Best rebuttal of Alito to date

[EMNofSeattle]

I didn't copy and paste anything. All I did was point out that you were wrong for thinking the 14th A was only about citizenship for ex-slaves. It is about even more than I noted, as it has 4 distinct sections.

You are also wrong to think that Native Americans were left out. They were considered citizens of foreign nations if they weren't paying taxes, a distinction held from 1787 through the 14th A. Even though they were hopelessly robbed of territory, they still had reservation land that was not conceived as US land. All sorts of events leading up to Wounded Knee had not yet occurred. I don't need a link for that. Everybody knows it as basic to US history.

I don’t think at this point Indian reservations were actually viewed as sovereign

 

[choiceone]

No, I’m point out that as individuals, regardless of gender, we are responsible for our actions.


There’s nothing prohibiting it in the Constitution.

For example, and by way of comparison, there is nothing in the Constitution that allows Congress or SCOTUS to create a federal right to healthcare. That the Constitution is silent on the issue does not prevent a state from creating such a right within its jurisdiction. The same goes for a recognizing fetal rights; the feds cannot do it and the states can for the same reason: the Constitution.

This is not quite true. John Locke's introduction of the natural "rights to life, liberty, and property" defined "liberty" as, at the least, "enjoyment of one's own body, its health, limbs," etc.

So you naturally have a right to care for your own health, at minimum - to get herbal medicines or today over the counter drugs, go to a doctor and get a prescription medicine, or go to a hospital - even if you have to pay for it yourself.

"Life, liberty, or property" appears in the 5th A, and a person's "rights to life, liberty, and property" appear in the 14th A. It would be absurd to claim this "health" is not part of this "liberty."

In contrast, the presence of an embryo or fetus, a non-person, has even been known to cause a pregnant woman's life or failure of one or more of her major health functions, can threaten these emergencies, and often causes physical disorders at as early as 4-5 weeks.

The notion that a state has a right to define an embryo in such a way as to give itself the right to threaten a woman's health for months at a time to get a baby out of her body against her will is absurd. The 14th guarantees that, and pretending that a bunch of men have a right to cripple a woman or disable her even for six months "because it's potential life" is crazy.

It sounds just like Catholicism, which FYI, was recently the influence on laws that caused the deaths of women in Ireland, Poland, and various nations in South and Central America. And our states don't have the right to institute government worship, either.

I'm sick of all this old-fashioned misogyny. Women should just give up sex and become accomplished in martial arts so they can neuter rapists. Then you'll have to make your own babies.

 

[choiceone]

I don’t think at this point Indian reservations were actually viewed as sovereign

Right you are - they kept breaking treaties and pushing Native Americans off land they wanted, and treated them horribly on what they claimed to be US land. But they were still considered foreigners and when they were pushed to the next location, they were left alone until the US broke the next treaty . . . .

 

[OrphanSlug]

It does not matter what the rebuttal is or who it comes from, the 6-3 decision is handed down.

 

[NatMorton]

In contrast, the presence of an embryo or fetus, a non-person,

Here is where you go wrong. You (like the Roe majority) lack the authority to declare a fetus a "non-person."

A legal definition of "person" (or at least enough of one to have a right to life) and who has the authority to make that definition law is the crux of the abortion debate. Everything else, from Hobbes to Calvin (see what I did there?) is noise.

 

[choiceone]

The mere fact that people will openly admit that their defense of abortion rights is NOT a question of abortion rights but of a persons right to privacy shows just how bad the original RvW ruling was and why it was overturned.

I don't think so. The privacy angle included the 4th A right to security of persons and papers that relates to consulting a doctor and expecting such consultations and medical records to be private, a non-controversial right long established, I think.

The point of the reference to the 14th A was that its liberty right was seen as a general underpinning of this as well as bodily liberty. PP v Casey moved all of its concern to the latter because it wasn't the 4th A aspect that was controversial, but only a woman's liberty right.

It was overturned by 4 Catholics and an Anglican raised as a Catholic who didn't convert till his late twenties because they all think a zygote is a person and they want to impose this religious definition on a nation with freedom of religion as a basic right.

Alito doesn't quite say the unborn is a person because he knows it isn't constitutionally correct, so he says it's an unborn human being instead. But because "being" added to an informal species designation in English implies consciousness, rationality, and the capacity to reason which would depend at least on a developed brain, even this is wrong.

 

[choiceone]

It does not matter what the rebuttal is or who it comes from, the 6-3 decision is handed down.

No, the overturning of Roe was 5-4. Only the part where Mississippi can ban abortion after 15 weeks was 6-3.

 

[OrphanSlug]

No, the overturning of Roe was 5-4. Only the part where Mississippi can ban abortion after 15 weeks was 6-3.

Because that makes things better...

 

[multivita-man]

Whether it’s convenient or not is irrelevant. There is no right to abortion in the Constitution because there is no authority granted to the federal government to resolve the central issue of abortion law: a legally binding definition of what is and what is not human life (with rights).

Is there an implied constitutional right to receive medical care?

 

[VanceMack]

I don't think so. The privacy angle included the 4th A right to security of persons and papers that relates to consulting a doctor and expecting such consultations and medical records to be private, a non-controversial right long established, I think.

The point of the reference to the 14th A was that its liberty right was seen as a general underpinning of this as well as bodily liberty. PP v Casey moved all of its concern to the latter because it wasn't the 4th A aspect that was controversial, but only a woman's liberty right.

It was overturned by 4 Catholics and an Anglican raised as a Catholic who didn't convert till his late twenties because they all think a zygote is a person and they want to impose this religious definition on a nation with freedom of religion as a basic right.

Alito doesn't quite say the unborn is a person because he knows it isn't constitutionally correct, so he says it's an unborn human being instead. But because "being" added to an informal species designation in English implies consciousness, rationality, and the capacity to reason which would depend at least on a developed brain, even this is wrong.

Its the same effort and shoehorning that may get gay marriage overturned. Its not governing by democracy or even as a republic...its attempting to govern by judicial fiat...and thats why RvW was eliminated.

Congress has had decades to act. They didnt. This really is all on congress.

 

[NatMorton]

Is there an implied constitutional right to receive medical care?

No, I don't believe there is. It's an entitlement and, if Congress so chose, could be eliminated.

 

[noonereal]

The New York Times today published a rebuttal of Alito showing that the 14th Amendment clearly provided ex-slave women (and by extension all women) with protection of reproductive rights. It also refers to a key court case of 1942 of relevance to reproductive autonomy:

Opinion | No, Justice Alito, Reproductive Justice Is in the Constitution (Published 2022)

The repeal of Roe v. Wade brings a return of sexual servitude for women.

www.nytimes.com

What Trump did to try to stay in power and who helped him is far more important. But not one post since Friday about all the I fo that came out on Thursday by the committee. You playing right into the GOP, GOP court corruption alliance.

 

[choiceone]

Here is where you go wrong. You (like the Roe majority) lack the authority to declare a fetus a "non-person."

A legal definition of "person" (or at least enough of one to have a right to life) and who has the authority to make that definition law is the crux of the abortion debate. Everything else, from Hobbes to Calvin (see what I did there?) is noise.

No, I don't lack this authority.

Article 1, Section 2, of the Constitution stipulates an actual enumeration, not a projected count, of "all persons in the US" except non-tax-paying Native Americans. The Census counted men, women, non-whites, debt servants, and even counted slaves 3/5ths, but no embryo or fetus was ever counted, from 1790 onward. They weren't counted even when a Census Act experimented with the use of months, not years, of age, for newborns, and added place and date of birth.

How could they have been counted, anyway? Even today, a pregnancy test can't show the difference of molar pregnancies which have only embryonic tissue, not an embryo, and regular pregnancies. We can't always identify two instead of one embryo in a sonogram. When conjoined twins are born, whether we count one or two persons depends, not on two bodies, but on two functional heads capable of separate perception and response. We can't do an actual enumeration, i.e., based on direct evidence, instead of a project count, which could use indirect representational signs.

Moreover, laws related to the Constitution are consistent. Where the unborn appeared to have rights, the RvW SC found that they were all "contingent on live birth." And Congress never recognized a "right to be born."

So a constitutional person has, as one characteristic, that it is born. The unborn are thus not such persons, and it is perfectly okay to make that the single word "non-persons."

The only way you can change this is if you can pass a "Fetal Personhood Amendment." I promise you, the ERA for women had way better luck than such amendments in various states' votes, and it still came up short.

 

[choiceone]

Because that makes things better...

I like your smiley face, but this IS better. Roe was a 7-2 decision overturned by only 5-4. This makes Dobbs v Jackson look as arrogant and shaky as it is.

When all the "Roe is bad law" idiots criticize, they never explain how it is that 7 out of 9 justices all agreed, and all 9 agreed that the fetus was not a person in terms of the 14th A.

Roe v Wade isn't arrogant and shaky. This overturning is both.

 

[NatMorton]

No, I don't lack this authority.

Yes, you do.

Article 1, Section 2, of the Constitution stipulates an actual enumeration, not a projected count, of "all persons in the US" except non-tax-paying Native Americans. The Census counted men, women, non-whites, debt servants, and even counted slaves 3/5ths, but no embryo or fetus was ever counted, from 1790 onward. They weren't counted even when a Census Act experimented with the use of months, not years, of age, for newborns, and added place and date of birth.

How could they have been counted, anyway? Even today, a pregnancy test can't show the difference of molar pregnancies which have only embryonic tissue, not an embryo, and regular pregnancies. We can't always identify two instead of one embryo in a sonogram. When conjoined twins are born, whether we count one or two persons depends, not on two bodies, but on two functional heads capable of separate perception and response. We can't do an actual enumeration, i.e., based on direct evidence, instead of a project count, which could use indirect representational signs.

You can stop looking at how the federal government defines "person" to help your argument because it doesn't matter.

A state, for example, and if it so chooses, can count the unborn for the purposes of apportioning aid for a state level program (though it probably could not for the purposes of participating in a federal program). The feds and states need not count the same way for their respective duties, so anything you find in the Constitution will do you no good.

Moreover, laws related to the Constitution are consistent. Where the unborn appeared to have rights, the RvW SC found that they were all "contingent on live birth." And Congress never recognized a "right to be born."

Federal rights, likely. States are under no obligation to follow those rules where they grant additional rights.

So a constitutional person has, as one characteristic, that it is born. The unborn are thus not such persons, and it is perfectly okay to make that the single word "non-persons."

The only way you can change this is if you can pass a "Fetal Personhood Amendment." I promise you, the ERA for women had way better luck than such amendments in various states' votes, and it still came up short.

Yes, a federal personhood amendment is what's required to create national abortion law. in a sense, that's what Roe did but did so illegitimately. Roe said, in so many words, no fetus can be declared a person before viability. And as you seem to agree, an amendment would be needed for something like that. That is why we should be glad Roe is gone. It was a horrendous act of judicial overreach.

 

[EMNofSeattle]

I don't think so. The privacy angle included the 4th A right to security of persons and papers that relates to consulting a doctor and expecting such consultations and medical records to be private, a non-controversial right long established, I think.

This is stupid. You can ask the doctor about killing someone, you cannot then be allowed to do it because you have some nebulous “right to security”

The point of the reference to the 14th A was that its liberty right was seen as a general underpinning of this as well as bodily liberty. PP v Casey moved all of its concern to the latter because it wasn't the 4th A aspect that was controversial, but only a woman's liberty right.

Casey was a terrible ruling.

It was overturned by 4 Catholics and an Anglican raised as a Catholic who didn't convert till his late twenties because they all think a zygote is a person and they want to impose this religious definition on a nation with freedom of religion as a basic right.

This ruling doesn’t do that, it makes it a legislative issue, that aside if a legislature of all religious people voted to make all abortion illegal that is not an imposition of religious beliefs, that is secular law.

Alito doesn't quite say the unborn is a person because he knows it isn't constitutionally correct, so he says it's an unborn human being instead. But because "being" added to an informal species designation in English implies consciousness, rationality, and the capacity to reason which would depend at least on a developed brain, even this is wrong.

An unborn human is a human. Full stop, it’s not a giraffe or a fish.

 

[choiceone]

Yes, you do.


You can stop looking at how the federal government defines "person" to help your argument because it doesn't matter.

A state, for example, and if it so chooses, can count the unborn for the purposes of apportioning aid for a state level program (though it probably could not for the purposes of participating in a federal program). The feds and states need not count the same way for their respective duties, so anything you find in the Constitution will do you no good.

I do not disagree with this.

Federal rights, likely. States are under no obligation to follow those rules where they grant additional rights.

I do not disagree with this.

Yes, a federal personhood amendment is what's required to create national abortion law. in a sense, that's what Roe did but did so illegitimately. Roe said, in so many words, no fetus can be declared a person before viability. And as you seem to agree, an amendment would be needed for something like that. That is why we should be glad Roe is gone. It was a horrendous act of judicial overreach.

I don't think I agree with this. Roe may have done what you say, but the fact that the conclusion even of the dissenters was that the fetus had never been recognized as a person by any of the relevant constitutional passages or related acts or laws is significant. There's no there there for fetal personhood.

On the other hand, a national abortion law may not require a fetal personhood amendment.

Roe recognized that a woman was a person in the 14th Amendment sense, so she had rights to life, liberty, and property, and the liberty right included the health sense. Accordingly, she not only could justify abortion in terms of bodily autonomy, but she and her doctor could do so if there were extreme danger to one of her major health functions. Now, neither is true, so state abortion laws and any federal abortion law could say that, though her life has to be protected, her health doesn't, or possibly the 14th doesn't protect her right to life re pregnancy.

Even without a fetal personhood amendment, Alito makes much of the potential fetal life but seems to suggest that a woman wasn't a person in the 14th A sense at that time, so she really isn't one now. In that context, the potential life, without being a person, may be able to take precedence over the woman's actual life because she has no protected 14th A rights, not even to her life.

As I say, I'm not at all clear about this, which is why I think Dobbs was a horrendous act of judicial overreach, and I'm not glad Roe is gone, because I suspect that Dobbs can be used to deny all women 14th A protected rights under all circumstances.

 

[choiceone]

This is stupid. You can ask the doctor about killing someone, you cannot then be allowed to do it because you have some nebulous “right to security”

I do not acknowledge that abortion is killing.

Casey was a terrible ruling.

You do not say why. I thought it was somewhat messy, but not terrible.

This ruling doesn’t do that, it makes it a legislative issue, that aside if a legislature of all religious people voted to make all abortion illegal that is not an imposition of religious beliefs, that is secular law.

The problem is that there are many religions in the US, and many Conservative, Reform, and Reconstructionist Jews who would never agree to make all abortion illegal. They think women are persons and have rights to life and health, while Alito, apparently, does not.

Catholics would have the doctor save the fetal life at the expense of permanently crippling the woman, and it seems Alito would allow that. But Jews of these schools of Judaism would have the doctor protect the woman's health at the expense of the fetal life. This ruling would thus allow legislation giving rise to irresolvable religious conflict, which is why Roe did not make this a legislative issue, but an individual rights issue.

An unborn human is a human. Full stop, it’s not a giraffe or a fish.

The unborn is human, I grant, but I am not prepared to give it the sort of "article individuality" that you do. The "an" and "a" are problematic for me. Sorry if it bothers you.

 

[EMNofSeattle]

I do not acknowledge that abortion is killing.

Not acknowledging reality doesn’t improve your position

You do not say why. I thought it was somewhat messy, but not terrible.

The problem is that there are many religions in the US, and many Conservative, Reform, and Reconstructionist Jews who would never agree to make all abortion illegal.

Irrelevant. The fact a minority faith tradition does not hold a particular act as wrong does not mean a law which prohibits that act is a religious law.

They think women are persons and have rights to life and health, while Alito, apparently, does not.

There is nothing in Alito’s ruling that says women aren’t people. That’s an absurd claim

Catholics would have the doctor save the fetal life at the expense of permanently crippling the woman, and it seems Alito would allow that. But Jews of these schools of Judaism would have the doctor protect the woman's health at the expense of the fetal life.

What the Jews believe is irrelevant to constitutional law.

This ruling would thus allow legislation giving rise to irresolvable religious conflict, which is why Roe did not make this a legislative issue, but an individual rights issue.

There is no religious conflict created. This is a secular law of equal application that require no adherence to any ecclesiastical law of any faith

The unborn is human, I grant, but I am not prepared to give it the sort of "article individuality" that you do. The "an" and "a" are problematic for me. Sorry if it bothers you.

You don’t need to grant it anything, the legislatures of the majority of states will do so.

 

[NatMorton]

I don't think I agree with this. Roe may have done what you say, but the fact that the conclusion even of the dissenters was that the fetus had never been recognized as a person by any of the relevant constitutional passages or related acts or laws is significant. There's no there there for fetal personhood.

The absence of a fetal right to life anywhere in the Constitution is only a limiting factor to the federal government, not to the states. There's no getting around that reality.

 

[choiceone]

Not acknowledging reality doesn’t improve your position

Sure it does. You see killing as always wrong, but people can kill others totally by accident, in self-defense, etc. Killing isn't like rape, which really is always wrong.

women who have abortions don't intend embryos to die; they are refusing consent to keep them inside and attached to their bodies. An embryo dies because its incapable of life independent of the woman's body. Letting die is not killing.

The Thompson violinist argument for abortion comes to life in McFall v Shimp. McFall had no right to demand that his cousin Shimp donate his kidney to save McFall's life. A pregnant woman donates all her organs to the embryo to save its life, but if she didn't give consent, it would have no right to them even if it were a person, which it's not.

Irrelevant. The fact a minority faith tradition does not hold a particular act as wrong does not mean a law which prohibits that act is a religious law.

Judaism is not just a minority faith, but the faith of Jesus Christ, whose teachings are the core of Christanity, the main religion in the US.

We are dealing here with an issue of defining an embryo or fetus. At the founding of the US, no one here thought it was a person and embryos and fetuses have never been counted in any census or recognized as having any rights - all rights discussed in relation to them are contingent on live birth.

Until about 1975, no one thought a fetus was a person except Catholics, from some time in the 1860s, I think. Catholicism was then and is now a minority faith. They converted many but not all Evangelicals and Anglicans. But huge numbers of Protestant Christians of various sects do not agree, and they were a major force in the movement to repeal or reform anti-abortion laws in the 1960s and early 1970s. For the rest, see below.

There is nothing in Alito’s ruling that says women aren’t people. That's an absurd claim.

Alito referred to some older state anti-abortion laws that made only an exception for life, but in sending the abortion issue back to the states, he didn't indicate any federal constraint on their banning abortion, such as an exception to save a woman's health or even life. That's because Alito didn't just say that the 14th A was for securing the rights of male ex-slaves and so didn't apply to women.

He claimed the 14th A passage on a person's rights to life, liberty, and property didn't apply to women because of the deep-rooted tradition of their being under fathers as children and husbands when married. The person of a married woman was merged into her husband's, e.g., he controlled her property. Moreover, women couldn't vote and so weren't political persons.

Of course, this ignore marriageable but unmarried women no longer under fathers who died, and widows. They could inherit, buy, and control property, make contracts, run businesses, etc., so they did have some property and liberty rights. Moreover, voting is not the basis of rights to life, liberty, and property.

But if the 14th A rights applied to women as persons, Alito's decision could make no sense, because an embryo or fetus has never been a person or had 14th A rights. In Roe, the woman's right to liberty as an actual person is more important than the potential life of the future child. If Alito claimed personhood for an embryo, he would be a judicial activist. So he can't say one person's right to life trumps another person's right to health as part of the liberty right. Instead, while never calling the unborn a person, he sees the abortion issue as concerning the potential life of an unborn human being, but he has to make it more important than the woman's health, as part of liberty, so he calls into question whether women have 14th A rights as persons.

What the Jews believe is irrelevant to constitutional law.

There is no religious conflict created. This is a secular law of equal application that require no adherence to any ecclesiastical law of any faith

The law appears secular but has a poor philosophical underpinning. The abortion issue has to be decided by the states because the Constitution doesn't recognize a right to abortion for a woman. But it doesn't because the health aspect of the 14th A liberty right, which could cover it, doesn't apply to her, because that passage wasn't relevant to women at the time of writing. He's implying women don't have those 14th A rights now.

But if this amendment applies to securing ex-slaves rights, it applies to both men and women. Otherwise, they would have used the word men instead of person in the first section, as they do in the section on voting.

 

[Checkerboard Strangler]

I wish evangelicals would stop doing exorcisms.
After all the demon impregnated her body and you don't have the right to terminate that life.

 

[minnie616]

I wish evangelicals would stop doing exorcisms.
After all the demon impregnated her body and you don't have the right to terminate that life.

Many believe that life begins with live birth.

That is the predominant belief of the Jewish.

There are pro choice Protestant religions who sincerely believe life begins with the first breath an infant takes.
In fact the Bible calls it the breath of life.

Back in the 1960s Evangelicals used to be believe that life came with live birth also.

1968, Christianity Today published a special issue on contraception and abortion, among evangelical thinkers at the time. In the leading article, professor Bruce Waltke, of the famously conservative Dallas Theological Seminary, explained the Bible plainly teaches that life begins at birth:

“God does not regard the fetus as a soul, no matter how far gestation has progressed. The Law plainly exacts: 'If a man kills any human life he will be put to death' (Lev. 24:17).
But according to Exodus 21:22–24, the destruction of the fetus is not a capital offense…

Clearly, then, in contrast to the mother, the fetus is not reckoned as a soul.”

 

[Lursa]

Whether it’s convenient or not is irrelevant. There is no right to abortion in the Constitution because there is no authority granted to the federal government to resolve the central issue of abortion law: a legally binding definition of what is and what is not human life (with rights).

Where is the authority for marriage, contraception, choosing the schools your kids go to, etc?

 

[Lursa]

There is a limited right to privacy in the 4th amendment, and I don’t believe there’s a martial exclusion described anywhere else in the Constitution.

Sorry, you’re camel’s nose argument is going no where.

Can states ban birth control? Yes or no?

And if no, why not? If yes, please explain the distinctions between banning contraception and banning abortion (and no, abortion is not considered to be contraception...unless you'd like to make that case).

Please do not respond with more questions before answering these, as a courtesy to the civil posters including myself, in this thread.