Reply #45: not for me! [View All]

[iverglas]

Sorry bout that.

Is there anywhere, that you know of, in US law where your argument has standing?

I'm not sure which argument you mean. The whole concept of the interest of the state in the subject matter of legislation is fundamental to law in the US, and to law itself in any country that adheres to the rule of law. You can get an overview of the constitutional scrutiny process here, e.g.:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
"Levels of Scrutiny under the Equal Protection Clause"

1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.): ...

2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.): ...

3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.) ...

Unless we're specifically arguing equal protection, those particular items don't apply, but you get the idea of "state interest".

The state can't just go around legislating willy-nilly about whatever it feels like. It must demonstrate that it has an interest to advance or protect.

Here's another good illustration from that site, with respect to individuals' interests:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right. Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.)

-- which kind of brings us to the point that what is called "privacy" in the US is really liberty.

And to what I hear Ruth Bader Ginsburg J. had to say in the current case (Stevens, Souter and Breyer JJ. concurring), which it's about time I read -- here, starting at p. 49 of 73:
http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf
Bits and pieces on a quick skim (omitting italics and some citation details, boldface mine):

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her (own) destiny.”

Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’s health. Today’s ruling, the Court declares, advances “a premise central to (Casey’s) conclusion”—i.e., the Government’s “legitimate and substantial interest in preserving and promoting fetal life.” See also ante, at 15 (“(W)e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg. And surely the statute was not designed to protect the lives or health of pregnant women. Id., at 951 (GINSBURG, J., concurring); cf. Casey, 505 U. S., at 846 (recognizing along with the State’s legitimate interest in the life of the fetus, its “legitimate interes(t) ... in protecting the health of the woman” (emphasis added)). In short, the Court upholds a law that, while doing nothing to “preserv(e) ... fetal life,” ante, at 14, bars a woman from choosing intact D&E although her doctor “reasonably believes (that procedure) will best protect (her).” Stenberg (STEVENS, J., concurring).

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at 28 (“Congress could ... conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas (Though “(f)or many persons (objections to homosexual conduct) are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey)).


Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “(s)evere depression and loss of esteem.”

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “(t)he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.” Casey.

In cases on a “woman’s liberty to determine whether to (continue) her pregnancy,” this Court has identified viability as a critical consideration. See Casey, (plurality opinion). “(T)here is no line (more workable) than viability,” the Court explained in Casey, for viability is “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. ... Insome broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” Today, the Court blurs that line, maintaining that “(t)he Act (legitimately) appl(ies) both previability and postviability because ... a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”

In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U. S., at 952 (GINSBURG, J., concurring) (quoting Hope Clinic v. Ryan (Posner, C. J., dissenting)).

I hope that clarifies the concept of "state interest" being applied.

I'll address other things in a separate post.