The way I see it the courts are there to ensure our civil rights are not violated by laws. A law that "allows" abortion doesn't really make sense in that light. Unless the law is a prohibition on passing laws restricting this right, I guess, although that would be silly.
The way you see it, unfortunately, does not make it so.
The constitution limits how the government can infringe on the rights of the people. If the courts say that a right to abortion is not in the constitution, then amend the constitution to add it.
Until that point, it is up to the representatives of the people (i.e. the legislature at the state or federal level) to make laws.
SCOTUS has now said both things actually at different points in time without any constitutional changes.
Shouldn’t decisions generally be considered durable unless there’s some kind of obvious injustice being perpetrated?
There’s a reason overturning this particular law is so bad. It’s a cultural flashpoint and SCOTUS has just lit the match and blown up any semblance of them being an apolitical body. Not just with this one decision but the gun control case too. Another commenter pointed it out. This particular bench is picking and choosing fairly inconsistently and extremely ideologically about how they want to rule and then trying to find some justification for it. Consider this. All the evidence to date suggests that abortions (generally) are extremely rare, extremely safe, and generally difficult choices. This is the government getting involved in YOUR healthcare which is very much a privacy issue so dismissing it as “it’s not constitutional” is tone deaf because the argument had been made that it is and been the law of the land for half a decade.
Another example was when they didn’t sustain the lawsuit against Texas’ abortion law. Wanna bet they’ll ban any similar legislation aimed at gun seller and manufacturers? Why does the 14th amendment warrant less protection than the 2nd? Not to mention that the 2nd at no point was about personal gun ownership. Well-regulated militia is about states being able to regulate their own armed forces outside of federal control, not implicitly deputizing every citizen of a state as part of a militia the state can’t regulate (one of the rare cases where textualism and living document should be in agreement and they’re not).
>There’s a reason overturning this particular law is so bad. It’s a cultural flashpoint and SCOTUS has just lit the match and blown up any semblance of them being an apolitical body. Not just with this one decision but the gun control case too.
SCOTUS does not concern itself with the angered mob (paraphrasing Dobbs and a few other cases). It exists to read and interpret the law. Do you want a Court that bends its rulings to the "match and blow up"? I certainly don't.
Forget angered mob. How would you feel if the left wing grabs control of SCOTUS and bans all personal ownership of guns (ie go back to text literalism for the 2nd amendment)?
This is literally the first time the court has taken away a right after it’s granted. It sets seriously damaging precedent to the fabric of US society. Heck, even if SCOTUS had moved slower but this is literally the first chance they took. Even Robertson didn’t think they should have overturned it that fast. Robertson is one of the most conservative SCOTUSes ever. He’s who they put up after the embarrassment of Bush’s personal lawyer embarrassment (or genius political maneuvering because he knew Dems would blow their wads on Hanrietta Meyers).
This is the justification for SCOTUS to be packed hyper partisan going forward. In the past when it got this unbalanced justices would bend back to the center to mediate the court. That mediation instinct is now totally gone. Watch for court expansion to be much more seriously discussed for the first time in more than 100 years. This is a serious crises for their legitimacy (something which didn’t happen once they actually passed Roe v Wade).
The conservatives are 100% right that the original reasoning was totally bullshit about when the right to an abortion ends. It was meant to strike a political balance to not cause too much social strife while expanding a basic right of women. The only data driven position on abortion is abortion without any government restriction (modulo making it a safe process, mediating access control so the offices could only be credible, etc). The reason is that late term abortions basically only happen when the only business the state has is to shield the privacy and dignity of the people involved. People don’t take them on a whim at all. Rich people can provide this for their families but poor people need the government’s protection here. Abortion equalized Women’s healthcare access in a way never before or since. The failure to come to a compromise of any kind this time around on a socially hot topic where all the science supports the opposite conclusion that the courts came to, yes this is quite shocking.
>How would you feel if the left wing grabs control of SCOTUS and bans all personal ownership of guns (ie go back to text literalism for the 2nd amendment)?
Well first of all, SCOTUS doesn't have the power to do that. So in your scenario some state would have had to pass a law that says "all personal ownership of guns is banned", and then the challenge would have to make it's way to SCOTUS. I'm going to ignore for a moment that your characterization of 2A is wrong, and that it's been understood to confer a right to individual ownership since forever. But, going forward with your hypothetical there's a couple problems. First is, again, your belief that SCOTUS has the power to unilaterally ban gun ownership. It does not, and never did, have that power. Second, you're also assuming there's a sufficient amount of people that want to ban private gun ownership. Is there? Certainly doesn't seem like there is outside of extreme left-wing enclaves, and even then revealed preferences suggests that even if they want to ban guns for the plebeians they'd still like to retain the right for themselves. Roberts (not Robertson) is an incrementalist and his opinions do insist on this, yes, so that would give you another problem. Unless you are talking about expanding the court, which would indeed be the political Rubicon where the crossing of which would render the Court permanently compromised.
>This is the justification for SCOTUS to be packed hyper partisan going forward. In the past when it got this unbalanced justices would bend back to the center to mediate the court.
Huh? This isn't an accurate description of the Court's history at all. Is there some body of Opinions you're relying on to make this claim? Because if you've read enough of these things it doesn't seem that the Justices pay attention to the political bent of the opinions they write just to make sure they stay "balanced" (whatever that means).
>The only data driven position on abortion is abortion without any government restriction (modulo making it a safe process, mediating access control so the offices could only be credible, etc)...
>Abortion equalized Women’s healthcare access in a way never before or since. The failure to come to a compromise of any kind this time around on a socially hot topic where all the science supports the opposite conclusion that the courts came to, yes this is quite shocking.
That you believe what you wrote in your final paragraph is indicative of how Americans' opinions on this subject have been severely warped by how this issue is actually covered in media. Most of Europe has more restrictive abortion laws than the law at issue in Dobbs. Is healthcare in Europe for women somehow unequal? And given that this is a socially hot topic, doesn't it make sense to return the legal making power to the people and their elected representatives? This is literally what they wrote in the case. It's a fraught topic, emotionally charged, but it should be law makers and voters that get into the nitty gritty of the regulation of a medical procedure where a fetus is destroyed - not the Court.
The elephant in the room here that I'm detecting is that the political forces in favor of abortion are actually pretty disinterested in a legislating the issue. It's either too gross and fraught so they don't want to do it, or it's just too lucrative for fundraising to actually codify a right to abortion in the law.
> Well first of all, SCOTUS doesn't have the power to do that
Straw man interpretation. Overturning Roe v Wade doesn’t “ban” abortion but effectively it actually does in half the country. Gun control is very similar afaik.
> Second, you're also assuming there's a sufficient amount of people that want to ban private gun ownership. Is there? Certainly doesn't seem like there is outside of extreme left-wing enclaves, and even then revealed preferences suggests that even if they want to ban guns for the plebeians they'd still like to retain the right for themselves
This argument applies verbatim to abortion. The only solution is to look at where the body of scientific knowledge suggests we should go. To my knowledge that’s the absolute right to abortion and a total ban on gun ownership. The more telling thing is that your counter argument to “how would you feel if the court was packed to reinterpret the 2nd amendment to not include personal ownership” was “that won’t happen” and “there’s no public support for that”. These are exactly the same arguments that left moderates would say to the more activist left about not pushing the issue too hard and here we are.
> Is healthcare in Europe for women somehow unequal?
Which countries? Europe has a lot of them. Let’s look at some:
France: Veil Law is unlimited abortion after the first trimester provided two doctor’s sign off that the health of the mother is at risk. There’s sufficient nuance and weasel language that I imagine this isn’t really a big obstacle.
Britain: kind of complicated but effectively abortion is legal on demand at any point (98% of them are done under the “maternal mental health” carve out, likely to avoid having any legal issues come up / simplifies paperwork).
Northern Ireland: similar to Britain
Germany: a bit stricter but afaict still an absolute right with mandated counseling prior to the abortion.
Iceland: legal until the end of 22 weeks
Netherlands: 24 weeks
Estonia: up to 11 weeks if no reason, up to 21 weeks for pretextual reasons.
Poland: the strictest with the only carve out being maternal health.
Ukraine: up to 28 weeks (effectively)
Dobbs banned it at 15 weeks so citation needed about the claim that Europe is more regressive than Dobbs.
I’m sure there might be some that are worse, but very few that are as regressive as what women are now facing in half of the US states with the overturning of Roe v Wade (some states have absolute bans).
> This isn't an accurate description of the Court's history at all. Is there some body of Opinions you're relying on to make this claim?
From Wikipedia cause I’m too lazy to cite the actual text:
> The Court also held that the right to abortion is not absolute and must be balanced against the government's interests in protecting women's health and prenatal life.[5][6] The Court resolved these competing interests by announcing a pregnancy trimester timetable to govern all abortion regulations in the United States
You can’t simultaneously have the right to privacy and have government interest in a pregnancy. Does the government have the right to go after you if you drink alcohol or smoke cigarettes during a pregnancy? What about using illicit drugs during a pregnancy? Does that mean you can go after people with drug issues who get pregnant (and now can’t even get an abortion) for endangering the life of a potential child? What happens if the women naturally miscarries because of drinking/drugs? What if the mother didn’t take her prenatal vitamins? This kind of reasoning really is ridiculous and misogynistic but it’s acceptable because the right to privacy principle in Roe v Wade actually extends in a very meaningful and common sense way. Roe v Wade was 100% a compromise to try to recognize that the government doesn’t actually have any any interest in the pregnancy (the recognition of that was slowly expanding).
> Blackmun recognized that life begins at some point for the fetus, but he felt it was not for the judiciary “at this point in the development of man’s knowledge” to speculate on what that point was.
Overall Roe v Wade was an incremental improvement for women’s rights but it was incomplete. The right to abortion should indeed be almost entirely absolute (with medical counseling to make sure the mother is OK before and afterward). In fact, overturning Roe v Wade now brings questions of whether IVF bans are now legal. After all, there’s potential life being kept in a freezer and most of it is destroyed (expect to see this come up). Neither state nor federal government should be involved in healthcare decisions themselves, only in legislating the process of how those decisions get made (to protect the patient / and or regulate commerce).
> Unless you are talking about expanding the court, which would indeed be the political Rubicon where the crossing of which would render the Court permanently compromised.
Technically the size of SCOTUS has changed over time and nothing came of it. We got 9 in 1869 but it has varied as I’m sure you’re aware. I think you’re assessment is correct though just because the country is so politically divided. A not insubstantial number of people (myself included) would argue it’s already compromised (McConnell’s political shrewdness/shadiness to give Obama’s SCOTUS nomination to Trump and Trump packing the court intentionally with anti abortion ideologues), so then it’s just a matter of degrees. This almost happened before with Roosevelt. I imagine Row v Wade is a lot more unifying of Democrats than the New Deal was.
> And given that this is a socially hot topic, doesn't it make sense to return the legal making power to the people and their elected representatives? This is literally what they wrote in the case. It's a fraught topic, emotionally charged, but it should be law makers and voters that get into the nitty gritty of the regulation of a medical procedure where a fetus is destroyed - not the Court.
Fantastic. Gun control can be described in very similar terms. We should similarly regulate it back to the states based on that principle.
