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

[Neri]

With the retirement of Justice Anthony Kennedy from the US Supreme Court, many have speculated that the appointment of a conservative justice to that court (because it will tip the balance in favor of the conservatives) would likely result in the reversal of Roe v. Wade.

However, it is unlikely that this will happen—not so much because of the doctrine of stare decisis [Indeed, the holding in that case was itself a major departure from prior precedent] but rather because, according to all the polls, the vast majority of Americans believe that a woman should have an unfettered right to an abortion during the first trimester of pregnancy.

On the other hand, a majority of Americans are opposed to partial-birth late-term abortions. Thus, the belief that a woman is entitled to an abortion on demand at any point during her pregnancy is not widely held in the U.S. Nor is it the law in the countries of Western Europe.

Under Roe, a woman has an unrestricted right to an abortion only during the first trimester of pregnancy. During the second trimester, the states may impose regulations on abortions so long as their purpose is to preserve the health of the mother. Because, by the time of the third trimester, the unborn child is viable, the Supreme Court held that the states may prohibit abortions altogether during that period, but they are not required to do so.

However, only a handful of states allow abortions during the third trimester. The remaining states typically prohibit abortions after the 24th week of pregnancy and impose criminal penalties on abortion providers (though not on the mother herself). The conclusion of the 24th week of pregnancy ends the second trimester and begins the third.

A viable fetus is one that can survive outside of the mother. Why is the threshold of viability so important in abortion cases? The Court in Roe said that, after viability, the fetus has the clear potential for human life. But why is this so?

The facts of the matter are these:

(1) When a fetus that is not yet viable is aborted, its death is a necessary consequence of separating it from the body of the mother, in the sense that no separately calculated act of killing is required.

(2) Because, in the case of a viable fetus, the mere separation of the child from the body of its mother will not result in death, a separate overt act designed to kill the unborn child is necessary to provide a satisfactory result in the eyes of the mother.

It is important to understand that the federal statute prohibiting partial-birth abortions does not prohibit the states from allowing abortions in all cases during the third trimester.

A partial birth abortion is what is called in medicine dilation and extraction. This involves dilating the mother and starting the birth process. When the child is half way out of the mother’s body, it is deliberately killed by acts too gruesome to be repeated here. The procedure differs depending on whether it is a normal or breech birth but is equally brutal in either case.

Abortion providers know that the child should not be allowed to completely leave the body of the mother and take its first breath; for, if this happens and the physician thereafter deliberately kills the child, the physician will be guilty of murder.

Indeed, a newborn is considered a person within the meaning of the 14th Amendment to the U.S Constitution. As such, it is entitled to equal protection of the law and cannot be deprived of life.

However, in Roe, the Supreme Court specifically held that a fetus (even in the third trimester) is not a person for purposes of the 14th Amendment.

The Supreme Court in another case held that the U.S. statute prohibiting partial-birth abortions does not violate the constitution. As I mentioned earlier, a majority of the population believes that abortions of this type should be banned.

However, not all abortions done in the third trimester are partial-birth abortions. If a near full-term child is killed while completely in the womb--no matter how appalling the procedure--the current state of constitutional law does not prevent the states from allowing such a procedure.

This loophole would be eliminated if the Supreme Court ruled that a viable fetus is a person for purposes of the 14th Amendment, whether in or out of the mother. This would have the effect of prohibiting third-trimester abortions in all the states. Only time will tell if a more conservative Supreme Court will limit the current law of abortion in this way. However, it is not unlikely that they will.

[BadgerJelly]

Interesting stuff. Somethings defy the boundaries we put in them, but without boundaries we’re lost.

I think this hits home harder when regarding such ethical problems.

[Braininvat]

A very thorny issue, given the metaphysical aspects for most people. A society whose ethos includes protection of its most vulnerable may have to err on the side of caution. Given that some sentient qualities may appear in the third trimester, I have grave doubts about late term abortion. Perhaps if we focus efforts on better reproductive counseling and education for all women, then contraception could do what it's supposed to do, and prevent things getting to such a crisis stage. It's unfortunate when a medieval dogma takes such control of a modern political coalition, and young women are kept in a state of ignorance and exploitation, and lack the tools to make their own medical decisions.

[Neri]

I neglected to mention that even if an unborn child in the third trimester of gestation were held to be a person for purposes of the 14th Amendment, there would always be an exception allowing an abortion when it is necessary to preserve the life or health of the mother. Clearly, no one can be compelled to ruin her own health or risk death to sustain the life of another.

[Braininvat]

Could be it's a bit of a Gordian knot when we are taking about a baby that is near to full-term. I think a physician honoring his/her oath would have to try their best to save both mother and infant, in such cases, if the infant is alive in the womb and viable. I can't think of a mother who would not, to borrow your phrase, feel compelled to ruin her own health or risk death to sustain the life of her baby. There would be exceptions, of course, but I think they would be rare if we are talking about late in the term of pregnancy. Anyone who has lived with a woman late in her pregnancy knows that the baby becomes pretty real once it starts moving around and kicking and (in our case) responding to oboe practice sessions.

[wolfhnd]

If we had a definitive definition for life, consciousness, human uniqueness and a host of other concepts it would be easier to agree on the abortion issue. I generally suggest that the abortion issue is or should be about the respect for life necessary to have a reasonably healthy, free and progressive society.

The ability to have a discussion without demonizing the various points of view seems necessary as a first step towards a compromise on abortion necessary in a democratic society. While many blame religious fundamentalism for our inability to agree on abortiont the death of God did leave us without a shared world view to build on. It is similar to finding a basis for ancient Egyptian society if half the population no longer believes the Egyptian pharaohs are God's.

The failure of maintaining a grand narrative has destabilized many societies throughout history. Our situation is not particularly unique and a grand narrative is never sufficient to insure social cohesion let alone progress and human rights. It is only a place to start.

The rationalists have made some progress towards a shared narrative but are getting push back not only from the religious but also the religious like social justice movement and others. If rationality isn't sufficient to develop a shared morality then what is?

[Neri]

BIV,

Sadly, it is quite usual for a woman seeking a third-trimester abortion to fully expect that the unborn child will not survive the procedure. This is part of what a third-trimester abortion means to a woman seeking it. Indeed, if the child survived the procedure, the woman would feel cheated.

Before the modern era, it was the law in both the U.S.A. and Europe that no abortion could be performed after quickening. It was thought that when an unborn child moves of its own volition in the womb, it is asserting its independence of the will of the mother. Thus, it was concluded that it then possessed a soul independent of the mother’s.

Today, this seems a very quaint rule indeed. Yet, as a practical matter, it was both simple and effective; for all one need do is feel the belly of the mother to decide the outcome.

I agree with you that it is something quite extraordinary to feel a child moving of its own accord in the womb. Unfortunately, however, the quickening principle is a dead letter.

[Neri]

Wolfhnd,

It is not at all a question of whether or not the fetus is alive; for it clearly is alive, as much as, say, the heart and liver are alive. However, this certainly is not dispositive of the question, which is:

Is the fetus a person for purposes of the 14th Amendment?

Please read my OP.

[SciameriKen]

Neri - I think this is a fantastic summary of the issue surrounding the question you posed to Wolfhnd -- "is the fetus a person for purposes of the 14th amendment?"

Yet - I don't think this discussion addresses the topic question you posed regarding whether you think Roe V Wade will be reversed by the new judge and the rest of the US supreme court -- any thoughts on that?

[Neri]

SciamerKen,

As I said in my OP, I do not believe that Roe v Wade will be reversed by the Supreme Court, even with a majority of conservative justices, for the reason that almost three quarters of the U.S. population believes that a woman should have an unfettered right to an abortion during the first trimester of gestation.

I also indicated that a conservative court will likely limit Roe by ruling that abortions done in the third trimester are unconstitutional.

Roe left it to the states to determine whether or not third-trimester abortions will be allowed. If the Supreme Court should limit Roe in way that I just described, it would mean that all the states must prohibit third-trimester abortions. Indeed, most Americans believe that such abortions should not be allowed.

[Braininvat]

Neri - you are familiar with Stephen Breyer's pragmatist vision of SCOTUS, as presented in "Active Liberty" I am guessing. I think even conservative justices, unless they are Scalia style originalists, somewhat accept the "living document" view when they are handling cases where, as you point out, such a large majority of the people have a clear intent. Breyer's writings articulated well how a judge may try to discern the will of the people as expressed through their laws. And there will always be clumsy laws that need interpretation.

Coney is a little disturbing, though, in her rejection of stare decisis. How far would she go in shying from precedent -- Marbury v Madison? LoL. Will she only sit on state line disputes ? Another thread....

[Braininvat]

Guess we will know which of the top three Trump picked in a couple hours. Televised announcements at 9pm, EDT.

Then the Bork-ing begins...

[SciameriKen]

SciamerKen,

As I said in my OP, I do not believe that Roe v Wade will be reversed by the Supreme Court, even with a majority of conservative justices, for the reason that almost three quarters of the U.S. population believes that a woman should have an unfettered right to an abortion during the first trimester of gestation.

I also indicated that a conservative court will likely limit Roe by ruling that abortions done in the third trimester are unconstitutional.

Roe left it to the states to determine whether or not third-trimester abortions will be allowed. If the Supreme Court should limit Roe in way that I just described, it would mean that all the states must prohibit third-trimester abortions. Indeed, most Americans believe that such abortions should not be allowed.

Thanks for clarifying. Although I agree that it is not likely Roe v Wade will be overturned I would not put this outside the realm of possibility. This administration nor most state governments these days, do not really care what the masses want and I don't see that entering into the equation of the new justice. With the court as it will be soon, states will begin writing tougher abortion laws and these will eventually erode Roe v Wade.

[Neri]

BIV,

When liberal justices, such as Souter, speak of the constitution as a “living document,” what they really mean is they interpret the constitution as they believe it should be rather than as it actually is. To put it another way, to them the constitution should bend to a certain political agenda. When the Court does this, it usurps the exclusive prerogative of the legislature.

The strict constructionists would argue that the decision in Roe was cut out of whole cloth, for the constitution contains no reference to abortion or to a right of privacy.

On the other had, the “loose constructionists” argue that the rights actually set forth in the constitution cast a shadow within which other rights emerge. Included among these is the right of privacy as it affects abortion. This seems to me a rather fanciful argument.

When I say that Roe will not be reversed, I do not base this on the cogency of the legal argument. Rather, I base it on the fact that, after almost a half century, to reverse Roe could cause a social and political cataclysm that would do permanent damage to the institution of the judiciary. The members of the Supreme Court are well aware of this danger.

Personally, I strongly believe that a woman should have an unfettered right to an abortion during the first trimester. But, as a lawyer, I cannot say that I am pleased with the Roe decision.

One cannot properly do that which I or anyone else believes is right absent legislation that authorizes it.

There is a reason for this. Legislation is a democratic process. Judicial fiats are not. They are decidedly elitist and undemocratic.

It is no answer to say that the courts have to act when the legislature fails to act, for that begs the question. No one, no matter his position, may in the first place, rightly do that which he has no authority to do.

Judicial tyranny is, in the long run, no better than the oppression of a dictator. Although “law heads” are far more insipid than any dictator, they can be almost as arrogant. What is needed in our Supreme Court is a bit more humility.

[mitchellmckain]

Since I strongly associate human life with the mind rather than the body, I connect the earliest possible definition of personhood with the beginning of brain activity near the end of the second trimester. I am VERY strongly opposed to taking away the completely free access to abortion during the first trimester, which basically defines humanity completely in terms of genetics only, and has terrible implications for the victims of rape. Thus on the whole, I am happy with the current legal compromises in laws of the USA right now.

Not a big fan of the "right of a woman to her own body argument," however, I see no reason oppose the prohibition of partial birth and late term abortions. Thus I support the idea of compromise on such issue to let those who feel strongly about such things have their way. But this willingness to work out compromises vanishes utterly when faced with uncompromising ideologues who equate human beings with zygotes.

However, I find some of the rhetoric in this last post worrisome. I often hear people talk of "tyranny" and "dictators" in the most bizarre contexts -- like their freedom depends on the ability to prohibit other people from doing things they don't approve of. It most certainly does not. People can follow whatever fetishes and hangups they have in their own choices and the conduct of their own personal life, but when it comes to dictating things to others, I insist that we limit ourselves to what can be objectively established as harmful to other people. But maybe that essential agrees with what Neri is saying too.

[Braininvat]

When liberal justices, such as Souter [EDIT: BIV meant Stephen Breyer and fixed his post], speak of the constitution as a “living document,” what they really mean is they interpret the constitution as they believe it should be rather than as it actually is. To put it another way, to them the constitution should bend to a certain political agenda. When the Court does this, it usurps the exclusive prerogative of the legislature.

-- Neri

Sorry - I first wrote "Souter" in my post, then fixed it. If you read Breyer's book (or an article that condenses it down), I think his idea is a little different and more in line with clarifying the will of the people and their representatives in the legislature. The Constitution has been proven to be fuzzy in many areas, and many famous cases have served to clarify the intent and reflect changing circumstances. Conservative Justices, like Anthony Kennedy, have often made rulings at odds with their own personal politics out of respect for the Institution and their duties as jurists. Harry Blackmun would be another example of putting Constitutional duty first and prior politics last. I think the Court does remarkably well.

And provides a clear eye on poorly defined statutes that come from Congress. John Marshall was, IIRC, the one who actually defined this role of the SCOTUS and the value of judicial review. Marbury v. Madison was, as you know, the first exercise of judicial review of a flawed statute, and the Court has ruled on something like 150-plus Acts of Congress since then. Therefore, I respectfully suggest that the concept of "living document" is about honoring the spirit and principles of the original Framers, not "bending" the Constitution.

That's how terrible decisions, like the infamous Plessy v. Ferguson, were reversed. Jurists looked back to the original meaning of the Constitution and realized that "separate but equal" was not congruent with that.
Thanks to the reversal of Plessy, by Brown v. Topeka BOE, the lives of millions of Americans were considerably improved and their quest for equality and equal protection was furthered. I think it is positive outcomes that Breyer is looking at and trying to offer a roadmap for more of them. It's really best to read him, before discussing further.

[Neri]

BIV and Mitch,

There are certain basic principles that one should bear in mind.

Our country is a confederation whose constitution not only divides the powers of governance between the states and the federal government but also provides for the separation of powers in the federal government between an executive branch consisting of a President of the United States, a legislative brance consisting of a Senate and a House of Representatives and a judicial branch consisting of a Supreme Court of the United States.

Under the Constitution, the legislative power is vested solely in the two houses of congress. This means that only the congress has the power to make laws.

The Supreme Court has the power to interpret the law when a case wherein the parties argue for different interpretations is brought before them. Under long-standing historical precedent, the Supreme Court also has the power to decide if a state or federal law violates the constitution.

However, none of this means that the Supreme Court has the power to create laws by making up rights that do not exist in the constitution, simply because they believe it is the right thing to do.

In Brown v. Board of Education, the Supreme Court did not invent a right not existing in the constitution.

The right of equal protection of the law is part of the Fourteenth Amendment to the Constitution. The issue was how this right clearly guaranteed by the Constitution was to be interpreted in the context of school segregation in the South. In my opinion, the legal analysis of the court was correct.

The important point is this: The Supreme Court did not invent the right of equal protection as it applied to the states. It has been part of the constitution since 1865.

Roe v Wade presents an entirely different situation. There is to be found nowhere in the constitution any mention of a right of privacy as it affects abortion. It was a right pulled out of thin air. The analysis of a majority of the court was, it seems to me and many others, specious and fanciful—a lot of blathering about the penumbra of explicit rights covering rights not even dreamed of by the founding fathers nor included in the original body of the constitution or in any amendment to it.

Personally, I believe that a woman should have an unfettered right to an abortion during the first trimester of pregnancy. However, this is different from saying that such a right should be attributed to the constitution by intellectual slight of hand.

I would support any legislation that guarantees such a right. On the other hand, I would insist that the Supreme Court has no right to create that law.

In this context, I often quote the following instructions of the court given to prospective jurors in a criminal case.

“If you are selected as a juror in this case, will you follow the law as it exists even if you personally disagree with the law?”

If the juror indicates that he will substitute his own opinion as to what the law should be and disregard the law as written, he will be excused for cause. That is, he will not be fit to serve on a jury.

Surely, we can expect the same of judges who sit on the highest court in the land.

[mitchellmckain]

In this context, I often quote the following instructions of the court given to prospective jurors in a criminal case.

“If you are selected as a juror in this case, will you follow the law as it exists even if you personally disagree with the law?”

If the juror indicates that he will substitute his own opinion as to what the law should be and disregard the law as written, he will be excused for cause. That is, he will not be fit to serve on a jury.

Surely, we can expect the same of judges who sit on the highest court in the land.

The supreme court is not a jury! Their job it to resolve disputes on the interpretation of the law and that includes determining when laws are in conflict with the constitution. Such was the case of Roe vs Wade. They ruled that laws which criminalized or refused all access of women to abortions was unconstitutional. It is well within the scope of the supreme court to do such a thing. Such laws are in conflict with the ideals of a free society. The reasoning behind the decision, while significant does not have the force of law. Quite often decisions are right even if the argument for them are invalid. It is then up to later generations to re-evaluate and correct the reasoning for those decisions, but this does not alter the decisions themselves.

Personally, I believe that a woman should have an unfettered right to an abortion during the first trimester of pregnancy. However, this is different from saying that such a right should be attributed to the constitution by intellectual slight of hand.

Nonsense! We have the constitutional right to life, liberty, and the pursuit of happiness. That this is limited by the same rights of others is logically implicit. The reasoning given just like all this talk of a woman's right over their own body may all be flawed, but this doesn't change the basic fact that the laws ruled upon in Roe vs Wade were indeed in conflict with constitution, because of the right to liberty and the pursuit of happiness which requires that women be able to take back their life and liberty after it has been torn from them, with NO QUESTIONS ASKED!

[wolfhnd]

Laws restricting access to abortion should never have existed because there is no way to logically and empirical pin point the exact time a fetus becomes a person. There may be a need to draw a bright line that is arbitrary such is so often the case with things like driver licenses and drinking age. That reasonably seems to be viability because it is hard to argue that a child that can live without the biological support of their mother is not an individual person.

None of which means that abortion is morally acceptable. The courts cannot legislate morality from the bench because they are not equipped to do so. The courts can only enforce equality under the law. Morality can only be effectively enforced by social censure because authoritarian approaches will eventually lead to chaos and social disintegration. The government that governs least governs best is not an abstract platitude but a practical observation. If every detail of life must be controlled by law then you do not have a society but something resembling Animal Farm and a civilization in crisis.

The answer to the original question is no. By all accounts Trump's nominee is not inclined to overturnb Roe vs Wade. The inclination in the white house seems to be to pass this hornets nest off to the states. I assume that state laws will have to be carefully crafted to meet the constitutional test. Some minor restrictions may be possible but I suspect the spirit of Roe vs Wade may be upheld. If people are unhappy they can call for a constitutional amendment.

The situation does bear some resemblance to school desegregation where the courts were unconstitutionally forced to impose taxes to desegregate schools. Southern States that wanted to maintain segregation by defunding education were probably acting within their rights. I supported the courts anyway because of the clear history of systemic racism that made equality under the law impossible. There are two distinct differences however the first being that "colored" people were clearly fully human and were not biologically dependent. The second difference is that were no obvious conflicting rights. Nobody could logically be said to be a victim of inequality before the law in the case of desegregation. In the case of the fetus it can be argued that preference for the women's rights is unequal justice, it's not an argument I would make because once again no one can say when that is appropriate.

Many Women and women rights activists are going to argue that systemic sexism is equivalent to systemic racism in preventing equality under the law. It is a somewhat interesting argument but it is more complicated than it first appears. Reproduction has been a cooperative enterprise more or less in monogamous societies traditionally . Those tradition have had the result of leaving men and women with different roles to play primarily because of disability during pregnancy and breast feeding after birth for practical reasons. There is no point arguing that there were also inexcusable restrictions on women's legal status. To suggest that the abuse was equivalent to the degradation of slavery is a stretch however. There is simply no evidence that anti abortion laws were intended to reduce women to a sub human status. Women have the ability to simply not become pregnant in many cases while a black person could never decide not to be black. Of course discrimination in ability to support ones self if female historically made not being pregnant a painful choice but that is not true accept in rare cases today.

There are a lot of things to think about and discuss on the topic of abortion.

[Braininvat]

Given the thread topic, the relevant statement is Kavanaugh's saying he views Roe as "settled law. "

Bear in mind, however, that a court with Kavanaugh on it could return 5-4 decisions that chip away at some abortion laws at the state level. If, for example, an appeal is made on the matter of certain religious freedoms. Catholic hospitals/clinics. Or where the 3rd trimester issue of viability is seen as colliding with the equal protection clause -- i. e. the question of personhood.

Constitutional amendments can and do find complex ways to conflict. Sometimes in ways that neither conservatives or liberals are comfortable with.

[Braininvat]

Sociologist team analyzes data on Kavanaugh's rulings, dissents, and cites...

https://www.washingtonpost.com/news/pos ... f99fd0be4c

There is a whiff of judicial activism here, IMO. Kavanaugh may have clerked for Kennedy, but I don't get the sense of that fine and open mind that Kennedy often displayed.

Scalia, interestingly, always ranted against judicial activism, and yet seemed to be all for interfering in a state's rights issue regarding the Florida supreme court in 2000. He gave a concurring opinion, authored by Rehnquist, which held that the Florida Supreme Court was wrong on its interpretation of Florida statutes and that the SCOTUS had the right to intervene and overrule a state court's interpretation of its own laws. I know of no greater example of judicial activism than what Rehnquist, Scalia and Thomas proposed in that concurrence: setting up the SCOTUS as a super supreme court for the interpretation of state laws.

[Neri]

Mitch and Wolfhnd,

The Supreme Court is certainly not a jury. However, both have in common the duty to follow the law as it exists, and neither has the right or authority to make up the law as they go along,

The power to make laws is vested in the legislature, not in the judiciary. The Supreme Court has no right under the constitution to invalidate a law simply because they think it is wrong.

What is right or wrong cannot always be objectified. In most cases it is only a matter of opinion. No one can be bound by the opinion of another unless it is reduced to law by a majority of the representatives of the people. That is the way the constitution is constructed. If one does not like it, he can either seek to amend the constitution by the democratic process set out in it or move to a country where a dictatorial regime imposes his particular point of view without the consent of the governed.

Obviously, one must pursue happiness within the bounds of the law and cannot violate the law simply because it makes him happy. The decision in Roe had nothing to do with the pursuit of happiness. Further, since the appellant in that case did not allege that anyone was proposing to kill or enslave her, the depravation of life or liberty without due process of law was not germane to the issue before the court.

The appellant in Roe alleged that the statute in her state that prohibited abortions violated the constitution. Obviously, to decide this question, the court must be able to point to some provision in the constitution that gives a woman the right to an abortion. The trouble is, there is no such provision in the constitution. Nowhere within the four corners of that document can one find a reference to abortion or to a right of privacy affecting abortions.

The Tenth Amendment to the Constitution provides that the powers not delegated to the federal government are reserved to the states. In the instant matter, this means that if nothing in the constitution gives the federal government the power to allow abortions, that power is reserved to the states.

The plain fact of the matter is that the constitution as written gives the federal government no power to allow abortions.

By tortured logic the Court in Roe spun into being without a basis in the actual words of the constitution a right no one had ever heard of before. This is what is troubling, not the fairness of the rule itself.

The disposition of the Supreme Court to legislate from the bench frustrates the constitutional division of powers and thereby opens the door to the abuses that the scheme of checks and balances was intended to prevent.

[Braininvat]

The power to make laws is vested in the legislature, not in the judiciary. The Supreme Court has no right under the constitution to invalidate a law simply because they think it is wrong.

I think I understand the sense in which you mean this. And I'm sure you recognize that John Marshall's famous ruling in Marbury v. Madison did establish that the SC had the power of judicial review, i.e. that statutes could be reviewed by SCOTUS, and struck down if they proved to be, on careful reading, in violation of the Constitution. IOW, you are right in a literal sense, that SCOTUS cannot invalidate laws simply on the basis of not liking them, but it's important that our readers understand that judicial review can invalidate laws that are demonstrably unconstitutional. SCOTUS has done this over 150 times, to all our benefit.

Though I personally favor a woman's right to choose, I do agree that a strict textualist has every right to point out the rather dubious construction of Roe v. Wade. If the majority of citizens believe as I do in a right to choose, then it should indeed be ratified as a new amendment. An act of Congress would not be sufficient, as it would just get tossed right into the courts, and no doubt be subject to scrutiny with regard to the Equal Protection clause, or any other suggested Constitutional basis.

By tortured logic the Court in Roe spun into being without a basis in the actual words of the constitution a right no one had ever heard of before. This is what is troubling, not the fairness of the rule itself.

Yes. Better decisions, like the aforementioned Brown v BOE, succeeded in finding better footing in the original Bill of Rights. With Roe, the right outcome was achieved at the cost of dubious reasoning. An upgrade is needed, for sure.

[Braininvat]

A key decision that developed the "penumbra" theory of a right to privacy (which led to Roe v Wade a few years later) is this one:

https://en.wikipedia.org/wiki/Griswold_v._Connecticut

I think readers here may find Griswold a useful case in seeing how a right not explicitly stated in the Constitution, can be articulated by drawing from several of the articles in the Bill of Rights. The problem, again, is that none of these assembled pieces has the strength that an overt amendment would have. Considers all the right of privacy issues that are out there right now, regarding electronic surveillance, personal data on the Internet, sharing of medical information, and so on. It might be better to replace the penumbra with a solid amendment.

[Neri]

BIV,

As I pointed out earlier the Supreme Court has the power to decide whether or not a state or federal law violates some provision of the constitution when a case involving such an issue is brought before it.

But let us not forget that the constitution itself is law. It is the supreme law of the land.

So that if the court decides that a state or federal statute is unconstitutional they must be able to point to a specific provision of the constitution that has been violated.

What the court should not do is invent a right not found in the constitution, to validate their personal belief of what the constitution aught to mean.

Just as the humble juror must follow statutory law as written and not substitute his own personal belief of what the law aught to be, a Supreme Court justice must follow constitutional law as written and not substitute his own personal beliefs of what the constitution aught to mean.

Nor is a member of that court justified in inventing a constitutional right where there no such right is set out in the constitution in order to achieve what he personally believes is a good result.

A justice of the Supreme Court is not a philosopher king with the power to impose upon others his own ideas of the perfect good. He is just a man with the power to interpret constitutional law when its meaning is not clear. The power to make law is the prerogative of the legislature.

[wolfhnd]

There are a lot of well written comments in this thread. I don't think I can add much beyond the simple observation that agreement may always be illusive.

It has been pointed out that the enumeration of rights will always be arbitrary, what to leave in what to leave out. The human mind has difficulty with the arbitrary. Random is as difficult a concept as zero to comprehend. When I say arbitrary I mean in the sense of an evolving social context in an environment that is chaotic and complex. Approximate knowledge and necessary compromise do combat with abstract absolutist ideology.

[SciameriKen]

What the court should not do is invent a right not found in the constitution, to validate their personal belief of what the constitution aught to mean.

I don't agree that the court invented a right with Roe v Wade. This is the dissenting opinion of Justice Byron White on the case, for which he was outvoted 7-2. The contention is that the government cannot take liberty without due process of the law and I feel it logically flows that a government instructing an individual what they can or can't do to their body is a violation of liberty. Can the government compel individuals to take a vaccine? Force individuals to donate blood? Be an organ donor? Such are aspects that would benefit society, but yet most would agree these actions would constitute loss of liberty. Therefore, I feel the court correctly applied an interpretation of the 14th amendment.

[mitchellmckain]

The power to make laws is vested in the legislature, not in the judiciary. The Supreme Court has no right under the constitution to invalidate a law simply because they think it is wrong.

They most certainly do have the right and power to rule that a law is in conflict with the constitution.

In the United States, judicial review is the ability of a court to examine and decide if a statute, treaty or administrative regulation contradicts or violates the provisions of existing law, a State Constitution, or ultimately the United States Constitution. While the U.S. Constitution does not explicitly define a power of judicial review, the authority for judicial review in the United States has been inferred from the structure, provisions, and history of the Constitution.[1]

Two landmark decisions by the U.S. Supreme Court served to confirm the inferred constitutional authority for judicial review in the United States: In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794 which imposed a "carriage tax".[2] The Court engaged in the process of judicial review by examining the plaintiff's claim that the carriage tax was unconstitutional. After review, the Supreme Court decided the Carriage Act was constitutional. In 1803, Marbury v. Madison[3] was the first Supreme Court case where the Court asserted its authority for judicial review to strike down a law as unconstitutional. At the end of his opinion in this decision,[4] Chief Justice John Marshall maintained that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of their sworn oath of office to uphold the Constitution as instructed in Article Six of the Constitution.

The appellant in Roe alleged that the statute in her state that prohibited abortions violated the constitution. Obviously, to decide this question, the court must be able to point to some provision in the constitution that gives a woman the right to an abortion. The trouble is, there is no such provision in the constitution. Nowhere within the four corners of that document can one find a reference to abortion or to a right of privacy affecting abortions.

Specious. There is no such right implied any more than there is any right to food or to medical care. These are services which must be paid for. However a law which restricts access to such services would clearly be in violation of the right to life, liberty and the pursuit of happiness.

If such an argument was made in Roe vs Wade then I agree this was technically in error. But I don't see that the ruling ever instituted any such "right to an abortion."

The plain fact of the matter is that the constitution as written gives the federal government no power to allow abortions.

That was NEVER the question. The question has always been whether the government (state or federal) has the power to prohibit abortions. The whole purpose of the constitution is to limit the powers of the government to interfere in peoples lives and the supreme court rightly ruled that in making laws to prohibit abortion the lawmakers had overstepped the constitutional bounds of their power.

[Braininvat]

Mitch, if you read my last 4 or 5 posts you will see we have covered similar points.

Basically, I go with Breyer's "living document" view, that it is possible to discover and make explicit rights that are in the Constitution even if they are pieced together from several amendments. In this case, drawing from amendments 1,3,4, and 5. Roe built upon this right to privacy, as it was explicated in Griswold v CT, with particular emphasis on the protections of the 4th amendment. As you noticed, the Court largely saw the framer's intent that the state cannot poke its nose into a person's private medical matters or use such an invasion as a basis to deprive them of liberty.

Neri himself said of a justice on Scotus, "He is just a man with the power to interpret constitutional law when its meaning is not clear. " Our debate is about what measures may be used to clarify the meaning of these foundations of law, and to what degree we must take into account societal changes that were not able to be clearly addressed in 1787. Is there really any doubt that our founding fathers would take a look at 2018 and exclaim, dear God yes you people really need to nail down that right to privacy concept! Keep at it!

[mitchellmckain]

Mitch, if you read my last 4 or 5 posts you will see we have covered similar points.

Then perhaps you can see my posts as dumbing things down a bit for people like myself where law is way outside our area of expertise.