Supreme court to overturn Roe vs Wade

[Infidel144]

Lacking a constitutional amendment, Federal abortion bans are facially as un-constitutional as Federal mandates permitting abortion (e.g. Roe v Wade).

[conon394]

Lacking a constitutional amendment, Federal abortion bans are facially as un-constitutional as Federal mandates permitting abortion (e.g. Roe v Wade).

Well now not quite so sure on that. Alito just put out the extended justification for a ban . That it would grounded in US tradition and Common law back what 13th century?

[Infidel144]

Well now not quite so sure on that. Alito just put out the extended justification for a ban . That it would grounded in US tradition and Common law back what 13th century?

Limitations or prohibitions by the states, sure. But Federally? Is that how you read it? I mean the Federal government could literally pass a law, but, in my opinion (and being consistent) it would not be constitutionally grounded in the same way Roe was not.
I could change my mind on a compelling Constitutional argument. But I would need to see it.

[Cope]

If states can legislate to limit abortions, then there's no obvious reason why the federal govt would be prohibited from doing so.

[Lord Thesaurian]

Well now not quite so sure on that. Alito just put out the extended justification for a ban . That it would grounded in US tradition and Common law back what 13th century?

Actually, it was the majority opinion of Roe which attempted to establish precedent for abortion rights by, among other things, comparing and contrasting English common law examples stretching back to the 13th century. Speaking of, probably my favorite portion of the draft opinion was the point-by-point correction of SCOTUS’ blatantly ahistorical justifications underpinning RvW:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatiseof which we are aware. And although law review articles are not reti- cent about advocating new rights, the earlicst article pro- posing a constitutional right to abortion that has come to our attention was published only a few years before Roe. Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a erime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was re- garded as unlawful and could have very serious conse- quences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s ex- ‘panded criminal liability for abortions. By the timeof the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage ofpreg- nancy, and the remaining States would soon follow.

Roe either ignored or misstated this history, and Casey declined to reconsider Roe faulty historical analysis. It is therefore important to set the record straight.

In sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of preg- nancy.

[Laser101]

If states can legislate to limit abortions, then there's no obvious reason why the federal govt would be prohibited from doing so.

IIRC the Tenth Amendment essentially means that the US Federal government operates on the principle of 'what is not expressly allowed is prohibited'; the Federal government can't do something that the Constitution doesn't say it can do.

[Cope]

IIRC the Tenth Amendment essentially means that the US Federal government operates on the principle of 'what is not expressly allowed is prohibited'; the Federal government can't do something that the Constitution doesn't say it can do.

The expected ruling invalidating Roe and Casey isn't based on the 10A, even if its effect will be to return legislative powers to the states (at least temporarily); the argument is that the court overreached with regard to its interpretation of the 14A. In the draft, Alito states that the issue should be "returned to the people's representatives", which we can assume includes Congress.

[Sir Adrian]

So if you actually believe this, do you support banning all abortions Federally with no exceptions? Do you support charging anyone receiving an abortion now or in the past with murder? Do you support the state investigating every miscarriage or medical emergency during a pregnancy like El Salvador? Do you support woman receiving state sponsored welfare and food stamps to begin the moment of fertilization? Woman should be able to claim dependents for earned income credit on taxes at the moment of conception?

This is textbook whataboutism and strawman building. We are discussing Roe vs Wade, not federal bans, not El Salvador, whatever it has to do with this, and not food stamps.

Btw, in a real democracy penal laws are not applied retroactively. Yes I know that the so-called "left" (using quotation marks because American "leftists" are borderline far-right in reality) has very little respect for the democratic process and things like justice, but thankfully the US still has a semblance of respect for due process

[Laser101]

The expected ruling invalidating Roe and Casey isn't based on the 10A, even if its effect will be to return legislative powers to the states (at least temporarily); the argument is that the court overreached with regard to its interpretation of the 14A. In the draft, Alito states that the issue should be "returned to the people's representatives", which we can assume includes Congress.

I didn't say it was necessarily. But overturning Roe v Wade has the effect of essentially saying that abortion is not within the Federal government's constitutional remit, or rather that it would be easy to use this decision to argue that any nationwide abortion law is outside of the Federal government's purview.

[Cope]

I didn't say it was necessarily. But overturning Roe v Wade has the effect of essentially saying that abortion is not within the Federal government's constitutional remit, or rather that it would be easy to use this decision to argue that any nationwide abortion law is outside of the Federal government's purview.

If the court believed that Roe or Casey were invalidated by the 10A, that argument would be present in the ruling (I didn't see it). It seems unlikely that Alito would claim abortion should be "returned to the people's representatives" if the court's view was that Congress had no legislative authority on the matter. I can't imagine that SCOTUS would overturn Schumer's WHPA if it became law (which it won't). Either way, in my view the 14A obliges the federal govt to protect in utero persons under the same due process clause wrongly used to justify RvW.

[chilon]

There should be exemptions for medical emergencies and certain cases of abuse and/or serious disability.

Mens rea has to be taken into consideration. It would be generally unreasonable to treat ordinary Americans who terminate their children as capital offenders while so many powerful institutions remain committed to the practice. In general, criminal sanctions should be applied to providers. As for historic abortions, ex post facto "justice" should not apply.

The state should only investigate if it has a reasonable suspicion that a crime has occurred.

In utero persons should be included with the welfare structure.

Thank you for answering honestly. How about pills like Plan B? Would those be banned? Users prosecuted or the company prosecuted?

This is textbook whataboutism and strawman building. We are discussing Roe vs Wade, not federal bans, not El Salvador, whatever it has to do with this, and not food stamps.

Not at all. They are just logical questions about what people would support when they believe a zygote or embryo should be legally equivalent to a baby. Doesn't sound like you want to answer about what you support though.

Btw, in a real democracy penal laws are not applied retroactively. Yes I know that the so-called "left" (using quotation marks because American "leftists" are borderline far-right in reality) has very little respect for the democratic process and things like justice, but thankfully the US still has a semblance of respect for due process

This is a strange claim. The American left are borderline far right? You'd have to provide a lot more supporting evidence for that assertion. Talk about a strawman.

I should add the reason for the question on retroactive penalties is because of a recent statement from GOP gubernatorial candidate in Georgia Kandiss Taylor who said "When you commit murder in Georgia, you get the death penalty. It doesn't matter if it has been decades since the crime."
So based on her other statements it's reasonable to ask if some people believe that should apply to abortions.

[Cope]

Thank you for answering honestly. How about pills like Plan B? Would those be banned? Users prosecuted or the company prosecuted?

Abortifacients should be banned in most cases. Medication which prevents fertilization (inc. emergency contraception) is acceptable if it can be proven not to damage or destroy zygote onward. As above, criminalization should typically be limited to providers.

[chilon]

Abortifacients should be banned in most cases. Medication which prevents fertilization (inc. emergency contraception) is acceptable if it can be proven not to damage or destroy zygote onward. As above, criminalization should typically be limited to providers.

Plan B wouldn't always have a provider though. People would be able to order through the mail and in some cases, the seller might be outside the US (no doubt Canada and Europe would have companies selling for such circumstances).

Edit: the other question would be what about people that travel out of country and obtain an abortion in country where it is legal? There is no question that in the case of a national ban, many would travel out of country.

[Laser101]

If the court believed that Roe or Casey were invalidated by the 10A, that argument would be present in the ruling (I didn't see it). It seems unlikely that Alito would claim abortion should be "returned to the people's representatives" if the court's view was that Congress had no legislative authority on the matter. I can't imagine that SCOTUS would overturn Schumer's WHPA if it became law (which it won't). Either way, in my view the 14A obliges the federal govt to protect in utero persons under the same due process clause wrongly used to justify RvW.

It depends on whether or not the people's representatives means the state legislatures or federal. I brought up 10A because as I understand it, that means that if something isn't stated to be a power of the federal government, then it falls under the purview of the states.

Although I find this situation a little strange honestly; it makes more sense for this to be a legislative issue rather than a judicial one.

[Coughdrop addict]

I wonder what will happen when it's learned some red state Republican's wife or daughter went out of the country to get an abortion? Will the Republican voters demand she be executed? Or will they shrug and say "We only meant the law to apply to poor women."?

https://www.ky3.com/2022/05/10/misso...is-overturned/

Of course the law has no exception for rape or incest. Because a 12-year old pregnant by her father is God's plan, right?

[Cyclops]

It depends on whether or not the people's representatives means the state legislatures or federal. I brought up 10A because as I understand it, that means that if something isn't stated to be a power of the federal government, then it falls under the purview of the states.

Although I find this situation a little strange honestly; it makes more sense for this to be a legislative issue rather than a judicial one.

I enjoy learning about politics and this stuff about 10A is interesting, thx. The point about legislation vs "judicial activism" arises in Australia too (in relation to land rights for indigenous groups for example) and its terribly vexed. Going about a "good thing:" in a "bad way" raises the whole means/ends argument.

A mate sent me an opinion by ZNorm Finklestein, very persuasive and thoughtful.

Positioning oneself on the right side of history before History has rendered its verdict, it’s a tricky business.[1] If Bolshevism was the progressive cause du jour internationally in the first half of the 20th century, eugenics was all the rage domestically in progressive circles. A veritable Who’s Who of progressive thinkers—Theodore Roosevelt, Margaret Sanger, and Helen Keller in the US; Bertrand Russell, Bernard Shaw, and H. G. Wells in the UK—embraced the eugenical improvement of the human race via scientific breeding.

http://www.normanfinkelstein.com/nor...alito-opinion/

He gives Alito due praise and criticism too I think, but above all the respect he shows for his opponents in the religious conservative groups is worthwhile. Should be more of it.

[Laser101]

I enjoy learning about politics and this stuff about 10A is interesting, thx. The point about legislation vs "judicial activism" arises in Australia too (in relation to land rights for indigenous groups for example) and its terribly vexed. Going about a "good thing:" in a "bad way" raises the whole means/ends argument.

A mate sent me an opinion by ZNorm Finklestein, very persuasive and thoughtful.



http://www.normanfinkelstein.com/nor...alito-opinion/

He gives Alito due praise and criticism too I think, but above all the respect he shows for his opponents in the religious conservative groups is worthwhile. Should be more of it.

Australia's constitutional situation is a bit different though. The Australian constitution is more narrowly focused; there isn't any equivalent to the US Bill of Rights or similar amendments. So issues like this are more often decided by rather more vague appeals to English common law traditions since the constitution doesn't usually say much of relevance.

[Cyclops]

Thx I realise the US is not Australia, but we have had law made from the bench at the highest level.

In our case the legislative response was immediate with Native title Bills making law of Kirbys decision in Mabo.

Id prefer the goverment had the courage to make the law first and have it tested judicially, that seems more democratic.

[conon394]

I enjoy learning about politics and this stuff about 10A is interesting, thx. The point about legislation vs "judicial activism" arises in Australia too (in relation to land rights for indigenous groups for example) and its terribly vexed. Going about a "good thing:" in a "bad way" raises the whole means/ends argument.

A mate sent me an opinion by ZNorm Finklestein, very persuasive and thoughtful.





http://www.normanfinkelstein.com/nor...alito-opinion/

He gives Alito due praise and criticism too I think, but above all the respect he shows for his opponents in the religious conservative groups is worthwhile. Should be more of it.

Rubbish.

" The devout opposed sterilization then and oppose abortion now, whereas progressives supported sterilization then and support abortion now. "

That assertion in and of itself invalidates the the article. Plenty of devout people supported sterilization for the right kind of people, and lynching and death penalty... please his dichotomy is weak and rather laughable.

Also he did not wait long to equate progressives with Nazis - hell it take longer on the worst of the internet for that. I assume the he missed the point on the fairly chill relation the pope had with Germany.

"In his utopian blueprint, Plato posited that “defective offspring will be quietly and secretly disposed of”—in effect, he sanctioned selective infanticide of, among others, “defective” and “illegitimate” children"

Nice wave to infanticide. Of course fails to mention that also Athenians in general and Aristotle did think life began at conception. You can't get cherry pick classical history for nice baby killing story.

[Cyclops]

I think his basic point "dont demonise your poltical opponent" is valid. I think your criticisms ate on the harsh side, there were two popes in Hitler's time, one excommunicated Nazis and the other tried to allow Hitler to eliminate communism, which was pretty much the MO of the west. Neithwe condoned genocide.

On balance the papacy was a stronger opponent of Nazism than anyone but France before maybe 1938.

The point about Plato is I think he was seen as a prkgressive forward lookibg thinker in hus day, citing unreal utopia instead of retconned Drakon for example.

So i think his point is you cant assume Catholics are wrong becauss they are conservative and antiquated.