Will Roe v. Wade be reversed by the US Supreme Court?

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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Braininvat on July 13th, 2018, 8:27 am 

It was meant as "looks like we're on the same page" not as a protest against redundancy. I thought your repackaging of judicial review was helpful.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Neri on July 14th, 2018, 12:05 am 

Mitch an BIV,

The majority of the court in Roe held that substantive due process rooted in the Fourteenth Amendment guaranteed a woman’s unfettered right to an abortion during the first trimester of gestation. The right was described as “qualified” in the sense that it was limited during the second and third trimesters. In fact, the Court held that the right to an abortion could be completely abrogated by the states during the third trimester, because by that time the fetus was viable.

The Supreme Court had specifically held that the Fourteenth Amendment includes the Bill of Rights and thus makes them applicable to the states. Consequently, any violation of the Bill of Rights by the states constitutes a violation of the Fourteenth Amendment.

The Fourteenth Amendment was enacted after the Civil War to insure that former slaves [freed by the Thirteenth Amendment] were not denied the rights of citizenship. It provides in pertinent part as follows:

“…Nor shall any State deprive any person of life, liberty or property, without due process of law.”

Accordingly, that amendment taken in isolation is not an absolute prohibition on the deprivation of life, liberty or property but rather allows such a deprivation when due process of law is provided.

For example, slavery is a deprivation of freedom without due process of law but imprisonment after a fair trial is not.

Similarly, a state court may impose capital punishment (a deprivation of life) so long as the person charge is convicted of first-degree murder after a fair trial and thereafter receives a sentencing hearing in compliance with constitutional law.

Also, of course, a state court may impose damages on a defendant in a civil suit if the evidence warrants it. This would constitute a deprivation of property WITH due process of law and as such does not violate the Fourteenth Amendment.

Clearly a right to an abortion cannot be implicated as a deprivation of life or property.

If one claims that a state’s prohibition on abortions constitutes a deprivation of freedom without due process of law that would mean that a state could constitutionally deprive a woman of an abortion so long as due process is provided.

Presumably this would involve a hearing of some sort. But what the issues could possibly be in such a due process hearing is hard to imagine.

The Court could not properly find that the source of the right to an abortion is found in the Fourth Amendment, which provides in pertinent part as follows:

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation…”

However, the Fourth Amendment cannot be the basis for a right to an abortion, for searches and seizures can be considered violations of privacy only in the absence of a warrant based upon probable cause supported by oath or affirmation, and this makes no sense when applied to abortions.

As Mr. Justice White observed in his dissent in Roe:

“A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).”

However, The Supreme Court had held prior to Roe that substantive due process by way of the Fourteenth Amendment embraces more than just the Bill of Rights-- provided that a right independent of the Bill of Rights is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Again, quoting Mr. Justice White:

“The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment.”

“The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe.

“To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated [410 U.S. 113, 176] their laws, 21 of the laws on the books in 1868 remain in effect today. Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S. 113, 177] and "has remained substantially unchanged to the present time." Ante, at 119.

“There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby SciameriKen on July 14th, 2018, 9:51 am 

Neri wrote:“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation…”

However, the Fourth Amendment cannot be the basis for a right to an abortion, for searches and seizures can be considered violations of privacy only in the absence of a warrant based upon probable cause supported by oath or affirmation, and this makes no sense when applied to abortions.


They are arguing for the 5th amendment--
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

That the 5th amendment protects against deprivation of liberty without due process and the 14th amendment makes this applicable to state law.

Neri wrote:“There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”


Byron White raises a fair point here - tough to argue that abortion is "so rooted in the traditions and conscience of our people as to be ranked as fundamental," as medically safe abortion probably wasn't around that long. However, before these laws people would try very dangerous things to have abortions. And its not like passage of this law stops that.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Neri on July 14th, 2018, 11:51 am 

SK,

The Fourteenth Amendment echoes the language of the Fifth Amendment regarding the deprivation of life, liberty or property without due process of law but specifically provides that no state shall deprive any person of the same. So that one may find this right within the four corners of the Fourteenth Amendment without any need to include the Fifth Amendment.

However, the point I was making is this: The states are not absolutely forbidden to deprive a person of life, liberty and property, for they may do so if procedural due process is provided. I further argued that because a due process hearing makes no sense in the context of an abortion, the clause in question can have no application in such cases. Mr. Justice White makes this very point in his dissent.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby SciameriKen on July 14th, 2018, 1:21 pm 

Neri » Sat Jul 14, 2018 3:51 pm wrote:SK,

The Fourteenth Amendment echoes the language of the Fifth Amendment regarding the deprivation of life, liberty or property without due process of law but specifically provides that no state shall deprive any person of the same. So that one may find this right within the four corners of the Fourteenth Amendment without any need to include the Fifth Amendment.

However, the point I was making is this: The states are not absolutely forbidden to deprive a person of life, liberty and property, for they may do so if procedural due process is provided. I further argued that because a due process hearing makes no sense in the context of an abortion, the clause in question can have no application in such cases. Mr. Justice White makes this very point in his dissent.



Perhaps this article is useful in this discussion:
https://en.wikipedia.org/wiki/Substantive_due_process

From wikipedia:
Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law".[2] Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice on why a party is required to appear before a court or other administrative body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings.[2] In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, regardless of whether the processes of enactment and enforcement were actually fair.[2]

Due process implies a fair application of the law - in this case females are unfairly limited on what they are able to do with their own bodies.

I'd also remind you 5 justices disagreed with Justice White.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Braininvat on July 14th, 2018, 2:43 pm 

It seems to come down to having a sound definition of what constitutes ones own body, and what constitutes a separate entity that can have its own legal rights. This is where science could be helpful in framing a new federal law that addresses the fetal developmental issue. My hope would be that if there were a better consensus on viability and capacity for human consciousness, then women would push for what they most likely want: Access to good reproductive care and birth control options that would make 3rd trimester abortion unnecessary. If we are not a theocratic state, then that should be achievable. It's the 21st century FFS. We're not living in The Handmaids Tale.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Neri on July 14th, 2018, 2:51 pm 

SK,
I do not know who wrote the Wikipedia article that you quote, but to say that the provisions of the Fourteenth Amendment that require only procedural due process to justify a deprivation of freedom by the states are somehow the source of an absolute right to an abortion simply makes no sense.

Therefore, if such a right exists, it must be shown to have a source independent of the deprivation of freedom without due process of law as proscribed by the Fourteenth Amendment.

It is not enough to say that it is unfair for the states to outlaw abortions even if procedural due process is provided, for the source of that unfairness must be identified in some provision of the constitution.

The problem is, there is no provision of the constitution that even mentions a right of privacy, let alone a right to an abortion.

The fact that a majority of the Supreme Court in Roe may have had a personal belief that it is unfair to deny a woman an abortion does not necessarily mean that the constitution guarantees such a right.

Further, it cannot be said that a right to an abortion is “so rooted in the traditions and conscience of our people as to be ranked as fundamental” for the reasons so aptly stated in the dissent of Mr. Justice White.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Neri on July 16th, 2018, 10:04 am 

BIV,

I do not believe that there is disagreement as to the meaning of “viable” as it applies to a fetus. It means that a fetus has the power to remain alive independently of the mother. Clearly, by the twenty-fourth week, a fetus is viable.

The Supreme Court in Roe identified the twenty-fourth week of gestation, the beginning of the third trimester, as the onset of viability--the time after which a state may prohibit abortions.

The court in Roe also held that an unborn child is viable if, with aid of medical science, it is able to survive outside of the mother. Forty-five years ago, the state of medical knowledge was such that a child could not survive outside of the mother before the third trimester. Since the ruling in Roe, that time has been shortened somewhat.

There are cases of a child being born after only twenty weeks and, with the aid of medical science, surviving and growing to adulthood; but these cases are rare. However, It is not uncommon for a child born in the twenty-second week of gestation to survive and develop normally. Indeed, some states prohibit abortions after the twenty-second week.

If the issue of the onset of viability comes before the Supreme Court, it is not unlikely that the court will, because of advances in medicine, move the onset of viability back to the twenty-second week.

The court has already held that a federal statute prohibiting so-called partial-birth abortions is not unconstitutional. The question remains as to whether or not it is unconstitutional to kill, by overt act, a near full-term child still fully in the womb.

This moves the focus from the mother to the unborn child and presents the following issue:

If a child is a person for purposes of the Fourteenth Amendment only seconds after birth, why is he not a person a very short time before birth?

Because there is no difference in the intrinsic nature of a child before or after birth in such case, it would seem, according to present law, that the presence or absence of personhood turns solely on the location of the child.

Quaere: Is it reasonable to have personhood depend solely on location?

The Supreme Court will, sooner or later, have to deal with this thorny issue. This is particularly so because the Court in Roe held that an unborn child, while still in the womb (even at full term) is not a person for purposes of the Fourteenth Amendment.

With a more conservative court, this aspect of the decision in Roe may well be reversed; but, of course, no one can say for sure.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby SciameriKen on July 16th, 2018, 10:41 am 

Neri » Sat Jul 14, 2018 6:51 pm wrote:SK,
I do not know who wrote the Wikipedia article that you quote, but to say that the provisions of the Fourteenth Amendment that require only procedural due process to justify a deprivation of freedom by the states are somehow the source of an absolute right to an abortion simply makes no sense.

Therefore, if such a right exists, it must be shown to have a source independent of the deprivation of freedom without due process of law as proscribed by the Fourteenth Amendment.

It is not enough to say that it is unfair for the states to outlaw abortions even if procedural due process is provided, for the source of that unfairness must be identified in some provision of the constitution.

The problem is, there is no provision of the constitution that even mentions a right of privacy, let alone a right to an abortion.

The fact that a majority of the Supreme Court in Roe may have had a personal belief that it is unfair to deny a woman an abortion does not necessarily mean that the constitution guarantees such a right.

Further, it cannot be said that a right to an abortion is “so rooted in the traditions and conscience of our people as to be ranked as fundamental” for the reasons so aptly stated in the dissent of Mr. Justice White.


I believe such a source can be identified although to do would probably take efforts outside of what can be done on a message forum. I think you have argued a good case here, but I don't think it would sway the majority - especially now - if what Justice White said about the traditions and conscience of a right to abortion was right and it was not true in the 70's, times have changed and it is certainly true today. However, I feel the minority viewpoint are currently holding all the power positions on this issue - President, both houses of congress, governerships, and the supreme court. I predict within 10 years RvW will be torn apart as more anti-abortion laws are passed and upheld by the supreme court.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Braininvat on July 16th, 2018, 11:36 am 

As Norm Ornstein the political scientist has pointed out, the current shift in population to coastal states means that in a couple decades the most conservative 30% of the US population will be represented by 70 Senators. At the point, I don't know what will happen, but I'm guessing electoral reform or restructuring the Senate will not be a big priority for that 30%. Those inland states also have a disproportionate number of single issue voters who tend to overlook the deficits of a candidate (even felony convictions) if they feel he/she will push their one issue. We might get a government where the House and Senate are extremely different houses.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Neri on July 16th, 2018, 3:48 pm 

SK,

I do not agree with your characterization that Roe will be “torn apart” by a more conservative court, for I believe that the right of a woman to an abortion during the first trimester of pregnancy will always be a feature of constitutional case law.

However, I do believe that we will see a trend towards restricting that right to the first trimester and perhaps an additional period thereafter of no more than ten weeks.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby SciameriKen on July 16th, 2018, 4:11 pm 

Neri » Mon Jul 16, 2018 7:48 pm wrote:SK,

I do not agree with your characterization that Roe will be “torn apart” by a more conservative court, for I believe that the right of a woman to an abortion during the first trimester of pregnancy will always be a feature of constitutional case law.

However, I do believe that we will see a trend towards restricting that right to the first trimester and perhaps an additional period thereafter of no more than ten weeks.


I'd agree to that - that core will remain intact. However, the anti-abortion camp comes at the issue head-on, left, right, and sideways -- Women may have the right to have an abortion within the first trimester - if they drive 500 miles to get to a clinic that has sophisticated high-level surgical capabilities and can pay out of pocket on a Tuesday.
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Re: Will Roe v. Wade be reversed by the US Supreme Court?

Postby Asparagus on July 19th, 2018, 4:21 pm 

A baby born at 24 weeks has about a 7% chance of surviving IIRC. And that's probably going to be with profound disabilities. 25 weekers survive pretty routinely. The chances of leading a normal life are good.

I myself can't stomach the idea of abortion after 24 weeks. Prior to 13 weeks I have no problem, though. That's tissue that's headed toward being a human body, but it's not a human.

I'm not offering an argument really. It's my own conclusions based on introspection.
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