Ticomaya wrote:Again, the key question is the issue of when life begins. I say its conception, and not some vague point thereafter. I suppose you would agree it is inappropriate for a couple to kill their newborn, because they don't want to "keep it"? And further, that it IS the government's business to prevent that from happening?
your pov states that "life" begins at conception. but a fetus is not a being. it is an egg yolk. not trying to be crass, just saying that a fetus is a "possibility of life", not a sentient being.
here's another thing that hasn't been brought up. partial birth procedure. as i mentioned before, the right to choose comes with responsibility.
i'm not real happy about partial birth. for many reasons. however, the recent ban that was in congress had no provision for the value of the life of the mother. how does that respect the sanctity of life?
tell ya this, if my wife was in danger of dying due to the pregnancy? there is no choice to me. she stays, the pregnancy gets terminated at any cost. that's not murdering a child, that's saving a fully developed, sentient and self sufficient being.
This is the smaller issue. The real issue is that nobody can agree on the answer to this question. There are equally persuasive arguments on both sides. It will NEVER be agreed upon, and therefore, should not be legislated by the government. ...
Kicky wrote:
This is the smaller issue. The real issue is that nobody can agree on the answer to this question. There are equally persuasive arguments on both sides. It will NEVER be agreed upon, and therefore, should not be legislated by the government. ...
Hmm. I understand what you're saying. It's sorta like the Israeli/Palestinian conflict.
Debra_Law wrote:First, how would the issue of overruling Roe v. Wade ever make its way to the Supreme Court for reconsideration? There has to be a justiciable case or controversy brought by someone with standing -- someone who is suffering a concrete injury in fact.
It happens. I specifically remember Planned Parenthood vs. Casey, and there may well have been other cases that would have allowed the court to revisit Roe. I see no reason why a similar case shouldn't make its way to the Supreme Court again.
Casey:
Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter, except perhaps [505 U.S. 833, 851] in those rare circumstances in which the pregnancy is itself a danger to her own life or health, or is the result of rape or incest. . . .
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. . . .
The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society. . . .
[P]eople have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. . . .
If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. . . .
An entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe's central holding a doctrinal remnant. . . .
The woman's right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce. . . .
A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman's free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible means of serving its legitimate ends.
Debra_Law wrote:Second, what part of Roe v. Wade would the Supreme Court be "correct" to overrule as a matter of constitutional law? Would it be the "right to privacy" protected by the constitution?
Yes, because the constitution, literally interpreted, does not protect a right to privacy. More specifically, it isn't clear that the Supreme Court, in Roe vs. Wade, was correct in stating that laws against abortion violate the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." You can construct a 'right to abort an embryo' with a long interpretational stretch that starts with the Fourth Amendment. But reasonable jurists can believe that this stretch is too long to constitute a valid interpretation -- and many of them do.
Fundamental rights are not required to be explicitly spelled out in the Constitution in order to be protected against unreasonable governmental intrusion. As the Casey Court pointed out, if people (women included) do not have the protected fundamental right to choose for themselves whether or not to beget children--then the state could either prohibit abortions or mandate abortions in the public interest. If the fundamental right to control one's own procreation does not exist, the state could require women to terminate their pregnancies in the interest of population control. The fundamental right to privacy -- the right to be free of unreasonable government intrusion into private matters exists -- is a fundamental liberty interest protected by the constitution.
A stubborn refusal of some people to understand and embrace the fundmental concepts upon which this country was founded threatens our very foundation and subjects all of us to loss of liberty through oppression.
Debrah_Law wrote:In constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification.
As an example to the contrary, let me offer United States vs. Butler (1936) and Wickard vs. Filburn (1942). In Butler, the Supreme Court ruled part of Roosevelt's Agricultural Adjustment Act unconstitutional, on the grounds that growing corn to feed it to your hogs doesn't constitute interstate commerce, so the federal government can't regulate it under the Commerce Clause. In Wickard, only six years later, the Supreme Court held the corresponding part of Roosevelt's (updated) Agricultural Adjustment Act constitutional on the grounds that growing wheat to feed it to your chicken does constitute interstate commerce, so can be regulated by the federal government under the Commerce Clause. If the Supreme Court gave a special justification for this change of mind, I can't find it in its ruling on Wickard vs. Filburn. So much for the "persuasive force" of stare decisis.
You are comparing apples and oranges. Wake up and smell the coffee.
The fundamental right to privacy -- the right to be free of unreasonable government intrusion into private matters exists -- is a fundamental liberty interest protected by the constitution.
A stubborn refusal of some people to understand and embrace the fundmental concepts upon which this country was founded threatens our very foundation and subjects all of us to loss of liberty through oppression.
You are comparing apples and oranges. Wake up and smell the coffee.
The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait)
You are comparing apples and oranges. Wake up and smell the coffee.
Why then does the government pass laws prohibiting possession of certain "drugs"? If one possesses marijuana at their home, it is a violation of the law of most states, and these laws have not been found to be unconstitutional. Does the "fundamental right to privacy -- the right to be free of unreasonable government intrusion into private matters" prohibit the government from passing and enforcing such laws? Is the right to posess drugs in your own home a "fundamental liberty interest protected by the constitution"? You are making too broad a point here, particularly when you refer to the "stubborn refusal" of "some people." It is a reasonable intrusion of the government to proscribe murder. The right to have an abortion is not a "fundamental concept upon which this country was founded."
You are comparing apples and oranges. Wake up and smell the coffee.
More like comparing corn and wheat, and hogs and chickens, but doesn't he have a point regarding the requirement of "special justification" for overturning prior decisions.
When the state regulates conduct in a manner that infringes upon a fundamental right, the regulation will be upheld as constitutional only if the state has a compelling interest and the means used are necessary and narrowly tailored to serve that compelling interest. (Strict Scrutiny analysis.) Other run of the mill regulation passes constitutional muster if it serves a legitimate state interest and the means used are rationally related. (Rational Basis analysis.)
Personal and private decisions relating to marriage, procreation, contraception, family relationships, and child rearing are protected by the constitution. Regulations that infringe upon these personal and private decisions are subjected to strict scrutiny.
That abortion is a fundamental right and subject to strict scrutiny is a conclusion of Roe itself. You cannot use this as a premise for defending Roe. The question is should it be considered a fundamental right? Or broader yet: should we root "fundamental rights" that haven't been explicated in the text of the Constitution in "Due Process" at all?
You cannot phrase an argument as "Roe is defensible because a conclusion made in Roe (that the right is fundamental and hence a proper fit in Due Process privacy) mandates Roe."
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. . . .
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. . . .
The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . .
Thomas wrote:Debra_Law wrote:First, how would the issue of overruling Roe v. Wade ever make its way to the Supreme Court for reconsideration? There has to be a justiciable case or controversy brought by someone with standing -- someone who is suffering a concrete injury in fact.
It happens. I specifically remember Planned Parenthood vs. Casey, and there may well have been other cases that would have allowed the court to revisit Roe. I see no reason why a similar case shouldn't make its way to the Supreme Court again.
Casey:
Fundamental rights are not required to be explicitly spelled out in the Constitution in order to be protected against unreasonable governmental intrusion.
As the Casey Court pointed out, if people (women included) do not have the protected fundamental right to choose for themselves whether or not to beget children--then the state could either prohibit abortions or mandate abortions in the public interest.
If the fundamental right to control one's own procreation does not exist, the state could require women to terminate their pregnancies in the interest of population control.
A stubborn refusal of some people to understand and embrace the fundmental concepts upon which this country was founded threatens our very foundation and subjects all of us to loss of liberty through oppression.
You are comparing apples and oranges. Wake up and smell the coffee
That abortion is a fundamental right and subject to strict scrutiny is a conclusion of Roe itself. You cannot use this as a premise for defending Roe. The question is should it be considered a fundamental right? Or broader yet: should we root "fundamental rights" that haven't been explicated in the text of the Constitution in "Due Process" at all?
You cannot phrase an argument as "Roe is defensible because a conclusion made in Roe (that the right is fundamental and hence a proper fit in Due Process privacy) mandates Roe."
You might smoke pot in the privacy of your bedroom in your own home -- you might engage in sex in the privacy of your bedroom in your own home. Regardless, government agents may not enter the privacy of your home in the absence of your consent or exigent circumstances without a valid warrant based upon probable cause that evidence of a crime or the fruits of a crime are present in your home. Therefore, your fundamental right to privacy in your home is protected.
The issue is whether the PEOPLE of this nation have a fundamental right to liberty -- a right to make personal choices about their private lives -- a right to live without unreasonable government intrusion into their private lives -- a right to be free from oppression. If our fundamental rights to life, liberty, and property have no SUBSTANCE and no PROTECTION, we are merely paying lip service to the fundamental concepts upon which this country was founded.
Oddly enough, when America was founded it took Americans about 180 years until they noticed that their country was founded on the concept that women can terminate pregnancies whenever they wish. And after the 14th amendment was passed, it took them 90 years to notice that this amendment applied to abortion.
As Judge Rehnquist noted in his dissent to Roe, you can't find a single contemporary source making that claim even though there were plenty of laws restricting abortions at the time. Are you sure this is "stubborn refusal", or are you willing to consider the possibility that this is evidence against your position?
It also took about 90 years for people to realize that the Fourteenth Amendment prohibited "separate but equal" facilities for blacks. Sometimes it takes a while for us to figure these things out.
And there were plenty of laws on the books at the time of the Eighth Amendment mandating the death penalty for sodomy. Would you, therefore, agree that executing homosexuals is not "cruel and unusual punishment?"
The issue is NOT whether a pregnant woman has a fundamental right to abortion -- the same as the issue was NOT whether a gay man has a fundamental right to engage in sodomy (see Hardwick v. Bowers).
The issue is whether the PEOPLE of this nation have a fundamental right to liberty -- a right to make personal choices about their private lives -- a right to live without unreasonable government intrusion into their private lives -- a right to be free from oppression. If our fundamental rights to life, liberty, and property have no SUBSTANCE and no PROTECTION, we are merely paying lip service to the fundamental concepts upon which this country was founded.
In Lawrence v. Texas, the United States Supreme Court recognized the error in its earlier holding in Hardwick v. Bowers. The Court said:
Quote:Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. . . .
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. . . .
The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. . . .
http://laws.findlaw.com/us/000/02-102.html
You're making the same error that the Supreme Court originally made in Bowers v. Hardwick. The issue is NOT whether a woman has a fundmental right to an abortion -- the issue is whether a woman has a fundamental right to privacy -- the right to make a deeply personal choice about begetting children or not -- without unreasonable government intrusion.
NO RIGHT IS ABSOLUTE. The government still regulates abortion, but the government simply is not allowed to do so in a manner that completely forecloses the choice during the early stages of pregnancy. Once the fetus becomes viable, the government has a compelling interest in protecting potential life and can completely ban abortions except in cases when necessary to preserve the mother's health or life.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. . . .
Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. . . .
Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," . . . and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. . . .
If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. . . .
Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context, it is derivative of the woman's position. The doctor-patient relation does not underlie or override the two more general rights under which the abortion right is justified: the right to make family decisions and the right to physical autonomy. On its own, the doctor-patient relation here is entitled to the same solicitude it receives in other contexts. Thus, a requirement that a doctor give a woman certain information as part of obtaining her consent to an abortion is, for constitutional purposes, no different from a requirement that a doctor give certain specific information about any medical procedure.
There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it . . .
