US-Roe vs Wade overturned

[StringJunky]

2 minutes ago, swansont said:

Alito apparently ignored the 9th amendment, and laws can be overturned. The GOP is already discussing a national ban if they get back in power.

Right. Still learning this stuff. Will this always be subject to the whims of the ruling party? Does it need to be written into the Constitution to make a policy more permanent?

[swansont]

12 hours ago, StringJunky said:

Right. Still learning this stuff. Will this always be subject to the whims of the ruling party? Does it need to be written into the Constitution to make a policy more permanent?

If the Constitution is being ignored, then amending it won't fix that particular problem, though it would address the notion that the rights don't explicitly exist, since they will be called out. 

[J.C.MacSwell]

4 minutes ago, swansont said:

If the Constitution is being ignored, then amending it won't fix that particular problem, though it would address the notion that the rights don't explicitly exist, since they will be called out. 

Do you feel the constitution would need to be ignored to overturn Roe vs Wade?

[swansont]

11 minutes ago, J.C.MacSwell said:

Do you feel the constitution would need to be ignored to overturn Roe vs Wade?

The precedent from the previous ruling would have to be ignored, and the notion that rights don't exist unless enumerated, unless strongly rooted in U.S. history and tradition, ignores the 9th amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I don't see his caveat listed. For a long time only white men had rights, so this skews things. He's stating that if, long ago, you could deny people rights, you still can, because it's tradition.

[TheVat]

15 hours ago, MigL said:

So, because the Federal Government is so 'toothless' and won't provide proper laws, Mr A Serwer thinks a bunch of unelected SC Justices should ?

Justice Alito is saying
"That's not my job !"
"Look to your elected representatives to provide the proper laws."

Though this forum does not require that linked articles need to be read, you really need to read the rest of the article and not just base your opinion on the pull-quote.  For one thing, the rejection of unenumerated rights contradicts the 9th amendment.  Many rights belong to the citizens and may not be disparaged, even if not specified in the Constitution.

15 hours ago, swansont said:

Alito apparently ignored the 9th amendment, and laws can be overturned. The GOP is already discussing a national ban if they get back in power.

Oops, didn't see this had already been answered.  I'm a bit late to the party.  Well. I think this illustrates that some thread topics need some research before plunging in.  Constitutional law seems to he one of them.

Edited May 9, 2022 by TheVat
Pyto

[MigL]

8 hours ago, TheVat said:

  For one thing, the rejection of unenumerated rights contradicts the 9th amendment.

No, I did read it.

The above is, again, an interpretation of laws according to the Constitution.
It is not a law.

Would it not be much simpler for our elected representatives to write appropriate laws, that reflect the needs of their electors, instead of having unelected, politically partisan Justices interpret laws according to their own individua sensibilities ?

[Airbrush]

When a woman decides that she would rather abort her fetus than give birth, it could indicate that perhaps she would not be the ideal parent for that child.  Unwanted children often grow up to be criminals. Tens of millions of abortions have happened since Row v Wade.  How many of them would have been unwanted, abused, neglected, and sent to the street to be educated as criminals.

[TheVat]

1 hour ago, MigL said:

No, I did read it.

The above is, again, an interpretation of laws according to the Constitution.
It is not a law.

Would it not be much simpler for our elected representatives to write appropriate laws, that reflect the needs of their electors, instead of having unelected, politically partisan Justices interpret laws according to their own individua sensibilities ?

The Ninth Amendment IS law.  That's the whole point of having a Supreme Court - to ensure that state laws (like the one at issue in Dobbs v Jackson WHO) do not violate the Constitution, the highest law in the land.  If there is no supermajority in the Senate to pass that fine piece of legislation you suggest, then we need Constitutional rulings on the laws that do, piecemeal, exist now.  That is how our federalist system works here.  

What Alito is suggesting is ignoring the 9th amendment, which opens the door to tossing every decision like Griswold, Loving, Obergefell, and others that clarified the unenumerated rights guaranteed by the 9th.  He is therefore acting in a radical mode which is contrary to his sworn duty as a justice to apply ALL of the Constitution to existing law and legal precedent.  I'm not sure people outside this country (or many, inside this country) quite grasp how radical the draft proposal is.  

[J.C.MacSwell]

2 hours ago, MigL said:

No, I did read it.

The above is, again, an interpretation of laws according to the Constitution.
It is not a law.

Would it not be much simpler for our elected representatives to write appropriate laws, that reflect the needs of their electors, instead of having unelected, politically partisan Justices interpret laws according to their own individua sensibilities ?

In fairness to both sides though, that would require each side to take difficult and thoughtful moderate positions toward stacking congress, rather than relying on much easier hyperbole hoped to lead to opportunities to stack the SC and let them do the heavy lifting toward permanent progress.

I kid of course...everyone keep their shirt on...😄

13 hours ago, swansont said:

The precedent from the previous ruling would have to be ignored, and the notion that rights don't exist unless enumerated, unless strongly rooted in U.S. history and tradition, ignores the 9th amendment.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I don't see his caveat listed. For a long time only white men had rights, so this skews things. He's stating that if, long ago, you could deny people rights, you still can, because it's tradition.

Back to serious mode...not sure I fully understand that but thanks.

I'll have to look into that.

[Phi for All]

1 hour ago, Airbrush said:

When a woman decides that she would rather abort her fetus than give birth, it could indicate that perhaps she would not be the ideal parent for that child.  Unwanted children often grow up to be criminals. Tens of millions of abortions have happened since Row v Wade.  How many of them would have been unwanted, abused, neglected, and sent to the street to be educated as criminals.

Just enough to fill the privatized prisons and maximize those profits!

[uncool]

4 hours ago, Airbrush said:

When a woman decides that she would rather abort her fetus than give birth, it could indicate that perhaps she would not be the ideal parent for that child.  Unwanted children often grow up to be criminals. Tens of millions of abortions have happened since Row v Wade.  How many of them would have been unwanted, abused, neglected, and sent to the street to be educated as criminals.

…I have to admit, I’m…uneasy with this reasoning. It suggests that there is policy interest in who gets to reproduce based on speculation on future criminality, which has some connections with eugenics. Those connections strengthen when you add in the conservative framing of abortion being connected to the right of the fetus to life - under that framing, this argument suggests that some people don’t have a right to live because of speculative criminal activity.

I’m not suggesting that this is what you meant to suggest. Just that it may have unintended implications, especially among people with other framings.

[swansont]

12 hours ago, MigL said:

The above is, again, an interpretation of laws according to the Constitution.
It is not a law.

The 9th amendment says unenumerated rights exist. That's not an interpretation of it. That's literally what it says, though stated in the style of the time.

[Airbrush]

On 5/9/2022 at 8:41 PM, uncool said:

…I have to admit, I’m…uneasy with this reasoning. It suggests that there is policy interest in who gets to reproduce based on speculation on future criminality, which has some connections with eugenics. Those connections strengthen when you add in the conservative framing of abortion being connected to the right of the fetus to life - under that framing, this argument suggests that some people don’t have a right to live because of speculative criminal activity.

I’m not suggesting that this is what you meant to suggest. Just that it may have unintended implications, especially among people with other framings.

"In Mark Rienzi's Aug. 22 letter, he mischaracterized the study of abortion's effects on crime. He stated that the study implies that abortions among poor and minority women reduced crime, when it says no such thing. It states that babies born to mothers who do not want them, due to life circumstances, are more likely to grow up neglected and/or abused, which makes them more likely to turn to crime.

"That is proven by many studies of children. The authors simply are stating that fewer unwanted children mean reduced abuse and neglect; reduced abuse and neglect means reduced crime. Sounds logical to me, and race has nothing to do with it."

"More than 30 years ago, Hans Forssman at Sweden's Goteborg University followed 120 children born after their mother's requests for abortion had been denied. These unwanted offspring had significantly higher rates of crime, mental illness, welfare dependence, school misbehavior and alcoholism. The unwanted girls had more early, and out-of-wedlock, pregnancies. The unwanted boys were behavior problems in their military service. The recent study confirms these findings."

Unwanted Children, Unwanted Crime - The Washington Post

Edited May 11, 2022 by Airbrush

[TheVat]

These findings seem almost self-evident.  More contraception, either post hoc or prior hoc, means fewer babies born into situations of neglect and stress where developmental problems are more likely.  We already know that women most at risk, due to poverty and educational deficits and gaps in the social safety net, are not getting the help they need for their children from government programs because those programs are dismissed and have funding pulled by the righteous conservatives who are also telling them they have to have that baby.   (the exception are a sizeable group of Catholics, one of whom I'm married to, who actually walk their talk and work hard in their communities to promote pre-natal and post-natal help to mothers.  It's sad to me that Catholic Social Services is getting out there and doing what we should all be doing through our elected representatives and our tax payments.  Healthy and nurtured babies are in everyone's interest, whether or not they themselves have babies in their lives.  If you cannot, for theological reasons, support abortion rights, then at least have the common decency to help support those resulting babies that find themselves in disadvantaged conditions, and maybe you won't be mugged at a bus stop in 2040.)  

[MigL]

On 5/10/2022 at 6:25 AM, swansont said:

The 9th amendment says unenumerated rights exist.

And these unenumerated , or unwritten, rights exist because of previous Supreme Court decisions that favored rights such as the right to travel, within the states, the right to privacy, autonomy, dignty, and yes, even the right to abortion.
Isn't that circular ?

[swansont]

1 hour ago, MigL said:

And these unenumerated , or unwritten, rights exist because of previous Supreme Court decisions

No, rights are inherent. They are recognized by such decisions.

1 hour ago, MigL said:

that favored rights such as the right to travel, within the states, the right to privacy, autonomy, dignty, and yes, even the right to abortion.
Isn't that circular ?

The amendment says rights exist that even if not listed. How is that circular?

[TheVat]

Unenumerated rights don't exist because of SCOTUS decisions.  They exist because the Constitution was amended to protect them, and that was ratified by 3/4 of the states, at minimum.  Decisions clarify and make explicit what is already baked into the constitution.

To articulate a right that is not articulated in the Constitution is sometimes the task of the Supreme Court.  They are not creating rights, they are illuminating them.  Or that was their assigned duty until recently.

[zapatos]

1 hour ago, MigL said:

And these unenumerated , or unwritten, rights exist because of previous Supreme Court decisions that favored rights such as the right to travel, within the states, the right to privacy, autonomy, dignty, and yes, even the right to abortion.
Isn't that circular ?

The unenumerated Rights exist because the 9th Amendment say they do. They are just not named. It was left to SCOTUS to make these unenumerated rights explicit as the question of them comes up. Rather forward thinking of the Founders.

Once the right is enumerated by SCOTUS it is binding on all other courts as if it had been explicitly written into the Constitution.

The Supreme Court has the right to overturn their own ruling of the precedent that enumerated that Right, but unless and until they do, the Right (such as the Right to an abortion) exists due to the Supreme Court decision. 

I don't believe that is circular reasoning.

Ignoring stare decisis should not be taken lightly, and should only be done if the original ruling's egregiousness surpasses an undefined threshold.

 

Quote

The U.S. common law structure has a unified system of deciding legal matters with the principle of stare decisis at its core, making the concept of legal precedent extremely important. A prior ruling or judgment on any case is known as a precedent. Stare decisis dictates that courts look to precedents when overseeing an ongoing case with similar circumstances.

https://www.investopedia.com/terms/s/stare_decisis.asp

 

[MigL]

Maybe I'm just not too clear on the US Constitution ...

It states that unenumerated rights exist.
Granted.
But until those rights are 'numerated' by SC Justices, no one know what they are.

The SC may decide tomorrow that everyone has the right to have pink hair.
That right existed previously, as per the Constitution,, but was unenumerated, so no one knew they had that right.
Now that the Justices have decided, everyone knows we have that right.
So who made that decision ?
( not law, decision; and that's what I'm on about )

[swansont]

4 minutes ago, MigL said:

Maybe I'm just not too clear on the US Constitution ...

It states that unenumerated rights exist.
Granted.
But until those rights are 'numerated' by SC Justices, no one know what they are.

No, the justices don’t put anything into the Constitution. An enumerated right is one listed in the document.

4 minutes ago, MigL said:

The SC may decide tomorrow that everyone has the right to have pink hair.

An enumerated right. Freedom of speech.

 

4 minutes ago, MigL said:

That right existed previously, as per the Constitution,, but was unenumerated, so no one knew they had that right.
Now that the Justices have decided, everyone knows we have that right.
So who made that decision ?
( not law, decision; and that's what I'm on about )

There’s a flip side to this, because the Constitution grants powers to the government. If the government isn’t empowered to restrict you in some way, you have that right, OR the state has some power that limits the right.  That’s one of the ambiguities. 

[zapatos]

3 hours ago, MigL said:

( not law, decision; and that's what I'm on about )

It is both law and decision.

When a court makes a decision, that decision becomes part of the body of unwritten laws known as common law.

 

[TheVat]

Yep.  Goes back to Marbury v Madison, 1803.  SCt decisions have the force of law, and may strike down laws that violate the Constitution.  One of our most important checks in the "checks and balances" system. 

 

[MigL]

A law has to be judged unconstitutional to be struck down.
A decision can be changed when Supreme Court Justices change their minds.
( as Justice Alito's leaked draft demonstrates )

[zapatos]

10 minutes ago, MigL said:

A law has to be judged unconstitutional to be struck down.

Or it can be struck down when a state law conflicts with a federal law.

12 minutes ago, MigL said:

A decision can be changed when Supreme Court Justices change their minds.

Agreed.

[J.C.MacSwell]

https://www.cnn.com/2022/05/13/politics/abortion-right-polling-roe-v-wade/index.html

Seems that few Americans have positions on abortions that reflect the extremes of either party.

"A few months ago, Lydia Saad at Gallup did a great roundup of how Americans responded to the different ways questions about the legality of abortion have been asked. counted nearly 20 ways and found anywhere from massive support for abortion rights (north of 80% for abortions to save the life of the mother) to massive opposition (only about 10% were in favor of legal third-trimester abortions)."

Most tend toward more moderate positions.

 "An AP-NORC poll from last year that 23% thought abortion should always be legal, 33% said it should mostly be legal, 30% said mostly illegal and 13% believed it should always be illegal."

With much of the polling data depending on how and what question is asked.

 

Edited May 15, 2022 by J.C.MacSwell