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Should the United States Supreme Court overturn the Roe vs Wade Decision of 1973?

Should the Supreme Court overturn Roe vs Wade?


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PART 2

His first objection is that the plaintiff had no standing; this alone might be grounds for a new look at the issue.
The Court's opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never "formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.
Rehnquist also disputes the idea of "privacy" as a basis for this decision.
I have difficulty in concluding, as the Court does, that the right of "privacy" is involved in this case. A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word... Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy... The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this... But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.
The justice has a far different view on "precedent". He finds that it resides with the long history of state abortion laws starting in 1821. (36 states had abortion laws before the Fourteenth Amendment was passed). He argues that the decision incorrectly defines the public attitude and invents rights never intended under the Fourteenth Amendment.
There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.
So he believes the Fourteenth Amendment was in no way intended to put abortion law under federal control. And finally, Justice Rehnquist, who went on to be Chief Justice, questions the application of the Roe decision.
The Texas statute is struck down in toto, even though the Court apparently concedes that at later periods of pregnancy Texas might impose these selfsame statutory limitations on abortion. My understanding of past practice is that a statute found to be invalid as applied to a particular plaintiff, but not unconstitutional as a whole, is not simply "struck down" but is, instead, declared unconstitutional as applied to the fact situation before the Court.
 
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PART 2

His first objection is that the plaintiff had no standing; this alone might be grounds for a new look at the issue.

Rehnquist also disputes the idea of "privacy" as a basis for this decision.

The justice has a far different view on "precedent". He finds that it resides with the long history of state abortion laws starting in 1821. (36 states had abortion laws before the Fourteenth Amendment was passed). He argues that the decision incorrectly defines the public attitude and invents rights never intended under the Fourteenth Amendment.

So he believes the Fourteenth Amendment was in no way intended to put abortion law under federal control. And finally, Justice Rehnquist, who went on to be Chief Justice, questions the application of the Roe decision.
So that's one of them and he'll have to defend those 'opinions' to the other justices. He points out issues, like with due process...but will still have to rule in a manner that protects women's rights to due process...and all the other rights that would be violated.

And the unborn *have no rights.* So he'll need to justify placing the unborn ahead of women's Const rights. He'll need to present justifications for that...he posed questions in the opinion you posted...but no answers. What justifications do you think he can use to do that to women who have rights and are already contributing members of society?
 
So that's one of them and he'll have to defend those 'opinions' to the other justices. He points out issues, like with due process...but will still have to rule in a manner that protects women's rights to due process...and all the other rights that would be violated.

And the unborn *have no rights.* So he'll need to justify placing the unborn ahead of women's Const rights. He'll need to present justifications for that...he posed questions in the opinion you posted...but no answers. What justifications do you think he can use to do that to women who have rights and are already contributing members of society?
"contributing members" has no bearing on this case. And Rehnquist posed answers. He wanted abortion to remain a state issue. That was the precedent. Any of the issues he brought up in the dissent could be used as a basis for taking a new look at Roe. The newly accepted (by the SC) Mississippi case has asserted that Roe has been racist, targeting minority communities. Unfortunately, the locations of most of Planned Parenthood clinics in minority neighborhoods could be made to look that way. I'm sure Mississippi will bring up the founder, Margaret Sanger.

Now, the only reason I wrote this is to demonstrate that a case can be made against Roe. And all points aren't equal. Some will be more equal than others. It will all depend on how much weight is assigned to each point by the justices, both pro-Roe and against Roe. It's not a done deal either way.

My desire would be for Roe to stay. The court deciding (at the federal level) that states couldn't restrict abortion in the first trimester only is an incentive to get that abortion as soon as possible. Which is a good thing. After the first trimester, the states have a lot more say in the matter.

All in all, Roe is an odd duck of legislation. It still allows states to be very involved past the first trimester, hence all these state restrictive abortion laws, most of which hold up. What some states are now trying to do is push that envelope down under the first trimester, as Mississippi wants control after 15 weeks. We'll have to wait and see.
 
"contributing members" has no bearing on this case. And Rehnquist posed answers. He wanted abortion to remain a state issue.

It can go back to states but state laws cant supersede federal law/Const rights. Under the current Const, it's not possible to criminalize having an abortion. To force women to remain pregnant against their will would have to be enforced, correct? That's not possible if a woman doesnt reveal her condition (which women dont need to do: over the counter tests). Or in cases where she does, does a miscarriage get investigated? Do women get stopped & searched at state borders? Will mail be searched for abortion pills? And again, there's the issue of bodily autonomy.

Example, the courts maintained a man could not be compelled to donate bone marrow to save the life of another (there was a specific person) They couldnt force him to use his bodily systems to save the life of another. They couldnt violate his bodily autonomy. So a woman cant be compelled to use her bodily systems to maintain the life of the unborn, which isnt even a person with rights.

"The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being or to rescue. Introspection, however, will demonstrate that the rule is founded upon the very essence of our free society. Our society, contrary to many others, has as its first principle, the respect for the individual, and that society and government exist to protect the individual from being invaded and hurt by another."

That was the precedent. Any of the issues he brought up in the dissent could be used as a basis for taking a new look at Roe. The newly accepted (by the SC) Mississippi case has asserted that Roe has been racist, targeting minority communities. Unfortunately, the locations of most of Planned Parenthood clinics in minority neighborhoods could be made to look that way. I'm sure Mississippi will bring up the founder, Margaret Sanger.

I dont see how any racist claims can ban abortion, all races of women are protected by the Const. Any changes in laws would need to address socio-economic things, not women's reproductive access.

And if they consider Sanger, how does that matter? Here's previous:

Blaming Margaret Sanger's views on racism/eugenics for today's PP organization is like blaming the FF's like Jefferson, who kept slaves, for how we interpret equal rights today. Society evolves and moves on and institutions do so as well.​
If you want to throw out PP because of Sanger's views, shall we throw out the Constitution as well because of slave-owning founders? :doh​

The justices arent that stupid.

I'd be very interested in what laws you think the state could implement to fix that 'racial' issue? Your thoughts?
Now, the only reason I wrote this is to demonstrate that a case can be made against Roe. And all points aren't equal. Some will be more equal than others. It will all depend on how much weight is assigned to each point by the justices, both pro-Roe and against Roe. It's not a done deal either way.
Yes.
My desire would be for Roe to stay. The court deciding (at the federal level) that states couldn't restrict abortion in the first trimester only is an incentive to get that abortion as soon as possible. Which is a good thing. After the first trimester, the states have a lot more say in the matter.
As discussed, state laws still cannot supersede federal law/violate women's Const rights.

All in all, Roe is an odd duck of legislation. It still allows states to be very involved past the first trimester, hence all these state restrictive abortion laws, most of which hold up.

They do? Some examples please. It allows regulating the procedure with regards to women's safety. Some states abuse that mandate, in order to try and restrict access to abortion. IMO, if RvW is revisited, this should be fixed.

What some states are now trying to do is push that envelope down under the first trimester, as Missippi wants control after 15 weeks. We'll have to wait and see.
Yes.

I never claimed a case couldnt be made against RvW. I asked for some legal arguments and their justifications when considering women's Const rights...which they must do.

And thank you for doing so.
 
It can go back to states but state laws cant supersede federal law/Const rights.
That is what the Mississippi case is all about. The current SC might decide Roe is unconstitutional and therefore void it, or modify it. Which would nullify current federal law. If Roe is ruled unconstitutional, will you still base your argument on "constitutionality"? If you're saying a finding of "constitutionality" is always the proper measure, then logically you would have to oppose abortion if Roe were found to be unconstitutional.
Our society, contrary to many others, has as its first principle, the respect for the individual, and that society and government exist to protect the individual from being invaded and hurt by another."
Exactly. But what if the SC found the unborn was an individual? That is already common practice; it is called viability. At the point of viability the unborn has legal protections, a defacto recognition of individual rights. Abortion has many restrictions at that point and after, abortions mostly only allowed for serious medical reasons. And those restrictions vary by state, as the federal government is much less involved. But what if that recognition was at an earlier point in the pregnancy? That's what the Mississippi case seeks to accomplish. They want fifteen weeks. What if the point of individuality could be pushed down to eight weeks? They could leave Roe on the books, but it would be gutted. Why fight for an actual repeal if gutting the law accomplished the same thing?

I chuckle at the irony of the poorest state in the nation (Mississippi) attacking Roe. Here is a state that can't support it's current crop of poor people wanting to oppose one of the main things that reduces family size. How can they then rage about "welfare queens" having six or more kids?
 
That is what the Mississippi case is all about. The current SC might decide Roe is unconstitutional and therefore void it, or modify it. Which would nullify current federal law. If Roe is ruled unconstitutional, will you still base your argument on "constitutionality"? If you're saying a finding of "constitutionality" is always the proper measure, then logically you would have to oppose abortion if Roe were found to be unconstitutional.

I see no way they'd overturn RvW based on that racist point. Agan, there would be adjustments in favor of protecting women from that racism. I'd love to hear what you think tho...what would they do?

And for RvW to 'be overturned on constitutionality' it means that the 10 precedents used in the decision would need to be re-examined for similar rights violations for due process, bodily autonomy, and reproductive and family privacy. It's not 'one' Const right, the right for women to have abortions is based on many, solidly founded other rights interpreted to support it.

Exactly. But what if the SC found the unborn was an individual?

How? Again, they'd have to rewrite or abusively/inaccurately intepret the 14th Amendment. Now THAT would judicial abuse IMO.

14th Amendment

Section 1

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.​

So I'm not saying it's impossible but again...that needs to be balanced against the rights of women. To do so would then reduce women to 2nd class citizens again...no longer equal to men.

We've discussed this: it's not possible to treat born and unborn equally under the law. If it is, please explain how?
That is already common practice; it is called viability. At the point of viability the unborn has legal protections, a defacto recognition of individual rights.
No it doesnt, not at the federal level. However RvW left it up to the states to decide to impose that restriction, and many have. Not all have tho. It's not even an issue, except for dishonest pro-lifers to use in an emotionally manipulative and inflammatory manner, since no such abortions of healthy, viable fetuses ever happen.

Abortion has many restrictions at that point
Not in every state
and after, abortions mostly only allowed for serious medical reasons.

At viability? No abortions occur of healthy fetuses. You just reiterated my point.

But what if that recognition was at an earlier point in the pregnancy?

Based on what legal basis?

That's what the Mississippi case seeks to accomplish. They want fifteen weeks. What if the point of individuality could be pushed down to eight weeks? They could leave Roe on the books, but it would be gutted. Why fight for an actual repeal if gutting the law accomplished the same thing?

Again, there has to be legal foundation and since many women dont even know they're pregnant that early and/or still need to arrange Dr appts and the procedure, unless you believe the justices irrational, they wouldnt rule so. Before viability, IMO it comes down to either a total ban or leaving it as is. And again...there has to be Const basis for a total ban...which they clearly found many reasons not to believe the first time around. Or when it was later revisited.


I chuckle at the irony of the poorest state in the nation (Mississippi) attacking Roe. Here is a state that can't support it's current crop of poor people wanting to oppose one of the main things that reduces family size. How can they then rage about "welfare queens" having six or more kids?
Yup.
 
IMO it comes down to either a total ban or leaving it as is.
This isn't about a "ban" on abortion at the federal level. The SC won't ban abortions. They could simply vacate Roe, or gut it, and return most or all of the abortion issue to the states. And that's the main problem with Roe; the SC didn't totally eliminate states from passing anti-abortion laws. They didn't make it crystal clear. They left some doors open. The pro-life side will continue to push against that envelope. And you may not like their reasoning, but it's not up to us. It's up to the SC to decide if they made their case. And while I can see lots of reasons to keep Roe totally intact, I could envision a court finding merit in reducing the federal government involvement in abortion. Stranger things have happened.
 
This isn't about a "ban" on abortion at the federal level. The SC won't ban abortions. They could simply vacate Roe, or gut it, and return most or all of the abortion issue to the states. And that's the main problem with Roe; the SC didn't totally eliminate states from passing anti-abortion laws. They didn't make it crystal clear. They left some doors open. The pro-life side will continue to push against that envelope. And you may not like their reasoning, but it's not up to us. It's up to the SC to decide if they made their case. And while I can see lots of reasons to keep Roe totally intact, I could envision a court finding merit in reducing the federal government involvement in abortion. Stranger things have happened.
And what I've written still stands...the states cant make laws that violate women's Const rights. Any time they do so, just like the current case in MS, it will be challenged and examined.

So then the state laws will have to be examined in the courts if challenged and the rights violations for women examined case by case. With the 10 precedents we have, the courts will have to explain how they reject them, how they dont apply.

Their 'cases' still need to hold up to Constitutional muster and the SC will need to provide their decisions justifying them. It's a waste of time and taxpayer $ 🤷
 
And what I've written still stands...the states cant make laws that violate women's Const rights. Any time they do so, just like the current case in MS, it will be challenged and examined.

So then the state laws will have to be examined in the courts if challenged and the rights violations for women examined case by case. With the 10 precedents we have, the courts will have to explain how they reject them, how they dont apply.

Their 'cases' still need to hold up to Constitutional muster and the SC will need to provide their decisions justifying them. It's a waste of time and taxpayer $ 🤷
You forget, the SC alone determines "Constitutional muster". And yes, the SC will have to explain "how they reject them, how they don't apply". I find it significant that all nine justices agreed to hear the case.
 
You forget, the SC alone determines "Constitutional muster". And yes, the SC will have to explain "how they reject them, how they don't apply". I find it significant that all nine justices agreed to hear the case.
I didnt forget, I indicated that as well. But they also have to justify their decisions to a certain extent. For example, they cant interpret it to reinstitute slavery of African Americans. If they did, there would be repercussions.
 
My philosophy about the Constitution is that if the Constitution does not clearly say something, we should assume that the Constitution is silent on the matter, and leave the matter up to the voters. The majority of voters in quite a few states want to outlaw abortion.
I'll bet those figures are in southern states where the godbotherers reign supreme. Wouldn't it be good if those whackos run the country.
 
I'll bet those figures are in southern states where the godbotherers reign supreme. Wouldn't it be good if those whackos run the country.
If they did, the crime rate would go down because the prison population would triple.
 
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