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this post was submitted on 04 Jan 2024
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I remember going through Roe v. Wade in law school and thinking how shaky the legal foundation was. This is a great case study of why we need to formally adopt laws in congress and not just rely on the whims of the court.
You're not wrong. No one wants to hear it, but Roe was reasoned terribly. They attempted to appease everyone by protecting abortion but setting limits.
While laws are a better avenue, I do not believe Congress has the authority to regulate abortion. From where does the authority arise, interstate commerce?
The Supreme Court could have ruled that the most basic and fundamental right, which is woven throughout the constitution, is a right to bodily autonomy. The idea of controlling one's own body is supported by a host of amendments. Incorporate the right with the 14th and abortion is protected everywhere.
I've always seen it more that the Roe decision is what happens when an anti-choice majority rules on abortion in "reasonably good faith", leaving the opening for erosion when a 14th Amendment Decision would have been steelclad. I don't think they wanted to appease everyone, they just didn't want to compromise their legal ethics OR their personal morals.
And I guess I don't think it would have been steeclad because Dobbs wasn't about leaning around Roe insomuch as saying "Roe was wrong" because "the fetus is special and should be treated as such" (paraphrase because I'm too lazy to look up the offending line in Dobbs right now). Bodily Autonomy could easily be overturned by a bad faith judiciary by simply pointing out DUI laws, or even "the spirit of drug laws"... OR just saying "the fetus is special" the same as they did in Dobbs.
In fact, call me paranoid, but I question whether the current SCOTUS wouldn't overturn a national abortion protection on States Rights grounds, finding some reason to disqualify the Commerce Clause from being applicable.
This is what we certainly have now, given the recent decisions that are based on facts that are somewhere between cherry picked and outright false. Laws and precedent don't, and won't, matter if they're acting in bad faith.
They definitely would. And if the Commerce clause is where Congress finds its grant of authority, they wouldn't be wrong. That's why it bothers me every time someone laments that Dems should have passed a law, as if SCOTUS wouldn't have struck that too.
Exactly. I liked RBG a lot, and/but I don't like the way people keep taking her out of context when making wild claims about what we could or should have done to prevent Dobbs.
Before the 1/6 insurrection was a SCOTUS coup. It happened. And the one thing we shouldn't do is blame the party that wasn't involved in it.
Or, leave it to the states like a federalist country.
Yeah we see how well that has worked out with the few media posts about women fleeing states to get an abortion and the state AG is trying to hold the out of state hospital accountable. Where is the "leaving it up the states", there?
What do you mean? That is leaving it up to the states? If there were a national policy people would leave it up to the national government. It's a lot easier to immigrate between states than because countries.
Obviously it’s leaving it up to the states. How is that anything but leaving it up to the states? What’s left up to the states? Holding their citizens hostage and charging them for leaving the state, or the actions of other people, or for doing their jobs.
This country is going to hell in a hand basket what the fuck.
I am pretty sure we are coming from the same place here but I would like to point out anyway the hypocrisy of this seemingly strawman argument. If anyone has relocated to different states(like I have) they should know each one can be vastly different and for an issue as big as this and as impactful as this should not be left up to the states becuase of that fact. I again, realize I am just reiterating what has already been said but it is just so incredulous to believe that a percentage of the population thought that this was a good idea.
As long as we have a congress that’s split around the 50/50 line on issues like these, laws will never get passed.
Even if a law got passed, it would get repealed when the other side gets the majority. This needs a constitutional amendment and I really don't see that happening ever.
Or a strong supreme court interpretation that argues that bodily autonomy is a fundamental right and already implied by the 1st, 3rd (if you consider your body to be a house) and 4th amendments (if you consider searching a uterus unreasonable). It is also EXPLICIT in the 5th amendment. Fetuses are not legally considered persons by any jurisdiction (otherwise they could be claimed as dependents) so the life of the person gestating them is protected while the life of the fetus is not. This interpretation is not very popular.
I looked it up this morning re: jurisdictions recognizing fetuses.
At present, Georgia recognizes a fetus as a dependent on state tax returns.
Virginia and Texas are mulling bills to recognize a fetus as a passenger in a carpool lane.
Brandi Bottone sued in Texas over the carpool lane issue in 2022. She succeeded in getting the citation dismissed. I believe she was making this argument to show the stupidity of Texas law, and came out victorious in court because Texas couldn't change course on the narrative.
Anywho, little by little, chip by chip, state legislatures are indeed taking steps to total erosion of bodily autonomy.
As to the notion of a strong supreme court, that's decades away as things presently stand.
Gotta impeach Thomas and nullify the appointments of Barrett, Kavanaugh, and Gorsuch because the president who appointed them was illegitimate. Problem solved!
A constitutional amendment will never occur again, because it is an incredibly high bar to overcome even when the legislative process in the country isn't as dysfunctional.
One party would need a super majority in both houses of Congress, where the bar is 2/3 but you're probably going to need at least ten more than that to prevent the amendment from being scrapped by a contingent of Joe Liebermans.
Then that same party will need a majority in the state legislatures of 38 states to ratify the amendment.
It's just not going to happen.
Could they not have codified it in the ACA?