Should Roe V. Wade Overturned?

[John Dule]

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

[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.

[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.