Should Roe v. Wade be overturned?

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Should Roe v. Wade be overturned?

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Post by historia »

More precisely: Should the current Supreme Court precedent on abortion -- first established by Roe v. Wade, but later modified by Planned Parenthood v. Casey -- be overturned?

My question here is not so much whether abortion should be legal or not, since overturning Roe would not, in itself, make abortion illegal, with several states having laws that explicitly allow for abortions.

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Re: Should Roe v. Wade be overturned?

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Post by historia »

Miles wrote: Sat Sep 25, 2021 5:09 pm
historia wrote: Sat Sep 25, 2021 3:43 pm
Miles wrote: Thu Sep 23, 2021 5:31 pm
So, where does the buck stop?
So, in a democracy, the buck stops with the People.
Actually, we're a republic, not a true democracy; some call it a "democratic republic."

. . . .

This may be splitting hairs here, but I believe it's necessary to not assume our laws are made by popular vote. Making laws is the job of our legislatures.
This is definitely splitting hairs. Especially when not even two sentences later I said precisely the same thing: that laws are passed though our elected officials! I appreciate the impulse to be precise, but this is just unnecessary noise in our conversation.

Let me return the favor, though:
Miles wrote: Sat Sep 25, 2021 5:09 pm
historia wrote: Sat Sep 25, 2021 3:43 pm
Right now, there are 66 countries where abortion is, to varying degrees, legal. In the vast majority of those, they made abortion legal simply by passing a law through the normal legislative process. In a few, like Ireland, they held a referendum to decide.

From my point of view, either of those approaches is better.
In which case here in the USA Roe v. Wade would prevail. 2019 graphic.
I think what you mean to say here is not that Roe v. Wade would prevail, but rather that legalized abortion would prevail. So let's attach your point to more relevant numbers, from Pew:
Pew wrote:
Currently, 59% say abortion should be legal in all or most cases, while 39% say it should be illegal in all or most cases.
Okay, so, if you support liberal abortion laws and think the people are behind you, why continue to defend and uphold a controversial and tenuous court ruling like Roe v. Wade? Just pass the abortion laws you want to see enacted through the normal legislative process.

Continuing to defend Roe has political repercussion, which Benjamin Wittes has articulated well in his piece in the Atlantic, "Letting Go of Roe."
Miles wrote: Sat Sep 25, 2021 5:09 pm
historia wrote: Sat Sep 25, 2021 3:43 pm
The problem with investing the Supreme Court with making these decisions is three-fold:

(1) As already mentioned above, this is not its intended role,
It fulfilled its intended role by considering the legality of a law. A Texas law.
It appears you may have lost the thread of our discussion. The "role" I'm referring to here is the Court deciding questions like when life begins, which we both agreed was not part of its intended function.

In Roe, the Supreme Court was supposed to decide if the Texas abortion law was constitutional. But the Constitution says nothing about abortion. It doesn't say you can have an abortion, and it doesn't say you can't have one. On this, as on so many other issues, it is silent, leaving the matter to the Legislature to decide.

By divining a "right" to abortion in the due process clause of the 14th Amendment, while trespassing overtly into medical and philosophical questions that it is in no position to answer, the Court in Roe v. Wade went beyond its role of considering the constitutionality of a law, and instead decided what it thought the abortion laws ought to be.

That's not just my opinion, or the opinion of those who just don't want abortion to be legal. As noted above, that's also the opinion of some legal scholars who favor liberal abortion laws but find Roe to be problematic.
Miles wrote: Sat Sep 25, 2021 5:09 pm
historia wrote: Sat Sep 25, 2021 3:43 pm
(2) it forces all states to follow the same laws, when diversity may be preferable
And that's always been the compulsory consequence of U. S. Supreme Court rulings. They apply to the whole country and everyone in it.
Right, and that's precisely why the Court has to be very careful not to exceed its intended role. Our country benefits greatly if states as different as Utah and New York can make their own decisions in as many areas as is feasible.

In fact, there would be far less political polarization in the United States today if we did more of that. Overturning Roe would be a good start.
Miles wrote: Sat Sep 25, 2021 5:09 pm
What the court needs is an autonomy that protects it from people rising up against its rulings and ousting judges whose votes it didn't like. It needs to be permanently insulated from all outside forces. An entity unto itself.
I agree completely. I am in no way, shape, or form suggesting that Supreme Court justices should be elected. An independent judiciary is vital to our constitutional order.

But, with those lifetime appointments comes the important proviso that the Court should not exceed its narrow role in interpreting the law and deciding the constitutionality of laws. If the Court starts acting like a mini-legislature, declaring what the laws ought to be, then the Court will become increasingly politicized.

It wasn't all that long ago that Supreme Court nominations weren't the knock-down-drag-out political affairs they are today. What has changed is that the Court has increasingly taken on this role where it decides what the laws ought to be on abortion or gay marriage or other controversial social issues. It has increasingly acted as a mini-legislature!

And the electorate have cottoned on to this. Increasingly, our presidential elections have become about who gets to nominate the next Supreme Court justice -- who gets to be the next "arbiter of wisdom," as you called it, to decide the next hot-button social issue. And so many people vote accordingly.

That's not how the Court is supposed to work. And this blurring of roles has done significant damage to the social and political fabric of our country.

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Re: Should Roe v. Wade be overturned?

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Post by Purple Knight »

Miles wrote: Mon Sep 27, 2021 1:34 am
Purple Knight wrote: Sun Sep 26, 2021 7:56 pmI also support her right to be tried by whatever group of peers she deems worthy.
Then let's hope you have one mature and wise teenage daughter.
As a society, we've tried very hard to eliminate the effects of the plain fact that if you're smarter, you have a better chance of proving your innocence and getting away without punishment, regardless of whether you're innocent or not. We've tried lawyerism, and all that's done is shift the effect (but not totally) from intellect to money. Now those with money win.

The current lawyer system does not do away with this effect; it just costs society dearly to shift it toward bringing the privilege to money instead of intelligence. The idea that letting people choose who their peers are also preserves this effect is not really a good objection unless you can think of a system that doesn't and argue that whatever the cost is, is worth it.

But if you believe in lawyerism, there's no reason a silly teenager couldn't be counseled by her lawyer as to which group of peers she should choose, and just as it works today, shifting that privilege from intelligence to money, as well as providing (at cost to everyone) a certain baseline of that privilege for free.
Miles wrote: Mon Sep 27, 2021 1:34 amOf course there are fair and unfair laws. Laws that block racial discrimination are fair. Laws that promote racial discrimination are unfair. And there's a better chance that fair laws will come from an educated mind than an uneducated one.
If we as regular people (I'm not a politician and neither are you, I assume) can readily determine without much disagreement which laws are inherently unfair, I think the matter is more who will follow through with that determination as opposed to who will instead ignore it to make laws in their own interest.

It's true that voters can do this, but they're not forced to. Voters have every right to vote for fair laws. Politicians are often faced with choices between sacrificing fairness or sacrificing their power, a selective system which favours and thus produces politicians who choose their incumbency over the right choice.

But my question was, alright, if a law that blocks racial discrimination is a must, fine, but are there any laws at all that aren't inherently wrong, but aren't must-haves either? For example, take laws that make insurance mandatory. They enhance safety and are arguably good but what if a populace genuinely wants to choose for themselves whether they want to carry insurance or not, instead of being forced to buy it, and they're all actually okay with the fact that in exchange, someone might hurt them and be unable to reimburse them?

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Re: Should Roe v. Wade be overturned?

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Re: Should Roe v. Wade be overturned?

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Post by historia »

Clownboat wrote: Mon Sep 27, 2021 11:29 am
historia wrote: Sat Sep 25, 2021 4:32 pm
Okay, so I assume then you support keeping abortion legal?

If so, would you say the best way to achieve that is: (a) through a controversial court ruling that many legal scholars consider tenuous, or (b) passing it into law?
Why should courts be involved with what a women can do to her own body in the first place? Would that not be like passing a law that allows women to get tattoes? Should this be necessary?
Yes, the State has a vested interest in protecting the health and wellbeing of its citizens, which is why there are laws regulating medicine and medical procedures -- and, yes, tattoo parlors, as well. Even if you want abortion to be legal, there will nevertheless be laws regulating it, as there are laws regulating all medical procedures.

Interestingly, some feminists have criticized Roe on these grounds. Even though we informally talk about it as granting a right to abortion, on a more technical level it left the decision to the "medical judgment of the pregnant woman's attending physician," and so really protects the doctor's right to perform an abortion.
Clownboat wrote: Mon Sep 27, 2021 11:29 am
Point to the nose of the unborn and then we will need to discuss the value differences
As I noted above, this really is the crux of the abortion debate: the status of the unborn child. Your others concerns and considerations pale in comparison to that question, and it's one that has to be decided -- either through the courts or the legislature. My interest in this thread, however, is in regards to that latter question: which process is best to make that decision?

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Re: Should Roe v. Wade be overturned?

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Post by Clownboat »

Clownboat wrote: Mon Sep 27, 2021 11:29 am Why should courts be involved with what a women can do to her own body in the first place? Would that not be like passing a law that allows women to get tattoes? Should this be necessary?
historia wrote:Yes, the State has a vested interest in protecting the health and wellbeing of its citizens, which is why there are laws regulating medicine and medical procedures -- and, yes, tattoo parlors, as well. Even if you want abortion to be legal, there will nevertheless be laws regulating it, as there are laws regulating all medical procedures.
Each year in the United States, surgeons perform approximately 64 million surgical procedures, ranging from tooth extraction to open heart surgery. Yet, notwithstanding the frequency of surgical procedures and their often critical importance to patient health, no state or federal agency either approves the use of new surgical procedures or directly regulates existing procedures.

No matter though as I was asking you why the courts would need to be involved. Sounds like they are involved because they are involved from your reasoning above. "there will nevertheless be laws regulating it, as there are laws regulating all medical procedures."
When I get a tooth pulled, the courts are not involved. Why would/should abortions be treated differently?
Clownboat wrote:Point to the nose of the unborn and then we will need to discuss the value differences
As I noted above, this really is the crux of the abortion debate: the status of the unborn child.
Then it is settled for me.
An unborn "X" does not have the same value as a born child. Therefore we should not treat "X" as if it were a born child.
historia wrote:Your others concerns and considerations pale in comparison to that question, and it's one that has to be decided -- either through the courts or the legislature. My interest in this thread, however, is in regards to that latter question: which process is best to make that decision?
Which process is involved when you go to the dentist to get a tooth removed? Why not use the same process to remove an unwanted fetus?
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Re: Should Roe v. Wade be overturned?

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Post by historia »

Clownboat wrote: Mon Oct 04, 2021 4:36 pm
[N]o state or federal agency either approves the use of new surgical procedures or directly regulates existing procedures.
On the contrary, each state has laws and a medical board that regulates medical providers and practices.

Most new and existing medical procedures fall within existing laws and regulations, to be sure, but some things are proscribed. In California, for example, "sexual orientation change efforts" are not allowed for patients under the age of 18. Several sections of the California Business and Professions Code concern the regulation of abortion.
Clownboat wrote: Mon Oct 04, 2021 4:36 pm
I was asking you why the courts would need to be involved.
They don't. In case you missed it, my argument in this thread is that they shouldn't be involved. Abortion should be regulated by laws established through the Legislature, as is the case for other medical practices.

The reason why the courts have been involved is simply an accident of history, of course. Abortion was previously illegal. And changing an existing law requires an act of either the Legislature or the Court. In the United States, it just so happens that the Supreme Court moved to legalize abortion nation-wide. In most other countries, the decision to liberalize abortion laws went through the Legislature.

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Re: Should Roe v. Wade be overturned?

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Post by Purple Knight »

historia wrote: Wed Oct 06, 2021 7:09 pmAbortion should be regulated by laws established through the Legislature, as is the case for other medical practices.
I agree. Or failing that, through a popular vote.

That's not really the Supreme Court's business.

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