a right to abort. Justice Scalia’s support for this statement is that the language being read by some justices to require the striking down of laws restricting women from having abortions existed at a time when all were in agreement that women could be restricted from aborting. In short, Justice Scalia doesn’t believe in “re-interpreting” the language of the Constitution to cover situations not intended to be covered at the time the language came into being.
Now we can disagree with Justice Scalia’s approach (I do, for one), but we cannot attack it with flawed premises. Justice Scalia would say that state laws restricting abortion are constitutional because at the time the 14th Amendment was added to the Constitution, and for many years afterward, state laws outlawing abortion existed, and no one was challenging them. Thus, in his viewpoint, a women’s “choice” to abort a fœtus is not protected under the concept of “liberty”, or, if it is, then it is not entitled to special protections, and the state’s laws fulfill the concept of “due process” so long as they have a rational relationship to a valid state interest (I refuse to speak for the justice as to which of these possible rationales he would choose). This has nothing to do with the question of whether or not the Constitution “addresses abortion.”
Let us look, then, at the probable approach the Justice would take to a law by, say, the state of New York requiring abortion. Justice Scalia would undoubtedly take note of various state actions that were unopposed for decades after the passage of the 14th Amendment that were the functional equivalents of forced abortion (for example, the already cited case of state sterilization programs). There might even be laws that were on the books of some states requiring abortion in certain instances. Thus, we can postulate that the justice would assert that the 14th Amendment’s prohibition on deprivation of liberty without due process does not preclude a state from requiring that fœtuses be aborted. The fact that there is a distaste for such practices would not make it unconstitutional.
This outcome is not in any way contradictory to the determination that the Constitution does not forbid states from outlawing abortions. Properly stating the premise of the argument is important to understanding the argument.
I guess the problem I have with all of this talk about reproductive rights is why can a state force you to get sterilized and yet couldn’t force you to get an abortion?
Saint Cad: who says they can? The fact that no one managed to challenge forced sterilzation programs before one was declared unconstitutional does not mean that any and all justices would find forced sterilization programs unconstitutional.
The very fact that it never came up is evidence that it was off-limits:
And forced abortion would certainly “shock the conscience:”
If forcible extraction of the stomach’s contents “shocks the conscience,” how much more would forcible extraction of a living fetus?
(Quotes from Rochin v. California).
Full body scans at airports are never mentioned, so they must be off-limits. In fact airports were never mentioned, so I guess they are lawless zones.
Can you point out the “shocks the conscience” clause? Most the people who take the position that the Constitution does not address abortion are textualists/originalists.
Plus I hardly think that a textualist/originalists would support the view that due process is a nebulous concept that, in part, requires a judge to take into account social context. Why can’t the judge take into account social context to protect a woman’s right to choose. Taking a nebulous view of due process seems to be the very thing that textualists/originalists are against.
And how do you knowbthat forced abortion would have shocked the conscience if forced sterilization did not?
It is not a Clause of any document, it is Judicially created terminology.
The Exclusionary Rule in criminal proceedings is Judicially created, as another example.
STC is similar to a doctrine called the Absurdity doctrine. This means that if a conclusion of law is made, even though it is consistent with precedent and settled law, the outcome will be ABSURD in legal nature, and therefore a different conclusion will be reached.
I think Naive Evian makes a valid point. Forced sterilization was widely accepted as legal in the United States within living memory. If the elimination of an individual’s entire reproductive future doesn’t shock the conscience, it’s possible that the elimination of a single pregnancy would fall within the limits of what society would accept.
I am a textualist, but I was supplying the current case law, not a textualist answer.
From a pure textualist perspective, the thing stopping states from mandatory abortions is elections.
While Roe vs. Wade was settled on the issue of right to privacy law, I have always felt a more eloquent and appropriate defense of legal abortion lay with the 13th amendment which outlaws slavery and involuntary servitude. This seems especially true with the rise of the modern surrogate pregnancy/parenthood which legally recognizes a woman gestating a fertilized egg through the various stages of pregnancy until birth as an activity that can be performed for payment.
If a judge can decide, today, that “slavery” or “involuntary servitude” means something very different than it did to the legislators that drafted and voted for those words, then it’s the judge, not the legislators, who ultimately create the substantive law.
There were people who filed lawsuits claiming that the military draft was involuntary servitude and thus prohibited by the 13th Amendment. Judges dismissed the suits, saying in effect that the 13th Amendment was specifically about slavery and not some more general definition of involuntary servitude. I would assume those precedents would have been cited if anyone attempted the argument you discussed.
SCOTUS ruled forced sterilization constitutional with Buck v Bell and it has never been overturned. Didn’t you read my earlier post when I go into that and how Oregon had forced sterilization until 1981?