Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution. Roe vs Wade did not happen in vacuum, it's part of a larger understanding of the Constitution that recognizes a right to privacy and recognizes that there are unwritten rights[1].
This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences.
[1]: The idea of unenumerated rights is clear and sound. The Ninth Amendment suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.”
Clarence Thomas' concurrence explicitly calls for these cases to be re-examined "For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell."
For reference: Obergefell allowed equal-marriage, Lawrence decriminalised sodomy, and Griswold decriminalised buying contraceptives.
Clarence Thomas said the quiet part out loud. He publicly challenged anyone to send them a case on gay marriage or birth control and they would happily oblige and overturn those rulings as well.
Pace v. Alabama said equal protection was not sufficient. Perez v. Sharp and Loving v. Virginia require both equal protection and due process, the latter of which is now in question.
(It's all bullshit! The court will rule ideologically how they want, regardless of precedent.)
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So if a right is not explicitly enumerated, it still exists and is retained by the people, NOT the States, the PEOPLE! A right to privacy, to control ones own body is fundamental to freedom.
Read the Thomas concurrence, lots more individual freedoms are going to be killed off by these theocratic fascists on the court.
That's Common Law 101 for you: rights are not "given", they are "discovered".
Pretty much as Newton's laws existed before Newton, the "rights" exist regardless of the laws (so is the philosophy underlying Common Law). The legislature can "discover" these laws, or — failing that — a judge can.
Apparently it’s now illegal to get an abortion in Missouri, my state.
I’ve thought a lot about this, and it does make sense for it to be up to each individual state. I don’t like it, but it’s in line with the principles that the country was founded on.
It’s strange suddenly waking up one day and not being able to do a thing that you used to have an option to do.
That's not at all what they're doing and I'm sorry you've fallen for the propaganda. They are absolutely planning on banning abortion nationally the next time they're in power, they already have the bills written.
> I’ve thought a lot about this, and it does make sense for it to be up to each individual state.
Many believe, myself included, that women should have the right to control their own bodies, and access to abortions is part of that right. You don't leave rights up to the states. Rights are supposed to be guaranteed at all levels of government.
I'd welcome a debate on rights of mothers vs. rights of unborn humans. I feel like both sides take their argument for granted, or preach to the converted.
I can see how, if you are absolutely convinced that the unborn human is a human just the same as anyone walking on the street, you'd mirror the argument you made and say, you don't leave it up to the states to protect the lives of the unborn humans, and ban abortions.
I'm not taking a side here btw. I feel like the pro-life vs. pro-choice argument is low on arguments targeting the opposite side, only more and more rallying its own supporters.
Maybe some people believe women (and men) who are alive but haven’t been born yet have the right to control their bodies and not be killed, so they can exercise their autonomy one day. They would probably agree with you that “you don't leave rights up to the states. Rights are supposed to be guaranteed at all levels of government.”
Seems strange that most pro-abortion advocates would probably be in favor of tenants rights to protect them from being evicted from a rented house but are fine with a living human being lethally evicted from a womb as long as the “owner” says so.
In both cases there are two humans, both of which have rights and whose interests have to be balanced - I don’t think it’s helpful to pretend otherwise. One might also want to consider other situations where humans have decided other people are “not really” human in order to justify doing terrible things to them, including killing them. In every situation I can think of, that thinking was wrong - seems unlikely that abortion is an exception somehow.
> Many believe, myself included, that women should have the right to control their own bodies, and access to abortions is part of that right.
I won't argue with your belief, but please share your opinion (if you don't mind, of course) on this: whether a homicide of a woman and a homicide of a pregnant woman should receive the same punishment?
It might be better for the country if those principles were applied to other questions, like "How should a militia be regulated?" and "Which plants can adults consume?". Unfortunately the loudest proponents of states' rights don't seem to think the principles should go quite that far.
You do remind me that, when people claim that the Civil War was fought over states' rights and not slavery, I like to ask them to name three such states' rights. The more interesting follow up is to name one states' right that wasn't prohibited for states to decide by the Confederate constitution--every answer I can give for the first question was also precluded by the Confederate constitution.
The primary motivation for states' rights seems to be not to actually let states decide, but to enact policies at the broadest possible level they can do so.
States rights is the key world in this. They don't believe in the rights of the people, they believe in the rights of the states to do what they see fit to their people.
> it does make sense for it to be up to each individual state
The same argument was made about slavery, but a large and powerful subset of the country decided that slavery was not tolerable even in neighboring states. I don't see a reason that forcing a woman to expose her medical records to the government or forcing her to carry a baby (at the risk of her own life) is not on similar moral ground.
> I don’t like it, but it’s in line with the principles that the country was founded on.
The country was also founded on disenfranchising women and minorities, and it's deeply undemocratic in the way that land votes rather than people.
The founders strongly urged the country to allow laws to evolve and to amend the Constitution. That is also a "founding principle".
>The same argument was made about slavery, but a large and powerful subset of the country decided that slavery was not tolerable even in neighboring states.
And they didn't do it through the Supreme Court, but through an amendment. If abortion is a right then it should be passed as an amendment declaring it as a right.
Read Thomas's opinion. He wants to overturn tolerance for homosexuality, contraception, and interracial marriage (Whoops, he left that one out, despite it being the fruit of the same tree, I wonder why...) on the same grounds as RvW.
Also, Mike Pence is already calling for a national abortion ban. So much for the party of 'states rights'.
It makes no sense for a state to be able to deny people their rights. Generally in this nations history leaving it up to the states has been a very bad idea
If the argument is "well, we have to draw a line somewhere," then pray tell, why does it happen to be in conveniently located where it leaves the most people with the least freedom?
Side note, I never thought I would see the federal government give authority back to the states.
It's almost mind-blowing considering I've spent my whole life observing the push to federalize everything: Healthcare, College, UBI, Transportation, Wages, Firearms, Infrastructure, etc...
Pretty much. Roe V Wade took authority from the state and gave it to the individual. Repealing Roe V Wade potentially takes the choice away from the individual and gives it to the state.
Incorrect. Roe & Wade is based on the Due Process Clause of the 14th Amendment to the United States Constitution and recognizes a right to privacy from the government.
This takes rights from people and gives it to individual States.
I think there's a little bit more to it than that. The Supreme Court justices are appointed for life, based on appointments by people previously voted into office.
Thanks for enlightening me. /s
I never said change would come fast.
But if the basic act of voting at every election appears like such a burden for many progressives, there's no point in lamenting at the outcome.
No. That's a temporary status. They went out of their way to ensure that a nationwide abortion ban was still 'constitutional' but the nationwide right to one was not.
The Supreme Court didn't fix a damn thing. They made bodily autonomy subject to majority votes in state legislatures. Bodily autonomy is too important to be trusted to a majority vote, and Democrats failed the country miserably by not pushing to amend the Constitution to guarantee the rights of all Americans to ownership over their own bodies.
It's this way by design. In retrospect, we could have probably avoided the problem of the party in power trying to appoint 'their' judges by requiring a three-quarters majority in the Senate for appointments, but that didn't happen and never will.
> The Supreme Court is an unelected political entity. Can this be fixed?
Not really. The Senate and possibly House are expected to flip this fall. Our supreme court is taking a crack at reducing civil liberties and empowering conservative culture war positions. Precedent doesn't matter apparently. Only literal, conservative-justice interpretations of the constitution matter now. They're unqualified and unfit to run our nation's highest court. Radical and idealogical. Libertarians should be angry about this development of encroachment upon personal liberty and rights.
Nominations of the justice is done by people who have been elected though. According to you, does that make them less legitimate that if they were directly elected?
Not OP, but yes, adding additional layers of indirection makes an election/nomination less representative of the will of the people and thus "less legitimate" if you think legitimacy is based on representing the will of the people.
Of course the bigger problem according to this perspective is that there are many more layers of indirection before it even comes to the point where "your" elected representative nominates a judge. Some of them are more prone to "shaping" than others (e.g. via gerrymandering, disenfrachisement, voter suppression in all its forms) but the goal is generally to generate "favorable" election results regardless of what the people currently want.
You can't vote them out. There are only two ways to get rid of a Supreme Court judge: they retire or they die.
As I assume you aren't asking for ways to bring about either of those scenarios in ways that would incur legal issues, the more appropriate answer is that the government can appoint additional judges, which I think is called "packing". Right now the general consensus among Democrats seems to be that they don't want to do it because it would set a precedent Republicans could exploit, although history has shown that the Republicans don't require precedents to "play dirty" (e.g. while Obama refused to appoint a replacement judge because he was on his way out of his second term, Republicans happily appointed replacement judges when Trump was on his way out, not to mention that a significant number of Republicans supported the claim that Biden "stole the election" and Trump was the real winner).
If you're asking for a systemic long-term solution: no, it can't be fixed. The problem is that the Supreme Court lacks a clear mission statement and effectively acts to reinforce whichever party is in power at the time. The current SCOTUS majority leading to these decisions are "constitutional originalists". While you can argue that this is bad (or that this is still relying on interpretation and inferrences), it's impossible to say that this is wrong because it's an entirely valid interpretation of what the SCOTUS is for.
If you want to "fix" the SCOTUS because it's undemocratic, the problem is that it's only one of many aspects of the structure of US government that's undemocratic. The system was never meant to allow all people to equally influence the government. The system exists as much to curtail the power of the ruling politicians as to curtail the direct power of the people.
In other words SCOTUS isn't broken, you just don't like the political system itself. That's fine, but it requires a different framing in order to understand your goals and options.
That's what it was when they came down with Roe originally, they are just returning to NOT being a legislative body and returning this decision to where it belongs.... the legislature.
Like it or not, ever since SCOTUS seized the unconstitutional power to overturn legislation, they have been a political entity, effectively legislating.
The difference with recent rulings is that they've abandoned any pretense of political independence or legitimacy.
Readit News
This decision overturns this whole 50-year old framework. Decisions based on 14th Amendment’s Due Process clause are now open for banning contraception, banning interracial relationships, family relationships, right to intimacy (sodomy laws), the right to personal control of medical treatment. It will even have data collection limit consequences.
Some states are even more radical than current SCOTUS. They have sodomy laws considered invalid that can be activated. How Dismantling Roe Puts Interracial Marriage at Risk https://www.aclu.org/podcast/how-dismantling-roe-puts-interr...
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[1]: The idea of unenumerated rights is clear and sound. The Ninth Amendment suggests that the rights enumerated in the Constitution do not exhaust “others retained by the people.”
For reference: Obergefell allowed equal-marriage, Lawrence decriminalised sodomy, and Griswold decriminalised buying contraceptives.
Wouldn't the right of people to marry someone of any race be assured under the Equal Protection clause of the 14th Amendment?
https://en.wikipedia.org/wiki/Equal_Protection_Clause
(It's all bullshit! The court will rule ideologically how they want, regardless of precedent.)
Basically...legislating from the Bench. This has no place in constitutional jurisprudence.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So if a right is not explicitly enumerated, it still exists and is retained by the people, NOT the States, the PEOPLE! A right to privacy, to control ones own body is fundamental to freedom.
Read the Thomas concurrence, lots more individual freedoms are going to be killed off by these theocratic fascists on the court.
Pretty much as Newton's laws existed before Newton, the "rights" exist regardless of the laws (so is the philosophy underlying Common Law). The legislature can "discover" these laws, or — failing that — a judge can.
I’ve thought a lot about this, and it does make sense for it to be up to each individual state. I don’t like it, but it’s in line with the principles that the country was founded on.
It’s strange suddenly waking up one day and not being able to do a thing that you used to have an option to do.
https://twitter.com/MZanona/status/1540363376584495104
They also plan on making it illegal to travel to states where abortion will be legal for the purposes of receiving one.
First of all as a wedge issue there's a certain percentage of independent voters who wouldn't allow that to happen.
Second there are Republicans who support abortion and make that a public stand.
Many believe, myself included, that women should have the right to control their own bodies, and access to abortions is part of that right. You don't leave rights up to the states. Rights are supposed to be guaranteed at all levels of government.
I can see how, if you are absolutely convinced that the unborn human is a human just the same as anyone walking on the street, you'd mirror the argument you made and say, you don't leave it up to the states to protect the lives of the unborn humans, and ban abortions.
I'm not taking a side here btw. I feel like the pro-life vs. pro-choice argument is low on arguments targeting the opposite side, only more and more rallying its own supporters.
Seems strange that most pro-abortion advocates would probably be in favor of tenants rights to protect them from being evicted from a rented house but are fine with a living human being lethally evicted from a womb as long as the “owner” says so.
In both cases there are two humans, both of which have rights and whose interests have to be balanced - I don’t think it’s helpful to pretend otherwise. One might also want to consider other situations where humans have decided other people are “not really” human in order to justify doing terrible things to them, including killing them. In every situation I can think of, that thinking was wrong - seems unlikely that abortion is an exception somehow.
I won't argue with your belief, but please share your opinion (if you don't mind, of course) on this: whether a homicide of a woman and a homicide of a pregnant woman should receive the same punishment?
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It might be better for the country if those principles were applied to other questions, like "How should a militia be regulated?" and "Which plants can adults consume?". Unfortunately the loudest proponents of states' rights don't seem to think the principles should go quite that far.
The primary motivation for states' rights seems to be not to actually let states decide, but to enact policies at the broadest possible level they can do so.
The same argument was made about slavery, but a large and powerful subset of the country decided that slavery was not tolerable even in neighboring states. I don't see a reason that forcing a woman to expose her medical records to the government or forcing her to carry a baby (at the risk of her own life) is not on similar moral ground.
> I don’t like it, but it’s in line with the principles that the country was founded on.
The country was also founded on disenfranchising women and minorities, and it's deeply undemocratic in the way that land votes rather than people.
The founders strongly urged the country to allow laws to evolve and to amend the Constitution. That is also a "founding principle".
And they didn't do it through the Supreme Court, but through an amendment. If abortion is a right then it should be passed as an amendment declaring it as a right.
Also, Mike Pence is already calling for a national abortion ban. So much for the party of 'states rights'.
There is a compromise somewhere, but it’s a very difficult negotiation.
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I guess the former slave owners of Missouri could somewhat share your sentiment.
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Having different laws for different individual people seems like a really bad idea though.
>> Remember HN's rules of etiquette <<
If you want to engage using different norms, there are many different places on the internet to do that.
It's almost mind-blowing considering I've spent my whole life observing the push to federalize everything: Healthcare, College, UBI, Transportation, Wages, Firearms, Infrastructure, etc...
Dead Comment
This takes rights from people and gives it to individual States.
The Supreme Court is an unelected political entity. Can this be fixed?
Not really. The Senate and possibly House are expected to flip this fall. Our supreme court is taking a crack at reducing civil liberties and empowering conservative culture war positions. Precedent doesn't matter apparently. Only literal, conservative-justice interpretations of the constitution matter now. They're unqualified and unfit to run our nation's highest court. Radical and idealogical. Libertarians should be angry about this development of encroachment upon personal liberty and rights.
Dead Comment
Of course the bigger problem according to this perspective is that there are many more layers of indirection before it even comes to the point where "your" elected representative nominates a judge. Some of them are more prone to "shaping" than others (e.g. via gerrymandering, disenfrachisement, voter suppression in all its forms) but the goal is generally to generate "favorable" election results regardless of what the people currently want.
As I assume you aren't asking for ways to bring about either of those scenarios in ways that would incur legal issues, the more appropriate answer is that the government can appoint additional judges, which I think is called "packing". Right now the general consensus among Democrats seems to be that they don't want to do it because it would set a precedent Republicans could exploit, although history has shown that the Republicans don't require precedents to "play dirty" (e.g. while Obama refused to appoint a replacement judge because he was on his way out of his second term, Republicans happily appointed replacement judges when Trump was on his way out, not to mention that a significant number of Republicans supported the claim that Biden "stole the election" and Trump was the real winner).
If you're asking for a systemic long-term solution: no, it can't be fixed. The problem is that the Supreme Court lacks a clear mission statement and effectively acts to reinforce whichever party is in power at the time. The current SCOTUS majority leading to these decisions are "constitutional originalists". While you can argue that this is bad (or that this is still relying on interpretation and inferrences), it's impossible to say that this is wrong because it's an entirely valid interpretation of what the SCOTUS is for.
If you want to "fix" the SCOTUS because it's undemocratic, the problem is that it's only one of many aspects of the structure of US government that's undemocratic. The system was never meant to allow all people to equally influence the government. The system exists as much to curtail the power of the ruling politicians as to curtail the direct power of the people.
In other words SCOTUS isn't broken, you just don't like the political system itself. That's fine, but it requires a different framing in order to understand your goals and options.
They can be impeached by congress.
The difference with recent rulings is that they've abandoned any pretense of political independence or legitimacy.
Deleted Comment