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this post was submitted on 23 Jan 2024
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...here we go again. I feel like people bring this up without understanding it all the time. The Fundamental Right to Privacy used in Roe comes from Griswold, and is (and was) an absolutely defensible interpretation of the Constitution. Much of our jurisprudence comes from Common Law and Reading Between the Lines (which is different from inventing a right from scratch). If you have a right to do A and a right to do B, there is absolutely an argument that you have a right to do A#.
More importantly, DOBBS AGREED. They just said "There is a right to privacy, but fetuses are special. Bubye Roe".
...which SCOTUS could easily decide is Federal overreach. A lot of people have argued with me (convincingly) that the best foundations of such a law are still not unassailable. The argument that the Constitution allows the federal government to protect abortion is just weaker than the argument that the Constitution inherently protects abortion.
Roe was decided by a largely pro-life conservative Judiciary, and the Right to Privacy was the weaker of two protections behind a clear 14th Amendment protection. Passing a law protecting abortion in 1976 is like passing a law protecting the right to Pray in your own home, or a law that forbids prosecutors from executing suspects during the arraignment. This is one of those things we really cannot justify blaming the Democrats for.
Well I don't agree with you, but damned if you didn't make a solid argument.
Sorry I started with "here we go again". In retrospect, it's not fair to treat a person who makes an argument like they are the argument itself.
It's very common that I hear the "invented a right" complaint for Roe. There are a lot of valid criticisms for how jurisprudence works in America, but none of those valid criticisms started with Roe. Arguably they didn't even fully start with Griswold, but the specific one in Roe did. People also often bring up Justice Ginsburg's distaste for Roe. What they don't understand (or conveniently forget) is that she was overridden in her 14th Amendment assertions by Justices that could be described as "Pro-life", who came up with perhaps the most anti-choice interpretation of the Constitution as it was seen at that time. The "shaky ground" people talk about wasn't Roe, but that Roe intentionally left a ton of room for states to add so-called "reasonable restrictions" on abortion, the kinds of restrictions the federal government would really struggle to justify limiting. If Oklahoma has a 3rd Trimester ban, get the abortion earlier or drive to a state without said ban. So long as they didn't ban leaving the state to get an abortion, there's not much for the federal government to write a law on.