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Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. It's purely a logical argument, and it doesn't follow very

by dvt 4y ago

Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. It's purely a logical argument, and it doesn't follow very well from the Constitution. We have a very simple mechanism to rectify this: amend the Constitution. But that ship has long sailed, and the problem now is stare decisis†, which complicates things further. So there's a very real justification for keeping Roe in spite of its shortcomings. But that's neither here nor there. The issue isn't that people don't understand arguments, it's that they misrepresent them. A rational, reasoned, mature, back-and-forth debate on abortion won't get you views and clicks, so of course no one does it. Panem et circenses. † And of course Casey, which reaffirmed Roe.

corrral 4y ago
The fundamental problem, which isn't going to get addressed short of the country falling apart, most likely, is that our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it. Its very shittiness is why we can't realistically fix it. We've been relying on courts really stretching reasoning on the constitution to its breaking point, just to be able to have a mostly-modern state & economy, in terms of function and outcomes, and it's been like that for most of a century. Maybe it would've been better if the courts hadn't done that and had instead forced us to a crisis point much sooner, so we'd have to actually fix our governmental system, but who knows what suffering that might have caused. Concerted attempts to change the course of the courts might finally bring us that crisis, though. We'll see. If they're maximally successful, I think it'll have to, because the US is gonna go downhill fast if kinda-shaky 20th century rulings supporting broadened federal power are wiped out en masse.
- dvt 4y ago
  > our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it. I agree that a "Union of States," being profoundly anti-federalist, is a pretty shit way of running a homogeneous world power with a shared language, shared culture, and (for the most part) shared ideals. The US fundamentally changed after the Civil War (which was probably the breaking point of anti-federalism) but unfortunately the Constitution didn't change along with it.
  - MockObject 4y ago
    I can't tell if you're advocating for more centralism, or less.
    - mbauman 4y ago
      The comment seems to be more descriptive than prescriptive.
  - HardlyCurious 4y ago
    The US is more akin to the EU than it is to a normal country. I don't think that is necessarily good or bad, it just is. But I don't know if I understand your bit about shared culture, language, and ideas... Would that imply that we should share a govt with the UK and Australia? Or if oceans are the breaking point, at least Canada?
    - imbnwa 4y ago
      But you can leave the EU without warring for it
  - crocodiletears 4y ago
    I think the intersection of culture and ideals between different regions in the US is too small to merit a description of the country as homogenous. And that intersection is becoming increasingly smaller with the collapse of mass media and the balkanization of media preferences (news and entertainment). We have a shared cultural history, but we can't even come close to a consensus on its interpretation.
robonerd 4y ago
An amendment seems ideal, but wouldn't a regular federal law also get the job done? They could even strengthen it like the Federal Reserve Act: "The right to amend, alter, or repeal this Act is hereby expressly reserved."
- Clubber 4y ago
  The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; https://www.law.cornell.edu/wex/commerce_clause https://www.law.cornell.edu/wex/commerce_clause Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. At least that's my understanding of it. FWIW, qualified immunity was also an immunity created from whole cloth by the Supreme Court. Apparently interpreting new "laws" like this was popular from the court in the 1960s and 1970s. Much of today's police brutality and lack of accountability stems from this decision. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity
  - robonerd 4y ago
    > The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause Given that expansive interpretations of the commerce clause seems to be the status quo, doesn't that suggest that a federal abortion law is possible? It should be easy for lawyers and politicians to find some tortured meaning of interstate commerce that includes a woman getting an abortion in her own state. They seem to do this sort of thing all the time.
    - Clubber 4y ago
      Most of the time they just bribe the states. That's how the drinking age moving from 18 to 21 occurred. The federal government offered highway fund money (or threatened to remove it) if states increased the drinking age from 18 to 21. https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...
rat87 4y ago
That is plainly untrue. Tons of legal scholars think the logic is extremely sound. The shortcoming with Roe is that due to a combination of bad luck and not willing to be as ruthless as Republicans on supreme court appointments. The arguments are irrelevant this is about power and supreme court appointments not logic.
swearwolf 4y ago
We do have a simple method, in amending the Constitution, but that’s been incredibly difficult to do for pretty much the entire history of the United States. For an issue like this one, it’s basically impossible. The true simple solution would have been to codify the right to an abortion in federal law, as candidate Obama promised to do but President Obama failed to even attempt. Recently I’ve been introduced to the hypothetical that maybe the Democrats didn’t really want to do that because fear mongering about Republicans overturning Roe was such an effective fundraising tool. I wouldn’t be surprised if that was the case.
- anotherman554 4y ago
  Your hypothetical doesn't make much sense to me because it assumes Obama had more power than he did- Obama wasn't elected king of America. You need 60 votes in the senate to pass anything unless you eliminate the filibuster (the so called nuclear option). Obama had 60 Democrats exactly which means if even a single Democrat was willing to vote against a federal right to abortion law Obama couldn't have done it.
  - swearwolf 4y ago
    Democrats controlled the House and Senate from 2009 to 2011. They could have passed it then without even needing to eliminate the filibuster. But they didn’t even try.
    - saxonww 4y ago
      This is true but also not quite. First, they only had 59% of the House, not enough to overcome filibuster. Second, they did have 60% in the Senate, but only for a few months in 2009, and it's not obvious that it was an "overcome filibuster on federal abortion laws" 60%. 2009 was the year Al Franken won a Senate seat in Minnesota after a recount and a Minnesota Supreme Court case, so he wasn't seated until late April. A couple of months later, Ted Kennedy died and was replaced by an interim appointee; Scott Brown, a Republican, won the special election to replace him that winter. They also had Arlen Specter - a Republican - caucusing with them to make that 60. He was a "pro-choice but personally opposed" legislator and may not have voted with the Democrats on this issue. So yeah, they didn't try. But I think it's very likely they didn't try because they felt strongly that they would not be successful.
jasonlotito 4y ago
> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. Citation needed. Also, would love to see how you are defining "serious non-partisan legal scholar." Seems like a whole bunch of adjectives you can use to disregard someone. As it stands, you can literally be talking about one person and be telling the truth depending on how you define those words.
- dvt 4y ago
  Pretty good article that explains the shaky legal foundation of Roe v. Wade: https://www.latimes.com/politics/story/2022-05-03/how-roe-vs-wade-went-wrong-broad-new-right-to-abortion-rested-on-a-shaky-legal-foundation https://www.latimes.com/politics/story/2022-05-03/how-roe-vs...
- akvadrako 4y ago
  Even Ruth Ginsburg stated the reasoning in Roe was incorrect.
  - robonerd 4y ago
    Did she say the reasoning was wrong, or merely that it wasn't ideal? As far as I know, she took umbrage with Roe v Wade being physician focused rather than woman focused. In other words, that the provides for a physicians right to perform abortions more than it does a woman's right to receive abortions.
    - dvt 4y ago
      > She also argued for a different legal rationale, one based on equal rights for women rather than privacy. Laws banning abortion had been written by men and were enforced by men, but their burden fell entirely on women. RBG was a brilliant legal mind and invoking the Equal Protection Clause (which is what she argued for) would have been orders of magnitude more robust than invoking some vague "right to privacy" that's barely in the Constitution to begin with.
andjd 4y ago
> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. Citation needed.

by dvt 4y ago

corrral 4y ago

The fundamental problem, which isn't going to get addressed short of the country falling apart, most likely, is that our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it. Its very shittiness is why we can't realistically fix it. We've been relying on courts really stretching reasoning on the constitution to its breaking point, just to be able to have a mostly-modern state & economy, in terms of function and outcomes, and it's been like that for most of a century. Maybe it would've been better if the courts hadn't done that and had instead forced us to a crisis point much sooner, so we'd have to actually fix our governmental system, but who knows what suffering that might have caused. Concerted attempts to change the course of the courts might finally bring us that crisis, though. We'll see. If they're maximally successful, I think it'll have to, because the US is gonna go downhill fast if kinda-shaky 20th century rulings supporting broadened federal power are wiped out en masse.

dvt 4y ago
> our particular system of government is a bit shit, and keeps getting worse the better everyone gets at gaming it. I agree that a "Union of States," being profoundly anti-federalist, is a pretty shit way of running a homogeneous world power with a shared language, shared culture, and (for the most part) shared ideals. The US fundamentally changed after the Civil War (which was probably the breaking point of anti-federalism) but unfortunately the Constitution didn't change along with it.
- MockObject 4y ago
  I can't tell if you're advocating for more centralism, or less.
  - mbauman 4y ago
    The comment seems to be more descriptive than prescriptive.
- HardlyCurious 4y ago
  The US is more akin to the EU than it is to a normal country. I don't think that is necessarily good or bad, it just is. But I don't know if I understand your bit about shared culture, language, and ideas... Would that imply that we should share a govt with the UK and Australia? Or if oceans are the breaking point, at least Canada?
  - imbnwa 4y ago
    But you can leave the EU without warring for it
- crocodiletears 4y ago
  I think the intersection of culture and ideals between different regions in the US is too small to merit a description of the country as homogenous. And that intersection is becoming increasingly smaller with the collapse of mass media and the balkanization of media preferences (news and entertainment). We have a shared cultural history, but we can't even come close to a consensus on its interpretation.

robonerd 4y ago

An amendment seems ideal, but wouldn't a regular federal law also get the job done? They could even strengthen it like the Federal Reserve Act: "The right to amend, alter, or repeal this Act is hereby expressly reserved."

Clubber 4y ago
The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause: To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; https://www.law.cornell.edu/wex/commerce_clause https://www.law.cornell.edu/wex/commerce_clause Abortion tends to be single state centric, meaning the person getting the abortion and the abortion clinic are in the same state. Because of this, the federal government couldn't pass a law that only affects intrastate commerce. At least that's my understanding of it. FWIW, qualified immunity was also an immunity created from whole cloth by the Supreme Court. Apparently interpreting new "laws" like this was popular from the court in the 1960s and 1970s. Much of today's police brutality and lack of accountability stems from this decision. https://en.wikipedia.org/wiki/Qualified_immunity https://en.wikipedia.org/wiki/Qualified_immunity
- robonerd 4y ago
  > The federal government derives much of it's power over the states using a controversial interpretation of the commerce clause Given that expansive interpretations of the commerce clause seems to be the status quo, doesn't that suggest that a federal abortion law is possible? It should be easy for lawyers and politicians to find some tortured meaning of interstate commerce that includes a woman getting an abortion in her own state. They seem to do this sort of thing all the time.
  - Clubber 4y ago
    Most of the time they just bribe the states. That's how the drinking age moving from 18 to 21 occurred. The federal government offered highway fund money (or threatened to remove it) if states increased the drinking age from 18 to 21. https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_Act https://en.wikipedia.org/wiki/National_Minimum_Drinking_Age_...

rat87 4y ago

That is plainly untrue. Tons of legal scholars think the logic is extremely sound. The shortcoming with Roe is that due to a combination of bad luck and not willing to be as ruthless as Republicans on supreme court appointments. The arguments are irrelevant this is about power and supreme court appointments not logic.

swearwolf 4y ago

We do have a simple method, in amending the Constitution, but that’s been incredibly difficult to do for pretty much the entire history of the United States. For an issue like this one, it’s basically impossible. The true simple solution would have been to codify the right to an abortion in federal law, as candidate Obama promised to do but President Obama failed to even attempt. Recently I’ve been introduced to the hypothetical that maybe the Democrats didn’t really want to do that because fear mongering about Republicans overturning Roe was such an effective fundraising tool. I wouldn’t be surprised if that was the case.

anotherman554 4y ago
Your hypothetical doesn't make much sense to me because it assumes Obama had more power than he did- Obama wasn't elected king of America. You need 60 votes in the senate to pass anything unless you eliminate the filibuster (the so called nuclear option). Obama had 60 Democrats exactly which means if even a single Democrat was willing to vote against a federal right to abortion law Obama couldn't have done it.
- swearwolf 4y ago
  Democrats controlled the House and Senate from 2009 to 2011. They could have passed it then without even needing to eliminate the filibuster. But they didn’t even try.
  - saxonww 4y ago
    This is true but also not quite. First, they only had 59% of the House, not enough to overcome filibuster. Second, they did have 60% in the Senate, but only for a few months in 2009, and it's not obvious that it was an "overcome filibuster on federal abortion laws" 60%. 2009 was the year Al Franken won a Senate seat in Minnesota after a recount and a Minnesota Supreme Court case, so he wasn't seated until late April. A couple of months later, Ted Kennedy died and was replaced by an interim appointee; Scott Brown, a Republican, won the special election to replace him that winter. They also had Arlen Specter - a Republican - caucusing with them to make that 60. He was a "pro-choice but personally opposed" legislator and may not have voted with the Democrats on this issue. So yeah, they didn't try. But I think it's very likely they didn't try because they felt strongly that they would not be successful.

jasonlotito 4y ago

> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. Citation needed. Also, would love to see how you are defining "serious non-partisan legal scholar." Seems like a whole bunch of adjectives you can use to disregard someone. As it stands, you can literally be talking about one person and be telling the truth depending on how you define those words.

dvt 4y ago
Pretty good article that explains the shaky legal foundation of Roe v. Wade: https://www.latimes.com/politics/story/2022-05-03/how-roe-vs-wade-went-wrong-broad-new-right-to-abortion-rested-on-a-shaky-legal-foundation https://www.latimes.com/politics/story/2022-05-03/how-roe-vs...
akvadrako 4y ago
Even Ruth Ginsburg stated the reasoning in Roe was incorrect.
- robonerd 4y ago
  Did she say the reasoning was wrong, or merely that it wasn't ideal? As far as I know, she took umbrage with Roe v Wade being physician focused rather than woman focused. In other words, that the provides for a physicians right to perform abortions more than it does a woman's right to receive abortions.
  - dvt 4y ago
    > She also argued for a different legal rationale, one based on equal rights for women rather than privacy. Laws banning abortion had been written by men and were enforced by men, but their burden fell entirely on women. RBG was a brilliant legal mind and invoking the Equal Protection Clause (which is what she argued for) would have been orders of magnitude more robust than invoking some vague "right to privacy" that's barely in the Constitution to begin with.

andjd 4y ago

> Almost every serious non-partisan legal scholar agrees that Roe v. Wade is on tenuous legal footing. Citation needed.