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As a pro-choice liberal, I always felt like Roe v. Wade was poorly decided from the perspective of consistent and robust jurisprudence. Much like Wickard v. Fil

As a pro-choice liberal, I always felt like Roe v. Wade was poorly decided from the perspective of consistent and robust jurisprudence. Much like Wickard v. Filburn, the line of reasoning was sufficiently tortured that it opened the door for future adverse decisions in directions they might not otherwise go. For this reason, there was always a possibility that a future court may patch it to make it more consistent with other precedent. In my view, sending most things to the individual States to decide is the correct default. See also: marijuana legalization, which has spread at the State level because it is nearly impossible to change at the Federal level.

Blammar 5y ago
"sending most things to the individual States to decide is the correct default." Problem with that is the deciders in these states don't reflect the population of the state in general. Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ? I am bemused at the marijuana thing -- I suspect there's a huge untold story there involving the DEA, the FBI, large sums of money, etc., etc. . Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening.
- Auracle 5y ago
  The deciders of the nation are even further removed from the population. If the state’s decision is egregious we have a constitution with amendments and other federal laws. The federal government was incredibly limited prior to the civil war, and since then has only gained power and taken it away from the states. Our country was designed this way for a reason and I would personally love to return to it. If nothing else, different states having wildly different policies means that we can more easily see what works and what doesn’t.
  - verdverm 5y ago
    One of the most important aspects of democracy is the ability to self correct, however this shakes out (really) long-term
    - fastball 5y ago
      So you move to another state. Another one of the great things about the US.
      - Kye 5y ago
        At least until the state you're in outlaws running from the law you want to run from. This is not hypothetical.
        verdverm 5y ago
        > This is not hypothetical. Then you should provide a link to a reputable source. Not sure how a state government in the US could pass this, let alone enforce it
        Forgeties79 5y ago
        A cursory google search would've shown you that Missouri has already attempted this, and just like all the FHB bills/wild restrictions we've seen shot down over and over again (which will now be upheld) there is no way you could argue that they - and other states - won't try it again. [1] On a related note: Louisiana is about to pass a bill allowing murder charges for abortions. This bill also bars contraception options such as IUD's. It also impacts ectopic pregnancies, which are very common. [2] Make no mistake: the moment Roe v. Wade comes down the floodgates are opening, and you are going to have a hard time believing the bills some of these states are cooking up. [1] https://missouriindependent.com/2022/03/29/missouri-house-blocks-effort-to-limit-access-to-out-of-state-abortions/ https://missouriindependent.com/2022/03/29/missouri-house-bl... [2] https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-murder-charges-for-abortions-opponents-call-it-barbaric https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m... https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-murder-charges-for-abortions-opponents-call-it-barbaric https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m...
- uejfiweun 5y ago
  > Problem with that is the deciders in these states don't reflect the population of the state in general. That's what voting is for. This is the fundamental basis of our system's legitimacy. Is it perfect? Absolutely not. But as Churchill said, "democracy is the worst form of government, except for all the others that have been tried."
  - jen20 5y ago
    If Churchill had gerrymandered constituencies in the UK the way in the egregious manner the US manages, he never would have lost power.
- jandrewrogers 5y ago
  > Problem with that is the deciders in these states don't reflect the population of the state in general. Yes, particularly in de facto one party States. There are more Independents than either Democrats or Republicans in the US. Approximately a third of Republicans are pro-choice and a third of Democrats are pro-life, and they aren't evenly distributed. At the local and State level it isn't a party line vote, the reality is a bit more complex. > Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ? That's a straw man, not a problem. The 14th Amendment is a thing so that isn't something a reasonable person would worry about. All States have reasonable laws to a first approximation, after all average people have to live there. There is no State that does not have some laws where one could legitimately argue that they infringe on individual rights. Except maybe Nevada, they don't even have laws for most things.
  - dragonwriter 5y ago
    > There are more Independents than either Democrats or Republicans in the US. Studies of voting behavior have consistently shown that Independents who vote vote either as consistently Republican or as consistently Democrat as, respectively, self identified Republicans and Democrats.
- hintymad 5y ago
  > Problem with that is the deciders in these states don't reflect the population of the state in general. By "the state" did you mean the US? If so, I'm not sure reflecting the population of the nation is a sound idea. I was not born in the US nor was educated in the US, but I thought the founding fathers spent inordinate amount of energy to design a system so that democracy would not mean the "tyranny of the majority", and local governance throughout the entire political system in a country as large as the US is one of the greatest invention in politics.
- arlort 5y ago
  > slavery is permitted again That would be a violation of the 13th amendment > Hispanics are not allowed to vote and this of the 15th amendment > overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States The point is that it wouldn't be arbitrary, it'd be in those areas not covered by the constitution, at which point it's not balkanization but federalization And if you don't like one state you can move to a different state whose policies you align more with
- tablespoon 5y ago
  > Problem with that is the deciders in these states don't reflect the population of the state in general. But nine unelected lawyers in Washington DC who went to either Harvard or Yale do? Your line of reasoning could quite quickly lead to a literal dictator or an oligarchy ruling "in the name of the people" without actually being accountable to them in any way. There are defined mechanisms for the population of a state to make its voice heard in its government. They're not perfect, but they're a hell of a lot better than choosing a criteria ad-hoc based whatever result some rando wants (e.g. some poll agrees with me, therefore that's what the "people" want).
- SllX 5y ago
  Slavery isn’t permitted per the 13th Amendment; and Hispanics are not prohibited from voting per the equal protection clause. So what are you arguing? That legal granularity across multiple jurisdictions is untenable because some laws are Federal per the US Constitution and some are not? > Problem with that is the deciders in these states don't reflect the population of the state in general. How so? Each State in the union has an elected government, elected by its eligible citizenry and is legitimate under the Constitution and under its own laws unless proven otherwise. The democratic process is not a guarantor of the types of laws that will be passed, merely the means by which power is shared among the citizenry. > Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening. This isn’t the States overruling the Federal government. This is SCOTUS overruling itself, if the decision is handed down anyway (it’s been leaked, but not actually handed down) which is not unprecedented. The result will be if this opinion is handed down, that the matter then defaults back to the States as all laws do because they share sovereignty with the Federal government and as democratically elected governments possess their own legitimate and sovereign lawmaking power. The reason the States were ever in a position to decriminalize marijuana or anything else is because they have their own criminal statutes over which they have the ability to amend or repeal as they deem fit to. This does not effect changes in Federal statutes over which they have no authority because that’s the domain of the United States Congress.
  - cmurf 5y ago
    There is no amendment protecting interractial or gay marriage. Loving v Virgina could be overturned by the Court. And it's likely Obergefell v. Hodges would be overturned for the exact same underlying reason as Roe: religious belief of a majority of the Court.
    - SllX 5y ago
      There comes a point where you need to look towards a legislative body rather than a court and that’s by design. That’s where real law-making happens because if your “rights” depend on an Executive Order or stare decisis, then you don’t really have them. This is moot because neither Loving nor Obergefell are implicated here or up for reexamination. Also as a note, neither Roe nor Casey has actually been overturned as of this writing. Interestingly enough I was just listening to a podcast from 2015 or 2016 three nights ago where Justice Alito was the interviewee and he explained the process by which majorities are reached, opinions are assigned and he specifically said that no decision by the court is final until the moment it is handed down. It’s rare for this to happen, but in a narrow decision a Justice can indicate to the court at any point until then that today is not a good day to hand it down and he or she might need to rethink some things.
tonfreed 5y ago
It should have been legislated properly in the wake of the court decision.
badRNG 5y ago
Do you think the "correct default" for deciding whether gay or interracial couples can get married is whether or not one is in a blue state?
- umvi 5y ago
  People keep mentioning interracial marriage as being in danger by this SCOTUS, but is there any evidence anyone wants this? With abortion it is obvious a huge chunk of the population is against abortion as a practice. With LGBTQ rights it's obvious a huge chunk of the population is opposed to at least some of the rights in place or proposed (including gay marriage but also things like right for transgender women to compete with cis women in sports, etc). But with interracial marriage it's an extremely tiny fringe group opposed to it, as far as I can tell. Seems like the only point of bringing up interracial marriage is to fearmonger.
  - badRNG 5y ago
    This isn't about fearmongering, it is about consistent application of the principle. If the legal principle of privacy and autonomy doesn't apply in Roe, then its reasonable to conclude that it doesn't apply for marriage equality either. The question is, is it reasonable that we should allow one's right to privacy and autonomy to only exist in some states? And if so, then this principle could apply to more than just abortion. Yes, reimplementing a ban on interracial marriage in any state seems completely unreasonable now, but so did banning abortion a decade ago. Things change. A senator just recently stated that anti-interracial marriage laws should not have been struck down by the courts [1] Interracial marriage is brought up for multiple reasons: - To demonstrate that the roll-back of constitutionally protected rights to individual privacy and autonomy have negative unintended consequences - To demonstrate that some who are opposed to constitutionally-protected privacy apply the principle inconsistently (usually contingent on whether it meshes with their personal/religious views) - To demonstrate that those who do support this rollback consistently are willing to let gay and interracial couples be collateral damage in the pursuit of their ideological goals [1] https://slate.com/news-and-politics/2022/03/republican-sen-mike-braun-says-supreme-court-should-not-have-struck-down-state-laws-banning-interracial-marriage-then-backtracks-unconvincingly.html https://slate.com/news-and-politics/2022/03/republican-sen-m...
titzer 5y ago
It recognized a constitutional right that women have a right to an abortion. That is easily supported by both amendments IX and X to the constitution, which are the "catch all" clauses. > Amendment IX > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. > Amendment X > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. What the court did is lift abortion above states by recognizing it is a constitutional right. States cannot infringe constitutional rights; that's kind of the whole point of having a constitution, so "sending it states" isn't an option. If this decision goes through, it completely wrecks all precedent; the Supreme Court can just revoke constitutional rights by changing its mind, unless, presumably, that right is enumerated in the Constitution. But the above amendments were written exactly for that.

Blammar 5y ago

"sending most things to the individual States to decide is the correct default." Problem with that is the deciders in these states don't reflect the population of the state in general. Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ? I am bemused at the marijuana thing -- I suspect there's a huge untold story there involving the DEA, the FBI, large sums of money, etc., etc. . Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening.

Auracle 5y ago
The deciders of the nation are even further removed from the population. If the state’s decision is egregious we have a constitution with amendments and other federal laws. The federal government was incredibly limited prior to the civil war, and since then has only gained power and taken it away from the states. Our country was designed this way for a reason and I would personally love to return to it. If nothing else, different states having wildly different policies means that we can more easily see what works and what doesn’t.
- verdverm 5y ago
  One of the most important aspects of democracy is the ability to self correct, however this shakes out (really) long-term
  - fastball 5y ago
    So you move to another state. Another one of the great things about the US.
    - Kye 5y ago
      At least until the state you're in outlaws running from the law you want to run from. This is not hypothetical.
      - verdverm 5y ago
        > This is not hypothetical. Then you should provide a link to a reputable source. Not sure how a state government in the US could pass this, let alone enforce it
        Forgeties79 5y ago
        A cursory google search would've shown you that Missouri has already attempted this, and just like all the FHB bills/wild restrictions we've seen shot down over and over again (which will now be upheld) there is no way you could argue that they - and other states - won't try it again. [1] On a related note: Louisiana is about to pass a bill allowing murder charges for abortions. This bill also bars contraception options such as IUD's. It also impacts ectopic pregnancies, which are very common. [2] Make no mistake: the moment Roe v. Wade comes down the floodgates are opening, and you are going to have a hard time believing the bills some of these states are cooking up. [1] https://missouriindependent.com/2022/03/29/missouri-house-blocks-effort-to-limit-access-to-out-of-state-abortions/ https://missouriindependent.com/2022/03/29/missouri-house-bl... [2] https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-murder-charges-for-abortions-opponents-call-it-barbaric https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m... https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-murder-charges-for-abortions-opponents-call-it-barbaric https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m...
uejfiweun 5y ago
> Problem with that is the deciders in these states don't reflect the population of the state in general. That's what voting is for. This is the fundamental basis of our system's legitimacy. Is it perfect? Absolutely not. But as Churchill said, "democracy is the worst form of government, except for all the others that have been tried."
- jen20 5y ago
  If Churchill had gerrymandered constituencies in the UK the way in the egregious manner the US manages, he never would have lost power.
jandrewrogers 5y ago
> Problem with that is the deciders in these states don't reflect the population of the state in general. Yes, particularly in de facto one party States. There are more Independents than either Democrats or Republicans in the US. Approximately a third of Republicans are pro-choice and a third of Democrats are pro-life, and they aren't evenly distributed. At the local and State level it isn't a party line vote, the reality is a bit more complex. > Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ? That's a straw man, not a problem. The 14th Amendment is a thing so that isn't something a reasonable person would worry about. All States have reasonable laws to a first approximation, after all average people have to live there. There is no State that does not have some laws where one could legitimately argue that they infringe on individual rights. Except maybe Nevada, they don't even have laws for most things.
- dragonwriter 5y ago
  > There are more Independents than either Democrats or Republicans in the US. Studies of voting behavior have consistently shown that Independents who vote vote either as consistently Republican or as consistently Democrat as, respectively, self identified Republicans and Democrats.
hintymad 5y ago
> Problem with that is the deciders in these states don't reflect the population of the state in general. By "the state" did you mean the US? If so, I'm not sure reflecting the population of the nation is a sound idea. I was not born in the US nor was educated in the US, but I thought the founding fathers spent inordinate amount of energy to design a system so that democracy would not mean the "tyranny of the majority", and local governance throughout the entire political system in a country as large as the US is one of the greatest invention in politics.
arlort 5y ago
> slavery is permitted again That would be a violation of the 13th amendment > Hispanics are not allowed to vote and this of the 15th amendment > overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States The point is that it wouldn't be arbitrary, it'd be in those areas not covered by the constitution, at which point it's not balkanization but federalization And if you don't like one state you can move to a different state whose policies you align more with
tablespoon 5y ago
> Problem with that is the deciders in these states don't reflect the population of the state in general. But nine unelected lawyers in Washington DC who went to either Harvard or Yale do? Your line of reasoning could quite quickly lead to a literal dictator or an oligarchy ruling "in the name of the people" without actually being accountable to them in any way. There are defined mechanisms for the population of a state to make its voice heard in its government. They're not perfect, but they're a hell of a lot better than choosing a criteria ad-hoc based whatever result some rando wants (e.g. some poll agrees with me, therefore that's what the "people" want).
SllX 5y ago
Slavery isn’t permitted per the 13th Amendment; and Hispanics are not prohibited from voting per the equal protection clause. So what are you arguing? That legal granularity across multiple jurisdictions is untenable because some laws are Federal per the US Constitution and some are not? > Problem with that is the deciders in these states don't reflect the population of the state in general. How so? Each State in the union has an elected government, elected by its eligible citizenry and is legitimate under the Constitution and under its own laws unless proven otherwise. The democratic process is not a guarantor of the types of laws that will be passed, merely the means by which power is shared among the citizenry. > Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening. This isn’t the States overruling the Federal government. This is SCOTUS overruling itself, if the decision is handed down anyway (it’s been leaked, but not actually handed down) which is not unprecedented. The result will be if this opinion is handed down, that the matter then defaults back to the States as all laws do because they share sovereignty with the Federal government and as democratically elected governments possess their own legitimate and sovereign lawmaking power. The reason the States were ever in a position to decriminalize marijuana or anything else is because they have their own criminal statutes over which they have the ability to amend or repeal as they deem fit to. This does not effect changes in Federal statutes over which they have no authority because that’s the domain of the United States Congress.
- cmurf 5y ago
  There is no amendment protecting interractial or gay marriage. Loving v Virgina could be overturned by the Court. And it's likely Obergefell v. Hodges would be overturned for the exact same underlying reason as Roe: religious belief of a majority of the Court.
  - SllX 5y ago
    There comes a point where you need to look towards a legislative body rather than a court and that’s by design. That’s where real law-making happens because if your “rights” depend on an Executive Order or stare decisis, then you don’t really have them. This is moot because neither Loving nor Obergefell are implicated here or up for reexamination. Also as a note, neither Roe nor Casey has actually been overturned as of this writing. Interestingly enough I was just listening to a podcast from 2015 or 2016 three nights ago where Justice Alito was the interviewee and he explained the process by which majorities are reached, opinions are assigned and he specifically said that no decision by the court is final until the moment it is handed down. It’s rare for this to happen, but in a narrow decision a Justice can indicate to the court at any point until then that today is not a good day to hand it down and he or she might need to rethink some things.

tonfreed 5y ago

It should have been legislated properly in the wake of the court decision.

badRNG 5y ago

Do you think the "correct default" for deciding whether gay or interracial couples can get married is whether or not one is in a blue state?

umvi 5y ago
People keep mentioning interracial marriage as being in danger by this SCOTUS, but is there any evidence anyone wants this? With abortion it is obvious a huge chunk of the population is against abortion as a practice. With LGBTQ rights it's obvious a huge chunk of the population is opposed to at least some of the rights in place or proposed (including gay marriage but also things like right for transgender women to compete with cis women in sports, etc). But with interracial marriage it's an extremely tiny fringe group opposed to it, as far as I can tell. Seems like the only point of bringing up interracial marriage is to fearmonger.
- badRNG 5y ago
  This isn't about fearmongering, it is about consistent application of the principle. If the legal principle of privacy and autonomy doesn't apply in Roe, then its reasonable to conclude that it doesn't apply for marriage equality either. The question is, is it reasonable that we should allow one's right to privacy and autonomy to only exist in some states? And if so, then this principle could apply to more than just abortion. Yes, reimplementing a ban on interracial marriage in any state seems completely unreasonable now, but so did banning abortion a decade ago. Things change. A senator just recently stated that anti-interracial marriage laws should not have been struck down by the courts [1] Interracial marriage is brought up for multiple reasons: - To demonstrate that the roll-back of constitutionally protected rights to individual privacy and autonomy have negative unintended consequences - To demonstrate that some who are opposed to constitutionally-protected privacy apply the principle inconsistently (usually contingent on whether it meshes with their personal/religious views) - To demonstrate that those who do support this rollback consistently are willing to let gay and interracial couples be collateral damage in the pursuit of their ideological goals [1] https://slate.com/news-and-politics/2022/03/republican-sen-mike-braun-says-supreme-court-should-not-have-struck-down-state-laws-banning-interracial-marriage-then-backtracks-unconvincingly.html https://slate.com/news-and-politics/2022/03/republican-sen-m...

titzer 5y ago

It recognized a constitutional right that women have a right to an abortion. That is easily supported by both amendments IX and X to the constitution, which are the "catch all" clauses. > Amendment IX > The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. > Amendment X > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. What the court did is lift abortion above states by recognizing it is a constitutional right. States cannot infringe constitutional rights; that's kind of the whole point of having a constitution, so "sending it states" isn't an option. If this decision goes through, it completely wrecks all precedent; the Supreme Court can just revoke constitutional rights by changing its mind, unless, presumably, that right is enumerated in the Constitution. But the above amendments were written exactly for that.