Overruling Roe Would Extinguish A Judicially Created Right, But Would Restore The People's "Precious Right To Govern Themselves"

There is not a single definition of liberty.

This morning I appeared on C-SPAN Washington Journal to talk about Dobbs. I was asked to explain how the Supreme Court could overrule precedent, and extinguish a judicially-created constitutional right.

This question has been used to criticize the stare decisis analysis in the draft Dobbs opinion. Sure, the Supreme Court has overruled precedents, but has (almost) always done so to expand liberty. Brown v. Board of Education, for example, (partially) overruled Plessy, but did so in the service of expanding the equal protection under the law.

This argument presumes that liberty is defined by removing the state's power to restrict individuals. Consider Adkins v. Children's Hospital and West Coast Hotel v. Parrish. The former case protected a right of individuals to contract. The latter case protected the right of the people to govern themselves, and mandate a minimum wage. Both cases involved rights of different sorts. To say that West Coast Hotel did not promote liberty is to adopt a classically libertarian understanding of liberty. But there is more than one conception of liberty.

Chief Justice Roberts explored this concept in his Obergefell dissent:

Those who founded our country would not recognize the majority's conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.

Justice Scalia made this point more forcefully in his Obergefell dissent:

Today's decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court's claimed power to create "liberties" that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito's draft opinion explains that there are many conceptions of liberty, quoting Lincoln and Berlin:

Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the "liberty" protected by the Due Process Clause because the term "liberty" alone provides little guidance. "Liberty" is a capacious term. As Lincoln once said: "We all declare for Liberty; but in using the same word we do not all mean the same thing." In a well-known essay, Isaiah Berlin reported that "[h]istorians of ideas" had catalogued more than 200 different senses in which the terms had been used.

It is a mistake to argue that Dobbs extinguishes a right, without also acknowledging that the decision would restore another right. Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.

Comments

[Eric Mack]

And soon we can look forward to state legislation forbidding cosmetic surgery because cosmetic surgery is not mentioned in the Constitution.

[juris imprudent]

Which wouldn't hold water either were it not for the doctrine of rational review - which presumes that if the state has the flimsiest excuse for doing so, and it doesn't run afoul of a specific liberty interest it must be okay.

[santamonica811]

Not to mention, things like contraception and interracial marriages.

[Don Nico]

Santa,
Interracial marriages are not threatened. You know that; we all know that. So why engage nonsensical scare polemics?

[JasonT20]

So why engage nonsensical scare polemics?

Because it is inconsistent to argue that abortion isn't protected because it isn't "deeply rooted in [our] history and tradition" and "implicit in the concept of ordered liberty", and yet other landmark rulings of the last several decades that cut against what was 'traditional' are safe. If abortion isn't a right found in our traditions, then why would interracial marriage be safe? Certainly, same sex marriage wouldn't be safe, nor would consensual sex acts between same sex partners (Lawrence v. Texas). Griswold (Access to birth control) is a direct ancestor to Roe, so it is impossible to buy that a majority opinion overturning the right to abortion wouldn't also make that case vulnerable.

The whole problem here is this idea of originalism that you can only rely on history when the text alone is insufficient to decide an issue or case. The people that wrote the Constitution and its amendments were not all wise or all knowing and infallible, so their understanding, nor were the people that made up the general public of those times.

Putting the thumb on the side of the scale that reveres the past as more pure and moral than the present biases constitutional analysis towards social conservative preferences. I think it obvious that this is by design. It naturally is why originalism is far, far more popular with social conservative lawyers and legal scholars than with liberals or liberal-leaning ones.

[JasonT20]

Sorry, my editing was incomplete. The middle paragraph should finish with this:

The people that wrote the Constitution and its amendments were not all wise or all knowing and infallible, nor were the people that made up the general public of those times. Their understanding of the constitution can be a reasonable starting point, but it cannot be the only view that matters for anyone that wants constitutional interpretation to expand liberty beyond the flawed practices of the past.

[Josh R]

Interracial marriage is safe because of equal protection.

[JasonT20]

Interracial marriage is safe because of equal protection.

It was 100 years after the passing of the 14th Amendment before the Court would use the Equal Protection Clause that way. Some opponents of interracial marriage would even claim that Blacks did have equal rights. They had the same right to choose someone of the same race to marry that whites did. (Sound familiar?)

[Josh R]

Yes, but reversing Roe has no impact on that debate.

[ReaderY]

The basic counterargument is Justice Black. Justice Black, who objected to the whole privacy thing from the beginning, dissented in Griswold. But he concurred in Loving.

[JasonT20]

The basic counterargument is Justice Black. Justice Black, who objected to the whole privacy thing from the beginning, dissented in Griswold. But he concurred in Loving.

Justice Black isn't a counterargument to anything. That Justice Black objected to a right to privacy in Griswold, but concurred in Loving doesn't provide any arguments either, as it just notes a fact regarding how he voted in those two cases with none of this reasons. You left it to me to figure out how this is supposed to be a counterargument, and I don't have that kind of time.

[Brett Bellmore]

The thing the "But, interracial marriage!" crowd ignore, is that while Roe came out of nowhere, there actually IS a 14th amendment, which actually was being applied to overturn laws against interracial marriage.

Multiple states repealed their laws against interracial marriage after the 14th amendment was ratified. Lower courts started striking such laws down where they weren't repealed. The 14th amendment actually was, at the time it was ratified, understood to overturn such bans!

And then the Supreme Court put a stop to it with Pace v Alabama, just like they put a stop to Reconstruction with other cases.

All Loving did was correct the Court's own malfeasance.

[JasonT20]

Roe didn't "come out of nowhere". Is Griswold going to remain precedent if Roe is overturned?

All Loving did was correct the Court's own malfeasance.

And so did Brown. And how many other cases where the Supreme Court reversed itself? The question is how many people are denied their rights in the meantime.

[Brett Bellmore]

The point is that overturning Roe doesn't imply anything for Loving, because Loving is on a very sound basis from an originalist standpoint, as sound a basis as Roe wasn't.

[Martinned]

Wow, that's some very interesting originalism you've got there, that seemingly seems to ignore just about everything people in the reconstruction era actually believed about segregation.

[Brett Bellmore]

That doesn't ignore what was actually happening until the Supreme court put an end to Reconstruction, you mean?

[juris imprudent]

Claiming that lineage is damning with faint praise. Griswold is a train wreck and always has been. Much as Dred Scott and Plessy were fundamentally wrong when the Court pronounced on them.

What is a little curious is the amount of effort put into legal challenges to CT's Comstock Act (culminating in Griswold - including a contrived charge a la Plessy) rather than what should have been relatively easy to repeal or amend the beast. As though it is preferable to change the law via judicial proceeding rather than democratic law making.

[M L]

Jason T20

I don't think Don Nico was asking for anyone to expound on their constitutional theories of abortion and interracial marriage.

I think Don Nico was saying, there isn't a single state in the union where interracial marriages would be threatened. So why say otherwise? It's not true. It is nonsensical and a scare tactic.

[David Nieporent]

That, too. There is zero constituency for banning interracial marriage.

[JasonT20]

That, too. There is zero constituency for banning interracial marriage.

In the United States, there is going to be a nonzero constituency for just about any position you could think up. An insignificant constituency for banning interracial marriage? - I would agree there.

[Brett Bellmore]

I live near Greenville, SC, not the deepest South, but deep enough. I see interracial couples all over the place, and nobody even seems to regard it as unusual.

Seriously, I think that if the race grievance hucksters would just can it for a while, this whole race thing will resolve itself in a couple more generations through simple inter-breeding.

[JasonT20]

Seriously, I think that if the race grievance hucksters would just can it for a while, this whole race thing will resolve itself in a couple more generations through simple inter-breeding.

Yeah. Black people waited around 100 years after the end of slavery for the Equal Protection promises of the 14th Amendment to start being implemented in a real way. Then it has been a couple of generations more since then and there are still large disparities in many social, legal, and economic outcomes. What is another couple of generations? No need to actually discuss any of this history in schools (that would be the evil, Marxist Critical Race Theory) or take any other actions to try and reduce this inequality. It will just resolve itself when people of different races have interbred enough for there to no longer be different races.

(Of course, racial inequality is hardly limited to Black vs. White, either.)

[David Nieporent]

If abortion isn't a right found in our traditions, then why would interracial marriage be safe?

Because the two tests you mention are applicable in the substantive due process context, not the equal protection context.

[JasonT20]

Because the two tests you mention are applicable in the substantive due process context, not the equal protection context.

If building a consistent set of interpretative principles was the goal, then this distinction might be more persuasive for me. What really protects Loving is what you and M L mention - hardly anyone would be in favor of banning interracial marriage now. Certainly not enough people with actual power to craft laws would be. But reversing Lawrence and banning sodomy again? Obergefell, which was also based on Equal Protection, I believe? There are definitely plenty of conservative legislators in deep red states that would think to whip up their base going for those rights.

I haven't read the opinions in a long while, but I also seem to recall Scalia, in his dissent in Lawrence, including same sex marriage in the parade of horribles that could result from declaring criminal bans on sodomy unconstitutional. Was Lawrence decided on Due Process grounds or Equal Protection grounds? It's possible that conservative Justices don't view these two as separate in their application when it comes to history and tradition as you do.

[Bored Lawyer]

"we can soon look forward" -- is this based on anything, or you just pulled that out of your orifice?

Newsflash: there are lots of silly laws that are not barred by the Constitution. A democractic society depends in the main on the wisdom of the electorate to avoid silly enactments.

[J. Denny]

They likely could and they did during the pandemic in order to save personal protective gear. All elective procedures were put on hold in many states.

[M L]

Every stupid idea must be unconstitutional.

-- Signed, A Moron

[Martinned]

All rights are judicially created. A right means nothing except what the court says it means.

[zztop8970]

Do they not teach classical philosophy in the Netherlands anymore, or were you just a horrible student?

[Martinned]

They do. That was quite a surprise for my fellow law students when we turned up for our first class on the first monday of the first term, and ended up listening to a professor talking about Plato for an hour.

Not sure what that has to do with Blackman's post or my comment, though.

[zztop8970]

Your nonsense about "All rights are judicially created" runs counter to the classical philosophy idea of natural rights. You might want to review your first year notes.

[DaveM]

Yes, who needs governments, representatives or elections? All rights are judicially created, amirite? The law is just whatever we can get the supreme court to say it is, all your silly democratic and administrative state institutions to the contrary.

Were it all so simple ...

[Martinned]

Sort of. The law works through the combination of institutions that have the power to make rules of general application and the application of those rules to specific instances. Common law courts like the US judiciary have always had both types of power, even if people's willingness to say that out loud varies over time.

That said, there's more to the law than rights. Apart from privileges and immunities there are also claims and powers.

[Ed Grinberg]

All rights are judicially created. A right means nothing except what the court says it means.

And here I foolishly thought that I was endowed with certain unalienable rights by my Creator, and that the Founding Fathers took the trouble to spell out some of these rights in the Constitution (in fairly plain English).
It Democrats pack the Supreme Court, and the new "liberal" majority says that, per the Constitution, the government can take my property and make me and my children slaves, are my rights thereby extinguished? Hell no. My rights remain the same, I just have to fight against those who would usurp them, like the Founders did.

[Martinned]

And here I foolishly thought that I was endowed with certain unalienable rights by my Creator

Sure, and if you can get that Creator to enforce those rights for you, you might be able to make the rest of us care about your rights. The rest of the time, you'll need to go to court just like the atheists.

[zztop8970]

You really are a confused SOB. first you confuse the idea of how rights are created and how rights are enforced, And then you imagine that the courts enforce rights. They don;t. They ruke, and then some executive agency enforces them.

[Martinned]

the right of the people to govern themselves.

You mean govern themselves like the people did when they said/did this?

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. (...)

[the questing vole]

I am sympathetic to your notion that Roe was wrongly decided, and certainly hope that it is overturned. However, your account of Berlin's essay on the two concepts of liberty is misleading. Berlin did say that self-government was one way that various thinkers have understood liberty in the past, but he was critical of this understanding as theoretically and linguistically incoherent. His argument was that negative liberty (i.e. freedom from coercion) is the only reasonable theoretical definition of liberty, and that others who use the term 'liberty' are not concerned about liberty, but something else (e.g. capacity, self-fulfillment, self-government, etc.). He did not say that these concerns with other things are unimportant, but he did emphasize the fact they are not to be confused with liberty.

[Stephen Lathrop]

vole — Was Berlin unfamiliar with America's founders? "Liberty," became an amorphous sort of Lockean mystery mainly after the Civil War. Prior to that—in the founding era—the word, "liberty," most often meant self-government under popular sovereignty, on the basis of majority principles (based on usage at the Philadelphia Convention, and prior; a small minority of uses at Philadelphia referred to civil liberties.)

"Liberty," used among slave-owners in the South was different, and just what you would suppose from slave owners—draw the boundaries of liberty narrowly enough, and you get absolute liberty—expressed as absolute tyranny. As a practical matter, that is what Locke's liberty eventually became. And maybe not by accident. Locke favored permanent forced indentures among the British poor. He supported expropriation of Indian lands in North America. Locke invested in the slave trade.

You don't even need close study of the historical record to see it—the founders' liberty was a right of self-government, which they judged to be the fount and guardian of every other liberty. In that view, those other liberties—your rights especially—were decreed by the sovereign People, threatened by government, and defended on citizens' behalf by sovereign power. Just check with the Declaration of Independence and the Constitution. Give those a close read, and see how often you find, "Locke."

By the way, that invention of the founders has turned out to be by far the most practical and coherent take on rights and liberty ever. The problem with the others has always been what Martinned suggested above—if you found your rights on God, you have to rely on God to vindicate them; if you found your rights on nature, then look to nature for vindication. To make it work, cultivate a talent for long-suffering endurance.

Note also a paradox. The principal threat to liberty is always government. Thus, there is a problem with reliance on government to enforce liberty (a point Martinned seems to miss). A further paradox, what can it mean to suggest pre-existing rights, at a time when there is no government to usurp them?

Reliance on sovereign Power for enforcement of rights—and making the citizens collectively sovereign—has been the solution to the problems, paradoxes, and practicalities of liberty—both the liberty of self-government, and the liberty of private rights. It was a work of genius, which transformed governments world-wide.

Who wants utopian liberty, when you can have the real thing, along with a roughly practical power to enforce it? Nothing better has been found.

[LawTalkingGuy]

And by “themselves” you mean arbitrary polities that very often are governed by minority parties and not actual individual people themselves and the things that go on in their bodies.

[dwb68]

Let's return the right to own other people to the states too. Stop depriving people of the right to govern themselves! /sarc

[raspberrydinners]

^^

[Brett Bellmore]

"To say that West Coast Hotel did not promote liberty is to adopt a classically libertarian understanding of liberty. But there is more than one conception of liberty."

Yes, I believe Orwell had something to say about that. As the questing vole says, while democratic rule may be valuable, may be many things, what it is not is liberty. Not in any coherent sense.

[Stephen Lathrop]

Right, Bellmore. For readings of, "coherence," meaning, "utopian."

Just to address the subtext. The founders liberty had nothing to do with libertarianism. Libertarianism as a political philosophy was unknown to the founders. Also? Libertarianism cannot pass muster as a theory of government. A notion of government built on opposition to sovereignty is fatally paradoxical.

[Brett Bellmore]

"Libertarianism as a political philosophy was unknown to the founders."

Trivially so, in the sense that the term was created in the middle of the 20th century, to replace "liberal", on account of the Fabian left having successfully stolen the name for themselves. (They're currently in the process of doing the same thing to "originalism".) The founders would have identified "libertarians" as liberals. They were themselves liberals, after all; Their theories derived from the same source as modern libertarianism, John Locke.

[Squirrelloid]

There may be more than one valid conception of liberty (maybe), but there's only one valid conception of rights. It's a specific philosophical concept, not just a word we throw around to mean that people deserve something. The people (as a group) have no rights, because rights are not a group thing. Individual people have rights.

It's certainly true that it isn't only the government who can violate your rights. Real criminal offenses (the ones with victims - murder, rape, kidnapping, robbery, etc...) are crimes because they violate the rights of the victims.

Also, "classically libertarian"? The phrase you're looking for is 'classical liberal'.

[Squirrelloid]

(When i say individual people have rights, i mean all people have rights as individuals, not that only some people have rights).

[Stephen Lathrop]

The people (as a group) have no rights, because rights are not a group thing.

For a contrary view, see the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

How that so often gets overlooked by rights mavens remains a mystery.

[raspberrydinners]

What fresh batch of stupid is this?

So your idea of liberty is to strip women of their right to govern their own bodies and give it to a government?

Are you the stupidest motherfucker on the planet?

[Commenter_XY]

I'm sorry, but don't I recall your arguing vociferously for vaccine mandates, raspberry? You know, 'my body, my choice' kinda, sorta thing?

Yes, I do remember that quite well....you making that argument. You argued for classifying people as 'essential', you argued to take away their livelihoods, you argued for removing their children, you argued to deny them healthcare.

You personally argued for all of those things. Now with abortion, you want us to 'forget' what you argued for previously? 🙂

It doesn't work that way.

[Ed Grinberg]

What accounts for this inconsistency?
Whatever it is, it isn't love of freedom.
If the only "freedom" you like is the freedom to kill unborn babies...

[Josh R]

Or perhaps a zygote doesn't have the same moral or legal standing as you or me, and we are at risk of harm from other people who are not vaccinated.

[Commenter_XY]

If only the vaccine worked, Josh R.... = we are at risk of harm from other people who are not vaccinated

The larger point is....make a consistent, principled argument, because that 'my body, my choice' argument raspberry advances is unprincipled bullshit.

[Josh R]

Up through the delta variant, the vaccine reduced the spread of infection. Even since then, the vaccine reduces the chance of hospitals being overwhelmed by a crush of patients which then turn away other people in need of service.

And indeed for the larger point, we should assume the vaccine works to protect other people. The "my body, my choice" argument in favor of abortion assumes the zygote does not have the same moral or legal standing as you or me, and hence the harm done to the zygote is not the same as the harm done to you or me from someone else not getting vaccinated. You did not address this principled distinction between abortion and vaccines.

[juris imprudent]

The vaccine did not reduce the spread, it reduced the impact of COVID to the vaccinated person (from a potentially serious infection to something minor or even asymptomatic).

It's amazing how people seem to ignore that the vaccine did not do what is was sold as doing. Instead they double down in deliberate ignorance.

[Josh R]

The vaccine was 91% effective against infection against alpha and 66% against delta.

[juris imprudent]

https://www.scientificamerican.com/article/the-risk-of-vaccinated-covid-transmission-is-not-low/

[juris imprudent]

https://www.nejm.org/doi/full/10.1056/NEJMoa2116597

[Josh R]

That's consistent with my source.

[Brett Bellmore]

"Even since then, the vaccine reduces the chance of hospitals being overwhelmed by a crush of patients which then turn away other people in need of service."

I think it's been pretty clear for a long time that crush of patients wasn't a real prospect, but a fair number of people are liable to die due to elective procedures like cancer and heart surgery being delayed to keep beds open that never filled.

[Stephen Lathrop]

Right Bellmore. And there were no bodies in the streets of New York. They were there, by the thousands, concealed tastefully in refrigerated vans. THERMO KING.

You are mistaken, and not very careful about it.

[Brett Bellmore]

Yeah, New York City is the entire country.

[Flight-ER-Doc]

Leftists cannot let the people decide for themselves!

What would happen if they decided wrong?

[Martinned]

That is literally what conservatives are doing by banning abortion: Preventing women from deciding for themselves.

[DaveM]

Except women aren't deciding something only for themselves, are they? It's not just her body, it's her body and the body of the child she was bearing that's at issue.

It amazes me that people still try to slip right by the actual point of contention to this day. It is more than a little frustrating at this point in this 50-year-long conversation.

[Martinned]

It amazes me that people still try to slip right by the actual point of contention to this day.

Likewise, dude.

[M L]

From your own link:

3a: an unborn or recently born person
"… Meghan Markle, married Prince Harry, now pregnant with child."

!!!

[JasonT20]

Yes, some people will talk about a pregnant woman being "with child" or ask a happy expectant mother "have you felt your baby kicking yet?" But note how each of those situations includes a woman that wants to be pregnant. Why does a woman that does not want to be pregnant need to think of the embryo she probably just found out about as being a "baby" with a "heartbeat" such that a state can legally bar her from undergoing a procedure to not be pregnant anymore? Is that you and some other people believe that she should view it that way sufficient to make it so?

[juris imprudent]

And both progressives and conservatives will tell you that you have no right to decide what you would consume of your own volition (alcohol, tobacco, drugs), or that you may be impressed into military service absent your free choice. You see, government has all kinds of ways to deny your bodily autonomy.

[MollyGodiva]

It is goofy to argue that allowing the government to control a women's reproductive choices in any way increases liberty. This is about people wanting to impose their religious beliefs on others.

[Bruce Hayden]

Except that a significant portion of this country believe that fetuses/babies have the fundamental right to life - esp after viability. If you can deliver a baby, and expect it to live, with an emergency C Section several minutes long, and the baby has full Constitutional rights at that point, then why shouldn’t that baby have those rights a couple minutes earlier?

[MollyGodiva]

1. It is wrong for that portion to impose their beliefs on others.
2. Your comments mirror the viability standard, that fetus variability outside the womb is where the line between legal and illegal is. That is effectively Roe now. Pro-choice activists would be ok with that standard.

[Da5id]

I am pro-choice, and am dubious that activists would be ok with that viability standard. Many ordinary people/voters would but activists (on both sides) seem to go for more absolutist positions rather than compromises.

As to "imposing their belief on others", I think it is perfectly reasonable given their belief system for pro-lifers to try and do that here. If one credits them with an honest belief that God creates human life with a soul at conception (something shared by at least some of those who have religious motivations to oppose abortion), a desire to protect that human innocent life is perfectly understandable. Just as it would be your or societies business if other people wanted to have the right to kill their children after birth. This isn't my cup of tea at all, I just can understand where they are coming from. I'm not religious, and have no issue with women electing to have pre-viability abortions for any reason. Though tbh abortions to terminate based on fetal sex, generally female, strike *me* as rather distasteful (more of an issue overseas than in the US anyway as I understand it).

[Bruce Hayden]

The problem with the pro-choice fanatics (which I define here as those in favor of T3 abortions) is that we have long protected the very weakest and vulnerable, and a pre-baby, separated from full citizenship by an emergency C-Section is very clearly in that category. Which is why we also remove abused kids from their homes when such abuse is discovered.

What I am saying about the Roe 3 trimester standard is that it is fairly well accepted by the American public, according to polling. As I noted, Casey blew that up, and, I think made reversal unavoidable, since it sanctioned 3rd trimester abortions, which are opposed by a significant proportion of the populace.

[Brett Bellmore]

Casey may have blown Roe's standard up, but Doe v Bolton, decided hours after Roe, had already rendered it largely unenforceable by guaranteeing abortion doctors that their judgements of medical necessity couldn't be challenged.

Doe pulled the teeth Roe had put in their trimester scheme. And they had to know that even as they announced Roe.

[Stephen Lathrop]

Hayden, unmentioned, of course, is a problem which goes with T3. If a baby dies in the womb, and abortion is illegal during T3, how do you find a doctor to do a medically needed procedure? What doctor will risk a felony prosecution, after some Javert-style pro-life prosecutor says it was an abortion?

Got any comment on that? See any way to fix the problem?

[sleepy cheeks]

In that scenario documenting the death of the unborn child with sonograms and other medical records is entirely feasible. Perhaps an analog to Florida's self-defense law could be passed giving the doctor an opportunity to seek a ruling they acted lawfully prior to the criminal case.

[Stephen Lathrop]

Sounds great. What makes you think that would cut any ice with a doctor who could simply avoid the hassle by not providing the service?

[Ed Grinberg]

It is wrong for that portion to impose their beliefs on others.

Who's doing the imposing here?
Before Roe v. Wade, those who, like you, believed that a woman should be free to "abort her fetus" (i.e., kill her unborn baby) were free to (democratically) change their state's laws to that effect. (Some states did this!)
What Roe did was impose this belief on the entire country, including the states where the majority felt otherwise. This was, indeed, "wrong."

[DaveM]

Here is yet again another attempt to slip right by the actual point of contention in our 50-year argument over this topic. If the choices being made affected only the people making them, not a soul would have a problem with that.

But this is the kind of choice that affects MORE than one person, and furthermore it's a choice of death that results in the killing of that other person.

You don't get to do that in a just society. I don't get to do that in a just society. No one gets to do that. We can't just go out and decide that some innocent person is to be killed just because we say so.

[Ed Grinberg]

No one gets to do that. We can't just go out and decide that some innocent person is to be killed just because we say so.

https://reason.com/video/2022/05/06/gov-polis-wants-you-to-be-in-charge-of-your-own-life/?comments=true#comment-9482455

[Toranth]

That silly argument applies to anything the government does. Who says that preventing me from selling myself into slavery increases liberty?

Also, it is quite possible to hold anti-abortion beliefs for non-religious reasons. About 25% of non-religious people think abortion should be banned in all or most cases. Another 40% think it should be restricted to pre-viability.

Perhaps you should actually try listening to the arguments people use to disagree with you, rather than arguing exclusively with the strawmen in your head?

[JasonT20]

Also, it is quite possible to hold anti-abortion beliefs for non-religious reasons. About 25% of non-religious people think abortion should be banned in all or most cases. Another 40% think it should be restricted to pre-viability.

Citation? And were the "non-religious" people actually nonbelievers, or just unaffiliated with a particular organized religion? And, restricting it to "pre-viability" is consistent with the Casey standard that isn't nearly good enough for the anti-abortion side. As far as I know, elective abortions post-viability are generally not happening. If you have reliable information that late-term abortions are occurring anywhere in this country regularly just because the woman doesn't want a baby, I'd like to see it.

[Toranth]

There was a Pew poll a few years back, and the people self-identified as non-religious. You can read their minds yourself to see if they were truthful.
You seem to be reading the minds of the "anti-abortion side" in entirety well enough to know the motives of the majority of the US population.

As for "late term", it's true that only about 4-5% of abortions happen on or after 20 weeks. But only about 10% happen after 15 weeks, so why are you objecting to Mississippi's laws?

[JasonT20]

There was a Pew poll a few years back, and the people self-identified as non-religious. You can read their minds yourself to see if they were truthful.

It isn't about truthfulness, but how non-religious is defined. And those are some specific numbers you remember from a poll "a few years back". So, I did the work for you (less than a minute to find it). https://www.pewresearch.org/religion/2022/05/06/americas-abortion-quandary/

There, it refers to the "religiously unaffiliated", which it describes this way:

"At the other end of the spectrum, religious “nones” – U.S. adults who describe themselves, religiously, as atheists, agnostics or “nothing in particular” – are most supportive of legal abortion."

It seems clear to me from that poll that opposition to legal abortion is mostly a phenomenon among white evangelicals. Majorities of every other religious group in that poll supported abortion being legal in all or most cases. But the main conclusion from the poll is that large majorities of all groups do see gray areas around abortion, as only small percentages were saying that abortion should be legal in all cases or illegal in all cases.

As for "late term", it's true that only about 4-5% of abortions happen on or after 20 weeks. But only about 10% happen after 15 weeks, so why are you objecting to Mississippi's laws?

I have to wonder again if these numbers are something you remember from "a few years back", or if you have a specific source.

But regardless of the accuracy of those values, I object to Mississippi's law because it isn't really about finding a reasoned boundary, but overturning Roe so that they can then go back and be even more restrictive. And I bring it up all the time around here, but abortion opponents never seem to acknowledge it. Look at the death of Savita Halappanavar in Ireland (17 weeks pregnant) for why abortion bans are dangerous.

[Ben_]

Many democratic countries have made relative peace with the issue. They didn’t have a court that illegitimately wrote it into their constitution.

There’s a legitimate way to amend the constitution. Use it if you have broad public support for your issue.

If you don’t have broad public support, then stop trying to impose your choices on very large fractions of the public who disagree. Enact it in some locale where you have broad public support. Or get public support for a compromise, like someone who likes democracy might do.

[jb]

"Many democratic countries have made relative peace with the issue. They didn’t have a court that illegitimately wrote it into their constitution."

Lots of democratic countries have had abortion legalized through the judiciary too, though--including, quite recently, Mexico.

[Brett Bellmore]

Sex seems to be a popular area for the courts, everywhere, to just steamroller democracy. But they only get away with it because the elected branches tend to be privately more 'liberal' than the voters, in the first place, so that they'll make sure to only put up an ineffectual fight.

[JasonT20]

Sex seems to be a popular area for the courts, everywhere, to just steamroller democracy.

But Brett, democracy is just tyranny of the majority! The U.S. is a republic not a democracy!

As the sarcasm indicates, the hypocrisy of Blackman's argument that you echo is galling. That Blackman (and you) are resorting to the right of the people to govern themselves when conservatives consistently resist other popular regulations as violating their rights is almost too much.

[Brett Bellmore]

We distinguish between rights you can actually find in the Constitution, and rights the Court pulled out of its collective rectum. Of course enumerated rights get more respect! They're part of the Constitution the courts and legislature actually swore to uphold!

I'm not impressed with his "democracy is a right, too!" argument. Democracy is a procedure for deciding who rules, it's orthogonal to whether or not those rules violate rights. The best you can say about democracy is that the people are unlikely to vote to violate their own rights, so it's typically the minority that suffers under democracy, while non-democratic systems open up the potential of it being the majority that suffers.

[JasonT20]

We distinguish between rights you can actually find in the Constitution, and rights the Court pulled out of its collective rectum. Of course enumerated rights get more respect!

I gave you a lot more credit for having read and understood the Constitution that this. I'm also fairly sure we've talked about the 9th Amendment in our debates here before. What you just said is completely against the obvious meaning and purpose of that amendment, though.

They're [enumerated rights are] part of the Constitution the courts and legislature actually swore to uphold!

And so is the 9th Amendment that explicitly says not to "deny or disparage" rights not enumerated elsewhere in the Constitution. You can't deny unenumerated rights by saying that they don't exist because they aren't listed, nor can you disparage them as being less important than rights that are listed. It is perfectly fine to argue over how to determine whether a claimed right not in the text of the Constitution exists or how to balance competing rights, but to say or even imply that not being listed is sufficient justification to deny its existence or that it isn't as important as listed rights if it does exist is flatly prohibited. Good thing you aren't a judge, because you would violate your oath by pretending that the 9th Amendment itself doesn't exist.

[Brett Bellmore]

Why, yes, we have discussed the 9th amendment, and how it isn't a blank check for the judiciary to turn crimes into rights, but merely establishes that pre-existing rights were not extinguished by the failure to enumerate them. You still have to demonstrate that they WERE pre-existing.

So, it would have been quite relevant to establish that abortion was treated as a right at the time. Which has not been done, so far as I can see. On the contrary, abortion was illegal from the moment it could be proven.

There are a lot of genuine 9th amendment rights being crapped on, but the right to abort isn't one of them.

[JasonT20]

Why, yes, we have discussed the 9th amendment, and how it isn't a blank check for the judiciary to turn crimes into rights, but merely establishes that pre-existing rights were not extinguished by the failure to enumerate them. You still have to demonstrate that they WERE pre-existing.

That's a different position than what you just said.

I also dispute the idea that unenumerated rights have to be "pre-existing" in some historical practice in the U.S. before they can be considered rights. Rights that the people have don't depend on an arbitrary date in history when the Constitution was drafted, signed, ratified, or amended. This reliance on historical practice and tradition is something that conservatives want to solely use because it is the most likely way to get the result they desire. There is no logical reason I can think of as to why picking a point in U.S. history would be the best way to go to figure out what rights people living now possess, let alone the only way.

[JasonT20]

There are a lot of genuine 9th amendment rights being crapped on, but the right to abort isn't one of them.

Such as? Maybe you can explain why those are "genuine 9th amendment rights" but abortion isn't.

[JasonT20]

The best you can say about democracy is that the people are unlikely to vote to violate their own rights, so it's typically the minority that suffers under democracy...

People vote to restrict their own rights all the time. What they can't do is vote to restrict rights without sufficient justification. (Hence, strict scrutiny)

The minority suffers or has their rights suppressed under majoritarian rule when the majority does not want to recognize their rights. Given proper incentives and ethical and moral institutions and traditions, a majority can see the value in respecting the rights of minorities amongst them, even if they have to make some sacrifices to express that tolerance. Gay people aren't anything close to a majority, but most heterosexual people have come to value them and their rights. Thus majorities in many states have voted to extend protections in ways that the courts haven't. For instance, federal courts haven't ruled, to my knowledge, that LGBTQ+ constitutes a protected class that even state and local governments must protect with their anti-discrimination laws. But more than a few states have laws on the books making discrimination on the basis of sexual orientation just as illegal as discrimination on the basis of race.

The problem, though, is that waiting for a majority to find value in protecting the rights of minorities is denying them justice. That is why the similar argument of letting states decide whether to recognize same-sex marriage was not correct. Just because a few states were showing that they were building a majority of voters willing to stop discriminating against same-sex couples that wanted to legally marry, didn't make it acceptable to wait however many years would go by before even most of the country figured that out, let alone all of it. (And some other states had their supreme courts ruling for same-sex couples as well as a few legislatures making those moves, iirc.)

...while non-democratic systems open up the potential of it being the majority that suffers.

"Non-democratic systems" covers a lot of different types of governments, but most authoritarian regimes of the 21st century aren't designed to oppress a majority so much as simply concentrate power in the hands of whatever oligarchs or megalomaniacs manage to seize it. Even regimes that still have semi-coherent ideologies, like China's Communist Party and Iran's theocrats, are aimed at supporting the power-hungry demands of individuals at the top as much as their stated ideological or religious goals. Ideology, nationalism, and even religion are simply tools in their hands to try and distract and control the populace with propaganda.

That means that authoritarianism is about denying the sovereign powers of the people. (I'm borrowing from how Stephen Lathrop has argued regarding the nature of democracy. Voting isn't a right, but an expression of the sovereignty of the people in governing themselves.) Democratic nations fall toward authoritarianism when they start denying the people their sovereign power to choose their own government and start substituting their preferences instead. Essentially, "voting rights", for lack of a simpler term, are about preserving the ability of the people to "vote the bums out" whenever they want to do so.

[EscherEnigma]

What an odd appeal to populism.

We all know --or should know-- that a given proposal being popular (or unpopular) has little to do with it becoming law (or being repealed). A constitutional amendment is a matter of politics, not populism, with all the gerrymandering, horse-trading, and so-on that entails.

Or, to put it another way... in a country that routinely elects a president who got the smaller vote share, why would you ever think "if it was popular, it would happen" to be a coherent argument?

[Jaypd]

This is easily the stupidest thing I've read today.

[GoBlue 2]

Supporters of the expected opinion in Dobbs need to be cautious how we support it. Abortion is not a right granted in the US Constitution, but nevertheless, people who want abortions are losing a currently-held constitutional right in the sense that today, it is recognized by the Court. That is OK to say, and we should be able to say it - the Court is correcting an error, and removing a previously-recognized right that never actually existed, regardless of the desirability of abortion on demand.

One weakness in the pro-choice side of the debate is that many of its proponents cannot refer to the subject of the abortion as an "unborn baby" or a "life" or any such thing that it clearly is. There may be good reasons to obtain an abortion, but if supporters of the practice must use dehumanizing language, this suggests a weakness in the argument.

The idea of a collective right to govern ourselves is not where we should be headed - Plessy upheld that "right" against the right of black people to enjoy equal protection of the law. New York would prefer that "right" to the Second Amendment. Collective "rights" are government powers, not rights, and we should not pretend otherwise. States are gaining power to regulate abortion, and people are losing abortion rights, at least in some states. This is consistent with a reasonable understanding of the US Constitution, and should be applauded not because of a "right" to "governance" but because it is advancing the rule of law.

[Josh R]

One weakness in the pro-choice side of the debate is that many of its proponents cannot refer to the subject of the abortion as an "unborn baby" or a "life" or any such thing that it clearly is.

I agree it is a weakness, but it's caused by the term "life" (and certainly "unborn baby") connoting having the same legal and moral status as you and me (i.e., persons). It's damned hard to argue the nuances between "life" and "person" in a Twitter talking-point world. The weakness on the pro-life side is not acknowledging their position that the fetus is a person requires the woman to be punished as a first-degree murderer.

[Illocust]

Infanticide has lower jail time for mom's than typical murders of passion or premeditated murders. It's been built into our legal system for a while.

[Brett Bellmore]

It's typically assumed by the law that sane parents would never kill their own children, so infanticide laws tend to incorporate an unstated presumption of an insanity defense.

[Josh R]

Citations, please?

[JasonT20]

There may be good reasons to obtain an abortion, but if supporters of the practice must use dehumanizing language, this suggests a weakness in the argument.

If opponents of the practice have to make emotional appeals equating an embryo to a smiling and laughing baby, that suggests a weakness in their argument.

[Intelligent Mr Toad]

No, Professor Josh. "Liberty" may have several different meanings, but allowing a collective (however small) to control the private personal choices of its members is not one of them. Overturning the right to privacy will not allow people to govern themselves; it will enable some people to govern other people.

If Ayn Rand were to read your article, her response would be "Roark ... Toohey!!!"

[Ed Grinberg]

allowing a collective...to control the private personal choices of its members

You are not popping a zit. You are extinguishing a life. What is wrong with you?!

[Josh R]

Overruling Roe would extinguish a judicially-created right to abortion, but it would restore a very different right: the right of the people to govern themselves.

The same logic applies to every SCOTUS ruling striking down a statute, so liberty becomes a non-issue under Blackman's logic. That seems wrong to me.

[Brett Bellmore]

A reminder: Democracy isn't an alternative to oppression, it's just a way of choosing the oppressor.

[Martinned]

It's astonishingly difficult to get otherwise intelligent people to understand that voting is an act of power over others, rather than just self-determination.

[Stephen Lathrop]

Marinned — Not only is it an act of power over others, it is unconstrained power, exercised at pleasure. In short, voting is sovereignty in action.

And alas, as brutal as sovereign power must be, no limited government is possible without it. What power except an unlimited power, unconstrained by anything, can create a government from scratch, prescribe its powers and limits, decree specific rights for citizens, stay the hand of government from violation of citizen rights, and keep all that operating within prescribed bounds? What power other than a popular sovereign can do all that with any degree of safety for citizens?

[Cal Cetín]

Quoting Lincoln is interesting.

In fact it was Stephen Douglas who said that majority voting on other's rights was the way to go.

The most "extreme" position the "conservatives" on the court are willing to entertain is that a legislature can vote on the right to life of the unborn.

Maybe that's a bit better than saying that a legislature can't protect the unborn even if it wants.

But a jurisprudence which protects the right to life of a rapist, but not (say) the right to life of a rapist's innocent child, is seriously out of whack.

[Martinned]

But a jurisprudence which protects the right to life of a rapist, but not (say) the right to life of a rapist's innocent child, is seriously out of whack.

It would be, if that were a thing that anyone were actually suggesting.

[Cal Cetín]

"Informed by its own precedents and its understanding of the Constitution and the rights it secures, the Court concludes, in its independent judgment, that the death penalty is not a proportional punishment for the crime of child rape."

https://www.law.cornell.edu/supct/html/07-343.ZS.html

[Martinned]

Indeed, and rightly so. What's your point?

[Cal Cetín]

I think I was fairly clear.

[M L]

Martinned, the unborn human is a baby, as a descriptive matter it is referred to as such by millions of women around the world. As a prescriptive matter the Oxford English dictionary has for fetus, "an unborn human baby."

[Stephen Lathrop]

What is it about right-wingers and dictionaries? Definition is not context. It takes a special kind of ignorance to presume a dictionary edited without concern for particular context is an authoritative source to resolve a dispute over context.

[Cal Cetín]

It's a sufficient rebuttal to the claim that "omg it's *obviously* not a baby."

It also shows that when people have their guard down and aren't thinking of the public-relations consequences of calling an unborn baby a baby, they do so. It's only when they suddenly become aware that such obvious usage could "give ammunition to pro-lifers" that they modulate their language and resort to euphemisms like "procedure," "reproductive health care," and "domestic institutions."

Oops, "domestic institutions" is a euphemism from another debate.

[M L]

Stephen,

I cited a dictionary because Martinned did the same in his comment right above. He's the one trying to make this argument that you say requires a special kind of ignorance. I'm just responding on his terms. I agree that arguing over whether it is a "baby" or a "child" or a "person" out of context is side stepping the issue and assuming the conclusion. Besides that, it obviously is a baby and a child as a basic matter of language, according to the self-evident widespread use of language by millions of people. That descriptive definition is far more meaningful than dictionary definitions, which are constantly being revised for certain buzzwords to align with radical leftist ideologies.

[Ed Grinberg]

Overruling Roe would extinguish a judicially-created right to abortion extinguish the life of an unborn baby, but and it would restore a very different right: the right of the people to govern themselves.
What kind of a person would oppose this?!

[M L]

For some, liberty means the liberty to kill others. For others, liberty means the liberty to not be killed by others. It's all subjective.

[M L]

Federalism, of course, was the bedrock principle of the US at its founding. It has been all but destroyed by developments throughout the ensuing 250 years, all of which were characterized by typical and foreseeable treachery and cowardice common to human history.

Blackman's framing a minor increment of federalism being restored as a "right," is a bit awkward and a bit pandering to modern pop culture sensibilities, but defensible.

[JasonT20]

Federalism, of course, was the bedrock principle of the US at its founding.

You'd think that the Federalists of the founding era would be all for abolishing the Fed, broadly reducing the federal government's ability and power to intervene in the economy, raise taxes to pay for its functions, and so on. But I seem to remember many of them being in favor of a stronger central government. A national bank was a major goal of Alexander Hamilton, at least, correct? (You know, the author of the largest number of the Federalist Papers?)