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Roe vs Wade under fire, again

Started by Buddy, May 03, 2022, 02:38:15 PM

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No one

If abortion is so wrong, why don't these absolute fucktards have any issue with that flood?

How many innocent little lives were lost in they colossal hissy fit?!

Fuck you!

Anne D.

Quote from: Asmodean on May 16, 2022, 08:35:23 AM
Quote from: Anne D. on May 15, 2022, 01:41:01 AMWhat you keep describing is an ethical justification for an action (abortion) you would otherwise consider "wrong."
No, what I am, is keep failing to describe the issue.

Ok. I'm a service provider, doing my due dilligence. Assume the purely physical concerns such as the health of the mother and the age of the foetus have already been addressed.

-Them rubbies broke. [End of conversation]

No, there's no failure to "explain." All your paragraphs and paragraphs of explanation boil down to is whether the decider in your situation thinks that the woman's answer justifies what the decider would otherwise consider a wrongful act (abortion). "Them rubbies broke" = I tried to prevent it = justification for what is otherwise deemed wrongful.

Quote from: Asmodean on May 16, 2022, 08:35:23 AMIt's fine if their stake in the matter is regarded as lesser than the mother's, but then, combined with other factors (Say, that the mother did nothing to prevent the pregnancy in the first place, for instance) theirs may out-weigh hers.

Wow, a fetus's rights outweighing the mother's. I hope you're just spitballing again there, with more "deeply impractical" and deeply problematic musings.



Quote from: Asmodean on May 16, 2022, 08:35:23 AMThen do let us drop terms like the right to privacy or self-determination, but if you don't have them unless you are specifically a pregnant woman who wants to terminate the pregnancy, it would invalidate Roe vs. Wade because it's largely built on those... "Peripheral" rights, let's call them, thus making the whole conversation kind-of moot, no?

This is a bit of a square-peg-round-hole issue, unless there is something special about abortion, but not the other instances where the society can, will and even must interfere with an individual's private affairs.
. . .
I do not deny that overturning Roe vs. Wade could have grim implications for a lot of people. I also think it would be the correct decision to make, legally speaking. (Though not a lawyer - just listened to a few and found some arguments more based in fact than others)

Still, is there anything stopping a democratic process in legislating this issue? People want what they want, lobbyists lobby for opposing interest groups and at the end, a political decisions are made, at least loosely tied to the oughts-and-ought-nots of the majority in the community in which it is to apply. And when that majority shifts, so can the political winds shift and laws be amended, set aside or overturned through the same process, which does not involve a decree from a committee.

I don't believe I used the term "right to privacy" or "right to self-determination," although I do think those concepts are implicated in what I see as a right to abortion. I don't think Roe's legal reasoning is particularly sound and agree with Justice Ginsburg's view that the right to abortion would better be based on the 14th Amendments equal protection clause and gender equality grounds. Roe doesn't need to be overturned. It can be upheld with firmer underpinnings.

Re: "is there anything stopping a democratic process in legislating this issue?" Yes, fundamental rights, within which I would include a woman's control over whether to bear children, are not up for debate and put to a vote. Under the U.S. Constitution, our fellow citizens don't get to decide whether other citizens are entitled to fundamental rights. Roe had previously settled that abortion was a right. Now, after 50 years, that apple cart is about to be overturned.

billy rubin

Quote from: Asmodean on May 16, 2022, 08:35:23 AMStill, is there anything stopping a democratic process in legislating this issue? People want what they want, lobbyists lobby for opposing interest groups and at the end, a political decisions are made, at least loosely tied to the oughts-and-ought-nots of the majority in the community in which it is to apply. And when that majority shifts, so can the political winds shift and laws be amended, set aside or overturned through the same process, which does not involve a decree from a committee.

the wishes of tbe majority in america are not how major elections and ensuing  legislation are decided. because we have a senate and an electoral college that is not based on majority vote, minority pressure groups who game tbe system can retain power.

the last two republican presidents were put in office despite losing tbe popular vote- bush and trump. of tbe 9 justces in tbe supreme court, five were nominated by the same bush and trump.

so there is a disconnect between the leader of our executive branch and chief law interpreting body in the US and the majority will of the people.

the fact that the supreme court will overturn roe in spite of the majority will of the people reflects that.

in addition, conservatives in america are working hard to locally disenfranchise voters who might disagree with them, by making it harder for them to vote or by removing them from tbe voting rolls on the pretext of election integrity.

surprise! the people most often disenfranchised also happen to be those most.impacted by abortion restrictions.

the msinstream republicans no longer even maintain the appearance of respect for the democratic institutions. look at tbe high level republicans disdaining to  cooperate with an investigation into a republican insurrection and the corruption behind it.

in america we have a time in which representative democracy is under attack, and our milqutoast liberals are too busy wringing tbeir hands to start twisting elbows.

its going to get much worse before it gets better, and it may not ever get better.



"I cannot understand the popularity of that kind of music, which is based on repetition. In a civilized society, things don't need to be said more than three times."

Asmodean

Quote from: Anne D. on May 17, 2022, 02:49:19 AM"Them rubbies broke" = I tried to prevent it = justification for what is otherwise deemed wrongful.
Yes. Yes! Was it, or was it not a wrongful pregnancy? That is indeed what this example revolves around.

...Bloody finally. That took me its sweet time to formulate, and in the end, it wasn't even me who done did it. :clapping:

QuoteWow, a fetus's rights outweighing the mother's. I hope you're just spitballing again there, with more "deeply impractical" and deeply problematic musings.
No, I can see situations where the foetuses right to live out-weighs its mother's right to kill it because others' rights also weigh in its favour.

It's a bit like your right to clean air does not necessarily out-weigh my right to smoke, but then when combined with someone else's right to a certain standard of working environment, and suddenly, I don't get to smoke in bars any more.

QuoteI don't believe I used the term "right to privacy" or "right to self-determination,"
Roe did, You wanted to address this issue in terms of Roe Vs. Wade, but it did refer to the right to privacy, which... If you actually have it, then maybe it wasn't a bad decision. However, my contention is that the government can, will and must meddle in certain personal affairs, so... You don't have it? Or do you have it, except by due process? In which case, where is the due process in self-determined abortion?

QuoteI don't think Roe's legal reasoning is particularly sound and agree with Justice Ginsburg's view that the right to abortion would better be based on the 14th Amendments equal protection clause and gender equality grounds. Roe doesn't need to be overturned. It can be upheld with firmer underpinnings.
I would see any bad decision overturned as a matter of principle, but then, some rights may be worth codifying in law regardless of the quality of a court's decision in granting them. It may just be me with a non-US perspective, but I'd balk at any law-by-decree-of-court. They are there settle disagreements in understanding of the existing laws. They should, in my opinion, not be able to set policy, unless in legally identical circumstances. And when they have read the law one way or the other because of said disagreement, I think that decision should go back to the representatives to then do better representing.

QuoteYes, fundamental rights, within which I would include a woman's control over whether to bear children, are not up for debate and put to a vote.
Your fundamental rights come from the Bill of rights. An amendment basically means "Oh, waitaminute! We has a [EDIT]"

How is it not up for debate or vote?

QuoteUnder the U.S. Constitution, our fellow citizens don't get to decide whether other citizens are entitled to fundamental rights.
Death penalty. Eminent domain. Imprisonment. Psych hold. Your fellow citizens can do pretty much any of that to you, with the Bill of Rights in hand.

QuoteRoe had previously settled that abortion was a right. Now, after 50 years, that apple cart is about to be overturned.
Stare decisis is not a binding principle in litigation.
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Asmodean

Quote from: billy rubin on May 17, 2022, 09:10:03 PMthe wishes of tbe majority in america are not how major elections and ensuing  legislation are decided. because we have a senate and an electoral college that is not based on majority vote, minority pressure groups who game tbe system can retain power.
"America" is a big place. I'm not saying this should be done at a sweeping, federal level. Basically, you may not need a EU law - you may be well enough having a Denmark law and a France law and a Poland law and so on.

Quotethe last two republican presidents were put in office despite losing tbe popular vote- bush and trump. of tbe 9 justces in tbe supreme court, five were nominated by the same bush and trump.
A reason to go as local as you can if ever I heard one.

Quotein america we have a time in which representative democracy is under attack, and our milqutoast liberals are too busy wringing tbeir hands to start twisting elbows.
I think it's a bit of a federation problem. In a union of "sovereigns," sometimes they just want mutually incompatible things and when they do, they use what legal, financial or other power they have or can reasonably project to get what they want. For themselves, primarily, but then again, in such unions, it's often forcing everybody to tow your line - or towing someone else's.
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Asmodean

Watching me some LawTube and this guy here seems to be talking for the most part in line with my understanding on what I've read on the subject;


I'm not purely arguing law here, foreign law to my own sweet self besides, but as far as the legal arguments go, I think his argument is more well-informed/well-argued than mine.
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Anne D.

Quote from: Asmodean on May 18, 2022, 10:45:34 AM
QuoteYes, fundamental rights, within which I would include a woman's control over whether to bear children, are not up for debate and put to a vote.
Your fundamental rights come from the Bill of rights. An amendment basically means "Oh, waitaminute! We has a [EDIT]"

How is it not up for debate or vote?

QuoteUnder the U.S. Constitution, our fellow citizens don't get to decide whether other citizens are entitled to fundamental rights.
Death penalty. Eminent domain. Imprisonment. Psych hold. Your fellow citizens can do pretty much any of that to you, with the Bill of Rights in hand.

QuoteRoe had previously settled that abortion was a right. Now, after 50 years, that apple cart is about to be overturned.
Stare decisis is not a binding principle in litigation.

The U.S. Supreme Court interprets the Constitution. Rights the Court identifies as fundamental rights are subject to what's known as strict scrutiny, the very highest level of scrutiny. What that means is that legislatures (state or federal) may try to tinker with those rights through legislation, but the law will be subject to strict scrutiny by the Court (there must be a compelling state interest, and the law must be narrowly tailored to achieve that interest). In practice, if strict scrutiny applies, the law is most likely going to be found to not meet it and thus be void.

That is what I meant by "fundamental rights are not up for debate and put to a vote." The Court has already said, "This right is too important to be legislated away." I.e., it's fundamental. Legislatures might be able to tinker around the edges of the right, but they can't outright legislate it away.

Roe had previously settled that abortion was a fundamental right. Casey somewhat watered that down but left abortion as essentially a "quasi-fundamental" right, subject to the undue burden test rather than strict scrutiny.

But now Alito and company are about to turn things on their head by yanking away what the Court established was a fundamental right half a century ago. The whole point of this thread and the reason this is a big deal is because what had been established as a fundamental right not up for being legislated away is about to no longer be.

(And re: "Stare decisis is not a binding principle in litigation." I have no idea what you mean by that unless you mistyped "litigation" but meant "legislation." If that's the case, see above.)

Asmodean

Quote from: Asmodean on May 18, 2022, 10:45:34 AMThe U.S. Supreme Court interprets the Constitution. Rights the Court identifies as fundamental rights are subject to what's known as strict scrutiny, the very highest level of scrutiny. What that means is that legislatures (state or federal) may try to tinker with those rights through legislation, but the law will be subject to strict scrutiny by the Court (there must be a compelling state interest, and the law must be narrowly tailored to achieve that interest). In practice, if strict scrutiny applies, the law is most likely going to be found to not meet it and thus be void.

That is what I meant by "fundamental rights are not up for debate and put to a vote." The Court has already said, "This right is too important to be legislated away." I.e., it's fundamental. Legislatures might be able to tinker around the edges of the right, but they can't outright legislate it away.
Thing is though, the constitution itself is subject to change. If indeed that is the wish of your society, a constitutional amendment granting termination of pregnancy as a right would be subject to whatever majority it takes in the US to change - not to a committee deciding to have another look at some old decisions.

Quote(And re: "Stare decisis is not a binding principle in litigation." I have no idea what you mean by that unless you mistyped "litigation" but meant "legislation." If that's the case, see above.)
Yes, legislation. However, in this particular case, it's about the same difference. Something having been decided previously is not binding. The courts can overturn decisions, pretty much at their discretion, with very little in ways of checks and balances. On the other hand, where I'm at, it would take a 2/3 majority vote in our version of the Senate to change the constitution. If indeed there is a 2/3 majority for something, then it's reasonable to assume that there is strong support for that decision in the society as a whole.
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Anne D.

Quote from: Asmodean on May 19, 2022, 07:19:11 AMThing is though, the constitution itself is subject to change

Of course. In practice, it's very difficult and rare, especially in later decades. (See the fight for the ERA.)

You seemed to have no knowledge of the role the U.S. judicial branch plays. I was explaining that to you.

Asmodean

Quote from: Anne D. on May 19, 2022, 12:53:54 PM
Quote from: Asmodean on May 19, 2022, 07:19:11 AMThing is though, the constitution itself is subject to change

Of course. In practice, it's very difficult and rare, especially in later decades. (See the fight for the ERA.)

You seemed to have no knowledge of the role the U.S. judicial branch plays. I was explaining that to you.
Indeed, and I did not contest any part of your explanation - just the overarching theme of where a law comes from. There is a reason for dividing the government into three branches - that way, none can (or, supposed to be able to) mess with the nation too badly.

If indeed there is a need for a new right, the judicial branch is the wrong place to get it from as the only way they can, is by creatively reading existing law.
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Recusant

In the theory of government behind the US Constitution, all power and rights are held by the people. The people elect representatives to administer those powers and rights. Thus the 9th Amendment. In this understanding, government does not and can not bestow "new rights." It protects and regulates rights, which are inherent to the people.

A right to privacy is implicitly acknowledged in the Bill of Rights, including the 1st Amendment, the 3rd Amendment, the 4th Amendment and the 5th Amendment. In addition, the due process clause of the 14th Amendment was cited by the US Supreme Court as protecting a right to freedom from undue interference (aka a right to privacy) long before Roe v. Wade.
"Religion is fundamentally opposed to everything I hold in veneration — courage, clear thinking, honesty, fairness, and above all, love of the truth."
— H. L. Mencken


Asmodean

Quote from: Recusant on May 20, 2022, 06:49:43 AMIn the theory of government behind the US Constitution, all power and rights are held by the people. The people elect representatives to administer those powers and rights. Thus the 9th Amendment. In this understanding, government does not and can not bestow "new rights." It protects and regulates rights, which are inherent to the people.

A right to privacy is implicitly acknowledged in the Bill of Rights, including the 1st Amendment, the 3rd Amendment, the 4th Amendment and the 5th Amendment. In addition, the due process clause of the 14th Amendment was cited by the US Supreme Court as protecting a right to freedom from undue interference (aka a right to privacy) long before Roe v. Wade.
I see what you are saying, and yet I also see what seems to be reasonable legal arguments that go the other way.

That said, if the right to privacy is protection from "undue" interference, then wherein lies "undue?"
Quote from: Ecurb Noselrub on July 25, 2013, 08:18:52 PM
In Asmo's grey lump,
wrath and dark clouds gather force.
Luxembourg trembles.

Recusant

Sorry, wrote a reply, but failed to post it, and shut down the computer. Will try to reconstruct it.
"Religion is fundamentally opposed to everything I hold in veneration — courage, clear thinking, honesty, fairness, and above all, love of the truth."
— H. L. Mencken


Recusant

#58
Not as comprehensive as the lost post, but that's probably a good thing.  ;)

Quote from: Asmodean on May 20, 2022, 07:18:44 AM
Quote from: Recusant on May 20, 2022, 06:49:43 AMIn the theory of government behind the US Constitution, all power and rights are held by the people. The people elect representatives to administer those powers and rights. Thus the 9th Amendment. In this understanding, government does not and can not bestow "new rights." It protects and regulates rights, which are inherent to the people.

A right to privacy is implicitly acknowledged in the Bill of Rights, including the 1st Amendment, the 3rd Amendment, the 4th Amendment and the 5th Amendment. In addition, the due process clause of the 14th Amendment was cited by the US Supreme Court as protecting a right to freedom from undue interference (aka a right to privacy) long before Roe v. Wade.
I see what you are saying, and yet I also see what seems to be reasonable legal arguments that go the other way.

That said, if the right to privacy is protection from "undue" interference, then wherein lies "undue?"

It's been a couple of years since I read Amar's book on the US Constitution so I got it off the shelf and looked to see what it says about the right to privacy. Amar specifically includes the right to privacy in a discussion of the 14th Amendment, which gives the federal government the duty to protect rights from infringement by the states. He describes the US Supreme Court as having recognised that the right to privacy is one of the most important unenumerated rights which must be protected from infringement.

Given that, and given that a right to privacy is an integral underlying aspect of several amendments in the Bill of Rights of the US Constitution, it's reasonable to put a right to privacy among the fundamental rights. Anne D. covered the concept upthread. In US infringement of a fundemantal right by the government must pass "strict scrutiny":   It must be shown that there is a "compelling governmental interest" which justifies an infringement of any of these rights.

I consider a governmental ban on abortion to be an undue infringement of a woman's right to control her own life. The Supreme Court has affirmed that to be the case repeatedly, while the draft opinion overturning this 50 year old precedent is questionable for a number of reasons. It isn't difficult to find critical analyses online; I'll link to one which covers several of the dubious aspects of the ruling.
 
What do you view as reasonable legal arguments in support of the infringement of a woman's right to control her own life, specifically her capacity for reproduction? What compelling governmental interest is being advanced which clearly outweighs a woman's right to bodily autonomy?
"Religion is fundamentally opposed to everything I hold in veneration — courage, clear thinking, honesty, fairness, and above all, love of the truth."
— H. L. Mencken


billy rubin

alito said it in the draft, explicitly.

abortion deprives the adpption industry of a supply of babies to market.


"I cannot understand the popularity of that kind of music, which is based on repetition. In a civilized society, things don't need to be said more than three times."