ATTN Lawyers or Legal Minds: Question about Roe v Wade and Griswold in light of Palin

[redstate_democrat]

What legal basis would the Supreme Court use to overturn Roe v Wade and Griswold, as I understand both these cases to be about a Constitutional right to privacy, rather than the narrow and focused issue of "abortion" and birth control? Would the court be able to take a case challenging Roe on the basis that there is no federal Constitutional right to privacy or based on the breakdown of first trimester and second trimester analysis?

How would this become a "state issue" if Roe is overturned on the basis of the trimester analysis? If it is improper for the Supreme Court to say apply that analysis based on some morality argument, wouldn't it be just as wrong for the state to do so as well?

If overturned on the Constitutional right to privacy issue, wouldn't that be the equivalent of rolling back a lot of cases that deal with Constitutional right to privacy such as birth control in Griswold, sodomy laws like in Lawrence v Texas, marriage laws, right to die, etc.

What is the deal? What is the LEGAL basis they are using to say Roe v Wade is a wrong decision. If Palin was asked why she wants Roe overturned, would she be capable of understanding that there must be a legal reason for overturning it, or would she just believe that because it's immoral IN HER MIND, then it must be overturned based on the fact.

I would like Gwen Ifill to ask this question of Palin:

You disagree with Roe v. Wade and believe it should be overturned, what legal basis do you have for overturning a case based on Constitutional rights?

Secondly, if you believe Roe v Wade should be overturned based on something other than a legal basis, would you also believe cases like Brown v Board of Education were decided wrong, based on the argument that people should have freedom of association? Do you believe that one's constitutional right could be an infringement on another individual's rights?

[The Velveteen Ocelot]

1. The response would be short and to the point:

Her head would explode.

[redstate_democrat]

2. So she would say, I think its wrong because a baby is in the stomach right after sex

and therefore it would be murder for a woman to have an abortion because the baby is a human being so Roe v Wade should be overturned!

Why hasn't that argument worked for the death penalty in this country?

[Alhena]

3. Read the dissenting opinions in Planned Parenthood v. Casey, 505 US 833

that will give you the arguments they will use to overrule it once they get the votes for it.

[redstate_democrat]

4. Thank you very much.

:D

[redstate_democrat]

9. Thank you for pointing me to that case. Very enlightening.

I took a legal history class in college but we never got to this case.

I just breezed through the case you gave me and stopped right here:

"But a reading of these opinions makes clear that they do not endorse any all-encompassing "right of privacy."

So the legal basis these fundies would use is that there is no fundamental right of privacy, but they somehow will separate from this decision, other decisions like Griswold?

:wtf:

[SheilaT]

5. One thing that was pointed out

in a paralegal course I took a few years ago, was the Roe v. Wade was such an astonishing decision precisely because it did carve new ground. However, it has been upheld over the years, however narrowly. Of course we need justices who will continue to support it.

[rwenos]

6. Big Question, Brief Answer

I practice law in California, and like every lawyer who has attended law school since 1973, I read both Griswold v. Connecticut and Roe v. Wade, CLOSELY, in law school. (That includes Clarence Thomas, even though he perjured himself and denied it in his confirmation hearings.)

I'll try to give you the "G" rated pro-choice answer for each of your questions.

1. The legal basis for overturning Roe v. Wade would be that (1) there is no explicit "right to privacy" in the U.S. Constitution; and thus (2) the "right to privacy" alleged to exist in the majority opinion in "Roe" was error. In other words, if there's no right to privacy, then the several States have authority to outlaw abortion (as Texas did). The Court could take any case it wanted to, to abrogate a general "right to privacy." It wouldn't even have to be about abortion. The Supremes can grant review in any case they want.

2. Assuming the Supremes abrogated the "right to privacy," the states are free to regulate. It would be a cold day in hell before California outlawed abortion. Texas would do it next week.

3. Overturning Roe would not necessarity overturn Griswold, the sodomy cases or Loving v. Virginia (pertaining to states' prohibitions of interracial marriage). Under the doctrine of "substantive due process," under the "due process" clause of the 14th Amendment, the Court can tailor its opinion as broadly or narrowly as it wishes.

Hope that helps. The Court can pretty do as much or as little as it wants, given the right case.

[redstate_democrat]

11. Thank you so much! You made this very clear for me.

Now if this is the "G" version, what's the other version? Are you SURE these fundies wouldn't be able to use the elimination of the fundamental right to privacy to overturn other cases dealing with it? I find it hard to believe these fundies would limit themselves in that way.

[abumbyanyothername]

7. I think they can go another way besides the Casey dissent.

Life begins at conception. (Their argument, not mine.)

This would be much more radical and would create a 14th/5th Amendment prohibition on abortion ("deprived of life . . . without due process of law").

The problem is that this would create horrible problems in the law of inheritance, Social Security benefits, etc.

[redstate_democrat]

10. And then how would they be able to conclusively say that life begins at conception?

That IS radical. If that's the case, what you suggested and a whole mess of stuff would be implicated.

[abumbyanyothername]

34. Interpreting what "life" means in the due process clause

is a judicial function. In fact, Roe v Wade to some extent defines life as beginning at viability.

That Justice Blackmun relied on medical science to provide him with guidance, does not necessarily mean that other Justices must do the same.

What "life" means in the due process clause is a legal/semantic (in the non-perjorative sense of the word) issue. Judges are free to draw from their experience, knowledge or even intuition to answer such questions.

[WeDidIt]

8. Grsiwold is the basis for Roe

Roe cannot be overturned so long as Griswold stands. To overturn Roe you must overturn Griswold.

[redstate_democrat]

13. Ok, that makes sense. So, they could probably overturn both in the same case, right?

[davepc]

12. I've never understood why a woman's right to her body isn't covered by the 9th amendment

Or the right to privacy, or any other right not enumerated in the Bill or Rights.

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

[redstate_democrat]

15. Whoa, that's a good point.

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

[rug]

16. Because the 10th Amendment gave that right to the states.

Roe v Wade was a challenge to a state criminal statute.

[rug]

14. They may attack it on grounds having little to do with privacy.

One premise for Roe is that the fetus is entitled to more protection as it becomes more viable independent from the mother, hence the increasing prohibitions from trimester to trimester.

They may take an ironic page from Brown and assert that increasing scientific knowledge has made the fetus viable much earlier in gestation and that viability conyeys rights on the fetus entitling it to protection much much earlier in the pregnancy. They could argue that life trumps privacy at that stage, leaving untouched the right to privacy itself.

Don't forget, Plessy was ultimately overturned because the court held that separate but equal was impossible, not wrong, and Scott v Sanford was never overturned but instead was replaced with a Constitutional Amendment after a civil war.

[KakistocracyHater]

17. Eisenstadt vs Baird-don't forget

that 1 for unmarried women the legal access to contraceptives.

[rug]

21. Right, but the state law was not struck down on privacy grounds but on equal protection grounds.

The court held there was no rational basis to prohibit dispensing contraception to unmarried people but to allow it for married persons.

[redstate_democrat]

18. Okay this is very interesting.

So they could use "scientific" knowledge, similar to how tests were used in Brown, to demonstrate to the court some point. So then it would become the battle of a woman's right to privacy vs. the "life" of a fetus, life trumps privacy. Okay, but as I said before, that is crazy because now the state has to weigh HOW a woman takes care of herself during pregnancy with the "life" of the fetus, which would prompt the state to make laws saying what a woman can and cannot do while pregnant.

[rug]

19. Yes, that would be the outcome.

[redstate_democrat]

22. Alaska could theoretically create a law which says

a woman cannot go Moose hunting while pregnant because the Moose might harm the fetus. This could affect Hockey Moms all over the country, even women who are against abortion, but don't want to be told by the state what to do with their bodies while pregnant. A lot of women who are against abortion don't think twice about smoking two packs of cigarettes a day or drinking a bottle of wine and popping a percocet here and there. This could be criminalized and we could see something like a Salem's Witch Trial thing going on but instead of witches, it's pregnant women suspected of abusing their fetuses. :crazy: I'm making myself dizzy thinking about it.

[rug]

25. NARAL has been very vigilant in scrutinizing criminal laws that make causing the death of a fetus

a separate and distinct crime from the assault or murder of the mother.

I see at least an equal danger in precedent in the child protective laws that impose punishment on mothers who engage in dangerous behavior during the pregnancy or who may lose all of their children on the basis of causing harm to the fetus.

Both types of laws convey some kind of legal recognition of the fetus which in turn imposes penalties for causing harm to the fetus. All of which returns to Roe.

It would be a facinating area of jurisprudence but for the human tragedy involved.

[msallied]

20. There is no "real" Constitutional right to privacy. The word isn't anywhere in the document.

Truth be told, the case is hanging by a very thin legal thread. Not to say that abortion SHOULDN'T be legal. I am very much pro-choice. But the basis used by the SCOTUS at the time was one made by an incredibly liberal court. I don't believe Earl Warren was chief justice then, but let's just say that the Warren Court in the decade preceding Roe v Wade set the precedent for a lot of the more liberal decisions. If I remember correctly, I think the reasoning was not that it was explicitly stated that privacy was a Constitutional right, but that it was "emanating from the penumbras" or something to that effect.

The grounds are shaky hence the intense controversy surrounding the case. At any rate, it's being upheld at this point in my opinion strictly because of 30 year precedent, and that'll be enough to probably keep it there.

[rug]

23. Plessey had 58 years of precedence before it was reversed.

[msallied]

26. You make a good point, but...

The question is whether the court will agree to hear a case relating to Roe v Wade. Different cases, different times, different courts. Who knows?

[rug]

27. They will leap at the chance, saliva oozing from their maws.

[msallied]

31. I think it will depend on where the culture is in this country...

Public opinion at this time still seems to support the decision. What people need to do is get to work in their states to make sure that legislatures are prepared to uphold abortion rights should the decision be returned to them. I hate that this even has to be an issue. Roe v Wade opponents have absolutely no perspective on this issue. Clearly, they hate poor people, because this essentially who Roe v Wade protects.

[redstate_democrat]

24. I believe in a living Constitution. Even though privacy isn't explicit in the Constitution

I think the document's aura points to privacy. Think of the 4th amendment and other amendments. I think Roe states that because of those amendments, it is clear that privacy was an important objective of the Founders, something just inherent, like liberty. The reason I can't stand Scalia and Thomas is not just because they are stupid right wing fundies, but because they follow that strict constructionist or orginalist approach to the Constitution. Like Whoopi said, if we followed that approach, should I be worried about slavery? (But thanks to the 13th amendment, I don't :D)

[msallied]

28. Well you pretty much described the divide perfectly.

I too believe, to a point anyway, in the idea of a living document in that it should not exist to deprive a minority of people of the Constitutional Rights enjoyed by the majority. I don't, however, like the idea of those rules being used in reverse. If we can loosely interpret a decision in favor of the greater good (like Roe), then who is to say that a court can't (or won't) use those same loose definitions to do greater harm? It's a double-edged sword and we have to be careful. By the same token, strict constructionism can be viewed the same way.

The idea that there are two philosophies helps us to make sure that we can usually strike a chord somewhere in the middle. I think this is why the Founding Fathers were very vague in their language in the first place. To encourage constant questioning and debate rather than to dissuade it. That way, everyone has a voice. I think this is how we try to avoid tyranny.

I do not like the direction this court is headed, and it's not only because there is an increased conservative presence on the bench. It's because politics is becoming WAY too intertwined in the judicial process, which was originally intended to be immune from the political winds of the other branches of government.

[redstate_democrat]

33. Yes, I understand what you're saying as far as having loose interpretation work against

principles of fairness to minorities or people without the political power to affect change on a broad scale. I, too, don't like the direction of this court. And to think PALIN could one day be in charge of nominating judges to the court is terrifying, not only because of Roe, but for a whole host of reasons, mainly because those judges would most likely view a lot of cases decided by the Warren court to be incorrect based on their interpretation of the Constitution. I think of a lot of criminal law cases, for instance, which would point to that. I vaguely remember one case where Thomas said beating a prisoner wasn't cruel and unusual punishment. I think Scalia is a nut case and would say that jury trials aren't required. We would be under fascist rule and this court wouldn't even blink an eye.

Thomas, Scalia, Roberts, Alito, Kennedy (he seems to be the tie breaker right now) All that is needed is just ONE more fundie case and the court is gone for a generation. PALIN could decide who that judge is.

[msallied]

29. Well you pretty much described the divide perfectly.

I too believe, to a point anyway, in the idea of a living document in that it should not exist to deprive a minority of people of the Constitutional Rights enjoyed by the majority. I don't, however, like the idea of those rules being used in reverse. If we can loosely interpret a decision in favor of the greater good (like Roe), then who is to say that a court can't (or won't) use those same loose definitions to do greater harm? It's a double-edged sword and we have to be careful. By the same token, strict constructionism can be viewed the same way.

The idea that there are two philosophies helps us to make sure that we can usually strike a chord somewhere in the middle. I think this is why the Founding Fathers were very vague in their language in the first place. To encourage constant questioning and debate rather than to dissuade it. That way, everyone has a voice. I think this is how we try to avoid tyranny.

I do not like the direction this court is headed, and it's not only because there is an increased conservative presence on the bench. It's because politics is becoming WAY too intertwined in the judicial process, which was originally intended to be immune from the political winds of the other branches of government.

[rwenos]

30. Privacy from a "Penumbra of Rights"

I believe Justice Douglas wrote in the Griswold decision that there was a "penumbra of rights" emanating from the Bill of Rights -- if one reads the 1st, 3rd (quartering of troups), 4th (right to freedom from unreasonable search & seizure), 5th (against self incrimination, 6th (right to counsel), the conclusion is inescapable (at least to Justice Douglas) that there is a right to privacy inherent in those several amendments.

Conservatives break into hives when you mention the "penumbra of rights." It's fun sometimes to do it, just to get a rise out of them.

[msallied]

32. Oh I agree completely. lol

But you're right. Thank you for clarifying that. I remember being so damned fascinated by this topic in my last civics class in college. lol