Democratic Underground Latest Greatest Lobby Journals Search Options Help Login
Google

I have a question about Roe v. Wade for you legal buffs...

Printer-friendly format Printer-friendly format
Printer-friendly format Email this thread to a friend
Printer-friendly format Bookmark this thread
This topic is archived.
Home » Discuss » Archives » General Discussion: Presidential (Through Nov 2009) Donate to DU
 
battleknight24 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:27 PM
Original message
I have a question about Roe v. Wade for you legal buffs...
I know this might sound like a dumb question, but how did Roe v. Wade reach the Supreme Court? I know it was through appeals, but I thought a case could only reach the Supreme Court if there was a constitutional issue in dispute; whether or not abortion should be legal doesn't sound like a constitutional issue.
And if Roe v. Wade does get overturned, will abortion be outlawed in every single state?


Peace,


Printer Friendly | Permalink |  | Top
mike_c Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:30 PM
Response to Original message
1. might I suggest Google....
It works....
Printer Friendly | Permalink |  | Top
 
pk_du Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:32 PM
Response to Original message
2. I believe it was founded on right to privacy in Constitution
....ie womens right to do with her own body whatever the heck she wants. ( what an amazing concept)

As it turns out the courts took so long to argue the case it became "moot" in this particular case as she eventually had to give birth.
Printer Friendly | Permalink |  | Top
 
Sparkly Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:32 PM
Response to Original message
3. I love Wiki
Printer Friendly | Permalink |  | Top
 
tubbacheez Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:34 PM
Response to Original message
4. Roe v. Wade was overtly about privacy.
The Supremes drew an arbitrary line at the end of the 1st trimester and declared that's as good a place as any to consider a fetus legally viable and eligible for governmental protection. So the thinking went, after the point of viability, the state has an interest in seeing children born as new citizens.

Prior to that point, the mother's right to choose (to carry on or not) was deemed hers and hers alone. The Court decided that government cannot suddenly jump in and make decisions for a woman the instant she became pregnant. That invaded her privacy of body.

The decision wasn't about the legality of abortion per se. The decision was about who gets to decide what and when.

Printer Friendly | Permalink |  | Top
 
Hamlette Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:49 PM
Response to Reply #4
10. nonononononono, tubbacheez you have it all wrong!
Prior to Roe a woman had NO right to choose. A woman could only get an abortion if her life (in some states, her health) was in jeopardy if she carried the child. It was almost impossible to get docs to say "life in jeopardy", without a doc saying life or health in jeopardy, NO ABORTION!

The Supremes did NOT draw an ARBITRARY line and it was NOT drawn at the end of the 1st trimester. It was at the end of the 2nd trimester.

It was not arbitrary because Blackman, who wrote the majority decision in Roe, spent the summer at the Mayo, where he had been general counsel, and he and the health care community crafted the medicine behind the decision.

Basically (you really should read the decision if you want to understand what was done) the court said when a woman is pregnant, and the fetus cannont live on its own, the mother has the right to terminate the pregnancy under the privacy theory (first discussed in Griswold v Conn. about birth control in 1964). After the fetus can live on its own, the mother's interests are balanced WITH the fetus. This makes TONS of sense especially when you consider the position of the doctor. Doctors were one of THE biggest moving forces in legalizing abortion but they were uncomfortable abortion "live babies" or premature babies that could survive after the procedure. I don't blame them.

AND, the decision WAS about the legality of abortion. The court said a state cannot make abortion illegal until the fetus is viable (can live on its own, which docs said was at end of 2nd trimester.)
Printer Friendly | Permalink |  | Top
 
tubbacheez Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:21 AM
Response to Reply #10
15. I stand corrected on the trimester error.
Sorry about that, I should know better than to type so fast on such a cutting issue.




You are correct that prior to the decision, there were effectively no legal abortions (save for the exceptions you mentioned). That is because abortions had been outlawed by the laws challenged in the case.

Going even further back, prior to those laws, there were abortions... though they were coupled with great uncertainty in their legality.





About arbitrariness, I meant that the line between non-viability and viability, even if recommended by expert medical consensus, is still a chosen threshold... artificially imposed on the general society by declaration.

It's not certain how many fetuses are in fact viable before the end of the 2nd trimester. Nor can we know for sure how many fetuses became intrinsically viable a few weeks into their 3rd trimester.

This line is similar to declaring that minors become adults (for voting and military purposes) on their 18th birthdays. In reality, some are ready sooner. Some later. But we as a society use this chosen demarcation for everyone as a matter of consistency.

This is a practical decision made to have some order and predictableness in governing future instances. This is not to be confused with the Court discovering or realizing some universal truth.

Nature doesn't recognize the end of the 2nd trimester except in a collective and approximate sense. But we humans can, with good reason, chose it for policy purposes.



Whether the decision was "about" abortion (with privacy being the rationale), or whether the decision was "about" privacy (with the major context being abortions), is very likely a matter of interpretation and emphasis.

The two issues were tied together intimately in the case, and prioritizing one over the other isn't clear cut in my view. I for one would hope privacy advocates can use Roe in other contexts where justice requires it. Restricting Roe to abortion seems overly confining given its doctrine on privacy.
Printer Friendly | Permalink |  | Top
 
Jane Eyre Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:46 AM
Response to Reply #10
17. Close
Before Roe v. Wade, abortion laws were set by each individual state. A woman's right to choose depended upon which state she was in. There were three states where you could get a legal abortion (New York, Hawaii and Alaska), and other states were in the process of loosening their restrictions on abortion. There were no laws regarding abortion during the first 100 years or so of American history. It was only after the Civil War, and many botched home-made abortions, that physicians began pushing for regulation. By 1910, abortion was legal only in one state. So it isn't quite true, though it is MOSTLY true, that abortion was illegal in the United States prior to 1973. A woman could get a legal abortion in the US if she went to New York, Hawaii or Alaska.

The abortion legal wars have mostly dealt with issues of how much the individual states can regulate abortion. If Roe v. Wade were to be overturned, the issue of the legality of abortion would return to the states UNLESS a federal law was passed outlawing all abortions.

Here's a bit of trivia: The Roe v. Wade decision was not front page news the day that the decision was handed down, because the decision came out the same day the LBJ died.
Printer Friendly | Permalink |  | Top
 
Hamlette Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 01:09 AM
Response to Reply #17
18. I stand corrected
New York, Hawaii Alaska and Washington had passed laws saying an abortion was legal if deemed "necessary" by a woman and her doctor.

The California courts were locked in a battle with the California legislature to legalize abortion (with the court striking down statutes attempting to limit abortion.)

Printer Friendly | Permalink |  | Top
 
Erika Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:34 PM
Response to Original message
5. Under the 14th amendment
right to privacy.
Printer Friendly | Permalink |  | Top
 
Yupster Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:01 AM
Response to Reply #5
12. The Fourteenth Amendment
was passed right after the Civil War. It is one of the three Civil War Amendments.

The Thirteenth Amendment freed the slaves.

The Fourteenth Amendment made freed slaves citizens.

The Fifteenth Amendment gave freed slaves (males) the right to vote.

The Fourteenth Amendment also did two other things. It barred former Confederates from holding some US government offices, and it made it illegal for states to pay off Confederate bonds.

I think a better case for the right to abortion being in the Constitution could be found in the Fourth or Tenth Amendments. To me it's pretty clear why the Fourteenth Amendment was passed, and it didn't have a thing to do with abortion or even privacy.

The Fourth Amendment begins "The right of the people to be secure in their persons, ..." To me that's a logical beginning to an argument for the right to privacy, and therefore the right to an abortion.

Printer Friendly | Permalink |  | Top
 
dolstein Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:37 PM
Response to Original message
6. To answer your question
Roe v. Wade involved a class action challenge to the constitutionality of the abortion statutes in Texas. The case was orignially heard by a three judge District Court, which ruled that the statute was unconstitution, and that ruling was appealed directly to the Supreme Court.

If Roe v. Wade is overturned, abortion will not be outlawed in every state. Some states never repealed their restrictive pre-Roe abortion laws, and it is quite possible that those laws will become effective once again. Some states (like California and New York) had already liberalized their abortion laws before Roe was decided, and the overtunring of Roe is unlikely to have any major effect on the availability of abortion in those states. And some states enacted liberalized laws AFTER Roe was decided, in anticipation of the decision being ultimately overturned.

Long story short -- if Roe is overturned, abortion will be banned in some states, greatly restricted in some states, and generally available in others.
Printer Friendly | Permalink |  | Top
 
Erika Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:45 PM
Response to Reply #6
9. The danger in this is that W has limited states rights dramatically
Edited on Tue Jul-19-05 11:46 PM by Erika
No medical marijuana, no assisted suicide. Bush has chosen to place his religious values as the law of the land and do away with state's rights when the issues crossed his religious beliefs.
Printer Friendly | Permalink |  | Top
 
kestrel91316 Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:55 PM
Response to Reply #6
11. Right. Until the christofascists get their Right to Life Amendment.
Printer Friendly | Permalink |  | Top
 
AlGore-08.com Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:34 AM
Response to Reply #6
16. In the short term, yes, but that could change in the long term
Out here in Cali, we have a Dem majority statewide, but we have our share of extreme far righties who would be willing to sue (or fund a suit) challenging any pro-choice state laws all the way up to the Supreme Court. If a conservative Supreme Court overturned Roe v. Wade, what would stop them from making a ruling clarifying that abortion was something that that states could not settle for themselves? Defining the limits of states rights is something that Supreme Court is supposed to do.

The worst case scenario is that abortion is declared illegal in all states, and we return to the bad old days of illegal abortions, or women having no choice but to carry all pregnancies to term.

Even if "all" that happens is that abortion is outlawed in "some" states, that's not much help to the poor and middle class women in those states, who wouldn't be able to travel out of state if they need an abortion.
Printer Friendly | Permalink |  | Top
 
usregimechange Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:38 PM
Response to Original message
7. Remember the Liberal Bloc has enough votes to maintain Roe
w/ Kennedy
Printer Friendly | Permalink |  | Top
 
Sparkly Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jul-19-05 11:45 PM
Response to Reply #7
8. Even if Chimp changes O'Connor's seat?
iirc, she was the swing vote on this, and even so they've chipped away at it.

I think BushCo's lower court righties will either send up a case that'll send the issue back to the states, OR serve up some more "chippings-away" at the Fed level, dependent solely on which garners more political leverage (which involves timing and strategy for headlines, "energized base" furor, elections, absence of terrorist scares, low polls, etc.).

As I've said, they want the fight more than the victory. If they ever completely won on this, they'd lose a lot of leverage for their REAL agenda.
Printer Friendly | Permalink |  | Top
 
MissMarple Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:08 AM
Response to Reply #8
13. O'Connor has said that viability is the sticking point in Roe vs Wade..
And she is right on that point. The larger question is how long can a woman be made by government fiat to bear an unwanted pregnancy, most especially one that is forced upon her or may endanger her life. Can government decide in these instances?

Well, I say...NO.
Printer Friendly | Permalink |  | Top
 
Humor_In_Cuneiform Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-20-05 12:10 AM
Response to Original message
14. Hard to believe that some are so unyielding
that they would not even make allowances for abortion, or late term abortion.

Not for the sake of the life of the mother.

Not for a woman who was raped and became pregnant.

Not even for a woman/girl who became pregnant due to incest.

This issue has enormous potential negative consequences for a woman's right to control anything at all in her life during her reproductive years.

:mad:

I am pro choice.

Printer Friendly | Permalink |  | Top
 
DU AdBot (1000+ posts) Click to send private message to this author Click to view 
this author's profile Click to add 
this author to your buddy list Click to add 
this author to your Ignore list Thu Jul 31st 2014, 07:14 AM
Response to Original message
Advertisements [?]
 Top

Home » Discuss » Archives » General Discussion: Presidential (Through Nov 2009) Donate to DU

Powered by DCForum+ Version 1.1 Copyright 1997-2002 DCScripts.com
Software has been extensively modified by the DU administrators


Important Notices: By participating on this discussion board, visitors agree to abide by the rules outlined on our Rules page. Messages posted on the Democratic Underground Discussion Forums are the opinions of the individuals who post them, and do not necessarily represent the opinions of Democratic Underground, LLC.

Home  |  Discussion Forums  |  Journals |  Store  |  Donate

About DU  |  Contact Us  |  Privacy Policy

Got a message for Democratic Underground? Click here to send us a message.

© 2001 - 2011 Democratic Underground, LLC