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> So what changed? Not the Constitution -- the text of the 14th Amendment has been the same since its ratification. The difference is that these particular just

> So what changed? Not the Constitution -- the text of the 14th Amendment has been the same since its ratification. The difference is that these particular justices believe that the text means something different than what every other set of Supreme Court justices before them believed. How can you make the "what changed" argument, and not also apply it to the Roe v. Wade ruling itself? You do realize that 105 years passed between the ratification of the 14th Amendment, and the Supreme Court realizing that it banned abortion? The authors of the 14th were alive for much of that time - you'd think they would have said something.

IceMetalPunk 4y ago
Roe v Wade was the first time the question of abortion rights was put before the supreme court. "What changed" there was "people started asking for the first time whether the Constitution supports these rights". But now we've had nearly 50 years since then, so you can't say "no one's ever looked at this before". I bet the authors of the 14th Amendment also didn't say anything about computers or hacking, yet in 2021 the Supreme Court ruled that the Due Process clause affected how laws about what constitutes "unauthorized computer access" are to be enforced (Van Buren vs United States). The Constitution was explicitly written with knowledge (and admission) that it could not, and would not try to, enumerate every possible scenario in which it may or may not apply in the future. The idea that "no one said this clause applies to this case before anyone asked if it did" holds any meaning is ridiculous. That's why the Supreme Court exists: to take specific cases and see if anything in the Constitution applies to them, whether it explicitly says it does or not.
- AinderS 4y ago
  > Roe v Wade was the first time the question of abortion rights was put before the supreme court. If the Supreme Court does not hear a case, it is tacitly saying it agrees with the lower court's decision. If in 105 years no-one argued before the lower or supreme courts that abortion is constitutionally protected (or did argue it, but did not convince any judges), that's a strong signal that the legal profession, courts included, did not consider abortion bans unconstitutional. It stretches credulity that in a century of abortion convictions, no lawyer thought to argue their constitutionality, and no judge considered it. It's not impossible, but I'd need a decent source to believe it.
  - dragonwriter 4y ago
    > If the Supreme Court does not hear a case, it is tacitly saying it agrees with the lower court's decision. No, it's not, which is why denials of cert. do not elevate the lower court’s decisions to the precedential effect of a Supreme Court decision. The Supreme Court takes a very limited share of the cases offered to it in its discretionary jurisdiction each term, and the factors involved in those decisions typically include whether or not there is a split between the Courts of Appeals on the question raised and the degree to which Court perceives the case to be one of national importance among other factors, the decision is not centrally about the merits of the case. Also, Roe v. Wade was not the first abortion-law case to come before the Supreme Court, just the first to raise and be decided on the question of whether abortion itself was protected. Other challenges were on different grounds, e.g. U.S. v. Vuitch (1971) unsuccessfully challenging Washington, D.C.’s abortion law (which had maternal health exceptions) for unconstitutional vagueness. Most lawyers prefer to argue things which are established in law rather than novel theories (because trial courts aren't prone to accept novel theories, because clients get a lot better result being cleared by a trial court than exhausting appeals through the State and then appealing to the appropriate federal courts, and for other reasons.)

IceMetalPunk 4y ago

Roe v Wade was the first time the question of abortion rights was put before the supreme court. "What changed" there was "people started asking for the first time whether the Constitution supports these rights". But now we've had nearly 50 years since then, so you can't say "no one's ever looked at this before". I bet the authors of the 14th Amendment also didn't say anything about computers or hacking, yet in 2021 the Supreme Court ruled that the Due Process clause affected how laws about what constitutes "unauthorized computer access" are to be enforced (Van Buren vs United States). The Constitution was explicitly written with knowledge (and admission) that it could not, and would not try to, enumerate every possible scenario in which it may or may not apply in the future. The idea that "no one said this clause applies to this case before anyone asked if it did" holds any meaning is ridiculous. That's why the Supreme Court exists: to take specific cases and see if anything in the Constitution applies to them, whether it explicitly says it does or not.

AinderS 4y ago
> Roe v Wade was the first time the question of abortion rights was put before the supreme court. If the Supreme Court does not hear a case, it is tacitly saying it agrees with the lower court's decision. If in 105 years no-one argued before the lower or supreme courts that abortion is constitutionally protected (or did argue it, but did not convince any judges), that's a strong signal that the legal profession, courts included, did not consider abortion bans unconstitutional. It stretches credulity that in a century of abortion convictions, no lawyer thought to argue their constitutionality, and no judge considered it. It's not impossible, but I'd need a decent source to believe it.
- dragonwriter 4y ago
  > If the Supreme Court does not hear a case, it is tacitly saying it agrees with the lower court's decision. No, it's not, which is why denials of cert. do not elevate the lower court’s decisions to the precedential effect of a Supreme Court decision. The Supreme Court takes a very limited share of the cases offered to it in its discretionary jurisdiction each term, and the factors involved in those decisions typically include whether or not there is a split between the Courts of Appeals on the question raised and the degree to which Court perceives the case to be one of national importance among other factors, the decision is not centrally about the merits of the case. Also, Roe v. Wade was not the first abortion-law case to come before the Supreme Court, just the first to raise and be decided on the question of whether abortion itself was protected. Other challenges were on different grounds, e.g. U.S. v. Vuitch (1971) unsuccessfully challenging Washington, D.C.’s abortion law (which had maternal health exceptions) for unconstitutional vagueness. Most lawyers prefer to argue things which are established in law rather than novel theories (because trial courts aren't prone to accept novel theories, because clients get a lot better result being cleared by a trial court than exhausting appeals through the State and then appealing to the appropriate federal courts, and for other reasons.)