NationStates Jolt Archive

The US Supreme Court rules in Roe v. Wade that abortion is a "right to privacy", which is a constitutional right, therefore the government can't have any intervention. Correct?

When somebody says something is legal or illegal, that says to me that one is the law and the other would be breaking it, respectivly, but a law does exist "on the books". It is to the best of my understanding that it is the responsibility of the Legislative branch of government to create laws and the job of the Executive branch to enforce them. The Judicial branch keeps all other branches in line by making sure they don't do anything that is "unconstitutional". Everyone with me?

So, it would be unconstitutional of the US government; federal, state, and local, to make any law for or against abortion, because it would be an invasion of privacy in any case. Right? Therefore, abortion is neither legal nor illegal, but permissable because it is our "right to privacy". Although, one could argue that since it is a "right to privacy", which is granted under the constitution, it is legal. Correct?

Those who advocate for abortion (pro-choice) like to think of abortion as legal, which it can't be (with the exception of it being "granted under the Constitution") if my interpretation is correct, and the government, and to a certain extent, the people, can't do anything for or against it unless the Supreme Court rulling on Roe v. Wade is overturned. Right?

So, is abortion really legal? If my understanding of the political situation is correct, no it isn't, but it isn't illegal either. What are our options to deal with this issue that remains a key political issue, but can't be fixed through politics with the rulling of Roe v. Wade standing, correct? Easiest option is to overturn Roe v. Wade and let the State and local or Federal governemnt decide (that's a whole different debate). Another option is to leave things were they are and let society decide the validity of abortion.

Is abortion a "right to privacy"? What does that mean to you? To me, that means I can do what I want and the government (or "the man") can't do anything about it. Of course, it has always been the right of government to protect it's citizens, hence, if a child is actually a child at the very second of fertilization, it is the responsibility of the government to protect that child, right? This happens all the time in situations of abusive families, the government can come in and take custody of the children. There are plenty of other situations where this "right of privacy" gets a little muddied. Are you starting to understand the complexity of this situation?

What are some other options? Is my interpretation incorrect, why or why not? What do you think should happen?

Your legal analysis is completely incorrect. Something is legal if it is not against the law, not if there is a law that makes it legal. There are no laws which outlaw abortions because the ones that existed were struck down. Therefore, yes, abortions are legal (in the US).

Your legal analysis is completely incorrect. Something is legal if it is not against the law, not if there is a law that makes it legal. There are no laws which outlaw abortions because the ones that existed were struck down. Therefore, yes, abortions are legal (in the US).

I shudder to think about a legal system where things that aren't mentioned in law are "not legal."

Is abortion really legal? Yes.

Glinde Nessroe simplifying everything since 1986.

Your legal analysis is completely incorrect. Something is legal if it is not against the law, not if there is a law that makes it legal. There are no laws which outlaw abortions because the ones that existed were struck down. Therefore, yes, abortions are legal (in the US).

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.Not having a law on something does not make something legal, but you'll have to find something that applies to it. Your little dilemma fits the question of cannibalism much better than abortion, though...

Not having a law on something does not make something legal, but you'll have to find something that applies to it. Your little dilemma fits the question of cannibalism much better than abortion, though...

What?

What?The whole Cannibal of Rothenburg trial that occured in Germany a short while back had the dilemma that cannibalism isn't illegal in Germany because there are no laws against it. However, the man still killed someone and ate hime, though the person he killed volonteered. It put the German judicial system in a tight fix and I think that addresses your point much better than the issue of whether abortion is illegal or legal because it wasn't specified, because frankly, abortion occurs a lot more often than cannibalism, which is why not very many people would argue that it isn't "legal" even if they think it is "wrong".

abortion is thoroughly covered by the laws of each state and to a lesser extent the laws of the federal government

they cover who can get an abortion, how, when, why, where.

yeah its really legal.

except for when its illegal.

OK. Thank you for clearing that up.

Still, wether abortion is "right or wrong" doesn't necessarily pertain to it being legal or illegal in this post, though it is part of the overall debate. So far, people have said abortion is legal, without giving any reason behind their logic or to take time and answer the other questions I had, but that's alright. Someone mentioned it's legal, even though there is no law to back it up with, but that there doesn't need to be a law on the books for something to be legal. I disagree with that completly. If that instance happens, like with your trial in Germany, and there is no law on the books, that doesn't make it illegal necissarily. You can be breaking another law, but there isn't a law that spells out clearly that this or that is legal or illegal. Naturally, a law would be written or rewritten to make sure such instances (that gray area where no law exists) doesn't happen again. That's a natural evolution of law in general, right? So, with abortion, a law doesn't exist, which doesn't make it legal or illegal, as I have pointed out already, but with abortion, you can't make a law because of the Supreme Court, right? Am I making any sense? Dots connecting? Confusion? Anyone understand what I'm saying? Something need clearing up?

abortion is thoroughly covered by the laws of each state and to a lesser extent the laws of the federal government

they cover who can get an abortion, how, when, why, where.

yeah its really legal.

except for when its illegal.

But in the US (that's where this post is primarily concerned with) how can a law exist when the Supreme Court has ruled that such a law, for or against it, can't exist because that would be unconstitutional. A law against it, is a violation of my right to privacy, granted in the Constitution. If you make a law for it, it would have to be absolute, no exceptions wouldn't it? Because it would be everyone's right to their own privacy to do whatever they wanted, not limited to person A, B, or C, right?

The biggest problem with your "analysis," Aquilipus, is that there are laws tha regulate abortion in the US. Lots of people like to act as though Roe v Wade made abortion legal across the board. It didn't. It made abortion on demand legal through the first trimester, and gave the states the power to regulate it for the rest of the pregnancy, provided they left exceptions in place for the health and life of the mother. The Supreme Court didn't even come up with the rape and incest exceptions--that's been a purely legislative move.

They've also upheld other regulations on abortion, such as parental notification laws, forced waiting periods, and pre-abortion counseling requirements.

The end result is that, since there are regulations about when and how abortions can be performed, then abortions that are performed within those regulations are unquestionably legal.

Thank you Nazz for a great response.

no, you are utterly wrong and confused about what the supreme court said.

yes its based on the right to privacy. but that doesnt mean you cant make laws about it. the ruling laid out specific guidelines for the various states to follow so they could be sure to be within the supreme court's ruling

all states have laws regulating abortion, even in the 1st trimester when the supreme court ruled they could not stop a woman from getting an abortion.

many states mandate a one-day waiting period. a woman goes into the clinic and is given a lecture on what happens in abortion then she goes back the next day to have the procedure.

many states have parental notification laws for women under 18.

there are regulations on just who can provide abortion services, requirements for the facility itself, and limitations on what procedures are legal to do and when.

the later in a pregnancy the more regulations exist until its impossible to get an abortion unless the fetus is already dead or soon to be dead.

you need to read a basic article on roe v wade, it would help you greatly in understanding what the ruling really says.

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.
The nature of the legal system is such that laws exist to punish or regulate incorrect behaviour.

My recomendation is TG The Cat-Tribes about this, he's the resident legal expert on Roe vs Wade and probably would be more than happy to tell you all about it.

OK. Thank you for clearing that up.

Still, wether abortion is "right or wrong" doesn't necessarily pertain to it being legal or illegal in this post, though it is part of the overall debate. So far, people have said abortion is legal, without giving any reason behind their logic or to take time and answer the other questions I had, but that's alright. Someone mentioned it's legal, even though there is no law to back it up with, but that there doesn't need to be a law on the books for something to be legal. I disagree with that completly. If that instance happens, like with your trial in Germany, and there is no law on the books, that doesn't make it illegal necissarily. You can be breaking another law, but there isn't a law that spells out clearly that this or that is legal or illegal. Naturally, a law would be written or rewritten to make sure such instances (that gray area where no law exists) doesn't happen again. That's a natural evolution of law in general, right? So, with abortion, a law doesn't exist, which doesn't make it legal or illegal, as I have pointed out already, but with abortion, you can't make a law because of the Supreme Court, right? Am I making any sense? Dots connecting? Confusion? Anyone understand what I'm saying? Something need clearing up?Well, the only real indicator of something being illegal is that legal action is enacted to sanction breaches of law. Since there is not legal action against having an abortion (within the legal frame) it can't really be considered illegal, especially if it happens so often. Cannibalism was something that had not occured before, though I am not sure whether Germany now has laws against it. Abortions occur on such a regular basis that it can be assumed that they are, de facto, not illegal, since while there is an outrage about it, there is no real legal action that now prevents them.

no, you are utterly wrong and confused about what the supreme court said.

yes its based on the right to privacy. but that doesnt mean you cant make laws about it. the ruling laid out specific guidelines for the various states to follow so they could be sure to be within the supreme court's ruling

all states have laws regulating abortion, even in the 1st trimester when the supreme court ruled they could not stop a woman from getting an abortion.

many states mandate a one-day waiting period. a woman goes into the clinic and is given a lecture on what happens in abortion then she goes back the next day to have the procedure.

many states have parental notification laws for women under 18.

there are regulations on just who can provide abortion services, requirements for the facility itself, and limitations on what procedures are legal to do and when.

the later in a pregnancy the more regulations exist until its impossible to get an abortion unless the fetus is already dead or soon to be dead.

you need to read a basic article on roe v wade, it would help you greatly in understanding what the ruling really says.

Thank you for a good response, but it is not necessary to point out that I am "utterly wrong" when I can gather that from your response, though I respect whatever opinon you may have.

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.
There is no law about posting on the internet. I'm calling the police on you.

Are you an idiot, or just stupid?

There is no law about posting on the internet. I'm calling the police on you.

Are you an idiot, or just stupid?

Name calling, how nice. There is no law about posting on the Internet, you can go ahead and call the police on me. Doubt it would get anything in the courts, but it's worth a try. I don't see how one can say not having a law makes it legal. I'm not saying that not having a law makes something illegal. If no law exists, no law exists, which, to me, doesn't make it legal or illegal, as I have said already. Does that not make sense? Am I typing English well enough? Someone above typed that having no law makes it legal, I disagree with that completly. I'm talking in circles, but does my position make any sense, a little clearer?

Does that not make sense?

No, it does not.

"Illegal" means "not legal."

Every action is either legal or not legal. It can't be neither, unless there are multiple interpretations of the law.

Activities not made illegal by the law are legal.

No, it does not.

"Illegal" means "not legal."

Every action is either legal or not legal. It can't be neither, unless there are multiple interpretations of the law.

Activities not made illegal by the law are legal.

Because a law doesn't exist and no law exists to denounce such actions makes it legal and whether one should do it or not is left to an individual's morality?

Because a law doesn't exist and no law exists to denounce such actions makes it legal and whether one should do it or not is left to an individual's morality?

Whether or not to do activities not prohibited by law is up to the individual's choice. If that is what you mean, yes.

Of course, the same is true of illegal actions; the only difference is the consequences.

I'm not certain where the confusion is coming from here. If something is not mentioned in a law, then it can not be against the law to do it.

In other words, if no law exists about two 18 year olds having consensual sex, then they can't be arrested for doing so. And they can not be punished if a law was enacted the next day saying it was illegal if they did it the day before.

Illegal activities are those that violate a law currently on the books. Legal activities are those that do not violate any law currently on the books at the time they were written.

And then there are the grey areas of laws that are still on the books, but that if taken to court would get the state a severe backlash for having those laws on the book in the first place the moment the Supreme Court got ahold of them so are unlikely to be taken to court. Arizona's law illegalizing everything but the misssionary position in sexual relations being the first of those to jump to mind. (Several old laws still around that the government considers a waste of money to go to the trouble of getting it off the books, but still laws none the less)

Whether or not to do activities not prohibited by law is up to the individual's choice. If that is what you mean, yes.

Of course, the same is true of illegal actions; the only difference is the consequences.

Fair enough.

Because a law doesn't exist and no law exists to denounce such actions makes it legal and whether one should do it or not is left to an individual's morality?
Yes. If no laws exist (i.e. anarchy) then everything is legal. If no law exists to hamper a specific activity, then it is legal. Whether or not to do something is always up to the individual (i.e. free will). Its morality is debatable, depending on what action it is.

Even if you were to define a "legal" action as something explicitly defined in law as being allowed, and "illegal" as something defined as not allowed, and "neither legal nor illegal" as something not addressed in law, such a distinction would be useless, because someone performing an action that is "neither legal nor illegal" could not be prosecuted any more than someone performing a "legal" act.
As sort of an example: there is not, as far as I know, any law explicity permitting me to eat chocolate. However, that does not mean it is somehow less legal for me to eat chocolate than it is for me to excercise my right to free speech. Such a distinction makes no sense. If something is not illegal, it is effectively, even if not explicitly, legal.

Obviously, the precedent that it has occured openly since Roe v. Wade and no doctors nor women who have undergone abortion have been jailed, fined, or otherwise censured legally would suggest it is a legal practice.

Roe v. Wade allows the States to regulate abortion and grants the right of abortion, as permitted in the Constitution under the "right of privacy", which makes it legal. The ruling is vague at times, but grants substantial powers to the States and leaves the "choice" in the hands of a physician, which the States can define who and what that is. So, yes, abortion is legal, but it must follow a very narrow line of constitutionality. The one thing the Court doesn't rule on is when life begins, which is where the subject of contemporary debate is. It does, from what I gather, take a stance that a child is not covered by the law until it is born, do you agree with that (if it is expressed as such)? Do you agree that abortion falls under the "right of privacy"? I've asked other questions, but people seem to be narrowing in on just one part, but that's OK. I simply wanted to see what type of responses I would get, though the name calling and partial lack of being capable of answering questions in a responsible and mature manner (from some, not all) is undesirable, I can't have everything. So, yes, as of now, abortion is legal (that is to say there is a law "on the books"). It is open to questions of morality. I have plenty of other questions I'd like debated, but I'll save that for other posts. Thank you for your responses.

There is no law about posting on the internet. I'm calling the police on you.

Are you an idiot, or just stupid?

Warned. Stop flaming.

If no law exists, no law exists, which, to me, doesn't make it legal or illegal, as I have said already. Does that not make sense? Am I typing English well enough? Someone above typed that having no law makes it legal, I disagree with that completly. I'm talking in circles, but does my position make any sense, a little clearer?

www.m-w.com

Main Entry: 1il·le·gal
Pronunciation: (")i(l)-'lE-g&l
Function: adjective
Etymology: Middle French or Medieval Latin; Middle French illegal, from Medieval Latin illegalis, from Latin in- + legalis legal
: not according to or authorized by law : UNLAWFUL, ILLICIT; also : not sanctioned by official rules (as of a game)

Main Entry: 1le·gal
Pronunciation: 'lE-g&l
Function: adjective
Etymology: Middle French, from Latin legalis, from leg-, lex law
1 : of or relating to law
2 a : deriving authority from or founded on law : DE JURE b : having a formal status derived from law often without a basis in actual fact : TITULAR <a corporation is a legal but not a real person> c : established by law; especially : STATUTORY
3 : conforming to or permitted by law or established rules
4 : recognized or made effective by a court of law as distinguished from a court of equity
5 : of, relating to, or having the characteristics of the profession of law or of one of its members
6 : created by the constructions of the law <a legal fiction>
synonym see LAWFUL

It would seem that illegal means something specifically against a written law; something cannot be illegal unless there is a law against it. Ergo, there would have to be a law written to prevent abortions before it could be considered illegal. There are many state laws governing who may or may not have one; abortions are also legal in the de facto sense -- they have been performed since Roe v. Wade and neither doctors nor women who have had an abortion have been charged so long as they acted within the statutes written.

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.

Utterance of the phrase "Hey, throw me that anchor, I've got room for 11 or 12 more in my back pocket," has no law specifically permitting it. It is legal to speak those sentences for no other reason than there is no law against it.

The reason that the rest of your post went unheeded was because it all rests entierly on your thesis that if there is no law against something then it is not legal. Once that thesis is struck down, the rest falls apart.

Rather like how once the Supreme Court establishes that a certain law is unconstitutional then it no longer exists, and need not be contested in court again. The fact that an individual might have performed the action that had been prohibited need not be addressed once it is established that it's no longer illegal. The rest of your post need not be addressed once it is established that it is baseless.

As for the idea that something is legal simply because it has not been made illegal not making sense...

You seem to be using the innappropriate use of the word legal. i.e. the definition "of or pertaining to law." You're using a word that is an antonym for "extra-legal" or "non-legal" meaning "having nothing to do with law."

But then you're using it as and antonym for "illegal" meaning "prohibited by law." It's not so much a flawed analysis as a flawed use of the word that you're analyzing.

One thing I think he's trying to point out is that the decission is bad law, which it is. However, your conclusion is incorrect. Whether it's bad law or not, it's still law, and it's legal to have an abortion. In fact, it is illegal to obstruct it in any way. You cannot even offer an alternitive means to someone if they come to you for one.

Now, the reason it is bad law (Since that question is going to come up) is because this isn't a constitutional issue. I happen to have memorized the constitution. There is no right to privacy. Period. This is not a constitutional issue, nor an issue of federal law. Even the laws reguarding abortions are still left left to the states, they are just required to follow the Roe decission when making them. In each states penal code, under the homicide section, there is a section for 'Abortional acts.' It spells out when an abortion becomes a murder. Each state law is almost identical to the others.

I'm not sure if anyone else realizes this, but if Roe is overturned, abortion would still be legal, since it is guarenteed by the penal law of each state. Of course, eventually, most of those would be overturned by voters, as the majority of the country is against abortion. However, many states would likely keep it legal, and just about all of them would likely keep a window open for certain types of pregnancies to be aborted legally.

I recommend the originator of the thread review the following website:
http://hometown.aol.com/abtrbng/

It should answer his/her questions.

One thing I think he's trying to point out is that the decission is bad law, which it is. However, your conclusion is incorrect. Whether it's bad law or not, it's still law, and it's legal to have an abortion. In fact, it is illegal to obstruct it in any way. You cannot even offer an alternitive means to someone if they come to you for one.

Now, the reason it is bad law (Since that question is going to come up) is because this isn't a constitutional issue. I happen to have memorized the constitution. There is no right to privacy. Period. This is not a constitutional issue, nor an issue of federal law. Even the laws reguarding abortions are still left left to the states, they are just required to follow the Roe decission when making them. In each states penal code, under the homicide section, there is a section for 'Abortional acts.' It spells out when an abortion becomes a murder. Each state law is almost identical to the others.

I'm not sure if anyone else realizes this, but if Roe is overturned, abortion would still be legal, since it is guarenteed by the penal law of each state. Of course, eventually, most of those would be overturned by voters, as the majority of the country is against abortion. However, many states would likely keep it legal, and just about all of them would likely keep a window open for certain types of pregnancies to be aborted legally.

Meh.

Most of this except the third sentence is untrue.

The right to privacy is a fundamental human right and the Supreme Court has correctly recognized that the right to choose is protected by the Constitution. See, e.g., Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html), 505 U.S. 833 (1992); Roe v. Wade (http://laws.findlaw.com/us/410/113.html), 410 U.S. 113 (1973).

I'll let the Supreme Court do a little explaining for me:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

... It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481 -482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399 -403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221 -222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).

...

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life


--Planned Parenthood v. Casey, 505 U.S. 833 (1992) (http://laws.findlaw.com/us/505/833.html)

Did you know that around two hundred years ago there was a belief that sperm were, in fact, fully developed little men? They were injected into the woman's womb where they grew to Baby Size little men.

"Preformation", or "Preformationism", is the term currently used to designate a theory of reproduction that emerged in the mid-seventeenth century, largely as a result of the introduction of the microscope in life sciences studies, the concept of infinite divisibility launched by calculus and statistics during the scientific revolution, and the widespread belief that time for life on earth was finite, ranging for no more than six thousand years. In its crudest, initial form, the theory postulated that all organisms of all species, of all the generations to come, had been made by God right at the six days of Creation, and had then been encased inside each other, in smaller and smaller sizes, much in the fashion of a Russian doll. Thus generation was nothing but the unfolding of a pre-existent form from the sexual organs of the parent. Since sperm cells were discovered some two decades after the first proposal of this model, preformationists split into two factions: those who believed that all organisms had initially been encased inside the egg (the ovists), and those who held that this role of mother structure had rather been ascribed to the sperm (the spermists).

We tend to assume that spermism is somehow a part of our general knowledge. We may not know many details about this theory. But we all have a certain drawing clearly lingering in the back of our minds. Somewhere, sometime, we have seen a hilarious representation of a sperm cell, dating to the seventeenth century. The figure shows a long tail and a bulky head. Inside the head, a little man is tightly curled up, representing a person in some generation to come, waiting for his time to stretch and push himself into existence. This little man, or so we believe, was called a "homunculus" by the author of the drawing."

So, no masturbation, either.

The Supreme Court, in Roe v. Wade, agreed that abortion is covered under the "right to privacy", under the Fourtenth Amendment I believe they place it under. Do you agree with that decision?

Also in Roe v. Wade the Court allowed States to regulate abortion, walking a very thin line between constitutionality and unconstitutionality. The longer a pregnancy goes on the greater responsibility the government has on protecting the life of the child, since governments standing responsibility is to protect its citizens. The Court also places most, if not all, the responsibility in the hands of physicians (not in women), which the States are allowed to define what and who that is. The Court doesn't decide when the human life actually starts, they leave that to more knowledgable persons, which is where the contemporary debate exists. The Court, to the best of my reading, states that the child is not covered by the law until born, which seems a bit of a double-standard on the courts behalf.

That is my interpretation of the Courts decision, disagree with it, back it up.

Questions for you:

Is abortion a "right to privacy"?

Should a physician, however defined, have such a large responsibility to decide when abortion is allowable, within the confines of the law?

When does human life start? Do you agree with the court not making a decision on this? What are the implications between the difference of opinion as to when human life starts?

Is a child covered by law only when they are born? What are the implications of this?

Did the Court do its job as defined by the Constitution or did they overstep their duties by, in effect, writting law?

See my posts there.

There is no right to privacy in the constitution.

It had nothing to do with the 14th amendment. The only way you could bring the 14th amendment into this is if men wanted the right to have abortions too, and I don't see that happening.

The court said that the right to privacy came from the illegal search amendment. Somehow, the right to be free of inappropriate searches also gives you the right to an abortion.

The right to privacy is a fundamental human right and the Supreme Court has correctly recognized that the right to choose is protected by the Constitution.

It's not protected by the constitution. However, the first part of that sentence is somewhat correct; the supreme court has recognized it as a human right. However, it is not up to the supreme court to determine what is and what is not a human right. It also is not up to the supreme court to take the rights it decides it will grant to us and apply them to matters which it may or may not be inclusive of.

The fact is, there is no right to privacy in the constitution. If you'd like one, then you should lobby for an amendment. The constitution is suppose to be changed through the well-concieved amendment process the founders wrote into the constitution over two-hundred years ago, not based on the morals of nine judges.

To point out the logic in this meathod, let me remind you of the following;

When the feminist movement wanted the right to vote, how did they go about getting it? Did they sue the federal government in the hope that the supreme court would grant it to them?

No, they got their congressmen to propose and pass an amendment to the constitution. Once the nineteenth amendment passed, the right to vote for all women was recognized.

There is no right to privacy in the constitution.

It had nothing to do with the 14th amendment. The only way you could bring the 14th amendment into this is if men wanted the right to have abortions too, and I don't see that happening.

The court said that the right to privacy came from the illegal search amendment. Somehow, the right to be free of inappropriate searches also gives you the right to an abortion.

You have no idea what you are talking about.

The Due Process Clause of the Fourteenth Amendment protects substantive liberties, including the right to privacy and the right to abortion.

.The Bill of Rights, as incorporated (http://www.answers.com/topic/incorporation-bill-of-rights) through the Fourteenth Amendment, limits the powers of state and local governments, as well as the federal government.

The right to privacy is a fundamental human right and the Supreme Court has correctly recognized that the right to choose is protected by the Constitution. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (http://laws.findlaw.com/us/505/833.html ); Roe v. Wade, 410 U.S. 113 (1973) (http://laws.findlaw.com/us/410/113.html )

I'll let the Supreme Court do a little explaining for me:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660 -661 (1887), the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis (joined by Justice Holmes) observed, [d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. Whitney v. California, 274 U.S. 357, 373 (1927) (concurring opinion). [T]he guaranties of due process, though having their roots in Magna Carta's "per legem terrae" and considered as procedural safeguards "against executive usurpation and tyranny," have in this country "become bulwarks also against arbitrary legislation." Poe v. Ullman, 367 U.S. 497, 541 (1961) (Harlan, J., dissenting from dismissal on jurisdictional grounds) (quoting Hurtado v. California, 110 U.S. 516, 532 (1884)).

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 147 -148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68 -92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

... It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We have vindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights, and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause in Loving v. Virginia, 388 U.S. 1, 12 (1967) (relying, in an opinion for eight Justices, on the Due Process Clause). Similar examples may be found in Turner v. Safley, 482 U.S. 78, 94 -99 (1987); in Carey v. Population Services International, 431 U.S. 678, 684 -686 (1977); in Griswold v. Connecticut, 381 U.S. 479, 481 -482 (1965), as well as in the separate opinions of a majority of the Members of the Court in that case, id. at 486-488 (Goldberg, J., joined by Warren, C.J., and Brennan, J., concurring) (expressly relying on due process), id. at 500-502 (Harlan, J., concurring in judgment) (same), id. at 502-507, (WHITE, J., concurring in judgment) (same); in Pierce v. Society of Sisters, 268 U.S. 510, 534 -535 (1925); and in Meyer v. Nebraska, 262 U.S. 390, 399 -403 (1923).

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:

[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, supra, 367 U.S., at 543 (dissenting from dismissal on jurisdictional grounds).

Justice Harlan wrote these words in addressing an issue the full Court did not reach in Poe v. Ullman, but the Court adopted his position four Terms later in Griswold v. Connecticut, supra. In Griswold, we held that the Constitution does not permit a State to forbid a married couple to use contraceptives. That same freedom was later guaranteed, under the Equal Protection Clause, for unmarried couples. See Eisenstadt v. Baird, 405 U.S. 438 (1972). Constitutional protection was extended to the sale and distribution of contraceptives in Carey v. Population Services International, supra. It is settled now, as it was when the Court heard arguments in Roe v. Wade, that the Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood, see Carey v. Population Services International, supra; Moore v. East Cleveland, 431 U.S. 494 (1977); Eisenstadt v. Baird, supra; Loving v. Virginia, supra; Griswold v. Connecticut, supra; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra, as well as bodily integrity, see, e.g., Washington v. Harper, 494 U.S. 210, 221 -222 (1990); Winston v. Lee, 470 U.S. 753 (1985); Rochin v. California, 342 U.S. 165 (1952).

...

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life


--Planned Parenthood v. Casey, 505 U.S. 833 (1992) (http://laws.findlaw.com/us/505/833.html)

Your insistence on "explicit" Constitutional rights is inconsistent with: (a) the original Bill of Rights (i.e., the 9th Amendment), (b) the intentions of the Founding Fathers (e.g., the motives behind the 9th Amendment), (c) the 14th Amendment, (d) the intentions of the drafters of the 14th Amendment, and (e) well over 100 years of Supreme Court decisions.

Here is yet another quote from the Supreme Court - this one written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas (emphasis added):

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them' ") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851 . In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278 -279.

-- Washington v. Glucksberg (http://laws.findlaw.com/us/000/96-110.html), 521 U.S.702 (1997).

Moreover, here are just a few examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens[/B]:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity


Do you really wish to insist that none of these are protected by the Constitution?

Meh.

Most of this except the third sentence is untrue.

As a law graduate, I can assure you it is entirely true.

It's not protected by the constitution. However, the first part of that sentence is somewhat correct; the supreme court has recognized it as a human right. However, it is not up to the supreme court to determine what is and what is not a human right. It also is not up to the supreme court to take the rights it decides it will grant to us and apply them to matters which it may or may not be inclusive of.

The fact is, there is no right to privacy in the constitution. If you'd like one, then you should lobby for an amendment. The constitution is suppose to be changed through the well-concieved amendment process the founders wrote into the constitution over two-hundred years ago, not based on the morals of nine judges.

To point out the logic in this meathod, let me remind you of the following;

When the feminist movement wanted the right to vote, how did they go about getting it? Did they sue the federal government in the hope that the supreme court would grant it to them?

No, they got their congressmen to propose and pass an amendment to the constitution. Once the nineteenth amendment passed, the right to vote for all women was recognized.

<sigh>

See my posts in the other thread.

But, how do you deal with the following:
(1) the 14th Amendment
(2) 120 or so years of Supreme Court interpretation of the 14th Amendment as protecting unenumerated fundamental rights
(3) the 9th Amendment
(4) the intentions of the Founding Fathers that the enumeration of some rights not be read to limit constitutional rights
(5) the following examples of Constitutional rights that are not "spelled out" in the Constitution but that are taken for granted by US citizens:

the right to vote, subject only to reasonable restrictions to prevent fraud
the right to cast a ballot in equal weight to those of other citizens
the right to a presumption of innocence and to demand proof beyond a reasonable doubt before being convicted of a crime
the right to travel within the United States
the right to marry or not to marry
the right to make one's own choice about having children
the right to have children at all
the right to direct the education of one's children as long as one meets certain minimum standards set by the state (i.e., to be able to send children to private schools or to teach them at home)
the right to custody of one's children
the right to choose and follow a profession
right to bodily integrity

As a law graduate, I can assure you it is entirely true.

Fallacious appeal to authority. I can claim to be Chief Justice Rehnquist.

But, if you want to be serious, as a law graduate, former US Court of Appeals law clerk, and practicing attorney for 7 years, I COULD assure you it is not.

EDIT: I am responding to TLS. I do NOT claim an authority or that my arguments should be given any weight or consideration beyond their content.

Unlike my other post, which questions the legality of abortion, this post agrees with abortion being legal. I wish to go into more depth with the overall ruling of Roe v. Wade and probe the abortion issue with greater depth. Therefore, this is a completly different post, though abortion is the main topic covered. Again, you are consentrating on just one issue and not answering the other questions that I have. Is abortion a "right to privacy"? You have answered "yes" and backed it up, but my other questions remain unanswered. I'm wanting to look at the multiple effects of the Supreme Court decision and the overall effect abortion has on contemporary society. This is a completly different, more in-depth, post.

I whole-heartedly agree.

Abortion is a private matter. Involving a woman's body. Nothing more needs to be said.

Your's truly,
Drzhen.

With all that experience, you'd think you'd have gotten it right. Explain to me where I was wrong, if you can find anything.

Anyway, let me tackle number five of Cat Tribe's argument, since number one is actually incorrect.

the right to vote, subject only to reasonable restrictions to prevent fraud

Actually, the right to vote for members of the house of representitives is in the constitution. Also, the direct election of U.S. Senators was added later. There are also provisions to protect the franchise rights of minorities and women.

Technically, it is still up to the state legislatures to appoint electors to vote for the presidency, even though it's decided by popular vote at this time.

"The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

-9th Amendment to the Constitution of the United States of America.


(Yes Cat-Tribe, I know, but the way the winds are blowing I think it can be safely said that quite a large number of rights fall under 9th amendment protection)

"The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

-9th Amendment to the Constitution of the United States of America.


But assigning those rights is not the job of the supreme court.

With all that experience, you'd think you'd have gotten it right. Explain to me where I was wrong, if you can find anything.

Anyway, let me tackle number five of Cat Tribe's argument, since number one is actually incorrect.



Actually, the right to vote for members of the house of representitives is in the constitution. Also, the direct election of U.S. Senators was added later. There are also provisions to protect the franchise rights of minorities and women.

Technically, it is still up to the state legislatures to appoint electors to vote for the presidency, even though it's decided by popular vote at this time.

I've already refuted you in 2 simulataneous threads.

Please quote with citations to where a right to vote is guaranteed in the Constitution.

Note that the Fifteenth, Seventeenth and Nineteenth Amendment do not protect a right to vote as such.

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.


"Illegal" is reasonably defined as "breaking the law."

"Legal" is reasonably defined as "not breaking the law."

For a law to be broken, it must exist.

But assigning those rights is not the job of the supreme court.
Um...I must have missed that some where. Courts have authority to protect rights if the legislature attempts to revoke them. It's called a system of checks and balances.


However, mostly I was writing that to point out that the Constitution protects other rights, not just the ones that are written into the Constitution (which shoots Scalia's originalism in the foot).

But assigning those rights is not the job of the supreme court.

So Marbury v. Madison, 5 US 137 (1803) was also wrongly decided. :headbang:

Read the citations from the other thread. The actual language of over 100 years of Supreme Court decisions -- including Roe and Casey -- makes a mockery of your position regarding the 14th Amendment.

Um...I must have missed that some where. Courts have authority to protect rights if the legislature attempts to revoke them. It's called a system of checks and balances.


Actually, the supreme court has no such right. It has taken it upon itself to screen issues for constitutionality. It's actually the executive branch who holds the check you pointed out. As a result of Marburry vs. Madison, the supreme court screens laws against the constitution. If it's not in the constitution, it's not the job of the supreme court to change the decission of elected officials.

I've already refuted you in 2 simulataneous threads.

Please quote with citations to where a right to vote is guaranteed in the Constitution.

Note that the Fifteenth, Seventeenth and Nineteenth Amendment do not protect a right to vote as such.
(to other person). He has you there. As long as the restriction to restrict the right to vote is blanket, independent of the sex/race/age of the person, it is allowed. That's why felons can be restricted in the right to vote.

Actually, the supreme court has no such right. It has taken it upon itself to screen issues for constitutionality. It's actually the executive branch who holds the check you pointed out. As a result of Marburry vs. Madison, the supreme court screens laws against the constitution. If it's not in the constitution, it's not the job of the supreme court to change the decission of elected officials.
Despite the wording of the 9th amendment protecting rights that are not enumerated in the constitution?


Funny that.

So Marbury v. Madison, 5 US 137 (1803) was also wrongly decided. :headbang:

Read the citations from the other thread. The actual language of over 100 years of Supreme Court decisions -- including Roe and Casey -- makes a mockery of your position regarding the 14th Amendment.

Hey, I never said the supreme court follows the law. On the contrary, I've been trying to point out that it seldom follows the law.

Hey, I never said the supreme court follows the law. On the contrary, I've been trying to point out that it seldom follows the law.
Mind giving an argument as to why Marbury was misjudged?

The Ninth Amendment is one of the many reasons that the Supreme Court has held that the list of fundamental rights in the first 8 Amendments is not to be taken as exhaustive.

Furthermore, the Fourteenth Amendment was an amendment to the Constitution - it amended and changed the Constitution.

Without incorporation (http://www.answers.com/topic/incorporation-bill-of-rights) through the 14th, you have no protection under the Constitution against state infringement of free speech, free press, due process, etc.

Here is yet another quote from the Supreme Court - this one written by Chief Justice Rehnquist and joined by Justices O'Connor, Scalia, Kennedy, and Thomas (emphasis added):

The Due Process Clause guarantees more than fair process, and the "liberty" it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them' ") (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301 -302 (1993); Casey, 505 U.S., at 851 . In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278 -279.

-- Washington v. Glucksberg (http://laws.findlaw.com/us/000/96-110.html), 521 U.S.702 (1997).

EDIT: The fact that the 2 threads where this was being debated are merged makes some of my posts duplicative. Some of it is worth reading twice anyway. :D

Despite the wording of the 9th amendment protecting rights that are not enumerated in the constitution?


Funny that.

The ninth amendment does not state that the supreme court can decide what rights we do and do not have. The ninth amendment and tenth amendment make it clear that anything the constitution does not say the federal government can do is passed to the state, and anything else is reserved for the people. In the case of abortion, abortion is a section of the penal code, even today when it is legal. The penal codes are determined by the individual states.

So, in this particular case (We're still talking about abortion here, I'm assuming), it is the role of the state governments to determine any laws reguarding it. This means that the federal government cannot, without a change to the constitution, make any laws either legalizing or illeagalizing (Wow, I think I made a new word :p ) abortion.

The ninth amendment does not state that the supreme court can decide what rights we do and do not have. The ninth amendment and tenth amendment make it clear that anything the constitution does not say the federal government can do is passed to the state, and anything else is reserved for the people. In the case of abortion, abortion is a section of the penal code, even today when it is legal. The penal codes are determined by the individual states.

So, in this particular case (We're still talking about abortion here, I'm assuming), it is the role of the state governments to determine any laws reguarding it. This means that the federal government cannot, without a change to the constitution, make any laws either legalizing or illeagalizing (Wow, I think I made a new word :p ) abortion.

Um, the 14th Amendment -- which despite your insistence is the basis for Roe and Casey (and all the cases applying the Bill of Rights to the States -- was a change to the Constitution.

Funny that.

Um, the 14th Amendment -- which despite your insistence is the basis for Roe and Casey (and all the cases applying the Bill of Rights to the States -- was a change to the Constitution.

Funny that.

I was just refuting your ninth amendment argument. If you'd like to get into an argument over the 14th amendment and what it does and does not cover, I'd love to do it sometime, but I have work in two hours and I'm tired. Knowing this site, these threads will still be here in the morning anyway.

The ninth amendment does not state that the supreme court can decide what rights we do and do not have. The ninth amendment and tenth amendment make it clear that anything the constitution does not say the federal government can do is passed to the state, and anything else is reserved for the people. In the case of abortion, abortion is a section of the penal code, even today when it is legal. The penal codes are determined by the individual states.

No, having your husband hit your belly (abortion) is illegal. Medical abortion, on the other hand...

More to the point, the ninth amendment is quite clear on the fact that the enumeration of rights in the constitution is not the end all be all list of rights, and by defintion, rights are not something that can be granted or taken away, they exist, forever and always, no matter if any laws to the contrary exist. As justice Scalia says "rights are absolutes" (note, not direct quote, but close enough), not to be given or taken willy nilly by the will of the legislature any more then any other right can.

Hmm, given that Patrick Henry had a coniption fit when he read the Bill of Rights anf famously exclaimed that it did not grant the right to take a bath, and yet we have all taken (at least I hope like hell we've all taken) baths, I'm going to have to side with Cat-Tribes and CSW here.

at the same time the constitution never defines human life, nor does medicine - so should a right to privacy clause protect murder?

Hmm, given that Patrick Henry had a coniption fit when he read the Bill of Rights anf famously exclaimed that it did not grant the right to take a bath, and yet we have all taken (at least I hope like hell we've all taken) baths, I'm going to have to side with Cat-Tribes and CSW here.

cat-tribe, csw, and the entire history of united states law

I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe?

Living in the United States, it is illegal for me to distill or sell absinthe.

It is perfectly legal, however, for me to order the substance from European suppliers, because there is no law that says I can't.

"Legal" and "illegal" are opposites with no middle. "Illegal" means (quite literally) "not legal." Logically, then, whatever is "not illegal" is "legal."

But in the US (that's where this post is primarily concerned with) how can a law exist when the Supreme Court has ruled that such a law, for or against it, can't exist because that would be unconstitutional. A law against it, is a violation of my right to privacy, granted in the Constitution. If you make a law for it, it would have to be absolute, no exceptions wouldn't it? Because it would be everyone's right to their own privacy to do whatever they wanted, not limited to person A, B, or C, right?

Though, what people don't understand is that the Supreme Court has NO TRUE POWER to create laws. They are only intended to interpret them. Over the years, precedence has turned close to creating laws, but Court rulings are NOT LAWS !!!!

Laws either prohibit someone from doing something or compel someone to do something (although compel could often be taken to being prohibiting not doing something).

They basically list things you are not allowed to do. They very rarely list things you are allowed to do.

For example - there is no law allowing someone to say the word "And" or to write the combination of letters "Wegtrsy". This does not mean they are neither legal or illegal. It is legal for someone to say or write them.

Sometimes people do things that are objected to but nobody has thought to legislate against. Given the legal system is hardly new this does not happen often - particulary in "Common Law" systems where law evolves case-by-case. When it does happen it often causes problems for the statute - like the cannabilism example in Germany (although IIRC Germany does not use Common Law which makes such cases more difficult). In these situations the law is often adjusted at the first oppertunity after the case arises. Things like this are only in doubt about legality until the law has considered them.

Abortion is not a new issue, although it is one that quite a few people object to (and a similar amount support the womans right). The case for Abortion has been legally considered and is governed by law - the Law is aware of abortion, has considered it and it is not illegal to have an abortion (under certain circumstances). Providing the conditions laid out by law are met it is legal to have an abortion.

Though, what people don't understand is that the Supreme Court has NO TRUE POWER to create laws. They are only intended to interpret them. Over the years, precedence has turned close to creating laws, but Court rulings are NOT LAWS !!!!

Please read Marbury v. Madison (http://laws.findlaw.com/us/5/137.html ), 5 US 137 (1803).

This issue was decided 200 years ago.

Article VI of the Constitution provides:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

Artilce III of the Constitution provides:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ...

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...

Thus, the Supreme Court is the last word on all cases and controversies under the Constitution and the Constitution is the law of the land.

The Supreme Court does not legislate, but its decisions are law.

This has been our system for over 200 years.

yes, but it also assumes that cases must be sufficiently similar to apply the law. Your quotes only support that in court cases may the rulings be referred to as 'Law'

yes, but it also assumes that cases must be sufficiently similar to apply the law. Your quotes only support that in court cases may the rulings be referred to as 'Law'

You aren't making any sense.

What do you think "law" is?

You appear to have some odd criteria that don't match the history of our Republic.

As with everything, I take it for pure definition. I.E. Congress is the Law-Making Body.

As with everything, I take it for pure definition. I.E. Congress is the Law-Making Body.

So Executive Orders, Administrative Regulations (EPA, OSHA, FCC, FDA), Treaties, and judicial decisions are not "law"

What are they?

(You appear to be applying a 6th grade model of the 3 branches that simply doesn't recognize the history of the Republic or the complexity of the Constitution itself.)

So Executive Orders, Administrative Regulations (EPA, OSHA, FCC, FDA), Treaties, and judicial decisions are not "law"

What are they?

(You appear to be applying a 6th grade model of the 3 branches that simply doesn't recognize the history of the Republic or the complexity of the Constitution itself.)

NO, I apply better understanding and a purist's interpretation of the Constitution. Everything you make reference to has been granted it's authority by our Law Making body, Congress. Congress has the power to take these privileges away and override any choice they make. Any non-overriden decision has Congress's admission. I reaffirm, NOTHING CAN BECOME A LAW WITHOUT CONGRESS'S APPROVAL.

NO, I apply better understanding and a purist's interpretation of the Constitution. Everything you make reference to has been granted it's authority by our Law Making body, Congress. Congress has the power to take these privileges away and override any choice they make. Any non-overriden decision has Congress's admission. I reaffirm, NOTHING CAN BECOME A LAW WITHOUT CONGRESS'S APPROVAL.

I agree with Hemingsoft. Congress makes the laws, the Executive branch enforces them, and the Judicial branch keeps the other two in check to make sure they don't do anything unconstitutional. In Roe v. Wade, they felt that the Texas laws were unconstitutional because they were vague and infringed on a woman's "right to privacy" under the Fourteenth Amendment in particular. That's fine, strike down laws that are unconstitutional. The Court however went on to define terms as to what it saw was constitutional. While it comes off as them just stating there opinion, it basically keeps the legislative body on this narrow track to adhere to what the Courts definitions are. Last time I checked, the Court has little contact with the average citizen. We do not vote for them, yet they are inclined to limit the legislative body to strict definitions. What happens when those definitions change? If the ruling stands, Congress can't do anything about it.

OK, we have at least 2 different arguments here separate from the main topic. The first question is about what constitutes "law" and the second question is about the proper role of the judiciary under the Constitution.

The first question has, I think, gotten rather silly. Yes, Congress is the "legislative branch" and it "legislates." But you will look in vain for a decent dictionary -- let alone a law dictionary -- that defines "law" as merely statutes. Most relevantly, common law (http://en.wikipedia.org/wiki/Common_law) -- law defined by judges -- is most certainly a type of law.

See, e.g., law : Compact Oxford English Dictionary (http://www.askoxford.com/concise_oed/law?view=uk) ("3 statute law and the common law"); law : Merriam-Webster's Online Dictionary, 10th Edition (http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=law) ("(3) : COMMON LAW "); law : Law.com Dictionary (http://dictionary.law.com/definition2.asp?selected=1111&bold=||||) ("The principal source of American law is the common law...").

The second question is answered, as I have said, by Article III (http://caselaw.lp.findlaw.com/data/constitution/article03/) and Article VI (http://caselaw.lp.findlaw.com/data/constitution/article06/) of the Constitution and by Marbury v. Madison (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137), 5 US 137 (1803), and its progeny.

On the main topic about the propriety of the Court's decisions regarding abortion, privacy, and other fundamental rights protected by the 14th Amendment I refer you to my posts ##36 (http://forums.jolt.co.uk/showpost.php?p=9443822&postcount=36), 42 (http://forums.jolt.co.uk/showpost.php?p=9444615&postcount=42), 43 (http://forums.jolt.co.uk/showpost.php?p=9444625&postcount=43), 45 (http://forums.jolt.co.uk/showpost.php?p=9444635&postcount=45), 55 (http://forums.jolt.co.uk/showpost.php?p=9445049&postcount=55), 61 (http://forums.jolt.co.uk/showpost.php?p=9445085&postcount=61), and 63 (http://forums.jolt.co.uk/showpost.php?p=9445121&postcount=63) -- the substance of which has largely gone without response.

Actually, the supreme court has no such right. It has taken it upon itself to screen issues for constitutionality. It's actually the executive branch who holds the check you pointed out. As a result of Marburry vs. Madison, the supreme court screens laws against the constitution. If it's not in the constitution, it's not the job of the supreme court to change the decission of elected officials.
what law school did you graduate from???

Though, what people don't understand is that the Supreme Court has NO TRUE POWER to create laws. They are only intended to interpret them. Over the years, precedence has turned close to creating laws, but Court rulings are NOT LAWS !!!!
They don't create laws. They create precident. Please show us a case in which the Supreme court created a law.

what law school did you graduate from???
Uncle Joe's Bait Shop and School of Law?

The US Supreme Court rules in Roe v. Wade that abortion is a "right to privacy", which is a constitutional right, therefore the government can't have any intervention. Correct?

Correct.


When somebody says something is legal or illegal, that says to me that one is the law and the other would be breaking it, respectivly, but a law does exist "on the books". It is to the best of my understanding that it is the responsibility of the Legislative branch of government to create laws and the job of the Executive branch to enforce them. The Judicial branch keeps all other branches in line by making sure they don't do anything that is "unconstitutional". Everyone with me?

Legality and illegality is defined by law. The law; more specifically; in our system defines expressed "illegal" acts: all those which are not expressed "illegal" are "legal" acts. To make something "legal" requires there be no law "Against" the act. By rulling against "Abortion laws" the Supreme Court removes those laws for violation: thereby making the act "legal". It does this by "removing" law; not creating it. Legality is the absense of laws which express illegality of an act.


So, it would be unconstitutional of the US government; federal, state, and local, to make any law for or against abortion, because it would be an invasion of privacy in any case. Right? Therefore, abortion is neither legal nor illegal, but permissable because it is our "right to privacy". Although, one could argue that since it is a "right to privacy", which is granted under the constitution, it is legal. Correct?

A law "for abortion" is illogical. Laws exist to detail acts specifically barred. It does not define all acts which are permissable.... Anything which is permissable (not barred by force of law) is a "legal" act.


Those who advocate for abortion (pro-choice) like to think of abortion as legal, which it can't be (with the exception of it being "granted under the Constitution") if my interpretation is correct, and the government, and to a certain extent, the people, can't do anything for or against it unless the Supreme Court rulling on Roe v. Wade is overturned. Right?

No, the government cannot do anything "against" it.... Reffer to my above position of "for it".... unless the Roe Vs. Wade decision is overturned.


So, is abortion really legal? If my understanding of the political situation is correct, no it isn't, but it isn't illegal either. What are our options to deal with this issue that remains a key political issue, but can't be fixed through politics with the rulling of Roe v. Wade standing, correct? Easiest option is to overturn Roe v. Wade and let the State and local or Federal governemnt decide (that's a whole different debate). Another option is to leave things were they are and let society decide the validity of abortion.

Abortion is "legal" in the sense that there is no rightful law "against" it. Remember my point on "legality" vs. "illegality".


Is abortion a "right to privacy"? What does that mean to you? To me, that means I can do what I want and the government (or "the man") can't do anything about it. Of course, it has always been the right of government to protect it's citizens, hence, if a child is actually a child at the very second of fertilization, it is the responsibility of the government to protect that child, right? This happens all the time in situations of abusive families, the government can come in and take custody of the children. There are plenty of other situations where this "right of privacy" gets a little muddied. Are you starting to understand the complexity of this situation?

Abortion is always a complex situation: as are many others.


What are some other options? Is my interpretation incorrect, why or why not? What do you think should happen?

Just did...

Thanx for answering one part, and only one part of my post. I disagree completly with YOUR legal analysis. I don't see how not having a law on something makes it legal. That just doesn't make much sense to me. Any examples, maybe? Law's, last I checked, spell out what is right or wrong in a society and put them "on the books". So, explain yourself a little better and it'd be great to get a little more feedback on the other 80% of the post.

Laws are : "The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system"

Legality is: "In conformity with or permitted by law:"
Illegality is that which is: "Prohibited by law"

Laws can express acts which are "legal" (in conformity with).
Laws can express acts which are "illegal" (prohibited by).

All that which is "permissible" is "legal" in that it is not "Prohibited" and thereby "illegal".

There is no difference between permissibility and legality: the two terms are cooexistive of the same principle.

The base principle of Common Law, of which the US system of Jurisprudence and Governance was founded upon; is that the Codified Law (the Law which is written) is to express the opinions in specificality with the uncodified law (the common law). The Common Law exists as a principle of interaction between the people of a society. This differs from Civil Law (as found in the old Roman system and throughout much of Continental Europe); in that it is not a requirement for the law to define all acts allowed and disallowed. Rather, the codifed system of law only expresses against acts which is prohibited... All other acts being permissible; and therefore, legal.

For example: There need be no law that expressly states that you may "till your own land for a garden": it is automatically understood that you can, that such is permissible on your own property: merely because there is no "prohibition" against this act.

Your opinion is odd, and wrong; from the base concept of Law as understood in the United States.

Laws are : "The body of rules and principles governing the affairs of a community and enforced by a political authority; a legal system"
*snip*

I was hoping you would discover this thread. :)

Hopefully it won't cause you any aneurysms. :eek: :D