"The earliest point."But these facts go only to the scheme of time limits on the realization of competing interests, and the divergences from the factual premises of 1973 have no bearing on the validity of Roe's central holding, that viability marks the earliest point at which the State's interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions. — “Casey”
Here is my equally as quippy a rule: a woman has a right to abortion on demand at any point until the fetus has been detached from her body. Viability is of no moment and the state never has a compelling interest in coercing someone to reproduce. — Ennui Elucidator
As to some limit, real viability seems pretty good. — tim wood
Surely Congress has the needed authority under the commerce clause. <ducking> — Srap Tasmaner
There is no moment in time during gestation that changes the relationship of the mass of growing cells in the uterus to the mother - it is her and she has absolute say over what happens to her body. — Ennui Elucidator
Three variations on the same question. Is abortion ok, or not, or sometimes ok and not? The only answer that can reasonably govern all is one that science gives. That is what science is supposed to figure out, if it can. — tim wood
If, for example, science somehow determined that personhood began at around week 23 and, miraculously, even the religious community accepted this as true, does that make it okay to terminate life that's becoming a person? — praxis
I invite any and all to read Roe v. Wade and to present here what they think are any failures in that law so far as reason shows - unreason disallowed. I think it's a pretty good law. And if any think they have better, let them present it, and absent which, let them be silent and comply. — tim wood
I think this decision is craven--it's a cowardly abdication of responsibility in these circumstances. I think it should be characterized as craven by anyone, regardless of their feelings on abortion. And, given the composition of the court, that such decisions are likely to be repeated whenever a law that is constitutionally questionable but politically or socially agreeable to the Justices is before them. — Ciceronianus
. . . Texas’s law delegates to private indi- viduals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion dur- ing that first stage. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 846 (1992); Roe v. Wade, 410 U. S. 113, 164 (1973). And a “State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercis- ing during the first trimester of pregnancy.” Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976) (internal quotation marks omitted). Indeed, we have made clear that “since the State cannot regulate or pro- scribe abortion during the first stage . . . the State cannot delegate authority to any particular person . . . to prevent abortion during that same period.” Ibid. . .
. . .I recognize that Texas’s law delegates the State’s power to prevent abortions not to one person (such as a district attorney) or to a few persons (such as a group of government officials or private citizens) but to any person. But I do not see why that fact should make a critical legal difference. That delegation still threatens to invade a constitutional right, and the coming into effect of that delegation still threatens imminent harm. — “Breyer”
The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law. See, e.g., Virginia Office for Protection and Advo- cacy v. Stewart, 563 U. S. 247, 254 (2011) (citing Ex parte Young, 209 U. S. 123 (1908)). By prohibiting state officers from enforcing the Act directly and relying instead on citi- zen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.“ — “Sotomayor”
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
— “Roe vs Wade”
Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its very terms, prohibits only state action. "[T]he principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U. S. 1, 13, and n. 12 (1948).
Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the Amendment's provisions, United States v. Harris, 106 U. S. 629 (1883), and the Civil Rights Cases, 109 U. S. 3 (1883). In Harris, the Court considered a challenge to § 2 of the Civil Rights Act of 1871. That section sought to punish "private persons" for "conspiring to deprive anyone of the equal protection of the laws enacted by the State." 106 U. S., at 639. We concluded that this law exceeded Congress' § 5 power because the law was "directed exclusively against the action of private persons, without reference to the laws of the State, or their administration by her officers." Id., at 640. In so doing, we reemphasized our statement from Virginia v. Rives, 100 U. S. 313, 318 (1880), that "'these provisions of the fourteenth amendment have reference to State action exclusively, and not to any action of private individuals.'" Harris, supra, at 639 (misquotation in Harris).
We reached a similar conclusion in the Civil Rights Cases.
In those consolidated cases, we held that the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the § 5 enforcement power. 109 U. S., at 11 ("Individual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment"). See also, e. g., Romer v.
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Evans, 517 U. S. 620, 628 (1996) ("t was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations"); Lugar v. Edmondson Oil Co., 457 U. S. 922, 936 (1982) ("Careful adherence to the 'state action' requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power"); Blum v. Yaretsky, 457 U. S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 172 (1972); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970); United States v. Cruikshank, 92 U. S. 542, 554 (1876) ("The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society").
The force of the doctrine of stare decisis behind these decisions stems not only from the length of time they have been on the books, but also from the insight attributable to the Members of the Court at that time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur-and each of their judicial appointees obviously had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment.
Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation on Congress' § 5 authority. They rely on United States v. Guest, 383 U. S. 745 (1966), for the proposition that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the construction of an indictment under 18 U. S. C. § 241, saying in the course of its opinion that "we deal here with issues of statutory construction, not with issues of constitutional power." 383 U. S., at 749. Three Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights Cases
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were wrongly decided, and that Congress could under § 5 prohibit actions by private individuals. 383 U. S., at 774 (opinion concurring in part and dissenting in part). Three other Members of the Court, who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three sentences stated the conclusion that Congress could "punis[h] all conspiracies-with or without state action-that interfere with Fourteenth Amendment rights." Id., at 762 (concurring opinion). Justice Harlan, in another separate opinion, commented with respect to the statement by these Justices:
"The action of three of the Justices who joined the Court's opinion in nonetheless cursorily pronouncing themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to say the very least, extraordinary." Id., at 762, n. 1 (opinion concurring in part and dissenting in part).
Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no occasion to revisit the Civil Rights Cases and Harris, having determined "the indictment [charging private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed] an express allegation of state involvement." 383 U. S., at 756. The Court concluded that the implicit allegation of "active connivance by agents of the State" eliminated any need to decide "the threshold level that state action must attain in order to create rights under the Equal Protection Clause." Ibid. All of this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) ("The Court's interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation, has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as the right to utilize public facilities").
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To accept petitioners' argument, moreover, one must add to the three Justices joining Justice Brennan's reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three Justices joining Justice Clark's opinion who gave no explanation whatever for their similar view. This is simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation in saying that it would take more than the naked dicta contained in Justice Clark's opinion, when added to Justice Brennan's opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and Harris.
— “US vs. Morrison”
Beyond this are cases where a private individual discriminates, and the question is whether a state has encouraged the effort or has impermissibly aided it.1361 Of notable importance and a subject of controversy since it was decided is Shelley v. Kraemer.1362 There, property owners brought suit to enforce a racially restrictive covenant, seeking to enjoin the sale of a home by white sellers to black buyers. The covenants standing alone, Chief Justice Vinson said, violated no rights protected by the Fourteenth Amendment. “So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated.” However, this situation is to be distinguished from where “the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.”1363 Establishing that the precedents were to the effect that judicial action of state courts was state action, the Court continued to find that judicial enforcement of these covenants was forbidden. “The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desire to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. . . .”1364
— “Cornell LII on State Action”
1) No issue.The opponents to abortion know this and they can, therefore, fight the battle on at least three fronts with a straight face:
1) the SC was wrong in Roe regarding a fundamental right,
2) the SC’s viability standard is the most that can be supported under the Constitution and the period of time where a state has an interest in regulating abortion is reduced each time medical technology improves, and
3) the regulation of medical practice or other necessary supports for obtaining an abortion (indirect obstacles/burdens) combined with directly frustrating a woman seeking an abortion by increasing the time, inconvenience, expense, etc. of getting the abortion (direct obstacles/burdens) up until the line that the SC deems such burdens “undue”. — Ennui Elucidator
An afterthought, there seems to me incoherence in the following: — tim wood
2) Eh? The state's time increases as technology improves. — tim wood
Roe, then, doesn't satisfy you. You still have not made clear any of its supposed flaws, except perhaps although not necessarily a datedness. Your reference even noted that if technology is to be accommodated, then viability becomes a function of time, place, circumstance, and availability of technical aid. But you're clearly a generous and patient writer: what's wrong with Roe? Shouldn't take more than few sentences. — tim wood
In Griswold, the Supreme Court found a right to privacy, derived from penumbras of other explicitly stated constitutional protections. The Court used the personal protections expressly stated in the First, Third, Fourth, Fifth, and Ninth Amendments to find that there is an implied right to privacy in the Constitution. The Court found that when one takes the penumbras together, the Constitution creates a "zone of privacy." While the holding in Griswold found for a right to privacy, it was narrowly used to find a right to privacy for married couples, and only with regard to the right to purchase contraceptives.
Justice Harlan's Concurrence in Griswold
Also important to note is Justice Harlan's concurring opinion in Griswold, which found a right to privacy derived from the Fourteenth Amendment. In his concurrence, he relies upon the rationale in his dissenting opinion in Poe v. Ullman (1961). In that opinion, he wrote, "I consider that this Connecticut legislation, as construed to apply to these appellants, violates the Fourteenth Amendment. I believe that a statute making it a criminal offense for married couples to use contraceptives is an intolerable and unjustifiable invasion of privacy in the conduct of the most intimate concerns of an individual's personal life."
In privacy cases post-Griswold, the Supreme Court typically has chosen to rely upon Justice Harlan's concurrence rather than Justice Douglas's majority opinion. Eisenstadt v Baird (1971), Roe v. Wade (1972), and Lawrence v. Texas (2003) are three of the most prolific cases in which the Court extended the right to privacy. In each of these cases, the Court relied upon the Fourteenth Amendment, not penumbras.
— “Cornell LII on Privacy”
This move is close to terrifying in that it privatizes behavior that the government could not get away with if engaged in directly. — Ennui Elucidator
While I certainly agree with him about the realpolitik of the Texas decision, I am not so sure that Roe, Casey, and many other cases don’t follow a similar path. To simply hold up prior SC decisions as if they are some great accomplishment of human reason which engages in line drawing in some unquestionable fashion is naive at best. — Ennui Elucidator
Fuck Texas, and fuck the Supreme Court. — James Riley
Texas and the idiots in the Supreme Court migh just give birth to more Texas and more idiots at the Supreme Court! — TheMadFool
Being from Colorado, a common carving on bathrooms walls: "Here I sit, buns a flexin'; givin' birth to another Texan." — James Riley
If I read you right, The SC two generations ago found a constitutional ground to protect women's reproductive choice as a matter of right. But at the same time they acknowledged a state's interests concerning the well-being of both mother and fetus, the well-being of the fetus understood as its ability to survive outside the womb, viability.If a woman has a right to reproductive choice, there should be an articulable, consistent judicial basis for such right, not a punt that splits the baby between warring camps. — Ennui Elucidator
And you have not noted flaws in Roe so much as you don't find it bespoke for your purposes. — tim wood
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