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The nomination has renewed a dillema I have with Roe v. Wade....

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WeRQ4U Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:59 PM
Original message
The nomination has renewed a dillema I have with Roe v. Wade....
Roberts has been quoted as saying this:

"he Court's conclusion in Roe that there is a fundamental right to an abortion ... finds no support in the text, structure, or history of the Constitution."

Now everyone knows that this is, actually, quite true. There is nothing in the text of the constitution that outlines this specific fundamental right. It was the re-emergence of Substantive Due Process (a legal fiction invented by the Court) that brought about this decision. The dissenters in Roe were skeptical of it, and the arguments about it remain the same today. It obviously has dramatic effects on state's rights as well.

I am not a fan of substantive due process. I never have been. I despise legislative judiciaries regardless of which side they fall on. And I do not like the fact that judges may make decision based upon fictional clauses in an otherwise unambiguous article.

Now this is the dillema... .

I don't like the idea of states being able to prevent woman from choosing these procedures but I wholly agree with Mr. Roberts' conclusion in his opinion that the fundamental rights are not specifically availalbe in the constituion. I would prefer that Roe v. Wade NOT be overturned, however, despite my belief that it was incorrectly decided. I really have a hard time reconciling these beliefs.

What do you think? Is it reconcilable? Do you think I'm wrong? Or do you think I'm just a clueless asshole?
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Baconfoot Donating Member (653 posts) Send PM | Profile | Ignore Wed Jul-20-05 01:02 PM
Response to Original message
1. "There is nothing in the text of the constitution that outlines this speci
This isn't necessary. The point is a non-starter. It IS specifically mentioned in the constitution that a right DOES NOT have to be specifically mentioned in order to be constitutionally protected. Hint: Read the Bill of Rights. I think you'll find something interesting there. ;)
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bowens43 Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:03 PM
Response to Original message
2. See the IXth Amendment
Amendment IX - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


The fact that a 'fundamental right' is not explicitly spelled out in the Constitution does not mean that that right does not exist.
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SlipperySlope Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:07 PM
Response to Original message
3. I'm in the same boat.
Like you, I agree with the outcome of Roe v. Wade, but find the logic in the ruling to be unconvincing. It seemed like the judges had to really stretch to create the "right", instead of it being clearly supported in the constitution.

That said, I would much prefer that judges stretch to find rights, over stretching to take them away.

I think the true answer to your dilemma would be to push for a constiutional amendment specifically recognizing the right to personal privacy, and explicitly recognizing that right extends to medical decisions. After all, it was out of the right to privacy that the "right to choose" was born.

Quoting from the ruling: We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
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ripcord_tx Donating Member (4 posts) Send PM | Profile | Ignore Wed Jul-20-05 01:12 PM
Response to Reply #3
5. Stretching Rights
The problem with stretching to find rights means the Could will find rights you don't like, as in the Keto decision. Who likes a right that allows confiscation of private property?

Legislatures should clarify the rights, courts should make sure they're constitutional.

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bowens43 Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:15 PM
Response to Reply #5
10. You folks seem just don't get it
Edited on Wed Jul-20-05 01:17 PM by bowens43
The Constitution doesn't give us any rights. Rights do not need to be legisated. We already have them. Several were spelled out specifically , that doesn't mean that others do not exist.

Please, read the Constitution. It really is a wonderful document.
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WeRQ4U Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 02:07 PM
Response to Reply #10
15. A little smarmy, and not quite as simple as you would have it seem.
You so conveniently reference the 9th amendment, but seem to gloss over the 10th. It's just as relevant to this issue and the current argument.

In fact, you can't reference the 9th in the context of "substantive due process" without at least mentioning the 10th.
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WeRQ4U Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 02:15 PM
Response to Reply #15
16. dupe deleted
Edited on Wed Jul-20-05 02:16 PM by WeRQ4U
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bowens43 Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:13 PM
Response to Reply #3
6. Rights do not have to be 'clearly supported in the constitution'
Do you have a right to travel? It's not in the Constitution.
Do you have a right to have to children? It's not in the Constitution.
Do you have a right to own property? It's not in the Constitution.

The amendment you want to push, is already there. It's called the IXth Amendment.
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BurgherHoldtheLies Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:08 PM
Response to Original message
4. Is the word "WOMEN" in the Constitution?
Does that mean the founding fathers only intended rights for men? That would be the literal interpretation ("strict constructionist"), right?
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ripcord_tx Donating Member (4 posts) Send PM | Profile | Ignore Wed Jul-20-05 01:14 PM
Response to Reply #4
7. Nope
Context makes it obvious that the word "men" meant "people."

"Men" didn't take on the masculine-only form until the 1960's.
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BurgherHoldtheLies Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:16 PM
Response to Reply #7
12. And the word "privacy" wasn't part of their lexicon either...
Privacy referred to the privy (aka outhouse toilet)but I think it is quite obvious that the founding fathers inferred privacy into the Constitution.
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tx_dem41 Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:14 PM
Response to Original message
8. Read the 9th Amendment about unenumerated rights. n/t
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Jacobin Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:14 PM
Response to Original message
9. People need to get a grip
Judicial decisions, particularly those at the appellate and supreme court level are practically all 'legislative' in nature. The make law that the legislature has either not made statutorily, or they interpret statutes that are vaguely written, thus creating laws themselves. Thus it has ever been, my friend.

The 'activist' label so successfully put on judges who disagree with liberal judges is not a trap we should be falling in.

Go read Bush v. Gore, and tell me that wasn't an activist decision, penned by so-called conservative non-activist judges.

We need to be really careful about not falling into the trap of arguing the silly frames created by RWers.

This is one of those silly traps.
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PDX Bara Donating Member (243 posts) Send PM | Profile | Ignore Wed Jul-20-05 01:15 PM
Response to Original message
11. You are neither wrong nor clueless about this issue...
because you are entitled to your personal opinion, no matter what it is. It is only a problem when you impose your opinion or will upon others whether or not they agree with you. My primary disagreement with those who would force me to carry an unwanted pregnancy to term is that these very same people seem to be the ones who oppose the programs that are needed by many when unintended parenthood occurs.
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Armstead Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:18 PM
Response to Original message
13. How many rights are not mentioned in the Constitution?
The argument that it is not valid because it is not specially mentioned is totally bogus. It is the path to intrusive authoritarianism.

The issue is not whether there is a "guaranteed right to privavcy" in the Constitution. Liberty includes privacy.

People of good faith can disagree over abortion on otehr grounds. But that Constitutional dog don't hunt.

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Eloriel Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:20 PM
Response to Original message
14. If they can find a Right to Privacy for any -- ANY -- other purpose
in the Constitution, then there's not a problem with basing a right to abortion on it.

And I'd add (so MANY DU men SO willing to just throw over, or in this case argue away, our rights -- getting just a wee bit fucking OLD):

If men could get pregnant, abortion would be a SACRAMENT.
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WeRQ4U Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 02:16 PM
Response to Original message
17. Interesting... Noone has really addressed the legal dillema, however.
Why are we, as liberals, championing AGAINST state's rights. Liberals seem to enjoy mentioning it every time legalized assisted suicide laws come up.

The thing that many dont' realize is that if liberals are OK with the Court legilsting in this manner, and providing for a nation-wide law protecting a woman's right to an abortion, then how are we to argue AGAINST the nation-wide law banning it. We most certainly can't use the state's rights argument for fear of being hypocritical.

My solution would be one championed by many others I have read or spoken to. I would campaign AGAINT roe v. wade as a decision, and hope that some state ALLOWS abortion. That way, abortion would be legal SOMEPLACE and we wouldn't have to worry about having a ruthless judiciary applying the same raionale we've used to ALLOW abortion in the past, against us in the future.

Might be crazy, but that's my opinion.
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