Abortion rights stem from the right to privacy that the supreme court found in the "penumbra" of the Constitution over a century of cases.

The first indication of this came in two decisions in the 1920s, which extrapolated from the 14th Amendment a right to privacy regarding marriage, procreation, medical treatment, and decisions on how to rear children. Those precedents remained in place through the 1960s, when the Supremes decided in Griswold that the right to privacy meant that states could not prohibit the use of contraceptives by married couples because what happens in a marriage should stay in that marriage. It soon followed that the government may not constitutionally prohibit sodomy--including oral sex--behind closed doors, and then in separate cases that the right to privacy encompassed homosexual behavior and interracial marriage. That's the background to Roe and Casey, the two cases that established and confirmed that a woman's right to choose existed within the ambit of the right to privacy.

The problem with Alito's draft decision--aside from the fact that it eviscerates stare decisis in a manner that would permit courts to invalidate any established rule they want--is that all of the aforementioned rights are on the same branch of constitutional law: none are explicitly stated in the constitution, all arise from the implications of the 14th Amendment. If Roe is wrong, so are the others.

Where does that leave us? If the Court adopts Alito's proposal, everything under the umbrella of personal privacy/autonomy is now up for grabs. This court, or some other, can decide that states may prohibit gay marriage, interracial marriage, oral sex in and out of marriage, and the use of contraceptives. Future courts could even intrude on the privacy rights granted by the Supremes in the 1920s, including the sanctity of marriage and the right of the individual to make her own medical decisions.

It's astounding that Alito would endorse that logic, for it suggests that a vast range of personal freedoms are no longer secure. Roberts reportedly would have supported a reduction in the scope for personal choice from six months to 15 weeks, which would have been compatible with the (flawed) logic in Roe that viability should be the standard. Regardless of how objectionable that policy might be, it could have been accommodated within the system of precedents. What the court appears to be preparing to do with the Alito decision, by contrast, is about as radical as a judicial decision could imaginably be.

Spencer Kimball would be pleased.

Thank you.

You're welcome, sls.

Such a brazen attack on individual rights suggests that the judiciary is no longer an independent branch of government.

Such are the waning days of empire.

Thank you for this explanation. I was wondering how all of these things are interrelated.

Abortion is a sorrowful thing. But, I don’t think anyone is arguing that.

Kathleen Wrote:
-------------------------------------------------------
> Abortion is a sorrowful thing. But, I don’t
> think anyone is arguing that.

Big huge great pertinent point.

Thanks, Nighty,

I understand it’s a woman’s right, yet . . . so violent.

I share your feelings. I have never been, and never will be, involved in an abortion in any way. But that determination ends with the boundaries of my personal autonomy.

+ me.


I also believe that a disproportionate number of women, especially younger ones, are railroaded.
Their rights were trampled, too.

Yes.

And what happens to the girl who is raped or the victim of incest when she's twelve? Is she to rear a baby born of such evil? Can she provide the love and attention and money that every baby needs and deserves?

No, she can’t and shouldn’t have to.

One of the most shocking things to me as an urban teacher was in seeing middle school girls getting pregnant.

I'm glad you believe that even though you would never get abortion, you wouldn't take the rights away from others.

I have personally had an abortion. It was not something I thought I would ever have to do, but when I was in the situation, it was my only choice other than suicide (that's how I felt at the time). Nearly a decade after it happened, I still have no regrets and would still make the same choice even now.

I can't imagine how heartbreaking it would be for the young girl, or a woman who was raped be forced to carry a rape pregnancy. Or not allow a girl or woman whose life is in danger to have an abortion. That's one of the cruelest things that could happen to a person. It blows my mind that people don't see anything wrong with that.

I agree completely.

I add simply that the purpose of privacy, of a zone of autonomy, is precisely to protect you from my values and me from yours. Without that autonomy, we cease to be human in anything but an anatomical sense.

I am sorry that you, like so very many of us, were faced with such a difficult decision and I am glad that you did not take the other alternative that you saw available. I hope your life since then has been everything you wanted.

So why the leak? Does somebody need a distraction? They picked a good one if they needed one.

I wonder the same thing —-with world war on the horizon, why this now ?

And where do you draw the line when it comes to abortion? Is the widely available morning after pill off the table as well? How about IUDs, since it is thought that they prevent implantation of the fetus?

Well, the foundation for Roe is Griswald, and Griswald's holding was that the government cannot prohibit contraception. Both are founded on a right to privacy that the Alito draft would invalidate.

So yes, contraception is in play.

Also, if the right to privacy/bodily autonomy is in play, that might raise a whole host of implications from mandatory vaccinations (no more religious exemptions,) to forming a national DNA database, etc. Where does the loss of bodily autonomy stop?

Religious and philosophical exemptions are already optional. There is nothing in law that requires a religious exemption from vaccination mandates.

California had such an exemption that included measles, until a few years ago when measles outbreaks started happening in CA due to pockets of the population falling below herd immunity levels, at which point they dropped the religious exemption for measles. Now the only exemption is medical inability to tolerate the vaccination.

When the states go after birth control, the Incels are going to be even more frustrated.

Women should be ready to run a title search on the estate (parents' assets) and a credit bureau before dating.

I doubt the premise for the OPs
description of what might occur from Alitos majority opinion will occur.

Of course you do.

A Christo-fascist decision by Christo-fascists. Who'd a thunk it? Up next... interracial marriage, contraception, and women in the workplace. Welcome to the age of Orwell.


HH =)

We're descending into seventeenth century style ignorance, fear, superstition, and hate.



Edited 1 time(s). Last edit at 05/04/2022 09:29AM by anybody.

I know its complicated, but is there any merit in the idea that Roe was always a highly imperfect basis for Federal confirmation of abortion rights? Is there any chance that democratic process will lead to a stronger legal basis for these rights, essentially via the states?

In Australia, abortion rights are legally state matters. It is legal in all states with strong public support, with some differences only in the treatment of late abortions. Federal government or courts have no jurisdiction, though abortion procedures are part-funded by the national health insurance scheme.

We have a federal election in a couple of weeks. Abortion rights are not even remotely on the radar. Federal issues are fairly closely prescribed under our Constitution and rarely require debate on moral issues. Climate change and energy policy is probably the biggest election issue this year, along with national security in a changing world.

It would be great if the US could consolidate abortion rights over time through democratic process, even state by state, so that there was no need for the Supreme Court to try to decide if abortion is Constitutional (a very foolish thing for a politicised 21st Century court to have to decide on).

I also think it will fall to the states. Unfortunately in the U.S., we have far too many religious whack-a-doodles. I don't know what the final count will be, but I'm guessing maybe half of our states will vote to outlaw abortion.

oldpobot Wrote:
-------------------------------------------------------
> I know its complicated, but is there any merit in
> the idea that Roe was always a highly imperfect
> basis for Federal confirmation of abortion rights?
> Is there any chance that democratic process will
> lead to a stronger legal basis for these rights,
> essentially via the states?
>
> In Australia, abortion rights are legally state
> matters. It is legal in all states with strong
> public support, with some differences only in the
> treatment of late abortions. Federal government or
> courts have no jurisdiction, though abortion
> procedures are part-funded by the national health
> insurance scheme.
>
> We have a federal election in a couple of weeks.
> Abortion rights are not even remotely on the
> radar. Federal issues are fairly closely
> prescribed under our Constitution and rarely
> require debate on moral issues. Climate change
> and energy policy is probably the biggest election
> issue this year, along with national security in a
> changing world.
>
> It would be great if the US could consolidate
> abortion rights over time through democratic
> process, even state by state, so that there was no
> need for the Supreme Court to try to decide if
> abortion is Constitutional (a very foolish thing
> for a politicised 21st Century court to have to
> decide on).

Actually, there is no merit to this idea -- because Roe does not establish *federal* rights to an abortion -- but *individual* rights to privacy -- especially with one's doctor --so there is no merit to the idea that Roe is a case of federal v. states power. That was always a red herring of an argument. You fell for it? Roe gives power to the individual v. the government -- whether local, state, or federal.

You are welcome to wonder why all those "gument"-hating, freedom-loving dudes are always bitching about Roe. Individual rights are fine? Just as long as the individual
has the proper equipment to hold the priesthood?

As for trusting to the democratic process -- that is a failure to grasp the very nature of rights. To look at another case of rights, how about if we just trust to the "democratic process" to guarantee the rights of people of color? Let's let the states just hash that out -- because it isn't as though there are states with strong racist heritages that would skew the process, right? It will just produce a stronger union is we just let the Klan run wild after all. The very nature of rights is to protect the minority from the tyranny possible in majority rule.The point of rights is that you can be the only Jew in Nevada, but you are still protected and the other point is that the protection won't change with every or any election.

Australia is all well and good, but so far in the U.S. we have rapists holding power over their victims' fates, not to mention bounties offered for turning women in. In Texas a guy can rape a woman -- and then collect a reward for turning her in if she seeks an abortion. Whoopee. Democracy at work. Nuanced. Here's the states hammering out a brilliant response to the abortion dilemma. Maybe you should read the actual laws that are being proposed before you advocate too enthusiastically for states' control.

You know what is "nuanced"? Individual women making up their own minds. Consulting their own consciences. Consulting their own doctors. Consulting their own families. Consulting their own beliefs about the beginning of life, about right and wrong. THAT is nuanced.That is Roe.

P.S. Just one more correction. Late term abortion are controlled by the states under Roe -- so that won't change.

Beware the "pro-life" Kool-Aid.



Edited 1 time(s). Last edit at 05/04/2022 06:15PM by janeeliot.

I do not believe states should have the right to decide. Abortion should be legally across the board and controlled by the federal government.

The reason for this is because the states where you have more christian religiously people and conservatives will make abortion illegal, causing women who don't have access to abortion in their state and cannot afford to go to another state to either have an unsafe abortion, be forced to carry a pregnancy and have a child, or the worst option, decide suicide is their only way out.

Why people care more about a fetus that can't even live outside the womb on its own than a woman who has a complete life, has lived many years on their own, has many friends and family who loves them, is completely beyond me. Its inhumane.

The difference here is in the religious and racial makeups of the two countries. While the U.S. constitution wasn't written by Christian fundamentalists, these people were very much around--the colonies of Massachusetts and Rhode Island were founded by these people.

And then there is the issue of race. The U.S. has a long history of treating its minorities and women as second-class citizens (in fact, women were considered property under English common law). It is now estimated that by 2040, if not earlier, a majority of U.S. citizens will no longer be white, and a lot of U.S. Caucasians are very scared of the possible consequences of that.

Compare and contrast that with Australian history (I read a book on it in grade school but that's it). Religious Puritanism did not take off in Australia in the way it did in both the Brittish colonies and after the U.S. was formed. And, while Australia does have its racial problems with its own aboriginal population (as well as its use of Christmas Island to keep Asian minorities out), there is no short-term prediction that the Caucasians who make up the Australian leadership will lose their majority status any time soon.

The result is that Australia, as you say, can get away with its individual provinces (I don't believe they are called states over there) making up the rules for abortion and a number of other issues.

Hi BG

Your grade school book was pretty accurate. We have no Puritanical background, in fact European society was founded by convicts and their guards. We do have our racist white nationalist elements but are quite multi-cultural - large scale post-war European migration, followed by Vietnamese and then Hong Kong Chinese, among others.

This has never been a factor in abortion debates, which are usually based on low level Christian viewpoints. Religion is dying out here, so even less relevant to abortion debates in future.

Note - we do have states, NZ has provinces I think, and maybe Canada?

Maybe off topic, but I wondered what you thought of the following, LW?

SCOTUS is the opposite of what it is supposed to be. It is now political. And not fixable. Not as long as presidents and which ever political party is in power can carefully select the new judge who aligns with their agenda and stack the court. Judges are not selected for their expertise but for the expectation that they will vote along party lines, party agendas.

If SCOTUS was truly unbiased legal interpretation as they are supposed to be they would agree completely all the time. This is the biggest flaw in our system.

LOL. I could list a half dozen "biggest flaws in our system,"

But yeah, pretty sure this one would make the list.

I do not believe that nine completely independent justices would agree all the time. Medical Doctors don't agree all the time. Physicists don't agree all the time. BoJ's various personalities don't agree all the time.

What I would say the greatest flaw in the US system is, is the breakdown of respect for the institutions of republican government. The Supreme Court worked as long as presidents senators, political parties, and candidates for judgeships saw loyalty to the constitution and the judiciary as a superior and prior moral responsibility.

It is the abdication of that moral integrity that has resulted in disgruntled politicians encouraging political coups and rogue justices suddenly overturning not just the right to choose but additionally a whole raft of other personal rights. The US system simply does not work when leaders no longer feel loyalty to that system.

So true. I felt sick when Brett Kavanaugh was appointed to the Supreme Court. He is a right-wing Trump appointee who will dance to whatever tune the puppetmaster whistles.

I was worried about John Roberts at first, but he has proven himself capable of reasonable legal decisions.

Wife and I were in Ireland in 2018 and leaving to go back home to the US as the vote was taking place to repeal abortion. We were anxious to read the news when we returned home.

"The Republic of Ireland has voted overwhelmingly to overturn the abortion ban by 66.4% to 33.6%. A referendum resulted in a landslide win for the repeal side."

This was a complete repudiation of the abortion ban in Ireland and by extension, a repudiation of the Catholic Church. The 66/33 ratio was a surprisingly large plurality. The fear was that the vote would be close. I believe the Irish grew tired of all the controversies of the Catholic clergy and voted to remove the church's tight control over society. Many women had to fly to Britain to obtain abortions. In the US we are giving control to the Evangelicals and other religious zealots. It is disappointing. I try to tell my Evangelical acquaintances that when religion ruled the Western world, we had the dark ages. Lets not go back to that awful period of time. Ireland got it right - Let women decide for themselves.

Yes, I'm with you on that. The U.S. is under the control of religious nutters.

Yes Eric, the turnaround in Ireland was stunningly quick. Mind you, Irish life under the control of the Catholic Church was dismal. Father Ted helped with the great awakening...

The money was just resting in my account.

This right to privacy is said only once by the founding fathers unless I'm mistaken, and it was a protection against being forced to harbor people from the army in your home. Which has happened quite frequently, even in the 20 th century there are stories of the mexican army fighting pancho villa and the bandits in Northern Mexico and regular families had to harbor soldiers who ate everything in sight, all the cows had to be slaughtered. Lots of mormons were forced to flee the colonies down south.

But what does that have to do with abortion? Saying that this hangs on right to privacy is like saying the south should be allowed to have slaves because of right to privacy ... Do we really want to go down this rabbit hole?

Roe v wade was bad when initiated and is bad now. Even ordinary democrats have reservations and disagreements about it.

Wow Maca. What happened to "My body, my choice"? Oh that's right, it is only when it is YOUR body and YOUR choice that it matters. And you are obviously not even getting the legal point being made. The Constitution didn't say anything about slavery till 1865, so maybe we need to revisit that too.



Edited 1 time(s). Last edit at 05/04/2022 11:29PM by Susan I/S.

Abortion (within reasonable limits) is a private medical decision between a woman and her medical providers. The question is, do *you* really want to go down that rabbit hole, Maca?

Maca likes hunting rabbits.

You really are not a bright man.

For anyone struggling with the history of the right to privacy, here ya' go -- the best book on the topic -- by the guy who has argued the most successful cases before the Supreme Court -- so he actually gets -- like -- Constitutional law -- and stuff like that.


https://www.amazon.com/Abortion-Absolutes-Laurence-H-Tribe/dp/0393309568/ref=sr_1_1?crid=3ITJ1NY6VY3CI&keywords=abortion+the+clash+of+absolutes&qid=1651804445&s=books&sprefix=abortion+the+clash+of+absolutes%2Cstripbooks%2C167&sr=1-1


Hint -- NOT related to having troops in your home! But that's a thought! Maybe! (Or not so much.)

It is related to a right to conscience (your own, not the Mormon Church's, not the state of Utah's, not the Mormon Church's as pressed on you by the state of Utah which is politically controlled by the Mormons).

I would have thought that idea would be popular here -- but what do I know. It's -- erm -- something to hear the arguments for Mike Lee being able to turn his beliefs into law. Who knew that was what this board was about.

I'm teasing. I knew that.

That right to conscience from Casey v. Planned Parenthood, which upheld Roe.

"Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U. S., at 685. Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, supra, at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. *At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.*"

I love that part -- At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

Those of you who don't believe you have to right to define your own concept of existence, of meaning, of the universe, of the mystery of human life -- no offense -- but *why are you here*?

Tribe is excellent on this and most legal topics. Unlike Maca, he even knows the differences between the Third Amendment and the Fifth Amendment; and between the meaning of "private" when applied as an adjective to "property" and when used as a noun, "privacy."

The question is: why would any government want to "eliminate" this stuff? Mad Marge's rant in front of AOC's office door gives the answer -- religious nutcase fundies think "Sky Daddy" will punish them collectively for what they think is "sin," and that gives them the excuse they need to punish other people.

https://www.independent.co.uk/tv/news/resurfaced-video-shows-marjorie-taylor-greene-harassing-aoc-s-office-in-2019-v0b7324a1

Alito, Coney Barrett, Kavanaugh, Gorsuch, and Thomas all lied at their confirmation hearings, but to them, it doesn't matter because they were "lying for the lord" to help bring about "God's kingdom on Earth" -- i.e. white Christian nationalist rule.

https://prospect.org/justice/end-of-the-right-to-privacy-roe-v-wade/

No one who’s been paying attention should be surprised that the Supreme Court is poised to overturn constitutional protections for women’s right to decide for themselves whether to carry a fetus, and to turn the decision over instead to state politicians. Still, intellectual expectations are one thing and reality is another.

The leaked opinion written by Justice Samuel Alito will endanger the lives of women, many of them Black and brown, who can’t afford to go to other states to seek an abortion and instead will go down the hazardous route of back-alley or self-abortions. In half the country, emergency rooms will fill up with the women who are the Supreme Court’s true victims.

But it gets even worse. This is, to the best of my knowledge, the first time in history that the Supreme Court will have taken away an existing constitutional right. The legal logic of Alito’s opinion threatens all constitutional protections of privacy rights, including Supreme Court precedents on the right to use contraception, and for LGBTQ or interracial couples to marry, and even for consenting adults to have same-sex intercourse.

Marijuana is still illegal. Abortions still are legal.

I wondered where big pharma is on both. Seems they like to invade every medical aspect of human life.

Right of Privacy? You got to be dreaming.

If you think you have the right of privacy, you gave it up as soon as you got a cell phone, an internet profile, a doctor's visit, a bank account, a credit/bank card, a utility service, Alexa, Ring, bought a Bitcoin. The list can go on forever.

Everything you do electronically is being tracked by big business, big pharma, the government etc.

If you know anything about crypto currency, you know that every transaction you make with it is being tracked by blockchain technology.

That means every action and transaction you make is traceable.

The same type of tracking goes on thru the internet, banks, etc.

At the start of the COVID pandemic, Google maps had an update that would follow you and would tell you if you came in contact with someone that was Covid positive.

Some people complained about the privacy issue and you were given instructions on how to turn off the tracking.

You're dreaming, why is it that when you show some interest in a product or some scientific topic, you start getting pop-up adds every time you log into the internet on those subjects?

Electronic medical records were started to give doctors the opportunity see a person's medical history completely, not just the visit at this one office. It was meant to stop people going from doctor to doctor with the same symptoms so they could get multiple prescriptions for the same opioids. Even the drug stores knows what other meds you are getting somewhere else.

Right of privacy is a joke, you gave it up years ago.

Yes, and Freedom of the Press means that Americans get their laundry done for free.

And Freedom of Association means Columbia Records cannot charge for an obscure rock group's LPs.

As I said above, we are talking about the zone of privacy within which the government may not interfere with individual decision. Call it personal autonomy if you will.

Lot's Wife Wrote:
-------------------------------------------------------
> Yes, and Freedom of the Press means that Americans
> get their laundry done for free.
>
> And Freedom of Association means Columbia Records
> cannot charge for an obscure rock group's LPs.
>
> As I said above, we are talking about the zone of
> privacy within which the government may not
> interfere with individual decision. Call it
> personal autonomy if you will.


:)

And I have noticed how the ranters have given up their right to privacy -- or rather their non-existent right to privacy. That's why they invite the bishop to their doctor's exams -- so he can find out if they are living the Word of Wisdom. That's why they invite the Christian Scientists to their consultations about surgery options. That's why they invite the Amish to shop for cars with them.

Oh. Wait.

Your medical records are accessible by the insurance companies through the Medical Information Bureau. It's a medical/insurance version of a credit bureau. Everything.

When I saw Hope Solo's butthole on the internet, I knew privacy was dead.

I appreciate the irony of the justices being harassed in their own homes by protesters without a single cop in riot gear trying to stop it. It wasn't long ago that there would have been tear gas and water cannons.

I find it hilarious that all concerned are afraid of a group of...wait for it...women. I never knew that we have such power to instill fear.

And there are plenty of police about. No worries, Bradley. Law and order are being maintained.

They do have their wives to answer to.