Doesn’t one of the amendments in the Bill of Rights say that all rights not listed in the Constitution belong to the people? Why wouldn’t that cover a right to privacy, right to medical care of choice, right to abortion?
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Doesn’t one of the amendments in the Bill of Rights say that all rights not listed in the Constitution belong to the people? Why wouldn’t that cover a right to privacy, right to medical care of choice, right to abortion?
I think you’re conflating the Ninth and Tenth Amendments, which say:
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Powers not listed in the Constitution belong to the States or the people. For rights, the Ninth Amendment is a rule of construction. It basically says that just because the Bill of Rights has laid out eight specific enumerated rights, that should not be construed to say that no other rights exist.
Griswold (the contraception case that established the concept of ‘penumbras’ of rights) spends some time talking about the Ninth. But generally, it hews to the idea that the Ninth does not itself establish or create any fundamental rights - it simply directs that the enumeration of the first eight Amendments does not preclude any other rights from existing. But if such rights exist, you have to ‘find’ them somewhere else - the Ninth doesn’t create any such rights.
So, for example, the Bill of Rights doesn’t say that you have the right to travel between states - but it would not be appropriate to argue that the failure to enumerate that right means it doesn’t exist.
The problem for the Court has always been how to reconcile the Ninth’s clear implication that rights outside of the Bill of Rights can exist with the limited role of the federal judicial function. The judicial power isn’t typically understood as giving the Court a roving portfolio to just decide what things it thinks government should or shouldn’t do - so they search for a legal framework that allows the Court to identify non-enumerated rights in a way that isn’t just a policy choice by whoever happens to be sitting on the Court at the time. In other works, a legal framework that allows them to conclude that people have a right to abortion, but not (for example) a right to enter into a contract with another consenting adult for sex or for less than $5 per hour or what have you. Griswold tried to solve that conundrum by saying that things like privacy and abortion were fundamentally like the rights enumerated by and understood by the Framers to exist. Dobbs is likely to reject that.
Albaby
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I still say it’s covered by the 13th Amendment. The amendment says “slavery” (chattel), but goes further to say “forced servitude”. Pregnancy is servitude to the fetus. If it’s involuntary, it’s forced servitude.
I think a good lawyer should be able to make that argument.
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This idea of “forced servitude” is a strong idea from the point of view of the anti-abortion people – it’s strong because they regard the fetus (embryo or zygote or whatever) as a person, an unborn baby. Thus, the woman or girl who has an unwanted pregnancy is pressed into forced servitude. She is not permitted to eat or drink whatever she chooses and she must curtail her activities on account of this unborn baby.
BTW, the language of “unborn baby” is pretty strange in the first place. It suggests that a person of ANY age should be entitled to a senior citizen discount. After all, young people are simply unaged senior citizens.
culcha
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BTW, the language of “unborn baby” is pretty strange in the first place.
Which got me looking up laws against harming said unborn baby.
www.ncsl.org/research/health/fetal-homicide-state-laws.aspx
Currently, at least 38 states have fetal homicide laws: Alabama, Alaska, Arizona, Arkansas, California, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin.
DB2
I think a good lawyer should be able to make that argument.
It’s a very easy argument for a good lawyer to make. It’s not an argument that even a good lawyer will be able to win.
Albaby
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Powers not listed in the Constitution belong to the States or the people
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
—Section 1 AMENDMENT XIV
So what does it come to for women? Do women have the liberty to direct what their own healthcare should be? Or is that “liberty” is it a denied because the Constitution does not say the right to abortion is a constitutional right? By returning the issue of abortion rights to the states as the ruling does, Alito is saying the states have the legal authority to take away a woman’s liberty to engage in private decisions regarding her own life and liberty.
Can we trust the states to legislate individual rights to life and liberty? Footnote 4 to Carolene Products would say we can’t and should not. By overturning Roe, SCOTUS has abandoned its responsibility to closely scrutinize political processes and legislation that affects “discrete and insular” minorities. Those minorities include the historical disregard for women’s rights and the Constitution’s failure to include women and train its focus on white men. Could women vote or inherit property? Were black people even considered a whole person? These “egregious” flaws in our Constitution had to be reversed by amendments and become Constitutional rights. SCOTUS seems intent on reversing the “egregious privilege” of a woman’s right to liberty ensconced as law for 50 years because it’s not precedent, it’s murder and it is a state’s right to decide.
The Supreme Court has a responsibility to apply extra scrutiny to the rights of these persistent discrete minorities. They fail by overturning Roe and abandon their duty.
There are other issues Alito raises: is abortion homicide; Is Roe precedent; and it’s not a right mentioned in the Constitution.
Alito’s statement below is an example of his overwrought, bitter and cruel reasoning. His style is unmistakeable. This is not a fake. he uses the word egregious often and it betrays his partiality and lack of judiciousness when it comes to Roe.
[It] does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion isue,Roe and Casey have enflamed debate and deepened division.
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I mourn for America. I find the government’s utter disregard for a woman’s right (a human’s right!) to the autonomy of one’s own body to be odious, repugnant.
That said, there is a (perverse) logic to Alito’s position, which I read as: “SCOTUS not a super-government. Unless another branch does something that violates the Constitution plainly and unequivocally, we’re not going to stand on “penumbras” to rescue you from the workings of the political process. You want abortion rights? Fine. Instruct your elected representatives to enact a law. They could do it tomorrow. That’s how it works in civilized places. They won’t do it? Then vote 'em out and get some who will. You say the incumbents have jiggered an already unrepresentative system so as to effectively insulate themselves from the will of the people? Perhaps so. But that’s a different matter.”
It’s taken me a long, long time, but I’ve pretty much reached the conclusion that the fatal flaw with America is not this Court, or the absurd Senate, or even the rest of government. The fatal flaw is its citizenry, which has revealed itself over this past decade or so to contain an abundance of mean-spirited, xenophobic morons. Or perhaps the problem is even deeper than that, since illiberal authoritarianism appears to be flourishing all over the planet.
Arggh.
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You want abortion rights? Fine. Instruct your elected representatives to enact a law.
I do get that.
But some rights should not have to be legislated. They should be adjudicated against intolerant pin-heads that want to disregard those rights.
The fatal flaw is its citizenry, which has revealed itself over this past decade or so to contain an abundance of mean-spirited, xenophobic morons.
Yes. The pin-heads. The ones who want to teach religion in school (their religion, of course), build border walls (that won’t work…see China), ban travel for certain groups of people without cause (only fear), etc.
It is said the people get the government they deserve. I’ve come to think the US does not deserve a good one.
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It’s not an argument that even a good lawyer will be able to win.
Not with the current Vatican-directed court, no. But in principle, that’s how precedent is made. Some lawyer realizes the law implies something, he/she makes a case, precedent is set.
I don’t see any flaw in the logic of the argument for applying the 13th, especially as states are insisting to define the fetus as “human” (e.g. fetal homicide laws…can’t have “homicide” without a human). Fine. Well, that human can’t force another human into servitude. Says so right in the 13th.
Short and sweet: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
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I don’t see any flaw in the logic of the argument for applying the 13th, especially as states are insisting to define the fetus as “human” (e.g. fetal homicide laws…can’t have “homicide” without a human). Fine. Well, that human can’t force another human into servitude. Says so right in the 13th.
The rebuttal is that ‘servitude’ doesn’t refer to pregnancy. There’s absolutely nothing in the historical record that the Framers of the Thirteenth Amendment ever intended it to refer to anything other than the legal and economic conditions that forced on person to provide work to another person without compensation, such as debt bondage, peonage, and indentured servitude. Institutions that required one person to work for another that don’t fall into that category - like compulsory military service - weren’t considered ‘servitude.’
The most obvious example of that are laws that require parents to provide for the material needs of their children. Those aren’t ‘servitude,’ even though they basically force one human (the parent) to perform labor without compensation for another (the child). The children will die if the parents don’t meet their needs, so the parents are compelled to do so - and that’s not ‘servitude’ within the meaning of the Thirteenth. And no, parents don’t have a legal right to simply give up their kids for adoption in most states - apart from very specific (and not universally adopted) ‘Safe Haven’ laws for abandoning newborns, most states require court approval for child abandonment to the state, which approval is not easy to get and is almost always governed by the best interests of the child and not the wishes of the parents.
I also don’t think you could get around the fact that there’s no limits around the argument. If meeting the biological needs of a fetus is ‘servitude’ at early stages of a pregnancy, it’s still ‘servitude’ at 32 weeks. I can’t see a court finding its way to upholding a constitutional right to an abortion even a few weeks before someone’s due date. And again, if you can’t be compelled to meet the biological needs before delivery because that’s a ‘servitude,’ it’s hard to see why being compelled to meet the biological needs after birth isn’t a servitude as well.
It’s a loser of an argument. There’s nothing at all that a lawyer can point to that demonstrates that pregnancy is among the things that “servitude” means under the Thirteenth Amendment, and plenty of historical practice and practical reasons for finding that it was never intended to cover pregnancy.
Albaby
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There are lots of things the Founders (and those who came after) didn’t intend, or couldn’t even conceive of. Did they write the 2nd Amendment intending people to have AR15s with large capacity magazines and high cyclic rate? They never imagined that. But the courts extrapolated. Realistically, the way it is phrased (without the first 13 words), people should be able to possess nukes if they want to. It’s an “arms”. But we restrict that, at least for now.
Corporations as “persons” for free speech? I doubt they considered that either.
The list is long.
Regarding the 13th, did abortion even exist then? Did they understand pregnancy and how it works in the 19th century, or did they still think the man “planted a seed”? I’m not sure. But we know a lot more now about how it works, the demands on the woman physically and emotionally, etc. It is servitude because that fetus is taking whatever it needs, and the only thing the woman (or woman’s body, more precisely) can do to protect itself if it’s too much is to eject it (which does happen in some extreme cases). If the woman doesn’t want it, then it’s involuntary.
What you’re describing is a lose-lose situation. In a world without abortion, you must have the baby. And then, as you say, you must raise it. Even if you never wanted it to begin with. I would consider that another form of forced servitude. In a world with abortion, you can generally assume the woman wanted the baby. That’s voluntary. So compelling her (and the father) to raise it is appropriate.
The only sticky bit -and I confess I have no logical argument- is if the woman wants (or doesn’t) the baby, the man doesn’t (or does). To me, it’s the woman’s body. She’s taking all the risks. It’s up to her. The man shouldn’t have any say. But if a baby is produced, should we compel him to contribute even if he didn’t want it? At least if there’s abortion available, the woman has a choice to continue or not. If she chooses so, and the father is adamantly against, she had a choice and knows the ramifications. But I could see the argument that the man is on the hook for half the support of the child. Though that may come under my interpretation of the 13th, in which case he’s not. Like I said, sticky.
1poorguy
MisterFungi: “The fatal flaw is its citizenry, which has revealed itself over this past decade or so to contain an abundance of mean-spirited, xenophobic morons.”
The last decade?
Almost from the beginning.
Certainly racist from the beginning - i.e., slavery. KKK; and “separate but equal” for at least six decades.
Many of the original colonies had a state religion or a favored denomination.
Plenty of anti-immigrant rumblings, laws and discrimination in the past; see e.g., No Irish Need Apply, or Italians or Polish
US concentration camps for American citizens of Japanese descent.
When was this country not full of mean-spirited, xenophobic persons?
Regards, JAFO
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What do you think about the private enforcement anti-abortion bills?
Are there not standing issues? Also, do they not bring Shelley v. Kraemer in play and put it at risk? All those old restrictive covenants with race bans should be similarly privately enforceable? Freedom to contract, and all that. If using the courts to enforce racial restrictions is sufficient state action how is using the courts to collect abortion bounties any different?
I think the private enforcement mechanism is just a procedural dodge to avoid a preliminary injunction. Under SCOTUS precedent, the courts don’t actually issue injunctions against States’ acting on unconstitutional laws, nor do they ‘strike’ laws as unconstitutional. Rather, they issue injunctions against state officials from enforcing those laws. The private enforcement mechanisms just do an end run about that. Shelley v. Kraemer would still come into play - the moment a defendant were actually sued by a plaintiff, they would argue that the courts should not allow the private right of action that would violate the constitution. But you can’t walk into court and get an injunction in advance of their lawsuit, since there’s no one to enjoin.
And do you think states will get any traction on any travel restrictions to reduce shopping for a another state with a more lenient policy.?
No, and I don’t think any will try. They will adopt all kinds of laws that criminalize/prohibit in-state activity that helps a woman obtain an abortion outside the state - but they can’t/won’t try to criminalize travel itself. I suspect the bigger battles will be over mail order medication - but I expect that the states will prevail on that, ultimately.
Albaby
I suspect the bigger battles will be over mail order medication - but I expect that the states will prevail on that, ultimately.
I suspect that will be true officially, but not practically. Like liquor during prohibition, like pot in the 60’s, and like gummies today you can get what you want in spite of the laws state by state. Yes, it’s harder and yes, it’s not universal, but the idea that the states are going to somehow stop medications from being shipped to people who desperately want them and that it will be anything close to 100% effective is, in my view, unlikely.
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I suspect that will be true officially, but not practically. Like liquor during prohibition, like pot in the 60’s, and like gummies today you can get what you want in spite of the laws state by state. Yes, it’s harder and yes, it’s not universal, but the idea that the states are going to somehow stop medications from being shipped to people who desperately want them and that it will be anything close to 100% effective is, in my view, unlikely.
Sure. No law is 100% effective. After all, we still even have murders, even though it’s illegal to commit murder and we devote a massive amount of resources to find and punish murderers. Any criminal law is understood to be an effort to reduce the prohibited activity by as much as the state is willing to prioritize enforcement, but not likely to eliminate it completely.
But states probably will be able to materially and significantly make it difficult for women to obtain medical abortions if they decide to put a lot of resources into investigating and enforcing these kinds of laws. They won’t be able to stamp them out, of course - but they will be able to put up a lot of barriers.
Albaby
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Doesn’t one of the amendments in the Bill of Rights say that all rights not listed in the Constitution belong to the people? Why wouldn’t that cover a right to privacy, right to medical care of choice, right to abortion?
To me these are covered by the Right to Liberty, as listed in the Declaration of Independence. Liberty is the ability to do as one pleases, and that should be the supreme law of the US. Any encroachment on the Right to Liberty needs to be justified by other people’s rights.
We might want a right to privacy (for example, cell phone location records), and might need a new US amendment to cover that if privacy is being denied.
“your right to swing your arm leaves off where my right not to have my nose struck begins.”
John B. Finch, Chairman of the Prohibition National Committee, 1882
“Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God. I know not what course others may take, but as for me, give me liberty or give me death!” - Patrick Henry Speech in the Virginia Convention, March 23, 1775
“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—-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed” Declaration of Independence, July 4, 1776
I could be wrong, but I don’t believe the Declaration of Independence has any legal force. It was just giving the finger to King George.
The Constitution has all the legal, enforceable stuff (free press, etc).
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albaby1:
N.B. - Not sure why my earlier post was deleted. No ad hominem, no bad language, no personal attacks, but I will attempt to recreatre because I did no save a copy.
“The rebuttal is that ‘servitude’ doesn’t refer to pregnancy. There’s absolutely nothing in the historical record that the Framers of the Thirteenth Amendment ever intended it to refer to anything other than the legal and economic conditions that forced on person to provide work to another person without compensation, such as debt bondage, peonage, and indentured servitude.”
Perhaps because abortion was not illegal at the time so there was no reason to discuss pregnancy as servitude because any woman who did not want to be pregnant did not need to be.
“Institutions that required one person to work for another that don’t fall into that category - like compulsory military service - weren’t considered ‘servitude.’”
Perhaps because compulsory military service serves a public - keeping the USA free and not subjected to a foreign power? Not sure that forcing a particular women to carry a child to term constitutes a public good.
“The most obvious example of that are laws that require parents to provide for the material needs of their children. Those aren’t ‘servitude,’ even though they basically force one human (the parent) to perform labor without compensation for another (the child). The children will die if the parents don’t meet their needs, so the parents are compelled to do so - and that’s not ‘servitude’ within the meaning of the Thirteenth. And no, parents don’t have a legal right to simply give up their kids for adoption in most states - apart from very specific (and not universally adopted) ‘Safe Haven’ laws for abandoning newborns, most states require court approval for child abandonment to the state, which approval is not easy to get and is almost always governed by the best interests of the child and not the wishes of the parents.”
I will trust that you have accurately reported the law. Though I seem to recall that at least one state
enacted a law with with no requirement for delivery to fire station or public library or other safe haven within x months of birth. It was probablt later amended but I did not keep up.
“I also don’t think you could get around the fact that there’s no limits around the argument. If meeting the biological needs of a fetus is ‘servitude’ at early stages of a pregnancy, it’s still ‘servitude’ at 32 weeks.”
One big difference is that the state (or another person) can provide care to the child who has been born instead of the parent(s) in a way that cannot be done for a fetus; only the pregnant woman can do so. I also believe that is why Roe discussed viability; post viability, theoretically, the child could be cared for by a third party and not only the parent.
It’s a loser of an argument. There’s nothing at all that a lawyer can point to that demonstrates that pregnancy is among the things that “servitude” means under the Thirteenth Amendment, and plenty of historical practice and practical reasons for finding that it was never intended to cover pregnancy."
I am not as much a Constitutional scholar as you, so I will assume arguendo that you are properly reciting the law and history.
Avoiding the p… word on the assumption this it triggered some snowflake, even though my usage was Webster’s textbook correct.
Your earlier response quoted my questions to you so I will not repeat them.
I also anticipate an equal protection argument from some woman over 21 who is prosecuted for consuming alcohol, which she is legally entitled to consume, but not all women will be. Also expecting several other bad outcomes from forcing women to carry to term babies they do not want.
Regards, JAFO
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Avoiding the p… word on the assumption this it triggered some snowflake…
I’m pretty sure it merely triggered the auto-delete filter on TMF.