Roe v. Wade - Bad Law (from a Legal Perspective)

[Luigi]

Others claim: The Supreme Court handed down the Roe v. Wade decision in 1973; Roe v. Wade is the law of the land. 

I reply: Roe v. Wade was a bad legal decision in 1973 and remains so today.

1. The Roe v. Wade decision is based on the "right to privacy." There is no stated, specified right to privacy in the Constitution. "Privacy" has not been granted to the people by the government in such areas as the draft, income (employers are required to report employees' income to the government), whether to be vaccinated, etc. "Privacy" seems to granted by the government to the people at random rather than on any constitutional basis. 

2. The Roe v. Wade decision usurped the standard process for creating laws in the US. As a result, the people have lived under unclear definitions, guidelines, and sanctions for 48 years. Had a law been written, proposed, debated, compromised on, passed by both houses of government, and signed by the president, the nation would have had clarity on this issue for 48 years. Usurping the power of the people to make and pass laws for their own self-governance has resulted in a legal morass of long duration not to mention exorbitant cost.  

3. The justices who passed Roe v. Wade were lawyers, not doctors. The opinion's division of pregnancy into trimesters is meaningless medically and legally. Advances in medicine since 1973 have proven that the justices' medical reasoning (the trimester approach) is faulty. 

4. If the American people do, in fact, prefer that abortion be legal, they do not need the Supreme Court Roe v. Wade decision. They can pass laws - at either the state or national level, or both - as was the case prior to Roe v. Wade in 1973. 

 

[Didacus]

How can a crime be permitted or protected under the guise of privacy?

If privacy holds true as constitutional, then all sorts of dire things can be permitted can they not?

In any case, if abortion is a constitutional 'right' it should not require the cover of privacy for its acceptance.

The right to life however, IS a constitutional right is it not???

[Nunsuch]

@Didacuswhere do you find the right to life in the Constitution? It may be implicit (as is the right to privacy), but it is not explicitly in the Constitution.

[Didacus]

1 hour ago, Nunsuch said:

@Didacuswhere do you find the right to life in the Constitution? It may be implicit (as is the right to privacy), but it is not explicitly in the Constitution.

Cut me a little slack here, me being french Canadien and all.

But does not the constitution protect the right to "to life, liberty and the pursuit of hapiness" or some fancy thing like that?

Besides, give yourself all the rights you want, what good are they if you don't have a right to live? Seems common sense to me...

[Luigi]

I didn't realize you were French Canadien (some of for forbears were, too - and some Irish Canadian!), so I can cut you some slack. And actually, lots of born-and-bred Americans don't know which phrases are contained in which foundational government documents, either! 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." This sentence is from the Declaration of Independence (July 4, 1776, considered the beginning of the Revolutionary War). The Constitution was written in 1789 (or went into effect then). "Life, Liberty and the pursuit of Happiness" is not included in the Constitution, but the two documents are closely related. 

Not being a lawyer myself, much less a constitutional lawyer, much less an expert in constitutional law, I don't really know if Supreme Court justices (at either the state or national level) consider the Constitution in light of the Declaration of Independence or not. So, for instance, you see "their Creator" mentioned in the Declaration of Independence, but the Constitution includes a stipulation for "separation of Church and State" - I think most high-level decisions about religion, religious liberty, prayer in public schools, etc., are based on the phrase in the Constitution, not the phrase in the Declaration of Independence. But I could be wrong. 

[Didacus]

Luigi - thank you for the clairification.  Much appreciated 

I believe my point still valid though:

Take any rights you want, what good are they if you do not have the right to life??

If a right to life is not existant, how can the crime of murder be illegal anyways?

[Luigi]

Here's a link to a 2-minute speech by a man named David Harris. He was a leader of the anti-draft movement during the Viet Nam War. He was married to the singer-activist Joan Baez, and this speech was recorded on her album "Carry It On." He sort of addresses Didacus' question. In a previous speech, he talked about a draft card being a deed of ownership - it says "The life of the bearer belongs to the United States of America, to do with whatever the State wants." Here he talks about going to jail as a result of resisting the draft, and that it's something that has to be done because ""Life Is Sacred." We're not in the Viet Nam War any more, but his words still ring true in the context of the abortion debate. 

 

[Nunsuch]

Luigi has explained that the passage is from the Declaration of Independence and not the Constitution. And, important as the Declaration is, it has no actual weight in law--as the Constitution has, of course. 

One of the first things that needs to be decided in a case of death is whether it IS actually a murder. And, even if it is, what the circumstances of death were. Consider the difference between a first and second-degree homicide--and both of those with manslaughter. That's just one example. Clearly, those who decided Roe v. Wade did not consider it homicide. And not all religions consider a fertilized egg (embryo) or even a fetus to be a living PERSON. So this is not as clear-cut as it may seem. I know, of course, what the Catholic church teaches. But the US is explicitly a secular nation, and so the teaching of any particular religion is irrelevant to the legal issue here.

The vast majority of Americans believe that abortion should be permitted in some circumstances--most polls have that at around 2/3. This may be right or wrong from a moral, or a Catholic, perspective. But in a nation with a First Amendment, prohibiting the establishment of religion, the legal argument cannot be grounded in a strictly religious one.

Please don't shoot the messenger here!

 

As for David Harris, you may find his position admirable. But it has no weight in law. It is an anecdotal opinion. If I were to post an opinion by a pro-choice activist, we might agree that it was wrong. But it would have equal weight in law with this one.

[Luigi]

"I know, of course, what the Catholic church teaches. But the US is explicitly a secular nation, and so the teaching of any particular religion is irrelevant to the legal issue here." 

I agree - that's why none of my arguments have been theological. Biological, sociological, ethical, legal, etc., but not theological. The pro-abortion lobby wouldn't buy any of those arguments.

But as radical as resisting the draft seemed in the 1960's, the draft was stopped - it's still in the law books, and all males must register for the draft when they turn 18, but the process of drafting men into the army stopped in 1972. And as radical as Abolition seemed in the 1860's, slavery ended on 31 December, 1865. In both cases, there was at least implicit recognition that "The life of a man IS that man" (old, sexist terminology, I know, but that's the quotation) and that other people don't have a right to control it. It seems to me that the legal underpinnings of ending slavery and the draft (in practice, if not in law) can be applied to ending abortion. 

[Didacus]

"I know, of course, what the Catholic church teaches. But the US is explicitly a secular nation, and so the teaching of any particular religion is irrelevant to the legal issue here

 

Inconsequential to the state, but not to us.

[Nunsuch]

17 hours ago, Didacus said:

 

Inconsequential to the state, but not to us.

True. But I think Luigi is trying to offer persuasive arguments regarding the overturning of Roe v. Wade. If one is not religious, or if one accepts that the grounds need to be legal and not religious in the US, then these arguments are not relevant to the LEGAL status of abortion. I don't believe that, as Luigi argues, all of his reasons are secular.

[Luigi]

6 minutes ago, Nunsuch said:

True. But I think Luigi is trying to offer persuasive arguments regarding the overturning of Roe v. Wade. If one is not religious, or if one accepts that the grounds need to be legal and not religious in the US, then these arguments are not relevant to the LEGAL status of abortion. I don't believe that, as Luigi argues, all of his reasons are secular.

That's fine. I'm not a legal expert. I'm just rehearsing what I would say to people who repeat what they hear from NPR.

As for the David Harris quotation, his comments about America being "synonymous with death" are from 1972 or so - they were true then and they're even more true now. And he fits more into the category of "spiritual but not religious," so his statement might carry some weight with other folks in that category. If those people ever have the option to vote on the (il)legality of abortion in their own states, his reasoning might have some effect in the voting booth.

[little2add]

On 5/26/2022 at 11:18 AM, Nunsuch said:

@Didacuswhere do you find the right to life in the Constitution? It may be implicit (as is the right to privacy), but it is not explicitly in the Constitution.

Right to life is explicit in the Constitution and the Declaration of Independence

 

“It depends on what the meaning of the word ‘is’ is.”

Bill Clinton,1998

slavery was justified by the powers at be by declaring that black men were not human (or in today’s vernacular, “person”).  Just like Today’s interpretation of characterizing that a human fetus is not a person (human),  

1. The “Declaration of Independence” states: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

2.  the Fifth Amendment of the bill of Rights says that “no person shall be…deprived of life, liberty, or property, without due process of law,” they were acknowledging that sometimes a person can be deprived of these rights, even though they are part of what it means to be a person.

 

 

[Nunsuch]

The Declaration has no force in law. It may be admirable, but the SCOTUS makes decisions based upon the constitution. 

The Fifth Amendment played no part in either the original Roe decision or in the leaked draft that is the basis of belief that Roe will be overturned. And the debate is over when someone becomes a "person." This belief is not universally agreed upon even among Christians (much less those of other faiths), not that religious belief is relevant in a secular nation. I'm bowing out of this discussion, as it's clear that the foundation of legal opinion is not clearly being considered. And I'm leaving the country to attend an international professional conference and will have limited access to the internet.

[fides' Jack]

On 5/26/2022 at 1:24 PM, Nunsuch said:

The vast majority of Americans believe that abortion should be permitted in some circumstances--most polls have that at around 2/3. This may be right or wrong from a moral, or a Catholic, perspective. But in a nation with a First Amendment, prohibiting the establishment of religion, the legal argument cannot be grounded in a strictly religious one.

It's interesting that historically they decided not to pursue the religious argument, even when the majority of the country was religious, and that decision had a part in losing Roe v Wade.  

There are many polls on abortion, and most of them are biased.  But despite that I do think it's likely a majority of people who do support abortion in at least limited circumstances.

That's partly why I love LiveAction (many videos on YouTube).  So many times all it takes is just confronting someone with the truth of what abortion actually is and what it does and what it looks like and people back WAY off from their original position.  Many say things like, "that's murder", or just, "that's messed up", and many of them just cry.  That channel is a powerful testimony.  A little knowledge goes a long way...