Is Roe v. Wade a good example of legal reasoning?

[World politics is up Schmitt creek]

Question is what it says on the tin. I apologize for the potentially confusing wording of the options; I wanted to discourage excessive MRDA-ing by providing discrete options for pro-choice people who don't find Roe's rationale convincing and pro-life people who do find it convincing (although there seem to be fewer of the latter these days than there used to be).

[I’m not Stu]

I support keeping the decision and abortion rights, but I think it should have been decided more narrowly. Ruth Bader Ginsburg also thinks so.

[Antonio the Sixth]

No. "Substantive due process" is an affront not just to legal theory, but to the English language, and I can't condone justices just inventing rights that weren't in the constitution and weren't intended to be (even as I support a broad interpretation of those rights that ARE in it).

[Idaho Conservative]

No. "Substantive due process" is an affront not just to legal theory, but to the English language, and I can't condone justices just inventing rights that weren't in the constitution and weren't intended to be (even as I support a broad interpretation of those rights that ARE in it).

agreed, procedural due process is simply what due process is. 

[brucejoel99]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

[Orwell]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

Ok Peyton Cabot Harrison III

[brucejoel99]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

Ok Peyton Cabot Harrison III

He sounds like he should be a Supreme Court justice.

[Orwell]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

Ok Peyton Cabot Harrison III

He sounds like he should be a Supreme Court justice.

He was a character in the West Wing who wrote an unsigned note in Law school where he affirmed he didn't believe that there was a constitutional right to privacy, he was supposed to be Bartlet's first nominee to the Supreme Court and was expected to get 90+ votes in the Senate and leave committee unanimously, but they changed their minds and nominated the much more liberal Mendoza after struggling with his stance on the right to privacy.

[brucejoel99]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

Ok Peyton Cabot Harrison III

He sounds like he should be a Supreme Court justice.

He was a character in the West Wing who wrote an unsigned note in Law school where he affirmed he didn't believe that there was a constitutional right to privacy, he was supposed to be Bartlet's first nominee to the Supreme Court and was expected to get 90+ votes in the Senate and leave committee unanimously, but they changed their minds and nominated the much more liberal Mendoza after struggling with his stance on the right to privacy.

He sounds like he should be a Supreme Court justice.

[Antonio the Sixth]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

That's the problem with bad legal theories, isn't it? They build up slowly over time, so that each new ruling can cite "precedent" to stretch a concept ever further beyond the bounds of what would be reasonable legal interpretation. If you just look at the ruling itself and compare it to the constitution, it becomes obvious how absurd it is to claim the former is a consequence of the latter. But through the hocus pocus of "precedent", it's made to look like a logical chain of causality.

[brucejoel99]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

That's the problem with bad legal theories, isn't it? They build up slowly over time, so that each new ruling can cite "precedent" to stretch a concept ever further beyond the bounds of what would be reasonable legal interpretation. If you just look at the ruling itself and compare it to the constitution, it becomes obvious how absurd it is to claim the former is a consequence of the latter. But through the hocus pocus of "precedent", it's made to look like a logical chain of causality.

I mean, sure, Roe v. Wade is absolutely shaky in that it relies heavily on a line of extra-constitutional reasoning that, if you think about it, really is a bit of a departure, but as has been made clear, Roe didn't invent this reasoning. There's a long judicial tradition of using the 14th Amendment in this way, & at this point, it's accepted whether one likes it or not. So if the question being asked is "Is Roe v. Wade a good example of legal reasoning?," then the answer is, well, yeah, given the basis on which our judicial system operates.

If one thinks that's wrong, then there are a lot of cases (e.g. Griswold, Lawrence, Obergefell) which would be just as shaky - if not moreso - than Roe. And if one just thinks that there isn't a fundamental right to privacy, then we still need to revisit Griswold & all its progeny.

[Brother Jonathan]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

That's the problem with bad legal theories, isn't it? They build up slowly over time, so that each new ruling can cite "precedent" to stretch a concept ever further beyond the bounds of what would be reasonable legal interpretation. If you just look at the ruling itself and compare it to the constitution, it becomes obvious how absurd it is to claim the former is a consequence of the latter. But through the hocus pocus of "precedent", it's made to look like a logical chain of causality.

I mean, sure, Roe v. Wade is absolutely shaky in that it relies heavily on a line of extra-constitutional reasoning that, if you think about it, really is a bit of a departure, but as has been made clear, Roe didn't invent this reasoning. There's a long judicial tradition of using the 14th Amendment in this way, & at this point, it's accepted whether one likes it or not. So if the question being asked is "Is Roe v. Wade a good example of legal reasoning?," then the answer is, well, yeah, given the basis on which our judicial system operates.

If one thinks that's wrong, then there are a lot of cases (e.g. Griswold, Lawrence, Obergefell) which would be just as shaky - if not moreso - than Roe. And if one just thinks that there isn't a fundamental right to privacy, then we still need to revisit Griswold & all its progeny.

I think its important to note that the issue in Roe isn't just that the court decided a right to privacy exists that goes beyond the rights against unreasonable searches and seizures, but that they held this right is so broad and expansive that it can be construed to protect abortion as a procedure. I disagree with the court when it says that the 14th Amendment creates a sort of catch-all right to privacy, but even if you do agree with the court that the Amendment in fact protects privacy by what logic can that right be held to create in effect a right to an abortion? By what logic can other acts (like say ending ones life or taking drugs of some sort) be kept out? Should they be? Basically, where can the line be drawn, and how can that line be drawn as it was in Roe without reference to the personal prejudices of a specific Judge or Judges?

It's basically Substantive Due Process in the pursuit of social liberalism. The understanding of the 14th Amendment used in Roe (and other cases on social issues that preceded it in the Warren Court)  is extremely similar to the one used by the Court in Lochner to argue that a right to contract exists. The Court dressed it up in Griswold and Roe as the "penumbras of the Constitution" but its the same basic principle, that the rights protected beyond the Constitution extend far beyond those provided for in its text. Roe in some ways owes a direct debt to a majority opinion written by James Clark McReynolds that argued that Substantive Due Process showed that a right to privacy existed, and cited Lochner in defending this assertion.

So I agree that Blackmun didn't pull it out of thin air, but I don't know that he was in the best company when it comes to precedent.

[brucejoel99]

Eh, the Constitution obviously didn't explicitly protect privacy, & we only discover it in a combination of the 1st, 4th, 5th, 9th, & 14th Amendments, but it's not like Roe itself was a departure from precedent or anything. It not only followed a long tradition of using the amendments in this way, but built on a not-insignificant amount of historical research. It's not as if Blackmun pulled it out of thin air.

That's the problem with bad legal theories, isn't it? They build up slowly over time, so that each new ruling can cite "precedent" to stretch a concept ever further beyond the bounds of what would be reasonable legal interpretation. If you just look at the ruling itself and compare it to the constitution, it becomes obvious how absurd it is to claim the former is a consequence of the latter. But through the hocus pocus of "precedent", it's made to look like a logical chain of causality.

I mean, sure, Roe v. Wade is absolutely shaky in that it relies heavily on a line of extra-constitutional reasoning that, if you think about it, really is a bit of a departure, but as has been made clear, Roe didn't invent this reasoning. There's a long judicial tradition of using the 14th Amendment in this way, & at this point, it's accepted whether one likes it or not. So if the question being asked is "Is Roe v. Wade a good example of legal reasoning?," then the answer is, well, yeah, given the basis on which our judicial system operates.

If one thinks that's wrong, then there are a lot of cases (e.g. Griswold, Lawrence, Obergefell) which would be just as shaky - if not moreso - than Roe. And if one just thinks that there isn't a fundamental right to privacy, then we still need to revisit Griswold & all its progeny.

I think its important to note that the issue in Roe isn't just that the court decided a right to privacy exists that goes beyond the rights against unreasonable searches and seizures, but that they held this right is so broad and expansive that it can be construed to protect abortion as a procedure. I disagree with the court when it says that the 14th Amendment creates a sort of catch-all right to privacy, but even if you do agree with the court that the Amendment in fact protects privacy by what logic can that right be held to create in effect a right to an abortion? By what logic can other acts (like say ending ones life or taking drugs of some sort) be kept out? Should they be? Basically, where can the line be drawn, and how can that line be drawn as it was in Roe without reference to the personal prejudices of a specific Judge or Judges?

To believe in Roe's logic, you have to ask yourself whether you think the decision to have a child is foremost a personal, private decision, & whether that's the kind of personal, private decision that's protected by a right to privacy (like Griswold's use of contraceptives). You first figure out whether deciding to have a child is a private matter before considering what other interests you might balance it against.

I don't know of anybody making the argument that a decision to have a child isn't private. The right to marital privacy comes from Griswold, so that's just stare decisis anyway. The argument is just usually that other interests, such as those of an unborn child with the state acting on its behalf, override an otherwise private decision. Nobody argues that the state should decide who has children. So, that isn't really a weakness of the argument. If you believe there's a right to privacy & it's construed broadly, then a decision to have children falls into that. The fight (like all fights you mention, be it ending one's life or taking drugs of some sort) would just be on the extent to which the decision is protected (in this case, when weighing the rights of the mother against the state interest in the fetus) & how much it should be regulated.

It's basically Substantive Due Process in the pursuit of social liberalism. The understanding of the 14th Amendment used in Roe (and other cases on social issues that preceded it in the Warren Court)  is extremely similar to the one used by the Court in Lochner to argue that a right to contract exists. The Court dressed it up in Griswold and Roe as the "penumbras of the Constitution" but its the same basic principle, that the rights protected beyond the Constitution extend far beyond those provided for in its text. Roe in some ways owes a direct debt to a majority opinion written by James Clark McReynolds that argued that Substantive Due Process showed that a right to privacy existed, and cited Lochner in defending this assertion.

So I agree that Blackmun didn't pull it out of thin air, but I don't know that he was in the best company when it comes to precedent.

Yeah, the overuse of substantive due process has been a major dilemma since the late 19th century. Learned Hand, one of the greatest jurists in our nation's history, battled many of his contemporaries over this issue early in his career on the 2nd Circuit. If you're interested, then I recommend reading up on it. His biography is quite an interesting read.

[Spark]

No, it's filled with bad legal reasoning and set the stage for even worse policy. This ruling should be overturned and abortion should be left up to the states.

[Orwell]

No, it's filled with bad legal reasoning and set the stage for even worse policy. This ruling should be overturned and abortion should be left up to the states.

Just like segregation /s

[Former President tack50]

Personally, I believe it is a bad example though I am far from a legal expert or anything.

I would agree that the US constitution probably has a right to privacy, though I'd derive it from the 9th Amendment and not from the due process clause (like one of the Justices wrote in a concurrence)

However, I struggle to reconcile how a right to privacy would cover the right to terminate a pregnancy? Forcing a woman to have a child does not impair her privacy in any way.

It does affect her liberty and bodily autonomy and I could see a Due Process argument happening based on that, but not based on privacy.

[Beet]

Yes, Roe is correct reasoning and in fact the only reasonable decision the court could have ruled after Griswold v Connecticut. Most of the core legal issues were already decided in Griswold and Roe was merely an application of preexisting precedents. But the fact that it is Roe that is criticized while Griswold is forgotten about proves that the objection to Roe is not legal but political.

If the objection were legal the outrage would focus on Griswold.

Nonetheless, if Roe is overturned, then it should be replaced by a new national standard, not left to the states, as it is a civil rights issue. No matter which side of the debate you stand on, the arguments don't change if you cross the state line; women don't stop being women and fetuses don't stop being fetuses. So everyone should agree on a uniform national policy, regardless of what that is.

But Roe should not be overturned.

[Chancellor Tanterterg]

It’s the right legal reasoning and really was the only logical outcome given both the series of related rulings preceding it, as well as if you believe the Constitution contains any sort of meaningful implicit right to privacy.  However, it is also a somewhat poorly written opinion and there’s a debate to be had about whether the Court shot itself in the foot by getting too far ahead of public opinion and weighing in too soon.  Then again, waiting when you have a majority is always a high-risk play re: SCOTUS for obvious reasons.

[True Federalist (진정한 연방 주의자)]

Yes, Roe is correct reasoning and in fact the only reasonable decision the court could have ruled after Griswold v Connecticut. Most of the core legal issues were already decided in Griswold and Roe was merely an application of preexisting precedents. But the fact that it is Roe that is criticized while Griswold is forgotten about proves that the objection to Roe is not legal but political.

If the objection were legal the outrage would focus on Griswold.

Nonetheless, if Roe is overturned, then it should be replaced by a new national standard, not left to the states, as it is a civil rights issue. No matter which side of the debate you stand on, the arguments don't change if you cross the state line; women don't stop being women and fetuses don't stop being fetuses. So everyone should agree on a uniform national policy, regardless of what that is.

But Roe should not be overturned.

Roe and its successor cases weren't decided on the basis of which level of government would have power to regulate abortion, but on the basis of what regulation, if any, were permissible under the Constitution. If Roe is ever overturned, I think that it would be difficult to overcome the precedent of US v. Windsor that when it comes to regulation of personal activities the Federal government must defer to State governments. Windsor held that States get to define what constitutes a marriage, so using the same logic, it would be States and not the Federal government that define what constitutes a human life.

[MarkD]

It’s the right legal reasoning and really was the only logical outcome given both the series of related rulings preceding it, as well as if you believe the Constitution contains any sort of meaningful implicit right to privacy.  However, it is also a somewhat poorly written opinion and there’s a debate to be had about whether the Court shot itself in the foot by getting too far ahead of public opinion and weighing in too soon.  Then again, waiting when you have a majority is always a high-risk play re: SCOTUS for obvious reasons.

Of course there is a meaningful implicit right to privacy in the Bill of Rights. But that right is procedural in nature, not substantive, just like the right to due process. Read the Fourth Amendment and see if you can infer from it a right to have an abortion, or a right to get or to use contraceptives, or a right to get married. You can't infer those substantive rights from the Fourth Amendment just like you can't infer them from the Due Process Clauses of the Fifth and Fourteenth Amendments.

Too many people fail to remember the difference between substantive rights and procedural ones.

[Beet]

Yes, Roe is correct reasoning and in fact the only reasonable decision the court could have ruled after Griswold v Connecticut. Most of the core legal issues were already decided in Griswold and Roe was merely an application of preexisting precedents. But the fact that it is Roe that is criticized while Griswold is forgotten about proves that the objection to Roe is not legal but political.

If the objection were legal the outrage would focus on Griswold.

Nonetheless, if Roe is overturned, then it should be replaced by a new national standard, not left to the states, as it is a civil rights issue. No matter which side of the debate you stand on, the arguments don't change if you cross the state line; women don't stop being women and fetuses don't stop being fetuses. So everyone should agree on a uniform national policy, regardless of what that is.

But Roe should not be overturned.

Roe and its successor cases weren't decided on the basis of which level of government would have power to regulate abortion, but on the basis of what regulation, if any, were permissible under the Constitution. If Roe is ever overturned, I think that it would be difficult to overcome the precedent of US v. Windsor that when it comes to regulation of personal activities the Federal government must defer to State governments. Windsor held that States get to define what constitutes a marriage, so using the same logic, it would be States and not the Federal government that define what constitutes a human life.

Not necessarily - after all in Obergefell vs. Hodges the court legalized gay marriage nationwide and that is why it is legal nationwide today. It really depends on what basis they rule. Plus, abortion is a medical service which Congress has passed bills regulating as recently as 2003, on the basis of the interstate commerce clause. The best analogy is with the civil rights movement. Civil rights issues should not be left to the states, as we've seen what happens when the banner of "States Rights" is invoked - in practice, unequal rights.

[True Federalist (진정한 연방 주의자)]

Yes, Roe is correct reasoning and in fact the only reasonable decision the court could have ruled after Griswold v Connecticut. Most of the core legal issues were already decided in Griswold and Roe was merely an application of preexisting precedents. But the fact that it is Roe that is criticized while Griswold is forgotten about proves that the objection to Roe is not legal but political.

If the objection were legal the outrage would focus on Griswold.

Nonetheless, if Roe is overturned, then it should be replaced by a new national standard, not left to the states, as it is a civil rights issue. No matter which side of the debate you stand on, the arguments don't change if you cross the state line; women don't stop being women and fetuses don't stop being fetuses. So everyone should agree on a uniform national policy, regardless of what that is.

But Roe should not be overturned.

Roe and its successor cases weren't decided on the basis of which level of government would have power to regulate abortion, but on the basis of what regulation, if any, were permissible under the Constitution. If Roe is ever overturned, I think that it would be difficult to overcome the precedent of US v. Windsor that when it comes to regulation of personal activities the Federal government must defer to State governments. Windsor held that States get to define what constitutes a marriage, so using the same logic, it would be States and not the Federal government that define what constitutes a human life.

Not necessarily - after all in Obergefell vs. Hodges the court legalized gay marriage nationwide and that is why it is legal nationwide today. It really depends on what basis they rule. Plus, abortion is a medical service which Congress has passed bills regulating as recently as 2003, on the basis of the interstate commerce clause. The best analogy is with the civil rights movement. Civil rights issues should not be left to the states, as we've seen what happens when the banner of "States Rights" is invoked - in practice, unequal rights.

Arguing that abortion is a civil right presumes that the unborn do not meet the definition of being a human life. There's nothing in the Constitution that defines what is a human life. Or did I mistake your intent and are you instead arguing that the unborn need to have their civil rights protected by the Federal government from States that would impair their rights by allowing their lives to be aborted?

[Chips]

Not really.

[MarkD]

Roe v. Wade was a good example of legal reasoning from the precedents of Skinner v. Oklahoma and Griswold v. Connecticut. If you accept the latter two precedents, then Roe is just as valid in its reasoning as those two. Not all of the precedents that were cited in Roe, and there were a lot, were good and valid precedents that would logically pave the way to Roe. When Justice Blackmun cited Palko v. Connecticut, for example, he was badly misinterpreting that particular precedent.

But the opinion in Roe was not interpreting the U.S. Constitution at all, and they almost literally admitted that they weren't interpreting it. As Prof. John Hart Ely said, Roe v. Wade "is not constitutional law, and gives almost no sense of an obligation to try to be." Source. And I don't accept that the Court was correctly interpreting the Constitution in the precedents I mentioned above, Skinner and Griswold. (In Skinner, the Court was coming to a correct conclusion, and there were two constitutionally legitimate ways of explaining that conclusion, but the Court's majority opinion there did not offer either of the correct explanations. It offered a constitutionally incorrect explanation.)

[SingingAnalyst]

Wasn't a "right to privacy" a big part of the argument? If so, then I'm not sure it would fly today, with people (particularly progressives) being more accepting of govt surveillance than was the case in the 1960s.