The Roe Countdown

[Meadmaker]

But the draft cannot force anybody to actually risk their lives in combat against their will.

You might want to read up a little bit more on your history.

Tell it to Eddie Slovik.

 

[Bob001]

You might want to read up a little bit more on your history.

Tell it to Eddie Slovik.

Aw, c'mon. Desertion under fire is hardly comparable to seeking CO status or refusing to serve. I think most people would agree that once you're in the truck, you're in for the ride. And if you read your history, you might find that Slovik was exceptionally stupid. Other WWII deserters got jail time.

The closest, however imperfect, comparison would be the distinction between abortion and infanticide.

 

[Bob001]

A useful history of abortion law in the U.S. At the time the Constitution was adopted, it was legal, common and dangerous.

In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.” It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.

In the late-18th and early-19th centuries, no states had laws against any form of abortion, though Alito averred that “manuals for justices of the peace printed in the colonies in the 18th century” sometimes "repeated Hale’s and [William] Blackstone’s statements that anyone who prescribed medication ‘unlawfully to destroy the child’ would be guilty of murder if the woman died.”

https://www.washingtonpost.com/history/2022/05/15/abortion-history-founders-alito/

 

[Ziggurat]

I think most people would agree that once you're in the truck, you're in for the ride.

Abortion rights advocates don't agree.

 

[Upchurch]

There is no getting around this hard question of when the right to life begins, and nobody makes any headway in either convincing others or even understanding others by assuming that answers you disagree with were arrived at in bad faith.

Quite the opposite. Those who believe that life begins at conception arrive at that decision because of faith. Specifically, Catholicism, although that belief was later co-opted by evangelicalism when segregation was no longer working as a politically uniting principle.

The problem is, not all religions agree about when life begins in the womb. Should use law be based on one or two religion's beliefs over others. Seems like doing so is specifically forbidden by the Constitution.

eta:

The right to life is even more fundamental than the right to bodily autonomy. It is not secondary to that, it precedes that.

Really. Could you, then, be forced to donate one of your two working kidneys to save the life of someone who has no functional kidneys? If their right to life is more fundamental than your right to bodily autonomy, it should be a bit of a no brainer, right?

(I believe that was one of the arguments made about bodily autonomy and right to life in one of the previous abortion decisions.)

 

[Skeptical Greg]

The right to life is even more fundamental than the right to bodily autonomy. ...

Says who?

I suggest that the only rights, are those that one has the ability to secure for themselves..

The only reason that human life is special, is that we have the ability to think that it is.

 

[Upchurch]

There's noting comparable in human experience.

Only because we find it abhorrent to apply it to any other human problem. See my kidney example above. Or, imagine forced blood donation. Or, even, forced cadaver donation.

Those things are unthinkable acts to force people into because we, as a society, value bodily autonomy over the right to life, except when it comes to uteruses.

 

[Upchurch]

lOr, even, forced cadaver donation.

That's kinda funny. As a society, we have a concept of bodily autonomy that extends beyond someone's life, but does not include a living woman in certain circumstances.

 

[Ziggurat]

Says who?

I suggest that the only rights, are those that one has the ability to secure for themselves..

The only reason that human life is special, is that we have the ability to think that it is.

I’m not interested in a semantic debate about what “rights” even mean. It is enough to note that if this is your definition, then “constitutional rights” are a fiction to begin with and there’s no point in arguing about them at all. This is not a productive approach.

 

[xjx388]

I used to have very conservative views about abortion. I thought that a human life was created at conception and all human life has rights to life.

TL; DR: a right to life is not a thing in the actual world we live in.

What I eventually realized was that we have so many exceptions to this “right” that it becomes meaningless. The concept of a “right to life,” itself is essentially meaningless.

We don’t guarantee that people who are dying of curable diseases have a right to life. If we did guarantee such a thing, then the law would say that insurance companies must pay for any treatment that has a chance of keeping that person alive. We obviously don’t do that. Even in the most progressive utopian vision of medical care, we couldn’t do that because it’s cost prohibitive.

Don’t have health insurance at all and you aren’t rich? You are screwed.

People die every day because there isn’t enough blood in blood banks. A right to life would imply that it should be a legal requirement to donate blood so that never happens.

Organ donation at death would be mandatory. Everyone would have to register on bone marrow registries and donate when necessary. Your kid needs a kidney? You must donate one. These kinds of medical decisions would not be choices.

Outside of medicine, you can kill someone simply for trespassing in your home in many states, even if they aren’t posing a deadly threat to you.

Some states put people to death for their crimes. People could still be put to death for treason (yes, I know it hasn’t happened in a while but technically it’s still possible).

We kill foreigners in military operations.

We don’t even guarantee that everyone has the necessary elements to stay alive! Food, shelter, clean water are all subject to, essentially, chance.

We don’t guarantee a right to life for a lot of reasons but they all boil down to something like this: your rights end where mine begin. You can’t force me to give you blood or kidneys or even money to keep you alive. I have a right to say no. Nations have a right to protect themselves against invasion; people have a right to protect their property.

Why should pregnancy be any different? What’s so special about it? Ultimately, it really isn’t. If human life is not so special outside the womb, why is it suddenly super special inside the womb?

Some may say “the unborn are innocent!” Yeah? So is that poor uninsured kid that got cancer and can’t afford treatment. Or that middle-aged man who needs a heart transplant he will never get. What does “innocent” even mean, anyway, when we are talking about a fetus who doesn’t even have a fully developed brain yet?

I have a lot of personal moral issues with abortion, but I will never have to get one. I’d be willing to bet that the women who get them and the doctors who perform them have a lot of moral issues with it too. I‘ve come to a point where I can say that it’s truly none of my business and I should just trust that the actual parties involved have wrestled with their issues and come to the right decision for them.

 

[Meadmaker]

Says who?
.

The law.

The constitution says that the rights to life, liberty, and property cannot be denied except by due process of law.

The "right to bodily autonomy" isn't in there, at least by name.

Some people think that there are other things that ought to be considered rights, and we can debate those and whether or not it would be a good idea for society to attempt to secure those rights for all citizens, but that's a moral issue. Judges are supposed to work within a legal framework, not on their own opinions of how things ought to be.

So, I think that's what Zig was getting at. We can think about a "right to bodily autonomy", and that's fine as a concept, but it didn't make the list of things that got written down in the text of the constitution. So, the right to life is more fundamental. It made the list.

Unfortunately, the people who wrote that stuff down didn't say exactly who had a right to life. They didn't say when it begins. So, that's something that has to be decided in our legal framework, by judges and/or legislators.

 

[The Great Zaganza]

Nominated, and thank you.

 

[xjx388]

The law.

The constitution says that the rights to life, liberty, and property cannot be denied except by due process of law.

The "right to bodily autonomy" isn't in there, at least by name.

Some people think that there are other things that ought to be considered rights, and we can debate those and whether or not it would be a good idea for society to attempt to secure those rights for all citizens, but that's a moral issue. Judges are supposed to work within a legal framework, not on their own opinions of how things ought to be.

So, I think that's what Zig was getting at. We can think about a "right to bodily autonomy", and that's fine as a concept, but it didn't make the list of things that got written down in the text of the constitution. So, the right to life is more fundamental. It made the list.

Unfortunately, the people who wrote that stuff down didn't say exactly who had a right to life. They didn't say when it begins. So, that's something that has to be decided in our legal framework, by judges and/or legislators.

The Constitution only talks about when the government can take your life, liberty or property. The Constitution is a limit on the power of the government. The ninth amendment specifically says that the people have rights that are not enumerated in the C and that the people retain those rights.

I’m combination with the 14th amendment, just about any “fundamental right” you can think of is covered. Government actions have to survive strict scrutiny when they infringe on fundamental rights.

Specifically, the 14th amendment only means that the government can’t kill you without due process. It does not mean that the government has to protect your life in any situation conceivable.

 

[Meadmaker]

Only because we find it abhorrent to apply it to any other human problem. See my kidney example above. Or, imagine forced blood donation. Or, even, forced cadaver donation.

Those things are unthinkable acts to force people into because we, as a society, value bodily autonomy over the right to life, except when it comes to uteruses.

The kidney example is somewhat comparable.

The reason I said there was nothing comparable had nothing to do with "bodily autonomy" or finding anything abhorrent. It was a matter of being in a position where one organism's life depended on another in such a way that the second organism was the only possible person who could keep the first organism alive.

A kidney donor might be kind of comparable. I don't know much about kidney transplants. It is possible that a kidney was required, and it only could come from a close relative. If that's the case, then could the close relative be required by law to provide the kidney. In order to maintain the life of one organism, i.e. the recipient of the transplant, the body of a specific individual, some close relative, and perhaps the only close relative, might be required to do something which was an extreme burden on that second organism. (i.e. the close relative donor.)

At this point, a lot of people might be interested in examining that from a moral issue. I, personally, am not.* I'm interested in the legal aspect. If the legislature passed a law that required a person to donate a kidney if necessary to save another person's life, should the Supreme Court overturn that law? On what Constitutional grounds?

It's late. I'll have to think about it. I think the answer, at the moment, is that the risk to the donor is still sufficiently high, with today's technology, that such a requirement would be an infringement on the donor's right to life, and thus the required donation would be an infringement on the donor's constitutional right.

If it were just blood, instead of a kidney, I can't think of any reason to overturn a law like that. I'll have to think about it some more and see if I think of a reason.

*I know what my answer would be, but I don't think it's relevant to a court case.

 

[Upchurch]

The kidney example is somewhat comparable.

The reason I said there was nothing comparable had nothing to do with "bodily autonomy" or finding anything abhorrent. It was a matter of being in a position where one organism's life depended on another in such a way that the second organism was the only possible person who could keep the first organism alive.

That’s not even true. Embryos can be implanted into any uterus, not just the one whose egg was fertilized. That’s how in vitro fertilization works with surrogates.

It also assumes that each organism in your reasoning is a human being.

 

[Ziggurat]

Specifically, the 14th amendment only means that the government can’t kill you without due process. It does not mean that the government has to protect your life in any situation conceivable.

Has to? No. Even as an adult, there is apparently no legal obligation for the police to protect you, and you can't sue them for failing to do so.

Nevertheless, the law still prohibits killing people after birth. The government can protect your life, even if it doesn't have an obligation to do so. So we still have the question of how early this protection can extend, ie, when can it start.

Overturning Roe throws that question to the legislature, instead of having the court decide.

 

[Upchurch]

Overturning Roe throws that question to the legislature, instead of having the court decide.

A bleak prospect for women, given the authoritarian tendencies of red states.

 

[Suddenly]

At this point, a lot of people might be interested in examining that from a moral issue. I, personally, am not.* I'm interested in the legal aspect. If the legislature passed a law that required a person to donate a kidney if necessary to save another person's life, should the Supreme Court overturn that law? On what Constitutional grounds?

.

The whole 9th amendment principle. The idea that the constitution could affirmatively comprehensively state all rights necessary to human existence is at best unserious and at worst a pretext for evil.

A court could very well rule in favor of forced organ donation. This court especially. They would do so with apologetic language and disclaimers that while they personally think it is bad they are confined by legal analysis to rule that way and it totally has nothing to do with corporate medical interests pushing all of this based on some business model needing cheap organs.

...and people will buy it. The NYT will print tons of op-eds about how it isn't as bad as it sounds. Legal scholars with elite credentials will basically rationalize it rather than question it's legitimacy. The Democrats will scream about the 2016 election.


Then in their next breath that court would obliterate the warrant requirement by finding an exception to the text of that part of the constitution because it would lead to a result they don't like, and none of the people above would ever just point out the massive hypocrisy here and how it shows the intellectual and moral bankruptcy of a captured court.

 

[ponderingturtle]

The law.

The constitution says that the rights to life, liberty, and property cannot be denied except by due process of law.

The "right to bodily autonomy" isn't in there, at least by name.

Some people think that there are other things that ought to be considered rights, and we can debate those and whether or not it would be a good idea for society to attempt to secure those rights for all citizens, but that's a moral issue. Judges are supposed to work within a legal framework, not on their own opinions of how things ought to be.

So, I think that's what Zig was getting at. We can think about a "right to bodily autonomy", and that's fine as a concept, but it didn't make the list of things that got written down in the text of the constitution. So, the right to life is more fundamental. It made the list.

Unfortunately, the people who wrote that stuff down didn't say exactly who had a right to life. They didn't say when it begins. So, that's something that has to be decided in our legal framework, by judges and/or legislators.

Of course there is nothing about the right to commit sodomy so really all oral sex could be outlawed by the government if it wanted to, because who thinks there is a right to sodomy in the constitution?

All sex is really a threesome with the government.

 

[bruto]

One might have thought that the Constitutional guarantee of being secure in your person against unnecessary search and seizure might include the harvesting of your organs, but one might also have thought that it was a reasonable ground for other issues of privacy, which the court appears ready to abandon. So I suppose it might depend on what is deemed "necessary," and to whom it is necessary. Since "due process of law" mitigates the right to life, liberty and property, and capital punishment is, presumably, included here, it seems at least theoretically possible that some consideration of necessity and due process could justify just about anything. The government is already (potentially) claiming parts of women's lives and bodies, and if some have their way it will include what a non-pregnant woman can do with her uterus, and what a man may wear on his penis, so why stop there? Kidneys? Sure. How about a lung? How about a whole life? It's all subsumed under those clauses, and there's room for debate, right?