Alito cited a witch burner from the 17th C.

[UTFO]

Makes taking con law 25 years ago seem...man.

I know Alito, et al are accomplished. They've reached the pinnacle of my profession. They could run tiny or large circles around me, constitutional law-wise.

But no matter their deranged clinging to a 200 year old document, or their cynicism towards stare decisis, the end result will be the same: within the next 3 decades, this country will splinter and dissolve, the experiment of democracy here will at least be put on pause and these 6 self-righteous, pious brainiacs just told 2/3 of America that they're babykillers and that women can't control their own bodies....when all we are are people who live in a world where abortion has existed and will continue to exist or hundreds of thousands of years.

People's real problem should be with God, if you ask me. Is the Big Man too busy? Can't even send his kid down again and straighten this out?

I'm done dealing w grown adults who still believe in fairy tales, and you should be too.

 

[mcmurtry66]

Makes taking con law 25 years ago seem...man.

I know Alito, et al are accomplished. They've reached the pinnacle of my profession. They could run tiny or large circles around me, constitutional law-wise.

But no matter their deranged clinging to a 200 year old document, or their cynicism towards stare decisis, the end result will be the same: within the next 3 decades, this country will splinter and dissolve, the experiment of democracy here will at least be put on pause and these 6 self-righteous, pious brainiacs just told 2/3 of America that they're babykillers and that women can't control their own bodies....when all we are are people who live in a world where abortion has existed and will continue to exist or hundreds of thousands of years.

People's real problem should be with God, if you ask me. Is the Big Man too busy? Can't even send his kid down again and straighten this out?

I'm done dealing w grown adults who still believe in fairy tales, and you should be too.

Maybe she turned him into a newt

 

[Bulk VanderHuge]

Maybe she turned him into a newt

 

[Cortez88]

But I got better!

 

[anon_6hv78pr714xta]

Makes taking con law 25 years ago seem...man.

I know Alito, et al are accomplished. They've reached the pinnacle of my profession. They could run tiny or large circles around me, constitutional law-wise.

But no matter their deranged clinging to a 200 year old document, or their cynicism towards stare decisis, the end result will be the same: within the next 3 decades, this country will splinter and dissolve, the experiment of democracy here will at least be put on pause and these 6 self-righteous, pious brainiacs just told 2/3 of America that they're babykillers and that women can't control their own bodies....when all we are are people who live in a world where abortion has existed and will continue to exist or hundreds of thousands of years.

People's real problem should be with God, if you ask me. Is the Big Man too busy? Can't even send his kid down again and straighten this out?

I'm done dealing w grown adults who still believe in fairy tales, and you should be too.

A few response points (UTFO, I'm using your post because it finally sparked me to write down my thoughts so I hope you don't see this as antagonistic to you--sometimes I'm bad at making that clear in my writing, I think, and some people are personally hurt. I hope that's not the case here because this is obviously a very touchy topic for a lot of people):

1. "Deranged clinging to a 200 year old document?" If you are a lawyer, you took an oath to support the Constitution of the United States. So did they. I don't see that as "deranged." Your statement is antithetical to what a constitutional republic is based on. I think what you meant to say was that their clinging to an interpretative method that places too much emphasis on the values of people who died 200 years ago is deranged, but I don't want to put words in your mouth. Maybe you could explain?

2. I think what Alito said--or at least the conservative judicial theory judges' perspective on this--is different than your interpretation: they are saying abortion is a deeply moral question that should be decided in the legislature, not by 9 unelected justices, sitting on high. I view that position as the opposite of self-righteousness or piousness in terms of their legal arguments.

3. Regading the right's stance on whether a fetus is a life worth protecting from destruction, it need not be grounded in religion, but even if it is, I don't see that as a reason to reject their value judgment out of hand. (Many people believe Thou Shalt Not Murder because they believe their God said so, for example.)

My general position on this issue:

This is a profoundly difficult question to answer. Is it "unfair" that only one sex bears the brunt of the answer to the question? Yes. But in weighing unfairness, IF you believe the fetus is no different than a baby from a moral perspective, I understand why they think abortion in ALL CASES is an abomination.

I agree that Roe was a really good compromise that a well-functioning society would have enacted through the legislative process. But there is an issue there from a structural standpoint that I think the conservative justices are right about: the Court isn't supposed to be reaching such compromises. I'm more comfortable with unelected justices ruling on what the law IS, not what it SHOULD be and originalism has a lot going for it in its ability to limit judges own value preferences being the determining factor in their opinions.

I do admit, though, that maybe this should have been one of those cases where pragmatism dictates we turn a blind eye on this issue, just go with stare decisis (one of the reasons it exists, in fact, and why it is so very important in a healthy society), and let the issue lie. Sometimes being consistent in your legal theory could result in a disaster, like UTFO posits with the fragmenting of our society. Maybe it was good that the SCt took this issue off the table, even if technically in an illegitimate matter, because allowing debate on this issue will rip this country apart. I hope that's not the case but admit I have thought the same thing as UTFO on that point.

 

[MyTeamIsOnTheFloor]

Makes taking con law 25 years ago seem...man.

I know Alito, et al are accomplished. They've reached the pinnacle of my profession. They could run tiny or large circles around me, constitutional law-wise.

But no matter their deranged clinging to a 200 year old document, or their cynicism towards stare decisis, the end result will be the same: within the next 3 decades, this country will splinter and dissolve, the experiment of democracy here will at least be put on pause and these 6 self-righteous, pious brainiacs just told 2/3 of America that they're babykillers and that women can't control their own bodies....when all we are are people who live in a world where abortion has existed and will continue to exist or hundreds of thousands of years.

People's real problem should be with God, if you ask me. Is the Big Man too busy? Can't even send his kid down again and straighten this out?

I'm done dealing w grown adults who still believe in fairy tales, and you should be too.

He’s probably just matching Blackmun in Roe.

Blackmun discussed Ancient Greek and Roman attitudes toward abortion. Explained why the Hippocratic oath, which appeared to expressly forbid doctors from performing an abortion, did not really mean that. He discussed stuff from B.C. times, Blackstone, Coke, Bracton - all about “quickening” and viability. He also gave a long string cite as the explanation for the source of the right to privacy.

As a lawyer, I believe it is the objective PROCESS, not arguments over SUBJECTIVE “justice,” that provides equality and keeps us free. So I made a choice to NOT read the leaked opinion. Thus, I could be off beam About what it says.I will read the real opinion once it comes out. Until, I view the leak as an attack on democracy and will not support it in any way.

The Court’s job is to decide if a law violates the Constitution, not whether it is a good social policy. The partisan hate speech mobs and Vote Whores can bite me. They lack the intellect to understand the difference, as demonstrated here and elsewhere on social and other media. I hope every violent protestor is arrested and put in cells with January 6 detainees.

PS - interesting to recall on re-read that Roe was a bad case for the court to use to make the specific rulings it made. I am remembering that my Con Law prof raised hell about that more than the merits.

Blackmun had to ignore/explain away some usual SCOTUS procedural requirements to even address the merits. There was no Writ of Cert in Roe. And like the recent case about Trump’s e-mails, the merits were wrapped up in a mess about injunctive rulings and the difference between equitable relief and declaratory judgement rulings/relief. The majority decided one court-made rule was better than 50 state legislative rules, and grabbed Roe as the vehicle to rule.

Also there was a Jane Doe and husband that were found to lack standing because they only argued about MAYBE wanting an abortion IF they got pregnant in the future, Doe had actual medical conditions, and a better ”health of the mother” case than Roe, who just wanted an abortion as a birth control measure.

And, most surprising, a doctor with 2 criminal charges pending against him for performing abortions, was ruled to lack standing! He could not identify a protectable interest - the right to privacy that allowed a woman to seek an abortion did not protect that doctor from providing it!
(Rehnquist’s dissent addressed this - but poorly. He also argued that the record did not show which trimester Roe was the in, and thus her case was a bad vehicle for a case to address the privacy right.)

Ramble, not rant, over.

 

[Bulk VanderHuge]

He’s probably just matching Blackmun in Roe.

Blackmun discussed Ancient Greek and Roman attitudes toward abortion. Explained why the Hippocratic oath, which appeared to expressly forbid doctors from performing an abortion, did not really mean that. He discussed stuff from B.C. times, Blackstone, Coke, Bracton - all about “quickening” and viability. He also gave a long string cite as the explanation for the source of the right to privacy.

As a lawyer, I believe it is the objective PROCESS, not arguments over SUBJECTIVE “justice,” that provides equality and keeps us free. So I made a choice to NOT read the leaked opinion. Thus, I could be off beam About what it says.I will read the real opinion once it comes out. Until, I view the leak as an attack on democracy and will not support it in any way.

The Court’s job is to decide if a law violates the Constitution, not whether it is a good social policy. The partisan hate speech mobs and Vote Whores can bite me. They lack the intellect to understand the difference, as demonstrated here and elsewhere on social and other media. I hope every violent protestor is arrested and put in cells with January 6 detainees.

PS - interesting to recall on re-read that Roe was a bad case for the court to use to make the specific rulings it made. I am remembering that my Con Law prof raised hell about that more than the merits.

Blackmun had to ignore/explain away some usual SCOTUS procedural requirements to even address the merits. There was no Writ of Cert in Roe. And like the recent case about Trump’s e-mails, the merits were wrapped up in a mess about injunctive rulings and the difference between equitable relief and declaratory judgement rulings/relief. The majority decided one court-made rule was better than 50 state legislative rules, and grabbed Roe as the vehicle to rule.

Also there was a Jane Doe and husband that were found to lack standing because they only argued about MAYBE wanting an abortion IF they got pregnant in the future, Doe had actual medical conditions, and a better ”health of the mother” case than Roe, who just wanted an abortion as a birth control measure.

And, most surprising, a doctor with 2 criminal charges pending against him for performing abortions, was ruled to lack standing! He could not identify a protectable interest - the right to privacy that allowed a woman to seek an abortion did not protect that doctor from providing it!
(Rehnquist’s dissent addressed this - but poorly. He also argued that the record did not show which trimester Roe was the in, and thus her case was a bad vehicle for a case to address the privacy right.)

Ramble, not rant, over.

Interesting post...must be the pain meds.
How are you feeling today, btw?

 

[MyTeamIsOnTheFloor]

Interesting post...must be the pain meds.
How are you feeling today, btw?

I feel like a cog in the medical machine.

 

[outside shooter]

I cherish the Constitution and all it stands for. What's bat-shit crazy is this view that the infallible noble founders literally thought of everything, and that anything they didn't spell out in words, very specifically, has no Constitutional protection at all. Originalism is a stupid philosophy for many reasons, in part because the context of the time in which they were written. The founders didn't envision the Constitution being even relevant to non-whites or to women.

 

[mcmurtry66]

I cherish the Constitution and all it stands for. What's bat-shit crazy is this view that the infallible noble founders literally thought of everything, and that anything they didn't spell out in words, very specifically, has no Constitutional protection at all. Originalism is a stupid philosophy for many reasons, in part because the context of the time in which they were written. The founders didn't envision the Constitution being even relevant to non-whites or to women.

Disagree. I like it. I like it defaulting to states.

 

[outside shooter]

Disagree. I like it. I like it defaulting to states.

Should each state decide if you can build your own nuclear bomb? I don't see any mention of uranium in the Constitution, at all. Ditto for Plutonium.

 

[anon_6hv78pr714xta]

I cherish the Constitution and all it stands for. What's bat-shit crazy is this view that the infallible noble founders literally thought of everything, and that anything they didn't spell out in words, very specifically, has no Constitutional protection at all. Originalism is a stupid philosophy for many reasons, in part because the context of the time in which they were written. The founders didn't envision the Constitution being even relevant to non-whites or to women.

With all due respect, Shooter, this post is not accurate about what originalism is or what judges do or how they think on these issues. Even Elena Kagan said "We're all originalists now." I think what she was saying was that every serious justice and legal thinker accepts originalism as a legitimate interpretative method.

 

[IUCrazy2]

I cherish the Constitution and all it stands for. What's bat-shit crazy is this view that the infallible noble founders literally thought of everything, and that anything they didn't spell out in words, very specifically, has no Constitutional protection at all. Originalism is a stupid philosophy for many reasons, in part because the context of the time in which they were written. The founders didn't envision the Constitution being even relevant to non-whites or to women.

They did not say the constitution was an infallible ending point, in fact they built in a process to change it. That is something that has occurred several times in the almost 250 year history of the U.S.

It take more effort to do that then it sid to get at least 5 out of 9 people to side with you on something though. And forget an amendment, they could not get it past the legislative branch as a regular law.

The originalist position is that instead of the Supremes trying to find these rights or make these laws, we actually us the law creating branch to write law. What a concept.

 

[IUCrazy2]

Should each state decide if you can build your own nuclear bomb? I don't see any mention of uranium in the Constitution, at all. Ditto for Plutonium.

Dumb.

 

[Ladoga]

I cherish the Constitution and all it stands for. What's bat-shit crazy is this view that the infallible noble founders literally thought of everything, and that anything they didn't spell out in words, very specifically, has no Constitutional protection at all. Originalism is a stupid philosophy for many reasons, in part because the context of the time in which they were written. The founders didn't envision the Constitution being even relevant to non-whites or to women.

The Framers understood perfectly well that they had not thought of everything. Accordingly, they provided two methods for changing the Constitution right there in the body of the document itself. 1. Amendment via Congressional and state proposal and ratification and 2. By providing for a state initiated convention to amend, subject to ratification. Remember, however, that the document itself and amendments were subject to agreement by the states. If there was no agreement, there would be no ratified Constitution. So, the states, sitting in conventions determined whether or not to accept the document as binding on them. They didn't have to ratify. In fact, the Bill of Rights as presented to the states had 12 amendments of which 2 were not ratified. What was the states' basis for agreeing to be bound? What the words meant to the bodies determining ratification. They ratified only what the document meant to them, not some extra Constitutional flight of fancy. That was their deal. They ratified only the original plain and common meaning at the time of ratification and left in two methods of changing it if necessary. That is why original plain meaning is the only way appropriate to our Constitutional understanding and, coupled with two methods of amendment displays the brilliance of the Framers.

 

[mcmurtry66]

Should each state decide if you can build your own nuclear bomb? I don't see any mention of uranium in the Constitution, at all. Ditto for Plutonium.

Yawn

 

[iuwclurker]

I agree that Roe was a really good compromise that a well-functioning society would have enacted through the legislative process. But there is an issue there from a structural standpoint that I think the conservative justices are right about: the Court isn't supposed to be reaching such compromises. I'm more comfortable with unelected justices ruling on what the law IS, not what it SHOULD be and originalism has a lot going for it in its ability to limit judges own value preferences being the determining factor in their opinions.

I argue in Roe v. Wade the SC did not legislate anything and was originalist in their interpretation of the 14th amendment, an individual’s right to “liberty.”

What was the original purpose of declaring independence from the king, founding the United States and writing a constitution? Fundamentally it was to establish life, liberty and other basic rights for every individual in our nation. These basic rights should not be at the whim of 51% of the voting citizenry in individual states, they are universal for the American experiment. It is absolutely the role and duty of the Supreme Court to protect these rights for every American citizen.

 

[MyTeamIsOnTheFloor]

I argue in Roe v. Wade the SC did not legislate anything and was originalist in their interpretation of the 14th amendment, an individual’s right to “liberty.”

What was the original purpose of declaring independence from the king, founding the United States and writing a constitution? Fundamentally it was to establish life, liberty and other basic rights for every individual in our nation. These basic rights should not be at the whim of 51% of the voting citizenry in individual states, they are universal for the American experiment. It is absolutely the role and duty of the Supreme Court to protect these rights for every American citizen.

Instead of calling people “privileged Deplorable racist white supremacists,” Sotomayor and Pelosi and AOC oughta use your argument to persuade people.

Just a thought.

 

[anon_mya1phvcpf5x4]

A few response points (UTFO, I'm using your post because it finally sparked me to write down my thoughts so I hope you don't see this as antagonistic to you--sometimes I'm bad at making that clear in my writing, I think, and some people are personally hurt. I hope that's not the case here because this is obviously a very touchy topic for a lot of people):

1. "Deranged clinging to a 200 year old document?" If you are a lawyer, you took an oath to support the Constitution of the United States. So did they. I don't see that as "deranged." Your statement is antithetical to what a constitutional republic is based on. I think what you meant to say was that their clinging to an interpretative method that places too much emphasis on the values of people who died 200 years ago is deranged, but I don't want to put words in your mouth. Maybe you could explain?

2. I think what Alito said--or at least the conservative judicial theory judges' perspective on this--is different than your interpretation: they are saying abortion is a deeply moral question that should be decided in the legislature, not by 9 unelected justices, sitting on high. I view that position as the opposite of self-righteousness or piousness in terms of their legal arguments.

3. Regading the right's stance on whether a fetus is a life worth protecting from destruction, it need not be grounded in religion, but even if it is, I don't see that as a reason to reject their value judgment out of hand. (Many people believe Thou Shalt Not Murder because they believe their God said so, for example.)

My general position on this issue:

This is a profoundly difficult question to answer. Is it "unfair" that only one sex bears the brunt of the answer to the question? Yes. But in weighing unfairness, IF you believe the fetus is no different than a baby from a moral perspective, I understand why they think abortion in ALL CASES is an abomination.

I agree that Roe was a really good compromise that a well-functioning society would have enacted through the legislative process. But there is an issue there from a structural standpoint that I think the conservative justices are right about: the Court isn't supposed to be reaching such compromises. I'm more comfortable with unelected justices ruling on what the law IS, not what it SHOULD be and originalism has a lot going for it in its ability to limit judges own value preferences being the determining factor in their opinions.

I do admit, though, that maybe this should have been one of those cases where pragmatism dictates we turn a blind eye on this issue, just go with stare decisis (one of the reasons it exists, in fact, and why it is so very important in a healthy society), and let the issue lie. Sometimes being consistent in your legal theory could result in a disaster, like UTFO posits with the fragmenting of our society. Maybe it was good that the SCt took this issue off the table, even if technically in an illegitimate matter, because allowing debate on this issue will rip this country apart. I hope that's not the case but admit I have thought the same thing as UTFO on that point.

In regards to #2.

If the following 2 statements are correct

1) The judges think this is a moral question
2) The judges are aware of the situation where they are the only ones standing in the way of many states going full on anti-abortion (would be hard to imagine them not being aware)

They are effectively lettings states decide for women what is a moral question for themselves and their doctor.

 

[bawlmer]

I argue in Roe v. Wade the SC did not legislate anything and was originalist in their interpretation of the 14th amendment, an individual’s right to “liberty.”

What was the original purpose of declaring independence from the king, founding the United States and writing a constitution? Fundamentally it was to establish life, liberty and other basic rights for every individual in our nation. These basic rights should not be at the whim of 51% of the voting citizenry in individual states, they are universal for the American experiment. It is absolutely the role and duty of the Supreme Court to protect these rights for every American citizen.

But isn't the reason abortion ever landed before the SC because there are arguably 2 sets of individual rights (liberty and life) at odds with each other?

 

[HoosierJimbo89]

Disagree. I like it. I like it defaulting to states.

We already tried that. Like the other substantive due process cases, states can and have criminalized behavior or discriminated against groups that they feel are "immoral," like gay sex, gay marriage, interracial marriage, etc. I don't know if leaving it up to the states works when states are criminalizing or discriminating against people that really don't deserve it. As Brad stated above, sometimes it is ok for SCOTUS to take things off the table under certain circumstances like this.

 

[iuwclurker]

But isn't the reason abortion ever landed before the SC because there are arguably 2 sets of individual rights (liberty and life) at odds with each other?

Interesting point. Legislation that violates either or both rights are properly adjudicated by the Supreme Court.

When two rights are at odds the adjudication is all the more complicated and only the province of Congress and the states if they are attempting to amend the constitution.

 

[UncleMark]

But isn't the reason abortion ever landed before the SC because there are arguably 2 sets of individual rights (liberty and life) at odds with each other?

[Note IANAL]

I don't think so. The dispute is between the woman and her right to chose to terminate vs. the state interfering in that choice. It's a liberty vs. state interest dispute, not liberty vs. life. The state could claim an interest unrelated to the question of fetal life.

 

[Spartans9312]

Opinion | Overturning Roe Is a Radical, Not Conservative, Choice (Published 2022)

An abrupt and profound change to an established law is utterly destructive to respect for the law.

www.nytimes.com

"Roe v. Wade was an ill-judged decision when it was handed down."
But the author argues that overturning it 50 years later would be "a radical, not conservative, choice" because of the longstanding expectations it would upset.

 

[iuwclurker]

[Note IANAL]

I don't think so. The dispute is between the woman and her right to chose to terminate vs. the state interfering in that choice. It's a liberty vs. state interest dispute, not liberty vs. life. The state could claim an interest unrelated to the question of fetal life.

The Supreme Court evidently used compelling state interest to override the right to liberty to some degree in the second and third trimesters. Pro-life advocates argue that any abortion violates the right to life. The inherent conflict between the rights to life and liberty Bawlmer is pointing out is why this issue can never be unequivocally resolved.

 

[Joe_Hoopsier]

[Note IANAL]

I don't think so. The dispute is between the woman and her right to chose to terminate vs. the state interfering in that choice. It's a liberty vs. state interest dispute, not liberty vs. life. The state could claim an interest unrelated to the question of fetal life.

Is there a Con law pitch in dinner circuit in Highland Village that I have not been invited to? If so, is there also Bingo or just boring law stuff?
I think you are double wide elite, trying to advertise a single wide life style.

 

[iuwclurker]

Is there a Con law pitch in dinner circuit in Highland Village that I have not been invited to? If so, is there also Bingo or just boring law stuff?
I think you are double wide elite, trying to advertise a single wide life style.

That’s a level three insult couched in triple wide humor, my man.

 

[TheOriginalHappyGoat]

[Note IANAL]

I don't think so. The dispute is between the woman and her right to chose to terminate vs. the state interfering in that choice. It's a liberty vs. state interest dispute, not liberty vs. life. The state could claim an interest unrelated to the question of fetal life.

That is the dispute as envisioned by Roe. However, as I have continued to argue, this dispute only reflects the dispute that the pro-choice advocates are having. The pro-life advocates are engaged in an entirely different dispute, which is between a woman's right to choose and the right to life of the unborn. The fact that both sides aren't even engaged in the same argument is one reason this has been impossible to resolve.

 

[UncleMark]

That is the dispute as envisioned by Roe. However, as I have continued to argue, this dispute only reflects the dispute that the pro-choice advocates are having. The pro-life advocates are engaged in an entirely different dispute, which is between a woman's right to choose and the right to life of the unborn.

But legally, as argued in the courts, hasn't it always been liberty vs. state interest? Has the fetus itself ever been considered, from a legal standpoint (other than being the particular object of the states' concern)?

 

[TheOriginalHappyGoat]

But legally, as argued in the courts, hasn't it always been liberty vs. state interest? Has the fetus itself ever been considered, from a legal standpoint (other than being the particular object of the states' concern)?

Correct. The courts have consistently refused to take into account any interest of the fetus, and only consider the fetus in as far as the state has an interest in it.

 

[iuwclurker]

Correct. The courts have consistently refused to take into account any interest of the fetus, and only consider the fetus in as far as the state has an interest in it.

Ok. Interesting. Can you help me understand the legal difference between the interest of the viable fetus and the interest of the state in preserving the life of the fetus once viable?

What I’m getting is the Supreme Court doesn’t want to grant the fetus the status of having life and yet the supreme Court is willing to grant the state a compelling interest once the fetus is viable. So in the view of the Supreme Court what is the legal difference between having life and being viable? As simple as the difference between life and “almost” (potential/inevitable/incipient) life?

 

[CO. Hoosier]

But legally, as argued in the courts, hasn't it always been liberty vs. state interest? Has the fetus itself ever been considered, from a legal standpoint (other than being the particular object of the states' concern)?

yes. I explained this months ago. Do I need to explain it again?

 

[CO. Hoosier]

The founders didn't envision the Constitution being even relevant to non-whites or to women.

The 14th amendment gave us a new constitution in terms of individual rights. Your comment is a missed layup.

 

[TheOriginalHappyGoat]

Ok. Interesting. Can you help me understand the legal difference between the interest of the viable fetus and the interest of the state in preserving the life of the fetus once viable?

What I’m getting is the Supreme Court doesn’t want to grant the fetus the status of having life and yet the supreme Court is willing to grant the state a compelling interest once the fetus is viable. So in the view of the Supreme Court what is the legal difference between having life and being viable? As simple as the difference between life and “almost” (potential/inevitable/incipient) life?

The main consequence is that states have the authority to protect their own interests in the fetus, but are under no obligation to protect the fetus' own interests in itself, since such an interest doesn't legally exist. Under this regime, a state can, say, ban most abortions post-viability, but it is under no obligation to do so, and so it could also allow any abortion on demand for any reason up until the very last moments of the pregnancy.

 

[iuwclurker]

The main consequence is that states have the authority to protect their own interests in the fetus, but are under no obligation to protect the fetus' own interests in itself, since such an interest doesn't legally exist. Under this regime, a state can, say, ban most abortions post-viability, but it is under no obligation to do so, and so it could also allow any abortion on demand for any reason up until the very last moments of the pregnancy.

Thanks. So does that basically mean states can assert their interest in legislation beginning with the end of the first trimester without coming into conflict with Roe v. Wade?

 

[TheOriginalHappyGoat]

Thanks. So does that basically mean states can assert their interest in legislation beginning with the end of the first trimester without coming into conflict with Roe v. Wade?

Slightly more complicated than that, but that's a serviceable retail version for non-lawyers.

 

[CO. Hoosier]

Ok. Interesting. Can you help me understand the legal difference between the interest of the viable fetus and the interest of the state in preserving the life of the fetus once viable?

What I’m getting is the Supreme Court doesn’t want to grant the fetus the status of having life and yet the supreme Court is willing to grant the state a compelling interest once the fetus is viable. So in the view of the Supreme Court what is the legal difference between having life and being viable? As simple as the difference between life and “almost” (potential/inevitable/incipient) life?

That’s the problem with the whole issue. Trying to decide abortion based upon pre or post viability is a fools errand. Science tells us the fetus is life regardless of viability. The issue should be resolved on balancing the interests of the state in protecting life vs the right of women to control their own body. It’s a moral delima for sure, but the choice must be made by statute after a legislative process,, not by judges after a trial.

 

[TheOriginalHappyGoat]

That’s the problem with the whole issue. Trying to decide abortion based upon pre or post viability is a fools errand. Science tells us the fetus is life regardless of viability. The issue should be resolved on balancing the interests of the state in protecting life vs the right of women to control their own body. It’s a moral delima for sure, but the choice must be made by statute after a legislative process,, not by judges after a trial.

So states that settle on viability as the best place to locate that balance are fools?

Seems to me, balancing interests between states and citizens is kind of the court's thing. Not sure how you can jump straight from that to "should be determined by legislatures, not courts."

 

[iuwclurker]

the choice must be made by statute after a legislative process,, not by judges after a trial.

You don’t explain how you jumped to this conclusion. The due process clause of the 14th amendment protects an individual’s liberty. How is this not under the protection of the Supreme Court and how is it not something that should be valid for every American?

 

[iuwclurker]

Furthermore the due process clause protects an individual‘s right to life. So if you’re going to assert that science tells us that a fetus is life, then it seems it is up to the Supreme Court rather than any legislature to define when that fetus has a legal interest.