Should Roe V. Wade Overturned?

[Dr Oz Lost Party!]

Option 1 is hilarious considering that a ban is going to stop very few abortions from actually happening.

[TheReckoning]

Option 1 is hilarious considering that a ban is going to stop very few abortions from actually happening.

Objectively incorrect.

[Spark]

Yes. People shouldn't have an exclusive right to an abortion. It's like saying murder should be legal under this surreptitious practice. The decision was based on flawed reasoning of a right to privacy when it flies in the face of the 5th Amendment, "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ....". In this case, the Roe decision deprives a person of life, irrespective of legal person-hood.

Overturning Roe would leave the issue to the states to decide the matter. Using their police powers under the 10th amendment, states should penalize doctors for performing this barbarism. It is contrary to the Hippocratic Oath. Any doctor who performs an abortion should lose their license to practice medicine.

The majority of Americans don't support abortion after the first trimester anyway.

[MarkD]

It should be replaced by federal legislation that provides clear protections for abortion rights in all 50 states.

Where in the Constitution does Congress get the power to pass a federal law that legalizes abortion and prohibits state governments from banning abortion? Does Congress get that power from the Preamble to the Constitution, in particular the last phrase, "to secure the blessings of liberty?" Does Congress get that power from the Commerce Clause? From the power to enforce the Nineteenth Amendment (guaranteeing women the equal right to vote)? Where else in the Constitution might the power to guarantee abortion rights come from?

You might answer that by saying that Congress gets the power to protect abortion rights from Section 5 of the Fourteenth Amendment, which empowers Congress to enforce all provisions in the Fourteenth. If Roe and Casey are NOT overturned, and Congress passes a law to enforce the principles that are currently in Roe and/or Casey, then Congress would not be REPLACING Roe, like you said in your post, Congress would be supplementing Roe. If the Supreme Court does overturn Roe and Casey, then Congress will be left powerless to try to enforce the principles that were in Roe, as I said previously in this thread - Reply #12.

Yes. People shouldn't have an exclusive right to an abortion. It's like saying murder should be legal under this surreptitious practice. The decision was based on flawed reasoning of a right to privacy when it flies in the face of the 5th Amendment, "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ....". In this case, the Roe decision deprives a person of life, irrespective of legal person-hood.

Overturning Roe would leave the issue to the states to decide the matter. Using their police powers under the 10th amendment, states should penalize doctors for performing this barbarism. It is contrary to the Hippocratic Oath. Any doctor who performs an abortion should lose their license to practice medicine.

The majority of Americans don't support abortion after the first trimester anyway.

In your first paragraph, you're quoting the Fourteenth Amendment (Section 1), not the Fifth Amendment. The Fifth, besides having a Due Process Clause, also has a Grand Jury Clause, a Takings Clause, a Self-Incrimination Clause, and a Double Jeopardy Clause. That's a minor point. To the rest of your argument in the first paragraph: there is nothing in the Constitution that resolves the legal question of whether a fetus is a person and whether fetuses have rights protected by the Constitution. Section 1 of the Fourteenth Amendment begins with a sentence that defines citizenship as persons BORN in the United States. Fetuses are not citizens, but it also happens that they are not non-citizens (aliens) either. Fetuses are simply not persons recognized by the Constitution at all. The Due Process Clause(s) do not prohibit doctors from killing children after birth; statutes do that. The Due Process Clause(s) prohibit government from depriving any person of life without due process of law.

So your second paragraph is a little bit better, Spark, because it recognizes that under the Tenth Amendment, it should be up to states whether to ban abortion. (And you think that all 50 states should ban it. Good luck with that.)

[Donerail]

It should be replaced by federal legislation that provides clear protections for abortion rights in all 50 states.

Where in the Constitution does Congress get the power to pass a federal law that legalizes abortion and prohibits state governments from banning abortion? Does Congress get that power from the Commerce Clause?

Yes.

[Dr Oz Lost Party!]

Option 1 is hilarious considering that a ban is going to stop very few abortions from actually happening.

Objectively incorrect.

You really think that this is going to stop women from seeking unsafe, underground methods? Millions of clandestine abortions happen every year in countries where they are illegal.


You're not saving babies, bud.

[John Dule]

As much as it pains me to say it, yes. Judicial activism isn't ok just because you agree with the outcomes.

The legal reasoning in Roe is perfectly easy to understand as consistent with the Constitution and Supreme Court precedent if you aren't being willfully obtuse or acting in bad faith.

Why would I be "deliberately obtuse" or "act in bad faith" in order to criticize Roe? I already said that I agree with the effects of the ruling, as I'm pro-choice. But the argument that the Due Process Clause guarantees a right to an abortion is extremely flimsy-- and even if it were stronger, it wouldn't be strong enough to outweigh the fact that the police powers (which are delegated to the states) explicitly include the regulation of public health. Constitutionally speaking, it should be fairly clear that this is a state issue.

I'm happy to have a discussion about whether judicial activism is ever valid or called for, which is an interesting legal and philosophical question. But I don't take seriously the argument that Roe was not an activist decision.

[Alcibiades]

No; in fact I will go against what I believe is the general forum consensus, even among a lot of pro-choicers, by saying that I think that Roe was a perfectly legally sound decision.


nor shall any State deprive any person of life, liberty, or property, without due process of law

I do understand why many people find it very difficult to see how a constitutional right to abortion follows from this. However, I think it is necessary to think a bit deeper about what it is really saying. This, at least in my mind, is a wonderful little clause imbued with the spirit of what might be called liberal neutrality; essentially what it is saying is that the burden of proof must be on the state to justify restrictions on personal liberty. IIRC, Blackmun has received some flak for mentioning in support of his opinion that public opinion in the United States had reached no consensus as to the (im)morality of abortion, but I think that he was in fact absolutely right to do so - the inherently subjective question of at what point a foetus constitutes a life proves that the aforementioned burden of proof is not met as far as abortion bans are concerned. The Court called this a ‘right to privacy’, but in my opinion this somewhat misses the point, and might better have been labelled a ‘right to personal autonomy’. Nevertheless, its interpretation of the Due Process Clause was broadly correct.


nor deny to any person within its jurisdiction the equal protection of the laws

The Court did not invoke the Equal Protection Clause, and it is probably somewhat weaker in supporting the case than the Due Process Clause, but they could reasonably have done so. The inability to control whether or not she wants to have a child evidently has a wide variety of discriminatory practical impacts on women, and would be a major cause of gender inequality.

[All Along The Watchtower]

As much as it pains me to say it, yes. Judicial activism isn't ok just because you agree with the outcomes.

The legal reasoning in Roe is perfectly easy to understand as consistent with the Constitution and Supreme Court precedent if you aren't being willfully obtuse or acting in bad faith.

Why would I be "deliberately obtuse" or "act in bad faith" in order to criticize Roe? I already said that I agree with the effects of the ruling, as I'm pro-choice. But the argument that the Due Process Clause guarantees a right to an abortion is extremely flimsy-- and even if it were stronger, it wouldn't be strong enough to outweigh the fact that the police powers (which are delegated to the states) explicitly include the regulation of public health. Constitutionally speaking, it should be fairly clear that this is a state issue.

I'm happy to have a discussion about whether judicial activism is ever valid or called for, which is an interesting legal and philosophical question. But I don't take seriously the argument that Roe was not an activist decision.

What state interest is there in abortion, other than regulation to guarantee safe procedures? More specifically, what state interest justifies outlawing or severely restricting abortion?

[All Along The Watchtower]

essentially what it is saying is that the burden of proof must be on the state to justify restrictions on personal liberty.

^^^^^^^

Crux of the matter.

[John Dule]

As much as it pains me to say it, yes. Judicial activism isn't ok just because you agree with the outcomes.

The legal reasoning in Roe is perfectly easy to understand as consistent with the Constitution and Supreme Court precedent if you aren't being willfully obtuse or acting in bad faith.

Why would I be "deliberately obtuse" or "act in bad faith" in order to criticize Roe? I already said that I agree with the effects of the ruling, as I'm pro-choice. But the argument that the Due Process Clause guarantees a right to an abortion is extremely flimsy-- and even if it were stronger, it wouldn't be strong enough to outweigh the fact that the police powers (which are delegated to the states) explicitly include the regulation of public health. Constitutionally speaking, it should be fairly clear that this is a state issue.

I'm happy to have a discussion about whether judicial activism is ever valid or called for, which is an interesting legal and philosophical question. But I don't take seriously the argument that Roe was not an activist decision.

What state interest is there in abortion, other than regulation to guarantee safe procedures? More specifically, what state interest justifies outlawing or severely restricting abortion?

I'm not sure I understand the question. The 10th Amendment explicitly delegates the powers not given to Congress to the states, so whether the states can show an "interest" in the matter isn't really relevant.

[John Dule]

nor deny to any person within its jurisdiction the equal protection of the laws

The Court did not invoke the Equal Protection Clause, and it is probably somewhat weaker in supporting the case than the Due Process Clause, but they could reasonably have done so. The inability to control whether or not she wants to have a child evidently has a wide variety of discriminatory practical impacts on women, and would be a major cause of gender inequality.

I would actually say that the Equal Protection Clause argument is the winning argument here, and stronger than the reasoning the court used. At the very least, it would've been more convincing to me than invoking the right to privacy, based on the nebulous principle of "liberal neutrality" you describe. The fact that the Constitution generally espouses certain universal principles doesn't really give us any concrete way to put those principles into practice, especially in situations like these.

[OSR stands with Israel]

The Due process clause is an argument in favor of the pro life side and not pro choice one

[The Undefeatable Debbie Stabenow]

It seems like a pretty natural extension of Griswold to me.

[TheReckoning]

Option 1 is hilarious considering that a ban is going to stop very few abortions from actually happening.

Objectively incorrect.

You really think that this is going to stop women from seeking unsafe, underground methods? Millions of clandestine abortions happen every year in countries where they are illegal.


You're not saving babies, bud.

Does criminalizing murder make murder happen less? Does criminalizing robbery make robbery happen less?

[TPIG]

Roe should be thrown on the ash heap of history. It's based on unsound legal reasoning and expanded an utterly immoral practice. 

[100% pro-life no matter what]

Yes, and the Constitution should be amended to outlaw abortion nationwide.  There isn't room for compromise on this issue.

[Since I'm the mad scientist proclaimed by myself]

I think we should replace it with an unrestricted right to abortion(the government should be required to fund it) up until the fetus is developed enough for personhood(somewhere between 12-24 weeks as far as I know), after which point it should be banned unless the mother is endangered by carrying the pregnancy to term and/or the baby will not survive.

Forced birth is horrific, but killing a baby is even worse.

[All Along The Watchtower]

Yes, and the Constitution should be amended to outlaw abortion nationwide.  There isn't room for compromise on this issue.

On what basis should abortion be outlawed nationwide?

[MyRescueKittehRocks]

And end abortion while we’re at it.

Good luck with that.

If roe is overturned (and it will be) several states have laws in place that will do so.

[Continential]

And end abortion while we’re at it.

Good luck with that.

If roe is overturned (and it will be) several states have laws in place that will do so.

People will still do it illegally, so it would be pretty hard to end all abortions, and this is from someone who supporting overturning Roe and considers themselves to be pro-life.

[YE]

Yes and replaced with a federal law regulating abortion to where it is allowed in limited circumstances.

[MyRescueKittehRocks]

And end abortion while we’re at it.

Good luck with that.

If roe is overturned (and it will be) several states have laws in place that will do so.

People will still do it illegally, so it would be pretty hard to end all abortions, and this is from someone who supporting overturning Roe and considers themselves to be pro-life.

If you are pro life then why support the party who is not

[MyRescueKittehRocks]

Yes, and the Constitution should be amended to outlaw abortion nationwide.  There isn't room for compromise on this issue.

On what basis should abortion be outlawed nationwide?

14th amendment.

No one should be deprived of life or liberty without due process of law.

[All Along The Watchtower]

Yes, and the Constitution should be amended to outlaw abortion nationwide.  There isn't room for compromise on this issue.

On what basis should abortion be outlawed nationwide?

14th amendment.

No one should be deprived of life or liberty without due process of law.

what