Should Roe v. Wade be overturned?

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historia
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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 Miles »

historia wrote: Wed Sep 22, 2021 10:02 pm
Miles wrote: Mon Sep 20, 2021 2:34 pm
In Roe v. Wade the Supreme Court declared the right to an abortion is a fundamental liberty that the state must have a very strong interest to limit.
Yes, the Court declared that abortion is a right, even though there is no clear, unambiguous Constitutional provision that grants that. And, for that very reason, the Court, under a different set of justices, could simply change their mind and revoke this right.
No, the court decided that the Texas law limiting a female's right to decide what she could do with her pregnancy was invalid because the state lacked any compelling interest in establishing such limitation. However, such right to an abortion came with some very specific limitations: other than some rare exceptions an abortion had to be preformed within the first trimester.

It seems to me that the abortion debate hinges on the question of whether a fetus has full moral status under the law -- i.e., is the fetus a person?
Okay.

The Roe decision agrees, noting (para. 86):
Roe v. Wade wrote:
If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.

And it was agreed that the appellee failed to establish the suggestion of personhood.

The decision also says that the Court lacks the necessary expertise to decide that question.
"Necessary expertise" does not appear in Jane ROE, et al., Appellants, v. Henry WADE.

But, undeterred, goes on to make a de facto decision anyway, by declaring that a pregnant women's right to privacy takes precedent over the rights of the prenatal child during the first trimester of pregnancy.
The decision declares no such thing. However, if per chance I missed it please point it out.



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Re: Should Roe v. Wade be overturned?

Post #12

Post by historia »

Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
Miles wrote: Mon Sep 20, 2021 2:34 pm
In Roe v. Wade the Supreme Court declared the right to an abortion is a fundamental liberty that the state must have a very strong interest to limit.
Yes, the Court declared that abortion is a right, even though there is no clear, unambiguous Constitutional provision that grants that. And, for that very reason, the Court, under a different set of justices, could simply change their mind and revoke this right.
No, the court decided that the Texas law limiting a female's right to decide what she could do with her pregnancy was invalid because the state lacked any compelling interest in establishing such limitation. However, such right to an abortion came with some very specific limitations: other than some rare exceptions an abortion had to be preformed within the first trimester.
How does that contradict what I said?
Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
It seems to me that the abortion debate hinges on the question of whether a fetus has full moral status under the law -- i.e., is the fetus a person?
Okay.
historia wrote: Wed Sep 22, 2021 10:02 pm
The Roe decision agrees, noting (para. 86):
Roe v. Wade wrote:
If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.
And it was agreed that the appellee failed to establish the suggestion of personhood.
Right. And a future Court could change course and decide the fetus is a person after all.

But here's the overarching point I'm making, in case you've missed it: The Supreme Court is not supposed to be deciding when life begins. It's not the arbiter of medical or philosophical questions. It's supposed to decide whether laws are constitutional or not.

This is why even some legal scholars who want abortion to remain legal -- such as Laurence Tribe, Benjamin Wittes, and Alan Dershowitz -- believe that Roe v. Wade was wrongly decided. You can be "pro choice" while still recognizing that Roe rests on shaky legal reasoning.
Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
The decision also says that the Court lacks the necessary expertise to decide that question.
"Necessary expertise" does not appear in Jane ROE, et al., Appellants, v. Henry WADE.
The exact wording (para. 91) is:
Roe v. Wade wrote:
When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
To your last comment:
Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
But, undeterred, goes on to make a de facto decision anyway, by declaring that a pregnant women's right to privacy takes precedent over the rights of the prenatal child during the first trimester of pregnancy.
The decision declares no such thing. However, if per chance I missed it please point it out.
Sorry, I should have phrased that more carefully. My point here is that:

After noting that it is not in a position to decide the question of when life begins, the Court nevertheless makes a de facto decision anyway by deciding that the State cannot proscribe abortions during the first trimester, which earlier it recognized would not be the case were the fetus considered a person.

My question again, then:

Is this really the best way to decide whether abortion should be legal or not? Even if you personally like the outcome of the Roe decision, wouldn't it be better if that outcome was actually enshrined in law?

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Re: Should Roe v. Wade be overturned?

Post #13

Post by historia »

JoeyKnothead wrote: Wed Sep 22, 2021 6:56 pm
If we outlaw abortion, only the wealthy'll have access to a safe medical procedure.
As already noted in the OP, the question under consideration is not whether abortion should be legal or not, since overturning Roe v. Wade would not, in itself, make abortion illegal.

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Re: Should Roe v. Wade be overturned?

Post #14

Post by Miles »

historia wrote: Thu Sep 23, 2021 2:15 am
Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
Miles wrote: Mon Sep 20, 2021 2:34 pm
In Roe v. Wade the Supreme Court declared the right to an abortion is a fundamental liberty that the state must have a very strong interest to limit.
Yes, the Court declared that abortion is a right, even though there is no clear, unambiguous Constitutional provision that grants that. And, for that very reason, the Court, under a different set of justices, could simply change their mind and revoke this right.
No, the court decided that the Texas law limiting a female's right to decide what she could do with her pregnancy was invalid because the state lacked any compelling interest in establishing such limitation. However, such right to an abortion came with some very specific limitations: other than some rare exceptions an abortion had to be preformed within the first trimester.
How does that contradict what I said?
In a sense you are correct in the same way that saying "no one can deny Johnny the right to have a cookie gives Johnny the right to have one." However, this doesn't say there couldn't be other factors that deny Johnny such a right. It clarifies that there are qualifying circumstances.

historia wrote: Wed Sep 22, 2021 10:02 pm
The Roe decision agrees, noting (para. 86):
Roe v. Wade wrote:
If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment.
[/quote=Miles]

And it was agreed that the appellee failed to establish the suggestion of personhood.
Right. And a future Court could change course and decide the fetus is a person after all.
As well as a future court changing any other SCOTUS ruling.

But here's the overarching point I'm making, in case you've missed it: The Supreme Court is not supposed to be deciding when life begins. It's not the arbiter of medical or philosophical questions. It's supposed to decide whether laws are constitutional or not.

This is why even some legal scholars who want abortion to remain legal -- such as Laurence Tribe, Benjamin Wittes, and Alan Dershowitz -- believe that Roe v. Wade was wrongly decided. You can be "pro choice" while still recognizing that Roe rests on shaky legal reasoning.
You have a good point here in that the SCOTUS is not granted the right to arbitrate medical or philosophical questions, no more so than the Texas legislature is the arbiter of medical or philosophical questions---it has no more medical or philosophical training than does the court. Then why does it get to decide that the exact moment wherein a human sperm makes full contact with an egg cell should be thee defining moment pregnancy begins? It shouldn't. So, where does the buck stop?

"Generally speaking, some ideological and religious commentaries have argued that pregnancy should be stated as beginning at the first, exact moment of conception in which a human sperm makes full contact with an egg cell. In contrast, other commentaries have argued that the duration of pregnancy begins at some other point, such as when the fertilization process ends (when a new, independent cell genetically distinct from the prior egg and sperm exists) or when implantation occurs (when the new set of cells lodges itself against the uterine wall, allowing it to grow rapidly). The ambiguity's implications mean that, despite the scientific community being able to describe the physical processes in detail, the decision about what should be called "abortion" and what should be called "contraception" or pregnancy prevention are not agreed upon."
source: Wikipedia


All of which begs the question; why should one concept prevail over all others? I may not have the best answer; however, I do think it's a reasonable one. In country with such a plurality of opinions and special interests I think it wise to defer to the the one solo arbiter of "wisdom" it has, the Supreme Court Of The United States, as imperfect as it may be.

To your last comment:
Miles wrote: Wed Sep 22, 2021 11:58 pm
historia wrote: Wed Sep 22, 2021 10:02 pm
But, undeterred, goes on to make a de facto decision anyway, by declaring that a pregnant women's right to privacy takes precedent over the rights of the prenatal child during the first trimester of pregnancy.
The decision declares no such thing. However, if per chance I missed it please point it out.
Sorry, I should have phrased that more carefully. My point here is that:

After noting that it is not in a position to decide the question of when life begins, the Court nevertheless makes a de facto decision anyway by deciding that the State cannot proscribe abortions during the first trimester, which earlier it recognized would not be the case were the fetus considered a person.

My question again, then:

Is this really the best way to decide whether abortion should be legal or not? Even if you personally like the outcome of the Roe decision, wouldn't it be better if that outcome was actually enshrined in law?
Lacking any better device for resolving the dispute, I believe the SCOTUS has to be it. Unless you have a better idea.


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Re: Should Roe v. Wade be overturned?

Post #15

Post by JoeyKnothead »

historia wrote: Thu Sep 23, 2021 2:01 pm
JoeyKnothead wrote: Wed Sep 22, 2021 6:56 pm
If we outlaw abortion, only the wealthy'll have access to a safe medical procedure.
As already noted in the OP, the question under consideration is not whether abortion should be legal or not, since overturning Roe v. Wade would not, in itself, make abortion illegal.
When ya ask if Roe v Wade oughta be it overturned, you're asking on the keeping it legal or not, whether that's what you're asking or not.

A woman oughta have her every right to her body as I hold me my rights to my own. They're wimmins, they got it rough enough without biblical busybodies atrying to infect em with the religious thing there. And I stand by my assertion that outlawing abortion'll only serve to ensure the rich folks're the ones that can have em.

Who's here so proud to fuss on a woman for her gut wrought decision to either have her a baby, or to the other thing? She's gotta fetch the groceries, and wash the clothes, and clean the house, and doctor the sick, and put up with all manner of stuff it is I know danged well I wouldn't. She's gotta fetch up and feed everybody breakfast, get em all off to the bus and such, then hafta go to their "real job", where she's underpaid and underpreciated, only to hafta come home and make sure the homework gets done, the trash got took out, and the fussing at me cause I didn't take the trash out, so yes, I understand, I'm getting me a plate of them nasty little green peas, and how the next time I vote, it's gonna be to abort them abominations. Or she's gotta decide to end a life she doesn't know if she can do all that for. I've seen em cry, both ways. They don't make these decisions like some of us decide which game to watch. They're the baby makers. They don't just decide to not make em one cause they can't make a biscuit.

I reject any law that seeks to decide for a woman, what is, a woman's decision.
I might be Teddy Roosevelt, but I ain't.
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Re: Should Roe v. Wade be overturned?

Post #16

Post by Purple Knight »

I've always found the language of Roe vs. Wade to reek of sophistry and avoid the issue. The idea that privacy should be the top priority and we should ignore whether the act of abortion is murder or not in favour of giving people the privacy to do it, to me seems shaky.

I don't think it is murder, and moreover I don't think there's any reasonable way to enforce it as such even if it were murder; I just don't like Roe vs. Wade's language or reasoning, and I'm glad someone is asking that specific question.
JoeyKnothead wrote: Thu Sep 23, 2021 6:58 pmI'm getting me a plate of them nasty little green peas, and how the next time I vote, it's gonna be to abort them abominations.
Second.

Also avocados. Avocados are actually the mob or some such nonsense in addition to being in a perpetual state of pre-vomit. Apparently they cause turmoil in Mexico or something. I wasn't paying attention. I just heard avocados were evil and engaged confirmation bias.

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Re: Should Roe v. Wade be overturned?

Post #17

Post by Clownboat »

historia wrote: It seems to me that the abortion debate hinges on the question of whether a fetus has full moral status under the law -- i.e., is the fetus a person?
A fetus does not have the same value as a human baby. Therefore a fetus should not be a concidered a baby, much less a person.

The research has found that more than half of successful fertilisations will end in miscarriage.
https://www.sciencealert.com/meta-analy ... ge-biorxiv

If you (generic you) believe in a god, that god is responsible for terminating more than half of successful fertilizations.
Guess what? No uproar.
Now concider that these god concepts actually terminated half of born babies.
We would have an uproar.
Again... value.
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Re: Should Roe v. Wade be overturned?

Post #18

Post by Miles »

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And don't forget all the abortions god has overseen. As of this year, 2021, an estimated 23 million miscarriages occur every year worldwide, translating to 44 pregnancy losses each minute.
source

And globally in 2015 there were 2,600,000 stillbirths, and around 7,200 everyday

source


.................... Image


.

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Re: Should Roe v. Wade be overturned?

Post #19

Post by Purple Knight »

Clownboat wrote: Fri Sep 24, 2021 3:14 pmIf you (generic you) believe in a god, that god is responsible for terminating more than half of successful fertilizations.
Guess what? No uproar.
Now consider that these god concepts actually terminated half of born babies.
We would have an uproar.
Again... value.
That difference in value seems to derive from the baby being freeliving, and the fetus not.

It is also a possibility that something not individually realised as lost is not mourned. If someone told you that all your cells were sentient, you might still only fully value them as individuals if you knew them as individuals.

Or it could be that people understand on a basic level that not all fertilisations are viable, so the earlier the unviable ones are parted with, the better, at least speaking from a perspective of energy investment.

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Re: Should Roe v. Wade be overturned?

Post #20

Post by historia »

Miles wrote: Thu Sep 23, 2021 5:31 pm
In country with such a plurality of opinions and special interests I think it wise to defer to the the one solo arbiter of "wisdom" it has, the Supreme Court Of The United States, as imperfect as it may be.

. . .

Unless you have a better idea.
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.
Miles wrote: Thu Sep 23, 2021 5:31 pm
historia wrote: Thu Sep 23, 2021 2:15 am
But here's the overarching point I'm making, in case you've missed it: The Supreme Court is not supposed to be deciding when life begins. It's not the arbiter of medical or philosophical questions. It's supposed to decide whether laws are constitutional or not.

This is why even some legal scholars who want abortion to remain legal -- such as Laurence Tribe, Benjamin Wittes, and Alan Dershowitz -- believe that Roe v. Wade was wrongly decided. You can be "pro choice" while still recognizing that Roe rests on shaky legal reasoning.
You have a good point here in that the SCOTUS is not granted the right to arbitrate medical or philosophical questions, no more so than the Texas legislature is the arbiter of medical or philosophical questions---it has no more medical or philosophical training than does the court. Then why does it get to decide that the exact moment wherein a human sperm makes full contact with an egg cell should be thee defining moment pregnancy begins? It shouldn't. So, where does the buck stop?
So, in a democracy, the buck stops with the People.

We decide the laws of our country. And the way we do that (broadly speaking) is to debate and convince our fellow citizens of the virtue of a particular idea, and then pass that idea into law, either directly through a referendum or indirectly through our elected representatives.

Contrary to your assertion above, I do think that the Legislature has broad authority to decide medical and ethical questions, at least as far as those touch on the law. If you don't like a particular law, advocate that it be removed. Or vote for new representatives who are committed to overturning that law. Or, in a federal system like the United States, move to another state whose laws are more inline with your values.

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, (2) it forces all states to follow the same laws, when diversity may be preferable, and (3) Supreme Court justices are not elected, but rather serve lifetime appointments. The People have very little recourse to overturn laws they don't approve of if the Supreme Court is essentially making laws, compared to the Legislature, where elections give the People greater control.

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