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Member Since: Sat May 17, 2008
In Reply To
The Avenger

Location: New Jersey
Member Since: Thu Dec 02, 2021
Subj: With respect, I disagree...
Posted: Mon May 09, 2022 at 10:12:47 am EDT (Viewed 242 times)
Reply Subj: Re: Looks like Roe vs Wade is getting overturned
Posted: Sun May 08, 2022 at 07:52:35 am EDT (Viewed 254 times)

My disclaimer before we get into it is that I am not a lawyer and only know what I read and hear. Which would, of course, mean I am limited in not always knowing what I do not know.

However, let's get into it a bit.


      That is not what Roe v. Wade did.


        It did not give the right to have an abortion, it ruled that the right was already in the constitution, under the right to privacy.


    Ruling that something is true does not make it true. A ruling can be false, and in this case, it was. The right to privacy isn't there. Here are the two Amendments that have been proposed as asserting that right. The first is this one:

It depends on what you mean by isn't there. There is not a specific statement of "praviacy", but it is indicated as something the Founders were interested in. Although even the term Fouder's to me is oversimplified. They were not a monolith and they had major disagreements at every stage of this. Other than that they needed a document better than the Articles of Confederation and that Washington should oversee it.


    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Read that paragraph with an honest eye toward identifying what the Framers had in mind, and you'll conclude they were intent on protecting American citizens from illegal search and seizure on the part of their government. Nothing more. Which makes sense, because the main fear at the time of ratification was federal government overreach.

Sure, but considering there are four or five Amendments that do cover the right to privacy it is something that was considered.

They enumerated specific ones, but the not quartering soldiers is a privacy thing, the first amednment covers it and so on and so forth. The ones that make some statement on it would be 1, 3, 4 and 9. Then 14. They do not specifically cover the abortion issue but they highlight things like the importance of private ownership of various things including home, beliefs, person and possessions and then life, liberty and pursuit of happiness.


    Here's the second:


    Amendment XIV

    Section 1.

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


    Where is any mention of anything like privacy? (There is more to say on this Amendment, which I'll get to in a moment, but for now, please just focus on privacy.) What this paragraph does is protect American citizens from (a) being killed, imprisoned, enslaved, or robbed by their state government without due process of law; or (b) from having any of their Constitutional rights violated by their state government; or (c) from being protected differently from anyone else under the laws of their state. What I've labeled "(a)" is not about privacy. What I've labeled "(b)" would only be about privacy if privacy was protected elsewhere in the Constitution, which it isn't. What I've labeled "(c)" would only be about privacy if there were some special group in America which historically had enjoyed a right to privacy, and such was not the case until Roe vs. Wade invented this right on behalf of women - and we can't use Roe vs. Wade to justify Roe vs. Wade.

    There is no right to privacy in the Constitution. Not yet. If we want one - and I think we do - we need to put it in there, via the Amendment process.

The Amendments listed cover privacy. They just cover specific kinds of it. So do others. The first protects a persons right to their own religious beliefs (which could fairly be called private to them). The third amendment says that people cannot be forced to quarter troops in their private residence. The fourth says that the government cannot pester a person without cause (which establishes a privacy right within the home unless their is cause) and also establishes one for the person in a similar vein (you cannot just be arrested for no reason).

The 14th Amendment is more complicated. It is one of the reconstruction Amendments and in its original context it is mostly meant to deal with that but it does include additional rights to all persons within it that were not specifically enermated before.

That is why they are often called the unenumerated rights. Which is a blanket term for many rights that we now enjoy and has been the basis for many such rules that may have never come to be otherwise.

Many of which have been upheld from the SCOTUS in cases ranging from 1923 to present day. So, not particularly novel to the 1973 decision.

    Now, as I promised, there is more to say on Amendment XIV. It prohibits the states from enslaving their citizens without due process of law. One could argue that preventing a woman from getting an abortion is enslavement. THAT is the right argument to pursue. Not some nonsense about privacy. However, we need to clarify something. The paragraph only prohibits the states from enslaving someone without due process of law. This implies that if the state enacted a law through its legislature that laid out a formal process of when and how a person could be enslaved, Amendment XIV would be satisfied. HOWEVER! The prior Amendment precludes that!

I mean it does that and more because of the following passage...

"nor shall any state deprive any person of life, liberty, or property, without due process of law"

Those are fairly broad terms.

To one extent or another the privacy rights read into the liberty part of that were upheld or defined in Griswold vs Connecticut (1965), Stanely vs Georgia (1969), Ravin vs State (1975), Kelly vs Johnson (1976), Moore vs East Cleveland (1977) etc.

The point is most of those is either the direct sort of right being discussed or extrapolation of other rights listed.

And it honestly depends a bit on how far you want to go in a situation and how literal you want to be with textualism as far as I can tell. As these sorts of rights stemming from it have been used for various cases.



    Section 1.
    Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    Section 2.
    Congress shall have power to enforce this article by appropriate legislation.


    So there you go. Argue that prohibiting abortion is enslavement. You could win the debate.

I do not think you would with the current court but that is me. I do not think it falls well under enslavement.

    But for some reason, Roe vs. Wade didn't take that approach. Maybe because a reading like that would also prohibit military conscription. If you can't tell a woman she has to have a baby, because that would be involuntary servitude, then you can't tell a man he has to go to war and maybe die, since that, too, would be involuntary servitude. It's that pesky "equal protection of the laws" provision in Amendment IV (see above). Now of course you could distinguish between the two in the Constitution, but you would have to actually write that in. You would have to do an Amendment that clarifies your intent.

Why would it take that approach? I mean you could argue that women were enslaved, but they were not specifically being enslaved. Pre Roe there was a patchwork, but more states were restrictive.

It would take a fairly loose definition of enslavement.

    And make no mistake: the federal government will not surrender its power to conscript military troops at will.


      The Supreme Court doe not give rights, it determines what rights already exist. They have done that ever since they told us that is what they do in 1803.


    And they can err. When they err, they have in effect created a right out of thin air.

They didn't pull it out of thin air though. I mean you can disagree with it and others can too, but it all depends on what sort of legal camp you want to come down in when determining these things.

If you are a literalist, originalist and textualist (which I am honestly skeptical of to some extentjust because it is used as convenient by the courts) than the word is not in there I guess, but there are underpinnings everywhere.

There were even legal writings on it more less summarized as "the right to be left alone".

There were several things the Court said that are informative to its choices and understanding and the reason for its ruling and I will put some excerpts here.

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy."

Further, the court said that having unwanted children "may force upon the woman a distressful life and future" in addition to listing pyschological harm and medical harms among others.

"A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. ... 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."

It is therefore clear that the court did not view this as an absolute right, but one in the vein of what one would expect for a medical procedure.

Which bodily autonomy (which a right to privacy would also fall under) would at least partly be covered under the 4th, 8th and 14th Amendment (and common law). And this has been upheld by the Court, particularly with the 14th Amendment despite it not directly covering such things in relation to medicine. I believe even some of the rules to strike down vaccine rules fell under this.

What I am getting at is the right to privacy was not created for abortion rights and has been part of the legal system for quite some time despite not being specifically stated. Given how many Amendments reference it in some form or fashion it seems clear that it is there, but to what capacity is less clear.

I am supportive of an Amendment for numerous things, so a court cannot just change composition and interprutation and then undo something that has been accepted for decades, but that is not going to happen. And the danger is the rights to various other things are on nearly the same legal footing using the right to privacy or right to be left along ramework as the ground work.

My uneducated opinion though. And there is obvious disagreement within the legal profession but I am also of the mind that SCOTUS on the whole has done more harm than good over its history with its interpretations protecting those in power and letting them do as they wish at the expense of normal citizens and something needs to be done about that. As several Amendments over the decades were purposefully read wrong and not even in the spirit of what was intended.

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