Overturn Roe v. Wade

[leftcider]

This thread is not about personal views on abortion. In fact, I think abortion should be legal in most cases. However, Roe v. Wade was a baseless decision where the Supreme Court chose to read their personal policy beliefs into the Constitution and create a Constitutional Right that is simply not there. If you are a liberal, politically the demise of Roe v. Wade would do much to deflate your opponents on the religious right (I'll get to that later).

The majority in Roe v. Wade ruled that you have a Constitutional Right to privacy, just like you have a Constitutional Right to free speech, right to bear arms, etc. The problem is that it's just not there, and the majorities explanations are a tribute to the exercise of extreme legal gymnastics to get the outcome they want. Go to the case and try to prove me wrong if you like.

The same judicial tactic of inventing non-existent rights occured in the economic sphere during a 30 year period (known as the Lochner Era) where the majority of justices (who subscribed to laize-faire capitalism) decided that there was a Constitutional "right to contract". They overturned hundreds of economic regulations such as a minimum wage and workers' safety standards based on their personal beliefs, with little Constitutional backing.

If you support the Constitution as the law of the land and the democracy that it allows for, you should agree with me.

What would the consequences of overturning Roe v. Wade be for those of us who support abortion rights? First, the majority of Americans support the right to abortion with some restrictions (parental consent for minors, etc.). Most states would allow abortion, as was the trend before this case was decided. Second, it would help to deflate the religious right movement, who use the judicial activism witnessed in Roe to create their image as an oppressed group fighting against an entrenched liberal elite. Roe v. Wade spawned an immense religious-right backlash, and if the case had been ruled differently it is questionable whether the "Christian Right" would wield the influence that it does today.

[lsbskins1]

From www.law.cornell.edu

"Distinct from the right of publicity protected by state common or statutory law, a broader right of privacy has been inferred in the Constitution. Although not explicity stated in the text of the Constitution, in 1890 then to be Justice Louis Brandeis extolled 'a right to be left alone.' This right has developed into a liberty of personal autonomy protected by the 14th amendment. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined. The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information. The Federal Trade Commission overwhelmingly enforces this statutory right of privacy, and the rise of privacy policies and privacy statements are evidence of its work. In all of its forms, however, the right of privacy must be balanced against the state's compelling interests. Such compelling interests include the promotion of public morality, protection of the individual's psychological health, and improving the quality of life.
The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights, and accordingly it is most firmly established in this area. The Supreme Court first recognized an independent right of privacy within the 'penumbra' (fringe area) of the Bill of Rights in Griswold v. Connecticut, 381 U.S. 479 (1965). In this case, a right of marital privacy was invoked to void a law prohibiting contraception. Later cases expanded upon this fundamental right, and in Roe v. Wade, 410 U.S. 113 (1973) the right of privacy was firmly established under the due process clause of the 14th Amendment. The court classified this right as fundamental, and thus required any governmental infringement to be justified by a compelling state interest. Roe held that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability. Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest."

[lsbskins1]

Consider this opinion on the reasoning behind avoiding the strict construction theory:

"A constitution that did not invalidate so offensive, oppressive, probably undemocratic, and sectarian law [as the Connecticut law banning the use or distribution of contraceptives] would stand revealed as containing major gaps. Maybe that is the nature of our, or perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that the Constitution should be interpreted so literally as to authorize every conceivable law that would not violate a specific constitutional clause? This would mean that a state could require everyone to marry, or to have intercourse at least once a month, or it could take away every couple's second child and place it in a foster home....We find it reassuring to think that the courts stand between us and legislative tyranny even if a particular form of tyranny was not foreseen and expressly forbidden by framers of the Constitution."

And there is also this concept:

"Originalists (strict constructionists) lose sight of the forest because they pay too much attention to trees. The larger purpose--the animating spirit--of the Constitution was the protection of liberty, and we ought to focus on that."

I like to think about it like this: The purpose of law is to provide the most perfect justice possible. Those who would read only the letter of the law, and ignore the spirit of the law, do a disservice to the concept of justice. What should drive the interpretation of Constitutional law and the protection of an individuals rights under that Constitution is not whether or not something was specifically foreseen or enumerated, it should be what establishes the most perfect form of justice possible. The framers of the Constitution, most certainly in intent, where trying to establish a document that would give a fundemental grounding and reliable guarantee of a form of government responsible to the ideals freedom and opposed to tyranny. In short, the test should not be "does the Constitution grant this protection specifically", but rather "should the law, opporating in a manner consistent with a modern understanding of justice, provide this protection, and can it be reasonably infered that reasoned men would expect this protection."

[leftcider]

Quote by: lsbskins1 What should drive the Constitution... should be what establishes the most perfect form of justice possible

You have a preference for the Courts to determine what "the most perfect form of justice" is. Why leave it up to their arbitrary notions instead of letting it be collectively decided through democracy?

To the judges of the Lochner era, the perfect form of justice was to ban minimum wage laws so as to not violate "the right to contract". The majority of the court 25 years ago had their vision of the perfect justice as one where women have a right to abortion so as to not violate the "right to privacy". Neither of these "rights" had any legally grounded basis and were ways for justices to impose their ideology without having to go through the legal requirements of the democratic process. They are cases of the justices claiming that their policy opinions are superior to everyone else's because they, not the people, know what a just society looks like. Judicial legislation overrides the necessary checks and balances that our system was designed with.

Quote by: lsbskins1 The framers of the Constitution, most certainly in intent, where trying to establish a document that would give a fundemental grounding and reliable guarantee of a form of government responsible to the ideals freedom and opposed to tyranny.

Would you really say that the Framers of the Constitution would be opposed to STATE sodomy and abortion laws? If you want to go back and look at the "Framers Intent" of the Constitution, it is imperitive to realize that they were dealing with a Constitution that dealt only with Individual vs. Federal rights, not the rights of the Individual vs. the States. The 14th amendment had not yet been passed, so the Bill of Rights only guaranteed your rights vs. the federal government. Many questioned the necessity of including the Bill of Rights, because little in the Constitution (which grants power to the federal government) includes any powers that could potentially violate the Bill of Rights. The Framers intended a country where states had a great deal of leeway in their own affairs, with a much weaker Federal Government than is currently the case.

Many of the most sucessful democracies throughout the world operate entirely without a legally binding Constitution, and are not subjecting their citizenry to the kind of outlandish laws you brought up.

[leftcider]

Quote by: lsbskins1 The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.

These Amendments are protecting freedom of speech, protection from search and seizure WITHOUT DUE PROCESS by the police, and not having to testify against yourself in court. How does this relate to abortion? With extreme distantance, if at all. If you have a right to abortion based on these, you have a Constitutional Right to pretty much anything.

Quote by: lsbskins1 Griswold v. Connecticut

The Court ruled in Griswold that there is no general right to privacy, but instead a right to privacy in the case of marriage only (http://www.oyez.org/oyez/resource/case/149/). It's inconsistent to rule in Roe that the individual has a right to privacy based on the precedent of Griswold, which says that no right to privacy for the individual exists.

Quote by: lsbskins1 Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest."

Note of interest: The "compelling state interest" test (standard for Constitutional Rights) got scrapped in favor of the "undue burdens" test established in Planned Parenthood of Southeastern Pennsylvania v. Casey by O'Conner, champion of Roe. This opened the door for much more regulation on abortion, and Roe no longer provides the legal basis for determining the Constitutionality of abortion law.

[lsbskins1]

Rather that posting quotes, I will generally respond.

I am not arguing that only the courts should apply this principle. The legislative branch, in passing laws, should consider the "greatest justice principle", but unless you do not believe in the principle of judicial review, it is the job of the courts to interpt law in relation to Constitutionality, and that should be judged not just on what the Constitution specifically says, but rather on the principle of what the Constitution's purpose is. Do you believe that we, as citizens should have no Constitutionally protected right to privacy? Do you believe that reasonable people would not conclude that privacy is a fundemental right?

And as to the older, mistaken court rulings to which you refer, I would argue that the problem was not that they interpted according to a "perfect form of justice", but rather that they considered only one perspective and ignored the blindfold that justice personified wears. Perfect justice does not favor Big Business or Labor, it gives ballance to the rights of Big Business and Labor. They specifically did not apply my standard. And humans, being human, will make mistakes. Strict Constuction freezes those mistakes into a state of permanent inescapabilty.

[Chris]

Isn't there already a thread out there called "Lets Overturn Roe vs Wade"?

[underbear1]

leftcider
You may not value the right of Privacy, but you won't sell that theory to the gay/lesbian community.
I doubt many women either pro-choice or pro-life would consider their Constitution devoid of a right to privacy would be a step up. The repeal of Sodomy laws, (which were ONLY charged against gays, but applied to any sexual act which wasn't missionary style,man on top was forbidden.) No oral sex period!

[tman_ndsu08]

Quote by: |Chris| Isn't there already a thread out there called "Lets Overturn Roe vs Wade"?

I believe there was.

[RickSp]

I am so sick of the right wing whine that the "court is legislating". The Roe decision was based on 14th Amendment privacy rights and is in line with traditional common law. Interpretting the Constitution is what the Supreme Court is supposed to do. It may not make the fundamentalists happy, but so what? They would prefer to turn the Court into a Bible study group anyway.

I for one am perfectly happy to let the Supreme Court do what it is supposed to do a provdied for by the Constitution, whether or not it makes Pat Robertson happy.

[shield772]

It's actually quite simple, the founders knew they couldn't enumerate every right of humanity into the constitution so they did the best thing ever, they said

Amedment 10
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The courts need to stop making up Constitutional rights, it's simple if it's not in the Constitution then it's up to the individual states to legislate it, Abortion is not a federal matter.

[PatrickHenry]

Shield, I am glad you like the Tenth Amendment, too. It's one of my favorites.

Too bad the Feds don't think it applies anymore...

[jt1012751]

Quote by: shield772 Abortion is not a federal matter

Thats probably the best thing anyone has ever said on abortion.

A10-Bill of Rights
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This could also be seen as giving the people the power to chose about abortion. As far as I know, no state has a law agaisnt it. The government does not have a law agaisnt it. So the only thing left is to give the power to the individual.

[shield772]

before roe v wade all states had abortion laws. when roe v wade is overturned states will enact their own individual laws, and since state legilatures are closer and more accountable to the people they represent it will be more reflective of what the people actually want, that is the whole thought process behind the 10th amendment, the founders felt that the closer the representative was to the people the more accountable, the federal government needs less authority and the states need more.

[bugsbunny04]

And Mass. new state motto can be "where our country was born but your unwanted child wasnt"

[Autolykos]

Quote by: lsbskins1 I like to think about it like this: The purpose of law is to provide the most perfect justice possible.

Define "perfect justice". Hell, define "perfect" and "justice" separately, even.

Quote by: Isbskins1 Those who would read only the letter of the law, and ignore the spirit of the law, do a disservice to the concept of justice.

Here we go again: define "spirit of the law".

Quote by: Isbskins1 What should drive the interpretation of Constitutional law and the protection of an individuals rights under that Constitution is not whether or not something was specifically foreseen or enumerated, it should be what establishes the most perfect form of justice possible.

The Constitution does not protect individual rights. It explicitly states that those powers and rights not delegated to the national government were to be reserved by the state governments and/or the people of those states. Therefore, the protection of individual rights is properly a state and local matter.

Quote by: Isbskins1 The framers of the Constitution, most certainly in intent, where trying to establish a document that would give a fundemental grounding and reliable guarantee of a form of government responsible to the ideals freedom and opposed to tyranny. In short, the test should not be "does the Constitution grant this protection specifically", but rather "should the law, opporating in a manner consistent with a modern understanding of justice, provide this protection, and can it be reasonably infered that reasoned men would expect this protection."

I would rather say that the test should be "is the national government operating within the constraints given to it by the Constitution"?

- Rob

[Autolykos]

Quote by: leftcider You have a preference for the Courts to determine what "the most perfect form of justice" is. Why leave it up to their arbitrary notions instead of letting it be collectively decided through democracy?

Democracy is not consensus; rather, it inevitably becomes "two wolves and a sheep deciding on what to eat for dinner" (I forget who said that, but someone else did ).

Quote by: leftcider To the judges of the Lochner era, the perfect form of justice was to ban minimum wage laws so as to not violate "the right to contract".

I would say that the Constitution does not mention any right to contract. Therefore, any such case should have been thrown out of court by the Supreme Court Justices.

Quote by: leftcider The majority of the court 25 years ago had their vision of the perfect justice as one where women have a right to abortion so as to not violate the "right to privacy". Neither of these "rights" had any legally grounded basis and were ways for justices to impose their ideology without having to go through the legal requirements of the democratic process.

Thus, judicial activism as we know it. Such a behavior has no loyalty to any particular ideology; it is a means, not an end, as I hope we can all see. It is the resort of those who are so confident in their own moral superiority, and so frustrated with others' apparent benightedness, to be willing to trump the opinions and decisions of those others by force, if necessary.

Quote by: leftcider They are cases of the justices claiming that their policy opinions are superior to everyone else's because they, not the people, know what a just society looks like. Judicial legislation overrides the necessary checks and balances that our system was designed with.

In a word: pride.

Quote by: leftcider Would you really say that the Framers of the Constitution would be opposed to STATE sodomy and abortion laws? If you want to go back and look at the "Framers Intent" of the Constitution, it is imperitive to realize that they were dealing with a Constitution that dealt only with Individual vs. Federal rights, not the rights of the Individual vs. the States.

They were also dealing with State vs. Federal rights, perhaps even moreso than Individual vs. Federal rights.

Quote by: leftcider The 14th amendment had not yet been passed, so the Bill of Rights only guaranteed your rights vs. the federal government. Many questioned the necessity of including the Bill of Rights, because little in the Constitution (which grants power to the federal government) includes any powers that could potentially violate the Bill of Rights. The Framers intended a country where states had a great deal of leeway in their own affairs, with a much weaker Federal Government than is currently the case.

Nevertheless, the government now routinely violates the Bill of Rights every day. Of course, in order to do so, they had to impose a new interpretation on the Constitution, twisting its phrases to mean that it allowed what they wanted it to (and not what it actually did).

Quote by: leftcider Many of the most sucessful democracies throughout the world operate entirely without a legally binding Constitution, and are not subjecting their citizenry to the kind of outlandish laws you brought up.

What makes the United States different, in your opinion?

- Rob

[Autolykos]

Quote by: lsbskins1 Rather that posting quotes, I will generally respond. I am not arguing that only the courts should apply this principle. The legislative branch, in passing laws, should consider the "greatest justice principle",

Do you mean utilitarianism, here?

Quote by: Isbskins1 but unless you do not believe in the principle of judicial review, it is the job of the courts to interpt law in relation to Constitutionality, and that should be judged not just on what the Constitution specifically says, but rather on the principle of what the Constitution's purpose is. Do you believe that we, as citizens should have no Constitutionally protected right to privacy? Do you believe that reasonable people would not conclude that privacy is a fundemental right?

Regardless of whether one regards privacy as a fundamental right, it is *not* stated as such in the Constitution, either explicitly or implicitly.

Quote by: Isbskins1 And as to the older, mistaken court rulings to which you refer, I would argue that the problem was not that they interpted according to a "perfect form of justice", but rather that they considered only one perspective and ignored the blindfold that justice personified wears. Perfect justice does not favor Big Business or Labor, it gives ballance to the rights of Big Business and Labor.

Who defines the "balance"?

Quote by: Isbskins1 They specifically did not apply my standard. And humans, being human, will make mistakes.

Who is to say that your standard is correct? Aside from you, that is.

Quote by: Isbskins1 Strict Constuction freezes those mistakes into a state of permanent inescapabilty.

I was not aware that "strict constructionism" meant the end of judicial review. Rather, I was under the impression that it meant adherence to the original intent of the Constitution as devised by the Founding Fathers. Certainly that intent allowed for judicial review, for it was acknowledged that future generations in Congress may very well pass laws that overstepped the bounds of the Constitution. Such a practice has all too often become the norm today.

- Rob

[SteveA]

Quote by: leftcider This thread is not about personal views on abortion. In fact, I think abortion should be legal in most cases. However, Roe v. Wade was a baseless decision where the Supreme Court chose to read their personal policy beliefs into the Constitution and create a Constitutional Right that is simply not there. If you are a liberal, politically the demise of Roe v. Wade would do much to deflate your opponents on the religious right (I'll get to that later). ...

I agree with you, Left.

I don't believe abortion should be illegal either, but it's not a decision that the federal government should be involved in.

[shield772]

Democracy is not consensus; rather, it inevitably becomes "two wolves and a sheep deciding on what to eat for dinner" (I forget who said that, but someone else did ).

Benjamin Franklin