Blue Waves and Red Waves

[carpedm9587]

Lobotomies (at least of the "classic" variety), conversion therapy, pretty much anything involving organ trafficking, and fish pedicures come to mind.

In fact, it's worth noting that your contention--that states cannot ban medical procedures or treatments, and therefore cannot ban abortions--is not even in tune with Roe v Wade or any subsequent Supreme Court decision on the issue. ALL of those decisions allowed abortion prohibition in at least some circumstances.

In all those cases, the courts deferred to the medical community. Yes - there are procedures that are considered "illegal" (e.g., harvesting organs from a living host). Also any procedure that has been deemed "medically harmful" (e.g., lobotomies). Abortion is not such a procedure. It is obviously harmful to the fetus - but not to the woman. The woman's status as a "human being" is beyond dispute. The fetus' status is not. Hence my comments.

What right do you think Roe v Wade created? Of course I'm referring to abortion.

Umm.... you're going in circles. Abortion is a medical procedure. Roe vs. Wade recognized the right of the woman to make medical decisions about her own body. This is not an "invented" or "conjured" right. It is a right every human being in this country has, unless someone can show that the person does not have the capacity to exercise that right. Then the issue is where does that right devolve. If someone has designated a medical power of attorney, it devolves to that person. If they do not, things can get complicated quickly.

But a psychologically competent person always has primary say-so over their medical decisions, excepting only procedures that have been shown to be medically damaging (e.g., lobotomies).

[Terraceth]

In all those cases, the courts deferred to the medical community. Yes - there are procedures that are considered "illegal" (e.g., harvesting organs from a living host). Also any procedure that has been deemed "medically harmful" (e.g., lobotomies). Abortion is not such a procedure. It is obviously harmful to the fetus - but not to the woman. The woman's status as a "human being" is beyond dispute. The fetus' status is not. Hence my comments.

What do you mean the courts deferred to the medical community? Where did any court state this was the rationale for allowing such laws? No, those bans were allowed because states have the right to restrict or regulate medical procedures. Any "deference" to the medical community was not done by the courts, but by the state legislatures who enacted those laws, because there was not a constitutional question here, simply one of policy.

Umm.... you're going in circles. Abortion is a medical procedure. Roe vs. Wade recognized the right of the woman to make medical decisions about her own body. This is not an "invented" or "conjured" right. It is a right every human being in this country has, unless someone can show that the person does not have the capacity to exercise that right. Then the issue is where does that right devolve. If someone has designated a medical power of attorney, it devolves to that person. If they do not, things can get complicated quickly.

I'm not going around in circles. I'm pointing out that the rationale you offered for Roe v Wade is contradicted by the decision itself. By your rationale, abortion would be legal in all cases outside of those where the woman may not be mentally sound. This is a claim that every opinion (majority, concurring, dissent) in Roe v Wade disagrees with, and one that every successive Supreme Court justice who has weighed in on the subject disagrees with.

[carpedm9587]

What do you mean the courts deferred to the medical community? Where did any court state this was the rationale for allowing such laws? No, those bans were allowed because states have the right to restrict or regulate medical procedures. Any "deference" to the medical community was not done by the courts, but by the state legislatures who enacted those laws, because there was not a constitutional question here, simply one of policy.

States make laws, Terr. Courts determine their constitutionality. That is how the process of checks and balances works.

I'm not going around in circles. I'm pointing out that the rationale you offered for Roe v Wade is contradicted by the decision itself. By your rationale, abortion would be legal in all cases outside of those where the woman may not be mentally sound. This is a claim that every opinion (majority, concurring, dissent) in Roe v Wade disagrees with, and one that every successive Supreme Court justice who has weighed in on the subject disagrees with.

The decision, as I understand it, seeks to balance the rights of the women under the due process clause of the 14th Amendment with the rights of the child, generally arguing that the rights of the child are stronger the longer the pregnancy continues. In general, the "3rd trimester" mark has been widely adopted. The elusive "fetal viability" mark is generally what is aimed for. The decision reflects exactly what I've been saying: that abortion pits two fundamental rights against one another: life and liberty. It exists because of the unique case pregnancy presents of two lives being inextricably linked. There is no way to create a law or set of laws that will affirm both rights. It's simply not possible.

Ergo my statement - that this cannot be settled by legal action. The legal battle will rage on indefinitely. The only way to deal with the abortion issue is to address it BEFORE the need for an abortion - with social solutions. Change the culture around unwanted pregnancies, around birth control, and sex education. Change the support mechanisms for women who DO have unwanted pregnancies to make adoption a more desirable path than abortion. None of this is easy - but if we put our attention there instead of on the interminable legal battle, we might actually make some headway towards making abortions rare.

[Cow Poke]

States make laws, Terr. Courts determine their constitutionality. That is how the process of checks and balances works.

Actually, states and municipalities make laws, along with Congress. Some of the questions of constitutionality have to do with those distinctions.

[carpedm9587]

Actually, states and municipalities make laws, along with Congress. Some of the questions of constitutionality have to do with those distinctions.

Actually - I didn't say what I wanted to say. Wrote too fast. I meant to write "legislatures make laws." Not sure why it came out "states make laws."

[Cow Poke]

Actually - I didn't say what I wanted to say. Wrote too fast. I meant to write "legislatures make laws." Not sure why it came out "states make laws."

I really figured you were smarter than that, so I wasn't sure what you were getting at.

[Terraceth]

States make laws, Terr. Courts determine their constitutionality. That is how the process of checks and balances works.

You are misinterpreting my point. You made the claim that the banning of the procedures was only constitutional because the medical community's opinion on said procedures being harmful made such bans constitutional. I said that as far as I can tell the medical community's opinion on them was not particularly relevant to their constitutionality, and that the medical community's opinion was instead what made the legislature pass such laws to begin with. Can you cite a case that shows otherwise?

The decision, as I understand it, seeks to balance the rights of the women under the due process clause of the 14th Amendment with the rights of the child, generally arguing that the rights of the child are stronger the longer the pregnancy continues. In general, the "3rd trimester" mark has been widely adopted. The elusive "fetal viability" mark is generally what is aimed for. The decision reflects exactly what I've been saying: that abortion pits two fundamental rights against one another: life and liberty. It exists because of the unique case pregnancy presents of two lives being inextricably linked. There is no way to create a law or set of laws that will affirm both rights. It's simply not possible.

Well, no, you were claiming there was some kind of right to any given medical procedure unless the medical community deems it unsafe or the individual is not competent to make the decision, and that that was the basis for Roe v Wade. That was not the basis.

The basis for Roe v Wade was, to simplify it somewhat, that the prior Griswold v Connecticut had previously struck down bans on contraception on right to privacy grounds, and this was then expanded to encompass abortion in Roe v Wade. The legal problems with this rationale have been articulated much better than I could by others in various places, including Supreme Court dissents, so I shall not waste time repeating them.

But my overall point is not even on the rightness or wrongness of Roe v Wade--although I do hold it was wrong--but its disastrous effect on political discourse and dramatic increase of partisan interest on the Supreme Court, which has been a major impetus to our current situation with how partisan politics regarding it have become. Until the Court reverses course on the issue and leaves the matter up to legislatures, much like how the Court reversed course on the issue of contractual freedom in West Coast Hotel Co. v. Parrish and ended the Lochner era, the problem will persist and may in fact be exacerbated, not unlike how we saw a similar thing happening in the Lochner era with FDR's attempt to pack the court.

Granted, I'm not naive enough to believe that this would completely end the partisan interest in the Supreme Court, even in the specific area of abortion. But it would, at least, lessen it by redirecting the efforts to restrict or allow abortion to the state legislatures, much like how the end of the Lochner era returned the applicable issues to the legislatures and prompted FDR to end his attempt to pack the court.

Ergo my statement - that this cannot be settled by legal action. The legal battle will rage on indefinitely.

I in fact agree it cannot be settled by legal action, which is exactly why the Supreme Court should get out of the area entirely, by neither forbidding nor requiring restrictions on abortion. The current jurispudence on the subject absolutely is an attempt to settle it via legal action, but has only served to exacerbate the issue by forcing it to the national level of the Supreme Court.

[carpedm9587]

You are misinterpreting my point. You made the claim that the banning of the procedures was only constitutional because the medical community's opinion on said procedures being harmful made such bans constitutional. I said that as far as I can tell the medical community's opinion on them was not particularly relevant to their constitutionality, and that the medical community's opinion was instead what made the legislature pass such laws to begin with. Can you cite a case that shows otherwise?

The case itself, Terr. Discussions of when a fetus is viable is a medical discussion - and required input from the medical community.

Well, no, you were claiming there was some kind of right to any given medical procedure unless the medical community deems it unsafe or the individual is not competent to make the decision, and that that was the basis for Roe v Wade. That was not the basis.

I don't believe I said that was the "basis." My point was that courts take that position generally, for any subject that has to do with medical procedures: they defer to the rights of the individual to make medical decisions.

The basis for Roe v Wade was, to simplify it somewhat, that the prior Griswold v Connecticut had previously struck down bans on contraception on right to privacy grounds, and this was then expanded to encompass abortion in Roe v Wade. The legal problems with this rationale have been articulated much better than I could by others in various places, including Supreme Court dissents, so I shall not waste time repeating them.

But my overall point is not even on the rightness or wrongness of Roe v Wade--although I do hold it was wrong--but its disastrous effect on political discourse and dramatic increase of partisan interest on the Supreme Court, which has been a major impetus to our current situation with how partisan politics regarding it have become. Until the Court reverses course on the issue and leaves the matter up to legislatures, much like how the Court reversed course on the issue of contractual freedom in West Coast Hotel Co. v. Parrish and ended the Lochner era, the problem will persist and may in fact be exacerbated, not unlike how we saw a similar thing happening in the Lochner era with FDR's attempt to pack the court.

I emphasized the place where we disagree. Abortion issues are already left up to the legislatures. They make abortion laws all the time - and then the courts weigh in on their constitutionality. Because these laws will inevitably try to either favor the fetus with little attention to the mother, or the mother with little attention to the fetus, the courts continually step in to try to keep the balance. But the "balance" cannot be kept. Anything near a mid-point (e.g., 3rd trimester, fetus viability) will be "murdering children" to the right and "forcing medical decisions on women" to the left. Moderation is largely dead - and this issue pits two closely held value against one another. Hence my observation that legal battles will never settle the issue.

Granted, I'm not naive enough to believe that this would completely end the partisan interest in the Supreme Court, even in the specific area of abortion. But it would, at least, lessen it by redirecting the efforts to restrict or allow abortion to the state legislatures, much like how the end of the Lochner era returned the applicable issues to the legislatures and prompted FDR to end his attempt to pack the court.

I in fact agree it cannot be settled by legal action, which is exactly why the Supreme Court should get out of the area entirely, by neither forbidding nor requiring restrictions on abortion. The current jurispudence on the subject absolutely is an attempt to settle it via legal action, but has only served to exacerbate the issue by forcing it to the national level of the Supreme Court.

I would not go that far. The court's proper place is to continue to try to strike a balance. My observation was simply that a legal decision is not going to settle a social and moral problem. Social and moral problems need social and moral solutions. The legal solution is only a stop-gap at best. Sometimes it's necessary until society acts. In this case, society is barely acting.

[Roy]

Actually, states and municipalities make laws, along with Congress. Some of the questions of constitutionality have to do with those distinctions.

If only it was possible to determine whether a law was constitutional before it was passed, rather than having to wait up to decades until some-one adversely affected by that law challenges it in court...

[rogue06]

If only it was possible to determine whether a law was constitutional before it was passed, rather than having to wait up to decades until some-one adversely affected by that law challenges it in court...

Often a clue is when a principle sponsor frankly admits that it won't pass the muster but insists it needs to be done anyways

[Cow Poke]

If only it was possible to determine whether a law was constitutional before it was passed, rather than having to wait up to decades until some-one adversely affected by that law challenges it in court...

Oh, believe me, I agree!!!! I was "passed over" for a Sergeant position many years ago even though I scored 2nd on the test out of 11 applicants, and there were three positions open. I was a shoe-in!!! But, it was explained to me that it was necessary to promote "persons who would more appropriately represent the diversity profile of the department". The three sergeant positions went to a black, a Hispanic and a woman, none of whom scored in the top half on the test. The guy who scored #1 on the test sued the department (I was pretty much fed up and ready to leave anyway) and it was FIFTEEN YEARS before he won quite a nice settlement for reverse discrimination. His suit was joined by a couple of firefighters who had also been denied promotions, and one of those guys became independently wealthy with his settlement.

[carpedm9587]

I have been wondering what the impact of the Kavanaugh hearings would be on the pending "blue wave." It seems to me somewhat likely that the SCOTUS issue had the potential to galvanize the right in a way similar to what happened in 2016. It appears that may be happening. While there has been no significant change to the Senate or the Governor's races, there has been a recent shift to the house races with one solid/likely/leans Democrat slipping back to toss-up, and five districts slipping from toss-up to solid/likely/leans Republican. Currently, Dems still have the edge, and are leading in more toss-up districts than are Republicans, which is concerning for Republicans because most of the toss-up districts (34 of 36), are districts currently held by Republicans. If all of the solid/likely/leans Democrat actually go Democrat, the Dems only need 13 of the 36 seats to take the house.

But I believe the Kavanaugh issue may impact things further. If Kavanaugh IS NOT confirmed, I think it will rally the right and the "blue wave" will be substantially muted. If Kavanaugh IS confirmed, I suspect the right may go back to the lower level of engagement, but it will further rally the left (not to mention a LOT of women), enhancing the blue wave and possibly even creating an upset in the Senate. The story in the Senate is a closer one. Right now RCP gives Dems 44 solid/likely/leans seats and Reps 48 seats. That leaves 8 in toss-up. However, Dems have a slight lead in 6 of the 8 toss-ups, so if all of those seats go to the party with the edge, Dems will gain one seat and the Senate will be split 50/50. That leaves control in the hands of the Reps, but means they have to be 100% unified as a party for any of the strongly partisan issues (which seems to be a lot of them).

This is going to be a very interesting election cycle. If Dems were smart, they would stop obstructing the vote in the Senate and hope that Kavanaugh narrowly squeeks through. Yes, it means SCOTUS skews to the right. It also means that the house will likely skew to the left creating at least one group ready and willing (and able?) to stop Trump's worst inclinations, and set the stage for his defeat in 2020.

[Sparko]

Something else that might affect the next election. Teal brought this up on facebook: This election will be the first one where those who were born in the 21st century will be able to vote.

Generation Z. By most accounts GZ is a complete pendulum swing back from their liberal parents to a more conservative stance. Which could mean more chance of a red wave than a blue one.



--
Why Democrats Should Be Losing Sleep Over Generation Z

There has been much talk about the Millennial generation being entitled, lazy, and narcissistic. And while Millennials like myself were busy fending off the harsh criticisms and stereotypes constantly flung at our generation, a whole new demographic was slowly emerging from the shadows. Hello, Generation Z! The fiscally responsible, tattoo hating, Republican leaning group, touted by conservatives as their best hope for the future, and as the antithesis of Millennials.
...
According to research, Gen Z is more individualistic, more conservative both socially and fiscally, and they’re already making waves of impact on our political system. Gen Z, those born in 1995 or later, is possibly the most conservative generation since World War II, and it is worrying that their impact has been completely overlooked during this election.


https://www.forbes.com/sites/ashleys.../#76624b827878

[carpedm9587]

Something else that might affect the next election. Teal brought this up on facebook: This election will be the first one where those who were born in the 21st century will be able to vote.

Generation Z. By most accounts GZ is a complete pendulum swing back from their liberal parents to a more conservative stance. Which could mean more chance of a red wave than a blue one.



--
Why Democrats Should Be Losing Sleep Over Generation Z

There has been much talk about the Millennial generation being entitled, lazy, and narcissistic. And while Millennials like myself were busy fending off the harsh criticisms and stereotypes constantly flung at our generation, a whole new demographic was slowly emerging from the shadows. Hello, Generation Z! The fiscally responsible, tattoo hating, Republican leaning group, touted by conservatives as their best hope for the future, and as the antithesis of Millennials.
...
According to research, Gen Z is more individualistic, more conservative both socially and fiscally, and they’re already making waves of impact on our political system. Gen Z, those born in 1995 or later, is possibly the most conservative generation since World War II, and it is worrying that their impact has been completely overlooked during this election.


https://www.forbes.com/sites/ashleys.../#76624b827878

The New York Post agrees.

The Hill disagrees (mostly)

The Huffington Post splits the difference.

Best I can tell - we won't really know until they vote.

November 6th is going to be very interesting - and likely one of the most active midterms in modern history.

But I think it highly unlikely that we will see Republican gains. History tells us that an unpopular president with a skewed government (and all 3 branches in the hands of one party is definitely skewed), sees significant losses the vast majority of times. I see no reason to expect otherwise this time.

[Cow Poke]

The New York Post agrees.

The Hill disagrees (mostly)

The Huffington Post splits the difference.

Best I can tell - we won't really know until they vote.

November 6th is going to be very interesting - and likely one of the most active midterms in modern history.

But I think it highly unlikely that we will see Republican gains. History tells us that an unpopular president with a skewed government (and all 3 branches in the hands of one party is definitely skewed), sees significant losses the vast majority of times. I see no reason to expect otherwise this time.

Conventional wisdom said Trump could never win.