The Constitutional Case for Choice

[homersapien 11,386]

No, the Constitution is not ‘neutral’ on abortion

By Ruth Marcus

 

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.

It is also wrong, misleading and dangerous.

Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.

“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.

The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”

How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

Abortion is different from these examples, of course, because it is not mentioned in the Constitution. But that does not make abortion unique among constitutional rights. There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

And so in 1972, extending its ruling protecting married couples’ right to obtain contraception to unmarried individuals, Justice William J. Brennan Jr. wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

To say that the Constitution is “neutral” is another way of saying that women enjoy no protection, no liberty to decide what to do with their own bodies — or, more precisely, only so much protection as the state where they live chooses to grant them.

And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.

 

https://www.washingtonpost.com/opinions/2021/12/07/supreme-court-abortion-rights-constitution/

Edited December 8, 2021 by homersapien

[I_M4_AU 7,853]

A dissenting view:

 

[AU9377 4,960]

So much effort going into making women drive to Florida to get an abortion.

[I_M4_AU 7,853]

11 hours ago, AU9377 said:

So much effort going into making women drive to Florida to get an abortion.

Why drive to Florida when California will fly you out there for free?

SACRAMENTO, Calif. (AP) — With more than two dozen states poised to ban abortion if the U.S. Supreme Court gives them the OK next year, California clinics and their allies in the state Legislature on Wednesday revealed a plan to make the state a “sanctuary” for those seeking reproductive care, including possibly paying for travel, lodging and procedures for people from other states.

https://apnews.com/article/abortion-california-sanctuary-625a118108bcda253196697c83548d5b

It seems abortion is.a big business having little to do with *reproductive care*.

[CoffeeTiger 5,119]

 

15 hours ago, I_M4_AU said:

A dissenting view:

 

 

I stopped at 1:50, partly because I don't have time to watch a 10 min speech (give it to me in written form and ill read it though), and partly because the argument immediately became lost on me when Kennedy says that "RoevWade is about taking away moral decisions from the American people themselves", which is a stupid argument. No American is forced or even encouraged to have an abortion. There is absolutely NO benefit to someone having an abortion who doesn't want one. Legal absorption doesn't and hasn't taken "moral decisions" away from anyone, anymore than forced legalization of same sex marriage takes  away Americans moral decisions. 

The real issue at play is this: "should State be allowed to take away medical and reproductive rights from women, and should states allow tyranny of the majority by allowing conservative and heavily religious States to outlaw abortion for everyone? That's the real issue.

Taking away RoevWade is all about Taking away choices...not empowering them. 

Edited December 9, 2021 by CoffeeTiger

[jj3jordan 2,055]

6 minutes ago, CoffeeTiger said:

 

 

I stopped at 1:50, partly because I don't have time to watch a 10 min speech (give it to me in written form and ill read it though), and partly because the argument immediately became lost on me when Kennedy says that "RoevWade is about taking away moral decisions from the American people themselves", which is a stupid argument. No American is forced or even encouraged to have an abortion. There is absolutely NO benefit to someone having an abortion who doesn't want one. Legal absorption doesn't and hasn't taken "moral decisions" away from anyone, anymore than forced legalization of same sex marriage takes  away Americans moral decisions. 

The real issue at play is this: "should State be allowed to take away medical and reproductive rights from women, and should states allow tyranny of the majority by allowing conservative and heavily religious States to outlaw abortion for everyone? That's the real issue.

Taking away RoevWade is all about Taking away choices...not empowering them. 

Seems like everybody wants a choice, but the baby somehow loses his or her choice in the process. How is this fair? 
Easy for people already born to make decisions for those not born yet.

[CoffeeTiger 5,119]

2 minutes ago, jj3jordan said:

Seems like everybody wants a choice, but the baby somehow loses his or her choice in the process. How is this fair? 
Easy for people already born to make decisions for those not born yet.

The baby never had a choice anyway. 

Nobody ever asked to be born into this world. Nobody ever asked for their parent to do the vertical Bop on New Years while drunk, not take birth control and then carry them to term. There are likely millions of people in this world right now who would easily choose to have never been born but they were never given that choice as a fetus. How is that fair? 

 

[homersapien 11,386]

Funny, I would have thought the case laid out by Marcus would naturally appeal to conservatives. 

Perhaps it does, which explains why no one has offered a serious rebuttal.

Edited December 9, 2021 by homersapien

[jj3jordan 2,055]

41 minutes ago, CoffeeTiger said:

The baby never had a choice anyway. 

Nobody ever asked to be born into this world. Nobody ever asked for their parent to do the vertical Bop on New Years while drunk, not take birth control and then carry them to term. There are likely millions of people in this world right now who would easily choose to have never been born but they were never given that choice as a fetus. How is that fair? 

 

There are also survivors of botched abortions who lived and I would imagine they are pretty much 100% happy they got to live. You pretending to know the hearts of millions of people you claim wish they were killed in utero is absolutely disgustingly evil. Letting a baby live is fair. Killing a baby is not fair in any world.  

[CoffeeTiger 5,119]

16 minutes ago, jj3jordan said:

There are also survivors of botched abortions who lived and I would imagine they are pretty much 100% happy they got to live. You pretending to know the hearts of millions of people you claim wish they were killed in utero is absolutely disgustingly evil. Letting a baby live is fair. Killing a baby is not fair in any world.  

Ok, so now you're changing the argument.  It's not about giving the Baby a choice, because we all know the Baby doesn't "get" a choice and isn't even mentally capable of making a choice about life so that argument never really applied in the first place. Technically most of the world, including the United States, never gives "anyone" a choice about life. If your dad plows the beanfield one night and the mother decides to carry you to term then society dictates you are forced to live no matter your wants, desires, or choice. So don't pretend anyone is ever really given a choice about life...they aren't. 

And I'm not in favor of killing children. I do not support late term abortion and late term abortion isn't and has never been legal in the United States. I do not and never have believed that ending the life of a viable baby is justified or should be legal. I don't believe that a fertilized egg or a undeveloped embryo is correctly, legally, or morally classified as a "person" .

 

53 minutes ago, homersapien said:

Funny, I would have thought the case laid out by Marcus would naturally appeal to conservatives. 

Perhaps it does, which explains why no one has offered a serious rebuttal.

 

The hardcore conservatives on here rarely offer rebuttals or arguments against much of anything. At best they'll pick out one word or one sentence out of a whole article or posts and try to move the goalposts to a side tangent while ignoring the primary point. 

[I_M4_AU 7,853]

1 hour ago, CoffeeTiger said:

No American is forced or even encouraged to have an abortion.

You are correct in the first half if the statement, however, the encouraging is way off.  California is proposing to be a *sanguinary* state for abortions and, therefore, incentivizing (read encouraging) abortion. 

1 hour ago, CoffeeTiger said:

Legal absorption doesn't and hasn't taken "moral decisions" away from anyone

I am assuming you meant *abortion* for the bolded word so I will answer on my assumption.  Like any *moral decision* human nature defaults to the easiest path, much like water.  It is difficult to take a moral stand if an easy and alternative method is available and praised by a lot the population.

2 hours ago, CoffeeTiger said:

The real issue at play is this: "should State be allowed to take away medical and reproductive rights from women, and should states allow tyranny of the majority by allowing conservative and heavily religious States to outlaw abortion for everyone? That's the real issue.

To be clear; there are no medical rights in this country if one beliefs a *right* is God given or in the Constitution.  We should expect good medical care but it is not a *right*.  The *right* to an abortion is what the SCOTUS is deciding if it really is a right given under the Constitution or the right of the state to determine that based on the population of each individual state.

If that state is conservative, then yes they should restrict abortion according to their legislature.  If women think it is too restrictive, they have several options.  One being vote with their feet, another would be to go to a state (California) that would welcome them as a tourist for a couple of days and perform an abortion.  Abolishing Roe v Wade would not take any options away from women who want an abortion, it may make it more difficult to obtain and a women would have to weigh the options, but the option would be there.

[CoffeeTiger 5,119]

1 minute ago, I_M4_AU said:

You are correct in the first half if the statement, however, the encouraging is way off.  California is proposing to be a *sanguinary* state for abortions and, therefore, incentivizing (read encouraging) abortion. 

That doesn't "incentivize abortion" It gives a choice to women who have already chosen to get an abortion, but their Christian Theocratic State has decided that they don't have the choice to get one where they live. California giving women outside their state options is not "encouraging or incentivizing" it's simply giving them options they once had, but was taken away from them. 

1 minute ago, I_M4_AU said:

I am assuming you meant *abortion* for the bolded word so I will answer on my assumption.  Like any *moral decision* human nature defaults to the easiest path, much like water.  It is difficult to take a moral stand if an easy and alternative method is available and praised by a lot the population.

Thank you Socrates 

1 minute ago, I_M4_AU said:

To be clear; there are no medical rights in this country if one beliefs a *right* is God given or in the Constitution.  We should expect good medical care but it is not a *right*.  The *right* to an abortion is what the SCOTUS is deciding if it really is a right given under the Constitution or the right of the state to determine that based on the population of each individual state.

As the article above points out, there are many Rights already guaranteed to us that the Constitution doesn't explicitly name or dictate. The SCOTUS has already decided that abortion access is a guaranteed right 50 years ago. The Republican party and Christian lobbyist since then have tried to manipulate the court into a position where it will overturn that ruling based on partisan and religious reasons. This is the best opportunity they've ever had. 

We'll see if this Republican SCOTUS wants to act in the best and Constitutional interest of all the people in the US or if it wants to act in the interests of the groups that gave it it's power. 

 

1 minute ago, I_M4_AU said:

If that state is conservative, then yes they should restrict abortion according to their legislature.  If women think it is too restrictive, they have several options.  One being vote with their feet, another would be to go to a state (California) that would welcome them as a tourist for a couple of days and perform an abortion.  

Don't like that the state is stripping away your rights, just vote with your feet and move away from family, friends, jobs, and everything. No sweat. If you don't move away. Simple as that right. 

1 minute ago, I_M4_AU said:

Abolishing Roe v Wade would not take any options away from women who want an abortion, it may make it more difficult to obtain and a women would have to weigh the options, but the option would be there.

The option would be there for women who have the money. It'd be there for the middle class, for the mistresses' of the Republican politicians who would vote to outlaw abortion, for the choir girl in a mega church that is impregnated by the well off pastor, for the girls whose fathers learn that a Black man impregnated their daughter and they wont have that. They'll all manage to get the abortions they need because those situations are "different". 

Yes, the option would be there for all those women and classes of people. 

It wont be there for the poor women who don't have the money, connections, or knowledge of how to travel to another area of the country to get one. It wont be there for the people who need abortion access the most and who would be placed into sever poverty by being forced to have a child. Like most Republican policies, it will most negatively impact the poor and minorities. 

 

 

[I_M4_AU 7,853]

15 minutes ago, CoffeeTiger said:

As the article above points out, there are many Rights already guaranteed to us that the Constitution doesn't explicitly name or dictate. The SCOTUS has already decided that abortion access is a guaranteed right 50 years ago. The Republican party and Christian lobbyist since then have tried to manipulate the court into a position where it will overturn that ruling based on partisan and religious reasons. This is the best opportunity they've ever had. 

We'll see if this Republican SCOTUS wants to act in the best and Constitutional interest of all the people in the US or if it wants to act in the interests of the groups that gave it it's power. 

This is what the Mississippi case is all about, the rectifying of a bad decision 50 years ago.  I am amused at the qualifier you put in front of the SCOTUS as the judges do not strictly abide by the party that nominated them.

22 minutes ago, CoffeeTiger said:

Don't like that the state is stripping away your rights, just vote with your feet and move away from family, friends, jobs, and everything. No sweat. If you don't move away. Simple as that right.

Life is full of decisions to be made and one will have to prioritizes what is more important to them, the *right* to have an abortion or family, friends and jobs. If it were up to Biden, we would have to make these type of decisions about the vaccine.

26 minutes ago, CoffeeTiger said:

It wont be there for the poor women who don't have the money, connections, or knowledge of how to travel to another area of the country to get one.

You don’t have a high opinion of poor women do you?

[AU9377 4,960]

3 hours ago, jj3jordan said:

Seems like everybody wants a choice, but the baby somehow loses his or her choice in the process. How is this fair? 
Easy for people already born to make decisions for those not born yet.

Should the government be allowed to prohibit men from having a vasectomy?  Does that not prevent the creation of a baby?  Therefore, does that not go against the will of God?  Do people only have sex in order to create children?  Why do those with such a profound moral objection to a woman making the choice for herself not have the same passion and conviction to help care for those children once they are born?  Does the bible not demand as much?

The point is that many people are pro choice and yet not personally in favor of having an abortion if they were faced with an unwanted pregnancy.  That is the essence of choice, being able to decide.

[AU9377 4,960]

18 minutes ago, I_M4_AU said:

This is what the Mississippi case is all about, the rectifying of a bad decision 50 years ago.  I am amused at the qualifier you put in front of the SCOTUS as the judges do not strictly abide by the party that nominated them.

Life is full of decisions to be made and one will have to prioritizes what is more important to them, the *right* to have an abortion or family, friends and jobs. If it were up to Biden, we would have to make these type of decisions about the vaccine.

You don’t have a high opinion of poor women do you?

The vaccine saves lives.  That isn't opinion.  That is absolute fact.  The sad thing is that a portion of the population is willing to ignore fact in favor of fiction.

[homersapien 11,386]

1 hour ago, I_M4_AU said:

You are correct in the first half if the statement, however, the encouraging is way off.  California is proposing to be a *sanguinary* state for abortions and, therefore, incentivizing (read encouraging) abortion. 

 

That's a truly bizarre take.  Allowing women the personal autonomy to make decisions about their own body somehow incentivizes them to do something??

You really don't respect women, do you?

[I_M4_AU 7,853]

20 minutes ago, AU9377 said:

The vaccine saves lives.  That isn't opinion.  That is absolute fact.  The sad thing is that a portion of the population is willing to ignore fact in favor of fiction.

Not having an abortion saves lives.  Also a fact.

[I_M4_AU 7,853]

22 minutes ago, homersapien said:

You really don't respect women, do you?

I totally respect women and believe they are necessary for mankind to survive.  I’m not sure where you get I don’t respect women.

 

24 minutes ago, homersapien said:

Allowing women the personal autonomy to make decisions about their own body somehow incentivizes them to do something??

No, the pressure by certain people/political stances/states can incentivize people to do something that may not be in their best interest.

[jj3jordan 2,055]

42 minutes ago, AU9377 said:

Should the government be allowed to prohibit men from having a vasectomy?  Does that not prevent the creation of a baby?  Therefore, does that not go against the will of God?  Do people only have sex in order to create children?  Why do those with such a profound moral objection to a woman making the choice for herself not have the same passion and conviction to help care for those children once they are born?  Does the bible not demand as much?

The point is that many people are pro choice and yet not personally in favor of having an abortion if they were faced with an unwanted pregnancy.  That is the essence of choice, being able to decide.

No. No. No.No.

Ah the moral shift. Very predictable. Who are the "those" of which you speak who don't have the same passion and conviction to care for "those" children. Children are supposed to be cared for by their parents. What is it that you desire from others who believe that killing a baby in the womb is wrong? The Bible demand ultimately that we worship God and repent of our sins, turn away from our sinful life, and ask Jesus to be our personal savior.  This is what needs to be taught. 

People have a choice. When they choose to have sex, a baby may result. Having already had choice number 1, now they have choice number 2, kill the baby so THEIR lives won't be adversely affected, or have the baby. The baby gets 0 choices. That's 2 for the parents and 0 for the baby. Talk about unfair. How did that inequality slip past you , the forum arbiter of fairness?  

I think you will find it very difficult to find an abortion survivor who wishes they were dead. And I think you will find millions of children who were almost aborted but instead their mother decided not to abort who are thankful they had the chance to live.

Are there any aborted babies able to be asked that question? No. My guess they would pick life, if they were given the essence of choice.

[TitanTiger 20,499]

I'm entirely in favor of women having the personal autonomy to make decisions about their own bodies.

 

It's when people want to extend that autonomy to another human being's body that I begin to have problems.

[CoffeeTiger 5,119]

 

1 hour ago, I_M4_AU said:

Life is full of decisions to be made and one will have to prioritizes what is more important to them, the *right* to have an abortion or family, friends and jobs. If it were up to Biden, we would have to make these type of decisions about the vaccine.

 

Similar things were told to Black people in the Jim Crowe South long ago. 

"Life's full of decisions to be made and one will have to prioritize what is more important to them, the *right* to equal treatment under the law and to be treated as a person and not property OR family, friends, and jobs" 

 

If Black people wanted to be treated like humans, why did they live in the South? Why didn't they just go up north and live, and leave the South? Why should the federal government get to decide whether Southern States can discriminate and segregate or not? 

1 hour ago, I_M4_AU said:

You don’t have a high opinion of poor women do you?

 

Even if there are programs designed to help poor people travel to other states and get an abortion the women have to HAVE THE KNOWLEDGE of those programs and how to apply and how to quality. You implying "Weeeeeeellll, these brood mares can fly/run/drive/swim to Mexico/California/Canada/Japen ect ect to have an abortion if they really want it, so it's not like banning it in over half the country is taking away anyone's choices" isn't a good or justifiable argument IMO. 

[I_M4_AU 7,853]

@CoffeeTigerman don’t turn this into a race thing. 

[CoffeeTiger 5,119]

2 minutes ago, I_M4_AU said:

@CoffeeTigerman don’t turn this into a race thing. 

You said if people don't like having what they consider "rights" to be taken away from them by conservative States then they can just move somewhere else. 

I'm giving a not too long ago historical example of how this reasoning isn't kosher 

Edited December 9, 2021 by CoffeeTiger

[TitanTiger 20,499]

1 hour ago, AU9377 said:

Should the government be allowed to prohibit men from having a vasectomy?  Does that not prevent the creation of a baby?  Therefore, does that not go against the will of God?  Do people only have sex in order to create children?  Why do those with such a profound moral objection to a woman making the choice for herself not have the same passion and conviction to help care for those children once they are born?  Does the bible not demand as much?

You aren't comparing equivalent things.  Prohibiting vasectomies would be analogous to prohibiting a tubal ligation or hysterectomy. These are means of preventing the fertilization of an egg in the first place.  Abortion is the ending of a human life after it's already created.

Like I've said many times before, this argument really only sticks (controlling women's bodies) if you could point to similar restrictions being sought on procedures women seek to do that literally only affect their body - tubal ligation, hysterectomy, breast augmentation or reduction, various cosmetic procedures.  But that's not happening.  The reason abortion is different is because it has direct consequences for another human being.

 

[CoffeeTiger 5,119]

11 minutes ago, jj3jordan said:

What is it that you desire from others who believe that killing a baby in the womb is wrong? 

Nothing at all is being demanded of people like you except to not try to legally impose your beliefs and religious morals on every single other person. 

Nobody is imposing anything on pro-lifers. Pro-lifers are the ones wanting to impose their beliefs and decisions on everyone else through laws, fines, and punishment.