Legal Reasoning behind Roe v Wade?

Discussion in 'Women's Issues' started by dotadave, Jun 1, 2004.

  1. dotadave

    dotadave Member

    I want to preface this by saying that I am 100% pro-choice, no matter what the age of the mother, what her parents think about it, whether the abortion is elective or if it is done because the life of the mother is at stake. Ideally, Government should have no business comming between an expectant mother and her doctor. The fact that abortions tend to prevent children from being born to unwilling mothers, many of them young and unmarried only strengthens my conviction.

    Where I deviate from this is whether this right is actually protected by the constitution or is a result of what conservatives dub "judicial activism." I'm not entirely convinced that the supreme court didn't overstep their authority. Even if the result of their decision had morally just consequences, allowing such a precident could come back to haunt us. "Common Sense" or "The way things should be" is used to attack things that *ARE* protected by the constitution or have better constitutionally grounded legs to stand on such as the exclusionary rule or due process. There are people, "enemy combatants," that may soon be sitting in jail without charge or trial at the whim of the president if the supreme court gives the green light to it because "its the right thing to do."

    As I said, I'm 100% pro-choice here but if good things are not protected by the constitution, the authority to do the right thing should be given to the legislature. There needs to be a constitutional amendment garunteeing a right to privacy, including the right to choose.
  2. Megara

    Megara Banned

    Some judges see the rights to abortion as a 'penumbral right.' Basically they claim that the 3rd, 4th, 5th, and 9th amendments give the rights to contraception and abortion and that they emanate from them.

    personally, i think this is very dangerous. The role of judges is not to legislate, and thats exactly what they did. I personally think that these rights were to be left up to the states and to congress to decide and not to a radical judge(even though i agree with them).

    There is no real "basis" for abortion in the constitution. Some people just say that the right to "secure your persons, property, etc" really means you can have an abortion. Its a slippery slope and a bad precadent, but thats how it is.

    I agree that we should hvae a congressional amedment allowing it. We need to tell judges to stop reading into the constitution and applying their own wishes onto all of us.

    Penumbral rights are dangerous, even fi they are just.
  3. The ninth amendment, "the right to privacy."

  4. dotadave

    dotadave Member

    No its not.

  5. Whatever it says, they somehow got right to privacy out of that and viola.
  6. Megara

    Megara Banned

    thats the 4th amendment...thats where they got the right to privacy.

    The 9th amendment just means that not all rights that people have are listed in the constitution
  7. HuckFinn

    HuckFinn Senior Member

    I wish that "pro-choice" politicians were as honest as Megara and Stilanas in admitting that Roe v. Wade was a constitutionally baseless judicial fiat!
  8. Elle

    Elle Senior Member

    uh....sorta off topic I guess but I read that today a judge found the ban on partial birth abortion unconstitutional because there were no exceptions if the life or health of the mother is at risk. I didnt read the whole story, just caught the basic headline.
    I'm very very very pro-choice....did I say very? And about partial birth abortion....well, I not sure where I stand on that (in general) but I am so very glad the courts denied this ban on the account that no one considered the health of the mother....fucking goverment:$
  9. HuckFinn

    HuckFinn Senior Member

    First of all, puncturing a baby's skull and sucking out the brains is never necessary to protect a mother's health. Second, the Doe v. Bolton decision defined "health" so broadly that including such an exception in a ban would render it meaningless. It just boggles my mind that the courts have successfully concocted the "right" to commit virtual infanticide from an alleged "privacy" right that is mentioned nowhere in the text of the Constitution!
  10. ProfRob

    ProfRob Member

    The Constitution is deliberately vague in many areas, and a lot of "rights" that people think they have because of the Constitution have actually been "created" by interpretive judges.

    The most obvious case is the "Right to Privacy" which isn’t mentioned in the Constitution and didn’t exist until judges created it in a series of decisions regarding everything from telephone wiretaps to banning condom sales. In other respects rights that seem guaranteed by the Constitution, like the right to peacefully assemble and the right to keep and bear arms, have been restricted by judicial decisions in the past several decades.

    Originally, the Constitution was supposed to guarantee basic rights to minority groups, something that states and the federal government have never been big on. After all, if 80% of voters believe in something, then the people in government would go along with that or face defeat in the next election. That’s why federal judges are appointed for life; they shouldn’t have to worry about getting votes, and make popular but unjust decisions just to please the crowd. Prior to the revolution a number of states passed what we would consider pretty heavy-handed laws; things like Massachusetts requiring all residents go to a Puritan Church service on Sunday. If you just leave lawmaking up to the government minority groups are likely to suffer.

    I have no problem with the judges making law—that’s what they do when they interpret the constitution, and if we really don’t like the judge’s decision we can change the constitution. The temperance movement did just that during Prohibition—a number of local laws against alcohol were struck down by the courts, so the temperance people passed a constitutional amendment banning alcohol and the judges had to uphold it. That’s also what Bush and company are planning to do to outlaw homosexual marriages—if the courts insist that gay people have a constitutional right to get married, then they can change that by changing the constitution. It’s just tougher to do, and takes longer, than simply passing a state or federal law. But once the constitution is changed the judges have a duty to uphold it. (So does everyone else: the President, when he is sworn in, promises to uphold and defend the constitution, as does everyone in Congress and all military officers.)

    The underlying philosophy behind the right to choose abortion rests on the belief that citizens have the right to make their own decisions regarding their own persons. If a person wants to get a tattoo or pierce their ears, the government isn’t supposed to interfere with that decision. If a doctor tells you that you have to get a surgical procedure, and you refuse, they can’t force you to do it—you make your own decisions about your own body.

    Two problems with this: First, the government does interfere with such decisions, restricting medical procedures, prohibiting suicide, and the like. In the past the government even drafted people, and the courts went along with that, saying that a person’s right to control their own body ended when the government needed soldiers to defend our country and its freedoms.

    The second problem is that many people consider that a fetus, baby, whatever you want to call it, isn’t really part of a woman’s body. Yes, for nine months you carry it inside you, which is why the court said the woman could make the decision. But pro-life people think that a woman’s right to control her own body doesn’t extend to causing damage or death to someone else’s body, and they believe that abortion does just that.

    That’s why the pro-choice people always refer to it as a "fetus" while the pro-life people call it a "baby". To one group it isn’t a person, just a growth inside a woman’s body that she can decide to remove. To the other group it is a distinct individual and no one, not even the mother, should be able to destroy it.

    By the way, just because the judges in 1973 ruled abortion a constitutionally protected right, doesn’t mean it has to stay that way. The court has waffled back and forth on a number of issues, like escaped slaves in the 1800’s being forcibly returned to their masters, then being given freedom once they’d reached the "free" northern states, then being forcibly returned again. And in 1896 the Supreme Court ruled that segregation was legal; fifty years later they changed their minds.
  11. HuckFinn

    HuckFinn Senior Member

    "Making law" is not the same as "interpreting" the Constitution. It is the responsibility of the legislature to make laws. The duty of the judiciary is to determine whether these laws conflict with the Constitution, which is silent on the issue of abortion.

    There's the rub. Activist judges are taking it upon themselves to rewrite the Constitution, when instead the proponents of abortion on demand or gay "marriage" should have the burden of amending the Constitution to advance their social agenda. These contentious matters should be settled by public debate, not judicial edict.
  12. ProfRob

    ProfRob Member

    Pardon me for misspeaking—

    The Courts don’t "legislate", they simply "interpret"; meaning, they decide if a given law is valid, what it means, and how it should be applied.

    In theory, the Congress makes the law, the President enforces it, and the Courts interpret it. The Question we must ask is: who do we trust to best interpret the law, and protect our rights?

    [BTW: In at least one famous case a President defied the Supreme Court and got away with it. In 1828 Congress passed the Relocation Act, requiring the Cherokee Indians to leave South Carolina, where they’d lived for centuries, and migrate west of the Mississippi River. The Cherokee sued, claiming the law violated their rights, especially their right to protection from search and seizure. The Supreme Court, under Justice John Marshall, sided with the Indians and declared the Relocation Act unconstitutional.

    At this point President Andrew Jackson issued his infamous quote, "John Marshall has interpreted the law; now let him enforce it." Jackson ordered the Relocation to take place anyway, by military force if needed. The Cherokee were forced to leave their ancient home and, in the middle of winter, walk over a thousand miles to Oklahoma. A quarter of them died along the way.

    At this point Congress could, and should, have impeached Jackson. But most American voters, who were all white men at the time, believed Jackson had done the right thing. The Indians were in the way of progress, and their land could be better utilized by white settlers. So Jackson got away with defying the Supreme Court and trampling on the rights of the minority group (the Cherokee Indians) thanks to the support of the majority (white voters).]

    To get back to the issue at hand…

    Bush opposes abortion. Clinton favored it. Bush Sr. opposed it. Do we want a system where, whenever the President changes, our rights and privileges change to reflect their interpretation of the Constitution? Or would we prefer that Congress, which has switched from Democratic to Republican control and back many times since 1973, be the one to decide what our rights are? Congress, whose members are usually more interested in raising campaign contributions and getting a majority of voters on their side? Or would you trust the Supreme Court, which isn’t elected, so doesn’t have to cater to lobbyists and special interest groups, and which consists of legal experts with years of experience?

    As things now stand, I wouldn’t trust either Bush or Congress to uphold my rights. I think that most of them (not all, but most) would lie, cheat, steal, sell their souls, their children, their integrity, whatever it took, to please the majority of voters and get re-elected.

    I’m aware that the Court, composed as it is of fallible human beings, has made some terrible decisions over the years. But I think that, by and large, the judges are more honest, trustworthy and dependable to protect our rights and guarantee our freedoms than either the President or the Congress.
    Labelling them as "activist judges" doesn’t change the fact that their primary job is protecting the rights of everyone, especially minority groups who might otherwise be clobbered by majority rule. And, by and large, the Courts have done a better job of protecting our rights than any other mechanism could.
  13. HuckFinn

    HuckFinn Senior Member

    This is a red herring. I never suggested that the executive or legislative branches should have final authority to interpret the Constitution, which is clearly the role of the judiciary. I simply contend that the courts have far exceeded their authority to interpret the Constitution by inventing "rights" with no constitutional basis.

    It is not the duty of the courts to create new "rights" out of thin air. Rather, they are charged with the authority to uphold the rights of citizens that are enumerated in the Constitution. Unrestricted abortion is not one of these!
  14. Amontillado

    Amontillado Member extraordinaire

    The US Constitution doesn't spell out in detail exactly what is and isn't legal. It would be way too long if it did, and the people who wrote it knew they could never provide for everything that might come along in the future. This leaves room for judges to interpret the Constitution in quite varying ways.

    So what do the 9th and 10th amendments mean?

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Do those amendments mean that the states can pass any law they want? Or that the states can't restrict people's freedom in any way at all? And if has to be a compromise, what limits exist? Note that the Declaration of Independence calls "Life, Liberty and the pursuit of Happiness", "Unalienable Rights".

    Here's what James Madison said, introducing the proposed 9th amendment:

    "It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].

    So where do we stand regarding abortion, or anything else not specifically called out out in the Constitution? How about the use of contraceptives (state laws banning contraceptives weren't struck down until 1965, and even then, only for married people). Or how about the right of homosexuals not to be criminals, which only got passed recently? Or maybe we should all be a thte mercy of our state Legislatures. It's a viewpoint, I suppose.

    Will anyone who says there's no constitutional right to abortion please say what there are constitutional rights to? Inquiring minds want to know.
  15. HuckFinn

    HuckFinn Senior Member

    One of the main problems today is that they rarely refer to the actual Constitution anymore, instead relying almost soley on "precedent." If you measure off a piece of wood, then use that piece to cut the next one, and continue using the most recently cut piece (rather than the ruler) to measure the next, then your measurements will be increasingly inaccurate.

    Madison's main concern was the prevent federal usurpation of state's rights. The reason is quite simple: people's voice in government is inversely proportional to its degree of centralization. The people (through their state legislatures) are free to enact any laws that don't conflict with the US (or their state) Constitution.

    The Constitution clearly leaves such matters for the states to decide. Laws should reflect public values. As these values change, laws can and do change with them. The courts have no business taking sides in such public policy debates.

    Here's an idea: try reading the US (or your state) Constitution!

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