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  • Originally posted by Sam View Post
    You're arguing that no such obligation exists because they're "in government".
    No, I'm arguing that as an elected official, there are other considerations than just one's religious beliefs.
    Some may call me foolish, and some may call me odd
    But I'd rather be a fool in the eyes of man
    Than a fool in the eyes of God


    From "Fools Gold" by Petra

    Comment


    • Originally posted by Sam View Post
      Refusing to be gaslit, at least some of us know perfectly well the hell that would rain down as comments in this forum were the US government to announce that it would use taxpayer dollars to subsidize elective abortions in the country.
      And rightly so because

      1) Abortion is not per se a "religious" matter

      2) Abortion involves active, direct, intentional killing of an innocent, defenseless human

      3) Your scenario involves compelling some Americans to fund other Americans' desires to kill still other Americans solely for convenience.


      You are creating a totally false equivalency.

      The abdication of moral expectation from government representatives here was sudden, sectarian, and shameful.

      --Sam
      If anyone should be ashamed, it's you.
      Geislerminian Antinomian Kenotic Charispneumaticostal Gender Mutualist-Egalitarian.

      Beige Federalist.

      Nationalist Christian.

      "Everybody is somebody's heretic."

      Social Justice is usually the opposite of actual justice.

      Proud member of the this space left blank community.

      Would-be Grand Vizier of the Padishah Maxi-Super-Ultra-Hyper-Mega-MAGA King Trumpius Rex.

      Justice for Ashli Babbitt!

      Justice for Matthew Perna!

      Arrest Ray Epps and his Fed bosses!

      Comment


      • Enough with the "gay marriage" canard. I and many other Evangelicals are years past making that a big deal as far as public policy is concerned. I find it disgusting and anti-Christian, but those are not reasons to prohibit it by force of law. In the absence of solid secular objections to the practice, my only concern is that Christian ministers and churches be fully free to not perform or recognize such marriages.
        Geislerminian Antinomian Kenotic Charispneumaticostal Gender Mutualist-Egalitarian.

        Beige Federalist.

        Nationalist Christian.

        "Everybody is somebody's heretic."

        Social Justice is usually the opposite of actual justice.

        Proud member of the this space left blank community.

        Would-be Grand Vizier of the Padishah Maxi-Super-Ultra-Hyper-Mega-MAGA King Trumpius Rex.

        Justice for Ashli Babbitt!

        Justice for Matthew Perna!

        Arrest Ray Epps and his Fed bosses!

        Comment


        • Originally posted by NorrinRadd View Post
          And rightly so because

          1) Abortion is not per se a "religious" matter

          2) Abortion involves active, direct, intentional killing of an innocent, defenseless human

          3) Your scenario involves compelling some Americans to fund other Americans' desires to kill still other Americans solely for convenience.


          You are creating a totally false equivalency.



          If anyone should be ashamed, it's you.
          I'm not going to retread ground that's already been pretty much flattened because you didn't read or bother with the thread.

          --Sam
          "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

          Comment


          • Originally posted by NorrinRadd View Post
            Enough with the "gay marriage" canard. I and many other Evangelicals are years past making that a big deal as far as public policy is concerned. I find it disgusting and anti-Christian, but those are not reasons to prohibit it by force of law. In the absence of solid secular objections to the practice, my only concern is that Christian ministers and churches be fully free to not perform or recognize such marriages.
            Sorry but "Yes, that was a thing we did for a long time but now we're past it as of two years ago" isn't going to fly.

            --Sam
            "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

            Comment


            • The problem with the homosexual marriage issue is not that the government is permitting homosexuals to marry but that they are forcing people to honor it, even if it conflicts with their core values.
              Some may call me foolish, and some may call me odd
              But I'd rather be a fool in the eyes of man
              Than a fool in the eyes of God


              From "Fools Gold" by Petra

              Comment


              • Originally posted by Mountain Man View Post
                The problem with the homosexual marriage issue is not that the government is permitting homosexuals to marry but that they are forcing people to honor it, even if it conflicts with their core values.
                A problem you and numerous others here wanted solved for many, many years by the government refusing to recognize unions between same-sex partners as legal. And even after the government did, several of you argued that same-sex parents should be prevented from adopting kids.

                Again, not going to spend two seconds with this sort of gaslighting. We were all here, we were all involved in those discussions. And some of us sure do remember how an entire presidential campaign decided to use a constitutional amendment to prevent SSM as a voter turnout tool.

                Heck, we're not even a single presidential term removed from people arguing that a Muslim ban was not only acceptable but a good, even necessary idea.

                --Sam
                "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                Comment


                • Originally posted by Sam View Post
                  Again, not going to spend two seconds with this sort of gaslighting.
                  I don't think you have any idea what "gaslighting" is.
                  Some may call me foolish, and some may call me odd
                  But I'd rather be a fool in the eyes of man
                  Than a fool in the eyes of God


                  From "Fools Gold" by Petra

                  Comment


                  • Originally posted by Sam View Post
                    We disagree on the constitutionality of an abortion ban. We can argue about it, but you would have to acknowledge that I'm standing on the side of legal precedent.
                    If you want to count Roe v. Wade as precedent, perhaps. Problem is, Roe v. Wade didn't have precedent. They just made up a right out of nowhere, in the exact same way that the Supreme Court made up the "freedom of contract" in the Lochner era that caused them to strike down minimum wage laws for several decades until they realized that was an error and stopped doing so. Unfortunately, they haven't yet seen that light with Roe v. Wade even though its flaws are extremely similar. John Hart Ely goes into great detail with this in his critique of Roe v. Wade in "The Wages of Crying Wolf", published shortly after Roe v. Wade--please note that John Hart Ely was pro-choice, so one cannot claim he has some kind of bias here.

                    So to be consistent, I believe someone who believes Roe v. Wade was correct should agree that the government is constitutionally prohibited from passing laws regulating labor... so minimum wage laws, maximum hour work laws, and all the rest have to be struck down.

                    (For the record, this cuts the other way too--Rand Paul's goofy proclamations that the court decisions striking down minimum wage laws were actually decided correctly should cause him to accept Roe v. Wade as valid)

                    Originally posted by Bill the Cat View Post
                    So was Dredd Scott. Both were wrong. One has been fixed. The other remains.
                    I'm sure this is a controversial opinion, but I believe Dred Scott v. Sandford was actually a superior example of judicial reasoning. It was never technically overturned, it's just been rendered irrelevant by the 13th/14th Amendments.
                    Last edited by Terraceth; 09-08-2019, 08:34 PM.

                    Comment


                    • Originally posted by Terraceth View Post
                      If you want to count Roe v. Wade as precedent, perhaps. Problem is, Roe v. Wade didn't have precedent. They just made up a right out of nowhere, in the exact same way that the Supreme Court made up the "freedom of contract" in the Lochner era that caused them to strike down minimum wage laws for several decades until they realized that was an error and stopped doing so. Unfortunately, they haven't yet seen that light with Roe v. Wade even though its flaws are extremely similar. John Hart Ely goes into great detail with this in his critique of Roe v. Wade in "The Wages of Crying Wolf", published shortly after Roe v. Wade--please note that John Hart Ely was pro-choice, so one cannot claim he has some kind of bias here.

                      So to be consistent, I believe someone who believes Roe v. Wade was correct should agree that the government is constitutionally prohibited from passing laws regulating labor... so minimum wage laws, maximum hour work laws, and all the rest have to be struck down.

                      (For the record, this cuts the other way too--Rand Paul's goofy proclamations that the court decisions striking down minimum wage laws were actually decided correctly should cause him to accept Roe v. Wade as valid).
                      This misunderstands the nature of the majority ruling in -Roe-. A "right to privacy" was not created by SCOTUS -- the majority (Republican-appointed, I guess needs to be said) noted that the "this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial and sexual privacy" was already established in Supreme Court case law (numerous citations are included in the opinion). It also noted that total abortion bans were not, unlike homicide laws, found in "ancient or even common law origin". As such, the question of -Roe- was not about creating a right to protect abortions but deciding whether the State could criminalize an action with a law that (1) had no origin in common law or tradition and (2) seemed to infringe upon a right already established under precedent.

                      --Sam
                      "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                      Comment


                      • Originally posted by Mountain Man View Post
                        I don't think you have any idea what "gaslighting" is.
                        He knows what it is and you do it all the time to people you disagree with. And you get away with it because people that you might listen to never call you on it. Because for the most part honesty and truth play second or third fiddle to being able to claim some sort of victory in a debate on these pages.

                        Jim
                        My brethren, do not hold your faith in our glorious Lord Jesus Christ with an attitude of personal favoritism. James 2:1

                        If anyone thinks himself to be religious, and yet does not  bridle his tongue but deceives his own heart, this man’s religion is worthless James 1:26

                        This you know, my beloved brethren. But everyone must be quick to hear, slow to speak and slow to anger; James 1:19

                        Comment


                        • Originally posted by Sam View Post
                          This misunderstands the nature of the majority ruling in -Roe-. A "right to privacy" was not created by SCOTUS -- the majority (Republican-appointed, I guess needs to be said)
                          Who cares if it's Republican-appointed? This was before the Republicans took on a strong anti-abortion mentality. Prior to Roe v. Wade, support and opposition to abortion was split between the parties. Afterwards, the parties realigned around the issue, and this was a major reason for the polarization we experience in the government now.

                          noted that the "this right in the concept of personal 'liberty' embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial and sexual privacy" was already established in Supreme Court case law (numerous citations are included in the opinion).
                          Everything you just stated is addressed by John Hart Ely. I feel a bit awkward just giving an excerpt, even lengthy excerpts, as the full essay pulls it all together so well, but here's the most pertinent portion:

                          Thus it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. Those aspects of the First, Fourth and Fifth Amendments to which the Court refers all limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have. Katz v. United States, limiting governmental tapping of telephones, may not involve what the framers would have called a "search," but it plainly involves this general concern with privacy. Griswold is a long step, even a leap, beyond this, but at least the connection is discernible. Had it been a case that purported to discover in the Constitution a "right to contraception," it would have been Roe's strongest precedent. But the Court in Roe gives no evidence of so regarding it, and rightly not. Commentators tend to forget, though the Court plainly has not, that the Court in Griswold stressed that it was invalidating only that portion of the Connecticut law that proscribed the use, as opposed to the manufacture, sale, or other distribution of contraceptives. That distinction (which would be silly were the right to contraception being constitutionally enshrined) makes sense if the case is rationalized on the ground that the section of the law whose constitutionality was in issue was such that its enforcement would have been virtually impossible without the most outrageous sort of governmental prying into the privacy of the home. And this, indeed, is the theory on which the Court appeared rather explicitly to settle...

                          Thus even assuming (as the Court surely seemed to) that a state can constitutionally seek to minimize or eliminate the circulation and use of contraceptives, Connecticut had acted unconstitutionally by selecting a means, that is a direct ban on use, that would generate intolerably intrusive modes of data-gathering. No such rationalization is attempted by the Court in Roe-and understandably not, for whatever else may be involved, it is not a case about governmental snooping.

                          The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one's body. This theory holds, for me at any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother's own body is involved in a decision to have an abortion; a fetus may not be a "person in the whole sense," but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the "privacy" interest the Bill of Rights suggests...

                          Unfortunately, having thus rejected the amici's attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Apparently this conclusion is thought to derive from the passage that immediately follows it:

                          "The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved."

                          All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word "privacy" to mean the freedom to live one's life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a system of "government" virtually unrecognizable to us and only slightly more recognizable to our forefathers. The Court's observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.


                          Less directly involved with what you had to say, but still quite notable parts:

                          Of course a woman's freedom to choose an abortion is part of the "liberty" the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. But "due process" generally guarantees only that the inhibition be procedurally fair and that it have some "rational" connection-though plausible is probably a better word -with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it-a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-á-vis the interest that legislatively prevailed over it. And that, I believe-the predictable early reaction to Roe notwithstanding ("more of the same Warren-type activism")-is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.

                          Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York 8 into the 1930's the Court, frequently though not always under the rubric of "liberty of contract," employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures.


                          It may be, however-at least it is not the sort of claim one can disprove -that the "right to an abortion," or noneconomic rights generally, accord more closely with "this generation's idealization of America"" than the "rights" asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those "rights" that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart's concurrence admits, it is impossible candidly to regard Roe as the product of anything else. That alone should be enough to damn it.

                          Comment


                          • I don't think a strong dissent, or even rejection, of -Roe- on detailed legal grounds invalidates what I said. Someone might argue that SCOTUS invented a right to privacy in -Roe- or that it lacks precedent but -Roe- carefully addresses both these exact claims, if not to the sufficiency of dissenters.

                            So when I say to Bill the Cat or someone else that we can argue about -Roe- as a legal matter recognizing a constitutional right but I have precedent on my side of the argument, that's a true statement and one that is pretty well established.

                            -Casey-, for what it's worth, came after Republicans took a "strong anti-abortion mentality" and the majority of justices, all Republican-appointed, agreed that -Roe- should be upheld. The reason it matters is that it helps show that abortion and laws restricting it used to be considered a complicated and non-partisan thing to sort out, not an obvious good-vs-evil partisan battle.

                            --Sam

                            Originally posted by Terraceth View Post
                            Who cares if it's Republican-appointed? This was before the Republicans took on a strong anti-abortion mentality. Prior to Roe v. Wade, support and opposition to abortion was split between the parties. Afterwards, the parties realigned around the issue, and this was a major reason for the polarization we experience in the government now.

                            Everything you just stated is addressed by John Hart Ely. I feel a bit awkward just giving an excerpt, even lengthy excerpts, as the full essay pulls it all together so well, but here's the most pertinent portion:

                            Thus it seems to me entirely proper to infer a general right of privacy, so long as some care is taken in defining the sort of right the inference will support. Those aspects of the First, Fourth and Fifth Amendments to which the Court refers all limit the ways in which, and the circumstances under which, the government can go about gathering information about a person he would rather it did not have. Katz v. United States, limiting governmental tapping of telephones, may not involve what the framers would have called a "search," but it plainly involves this general concern with privacy. Griswold is a long step, even a leap, beyond this, but at least the connection is discernible. Had it been a case that purported to discover in the Constitution a "right to contraception," it would have been Roe's strongest precedent. But the Court in Roe gives no evidence of so regarding it, and rightly not. Commentators tend to forget, though the Court plainly has not, that the Court in Griswold stressed that it was invalidating only that portion of the Connecticut law that proscribed the use, as opposed to the manufacture, sale, or other distribution of contraceptives. That distinction (which would be silly were the right to contraception being constitutionally enshrined) makes sense if the case is rationalized on the ground that the section of the law whose constitutionality was in issue was such that its enforcement would have been virtually impossible without the most outrageous sort of governmental prying into the privacy of the home. And this, indeed, is the theory on which the Court appeared rather explicitly to settle...

                            Thus even assuming (as the Court surely seemed to) that a state can constitutionally seek to minimize or eliminate the circulation and use of contraceptives, Connecticut had acted unconstitutionally by selecting a means, that is a direct ban on use, that would generate intolerably intrusive modes of data-gathering. No such rationalization is attempted by the Court in Roe-and understandably not, for whatever else may be involved, it is not a case about governmental snooping.

                            The Court reports that some amici curiae argued for an unlimited right to do as one wishes with one's body. This theory holds, for me at any rate, much appeal. However, there would have been serious problems with its invocation in this case. In the first place, more than the mother's own body is involved in a decision to have an abortion; a fetus may not be a "person in the whole sense," but it is certainly not nothing. Second, it is difficult to find a basis for thinking that the theory was meant to be given constitutional sanction: Surely it is no part of the "privacy" interest the Bill of Rights suggests...

                            Unfortunately, having thus rejected the amici's attempt to define the bounds of the general constitutional right of which the right to an abortion is a part, on the theory that the general right described has little to do with privacy, the Court provides neither an alternative definition nor an account of why it thinks privacy is involved. It simply announces that the right to privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Apparently this conclusion is thought to derive from the passage that immediately follows it:

                            "The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved."

                            All of this is true and ought to be taken very seriously. But it has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests. I suppose there is nothing to prevent one from using the word "privacy" to mean the freedom to live one's life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. Our life styles are constantly limited, often seriously, by governmental regulation; and while many of us would prefer less direction, granting that desire the status of a preferred constitutional right would yield a system of "government" virtually unrecognizable to us and only slightly more recognizable to our forefathers. The Court's observations concerning the serious, life-shaping costs of having a child prove what might to the thoughtless have seemed unprovable: That even though a human life, or a potential human life, hangs in the balance, the moral dilemma abortion poses is so difficult as to be heartbreaking. What they fail to do is even begin to resolve that dilemma so far as our governmental system is concerned by associating either side of the balance with a value inferable from the Constitution.


                            Less directly involved with what you had to say, but still quite notable parts:

                            Of course a woman's freedom to choose an abortion is part of the "liberty" the Fourteenth Amendment says shall not be denied without due process of law, as indeed is anyone's freedom to do what he wants. But "due process" generally guarantees only that the inhibition be procedurally fair and that it have some "rational" connection-though plausible is probably a better word -with a permissible governmental goal. What is unusual about Roe is that the liberty involved is accorded a far more stringent protection, so stringent that a desire to preserve the fetus's existence is unable to overcome it-a protection more stringent, I think it fair to say, than that the present Court accords the freedom of the press explicitly guaranteed by the First Amendment. What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-á-vis the interest that legislatively prevailed over it. And that, I believe-the predictable early reaction to Roe notwithstanding ("more of the same Warren-type activism")-is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.

                            Not in the last thirty-five years at any rate. For, as the received learning has it, this sort of thing did happen before, repeatedly. From its 1905 decision in Lochner v. New York 8 into the 1930's the Court, frequently though not always under the rubric of "liberty of contract," employed the Due Process Clauses of the Fourteenth and Fifth Amendments to invalidate a good deal of legislation. According to the dissenters at the time and virtually all the commentators since, the Court had simply manufactured a constitutional right out of whole cloth and used it to superimpose its own view of wise social policy on those of the legislatures.


                            It may be, however-at least it is not the sort of claim one can disprove -that the "right to an abortion," or noneconomic rights generally, accord more closely with "this generation's idealization of America"" than the "rights" asserted in either Lochner or Dandridge. But that attitude, of course, is precisely the point of the Lochner philosophy, which would grant unusual protection to those "rights" that somehow seem most pressing, regardless of whether the Constitution suggests any special solicitude for them. The Constitution has little to say about contract, less about abortion, and those who would speculate about which the framers would have been more likely to protect may not be pleased with the answer. The Court continues to disavow the philosophy of Lochner. Yet as Justice Stewart's concurrence admits, it is impossible candidly to regard Roe as the product of anything else. That alone should be enough to damn it.
                            "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                            Comment


                            • Originally posted by Sam View Post
                              I don't think a strong dissent, or even rejection, of -Roe- on detailed legal grounds invalidates what I said. Someone might argue that SCOTUS invented a right to privacy in -Roe- or that it lacks precedent but -Roe- carefully addresses both these exact claims, if not to the sufficiency of dissenters.
                              And people who believe in either a flat Earth or geocentrism will address every single criticism you can throw at them. That doesn't mean they're right, or that their answers are good. Roe v. Wade's explanations are not good, as was very well explained by the pro-choice John Hart Ely.

                              -Casey-, for what it's worth, came after Republicans took a "strong anti-abortion mentality" and the majority of justices, all Republican-appointed, agreed that -Roe- should be upheld.
                              ...while restricting it noticeably. Roe v. Wade decreed that abortion restriction was practically impossible prior to the third trimester. Planned Parenthood v. Casey threw that out completely, set viability as the key deciding time, allowing for considerable restrictions afterwards but limited restrictions beforehand--but even those limited restrictions were disallowed by Roe v. Wade.

                              Planned Parenthood declined to fully overturn Roe v. Wade, as it should have, but let us not pretend that it didn't restrict it to a real degree.

                              Further, I would argue that only Souter and Kennedy, of those who kept Roe v. Wade around (albeit limiting it), were appointed after the Republican Party had really gone for being anti-abortion. O'Connor managed to sneak in just before it fully enveloped the party. That marks it as 50/50. But even beyond that, note that Souter and Kennedy (and O'Connor, for that matter) still signed onto Casey's restrictions on Roe v. Wade.


                              The reason it matters is that it helps show that abortion and laws restricting it used to be considered a complicated and non-partisan thing to sort out, not an obvious good-vs-evil partisan battle.
                              Too bad Roe v. Wade turned it into a good-vs-evil partisan battle. If not for Roe v. Wade, it would be left to the discretion of the states, much like the death penalty. There'd be strong emotions, certainly, but nothing like we see today. It would be an issue largely decided within its state, and would not be disrupting national politics. As Scalia correctly warned back in Planned Parenthood v. Casey:

                              Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

                              Roe`s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"—not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the states manlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortionumpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees.

                              Comment


                              • Originally posted by Terraceth View Post
                                And people who believe in either a flat Earth or geocentrism will address every single criticism you can throw at them. That doesn't mean they're right, or that their answers are good. Roe v. Wade's explanations are not good, as was very well explained by the pro-choice John Hart Ely.
                                I disagree that the deep and complicated constitutional questions inherent in -Roe- and -Casey- are on the level of flat-earth or geocentrism and, given that you linked to a detailed and nuanced legal analysis, I suggest you do, too.

                                I, like many others, disagree with Ely on the legal merits. Past that, it's not relevant to this thread. Bill the Cat accused me of supporting abortion. I don't. I support a constitutional right that the courts have agreed exists and I support reducing the rate of abortion, along with the rate and effect of social ills that flow from unwanted pregnancies.

                                If folks want to argue the constitutional merits of -Roe-, this isn't the thread. Anyone approaching -Roe- from that standpoint, I argue, is bound to agree that the government has the obligation to protect refugees -- fully-developed humans capable of suffering -- for the same reasons they would advocate that the government protect prenatal humans.

                                But arguing the constitutional merits of -Roe- is not for here.

                                Originally posted by Terraceth View Post
                                ...while restricting it noticeably. Roe v. Wade decreed that abortion restriction was practically impossible prior to the third trimester. Planned Parenthood v. Casey threw that out completely, set viability as the key deciding time, allowing for considerable restrictions afterwards but limited restrictions beforehand--but even those limited restrictions were disallowed by Roe v. Wade.

                                Planned Parenthood declined to fully overturn Roe v. Wade, as it should have, but let us not pretend that it didn't restrict it to a real degree.

                                Further, I would argue that only Souter and Kennedy, of those who kept Roe v. Wade around (albeit limiting it), were appointed after the Republican Party had really gone for being anti-abortion. O'Connor managed to sneak in just before it fully enveloped the party. That marks it as 50/50. But even beyond that, note that Souter and Kennedy (and O'Connor, for that matter) still signed onto Casey's restrictions on Roe v. Wade.
                                I disagree to the degree -Casey- restricted -Roe- but that's not a relevant detail if one believes that -Roe- was not only wrongly decided but plainly wrongly decided or for the argument that this was all before Republicans, as a bloc, had a "come to Jesus" moment regarding abortion. Nixon was pursuing an anti-abortion strategy in 1972! All the justices involved in upholding -Roe- were appointed from Nixon onward.


                                Originally posted by Terraceth View Post
                                Too bad Roe v. Wade turned it into a good-vs-evil partisan battle. If not for Roe v. Wade, it would be left to the discretion of the states, much like the death penalty. There'd be strong emotions, certainly, but nothing like we see today. It would be an issue largely decided within its state, and would not be disrupting national politics. As Scalia correctly warned back in Planned Parenthood v. Casey:

                                Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

                                Roe`s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"—not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the states manlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortionumpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees.
                                I'm ambivalent as to the practical effect of -Roe- as a national ultimatum. But I don't think either side of the debate (at least among the ardent folk) can carve out a scenario where it's anything but: if a constitutional right, then it's a national ultimatum. If fetal life is to be protected the same as others and considered a full legal person, then it's a national ban.

                                The middle ground requires a more nuanced approach to "potential life" or some other middle-point between conception and legal personhood.

                                --Sam
                                "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

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