Abortion Rights 2021 thread

I agree, it’s not. That’s why this issue is difficult. On the one hand, a constitution has no value if there’s no court able or willing to enforce it. On the other hand, the ability for motivated reasoning to invent entirely new rights out of constitutional interpretation is hugely problematic when those newly invented rights immediately become impossible to change through normal democratic processes. And of course, these flashpoint cases represent a tiny fraction of the court’s total caseload.

My understanding is that the focus on judicial appointments as a partisan issue is a fairly modern phenomenon (though my knowledge of US political history has gaps). But the trouble is that now it is, it will almost certainly remain that way for the foreseeable future.

Which rights? I don’t believe it’s democratically legitimate for the courts to create entirely new rights, but that is in no way inconsistent with expecting the court to protect the existing rights of citizens.

As someone still living in that city, I agree.

The GOP political apparatus isn’t going to start rounding people up, maybe ever, but stuff like the Rittenhouse verdict, the various “it’s okay to drive your car into a protestor” laws, the abortion bounties, etc, are creating a legal and cultural framework that intends to protect people who commit violence for the right reasons. And at the same time, not-at-all coincidentally, the GOP and their mouthpieces are pushing these narratives that Democrats are members of a tyrannical regime, that anyone who supports abortion is an accessory to murder, that parents who make their kids wear masks must be involved with child trafficking, and so on. It’s only a matter of time until the dam breaks.

My wife and I had a very long talk about whether we should put our Biden-Harris and Black Lives Matter signs in the yard last fall. We did then, but I don’t think we would today.

The later. Unless you consider 1801 the modern era.

The Ninth Amendment to the Constitution:

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

Who is it, then, who protects these non-enumerated rights, if not the Court? If a Court may not identify and defend them, of what use is this Amendment? Why is it there?

Your argument is precisely the reason the founders included this Amendment, so that no one could claim that rights not enumerated in the Constitution don’t actually exist.

The Bork nomination was the beginning of the current politicization of the court, but certainly there were earlier iterations.

Indeed, we committed the unpardonable sin of bringing the Bork nomination to a full vote of the Senate.

The Judiciary Act of 1801 eliminated a supreme court seat and totally reshaped the entire structure of the courts so that Adams could fill all the new circuit court positions before Jefferson took over. A seat was literally eliminated so that a political rival could not fill it.

There never has been a golden era of an apolitical court.

Ah, those were all neo-cons.

It was there as part of the argument and negotiation around ratifying the constitution, and a direct response to Federalist rhetoric against the Bill of Rights. The idea that that the Founders intended for the courts to identify any rights they felt like, enshrine them as constitutionally protected and therefore no longer open to regulation by elected lawmakers, is pretty far out there.

And Roe wasn’t decided on the basis of the Ninth Amendment anyway.

You have the right to remain silent.

(Yes, I know, not from the founders era, but what you call “making up rights” is literally what the supreme court does).

Also there was an assumption that a lot of rights did exist and that the Bill of Rights wasn’t a comprehensive list.

There is technically no mention of a right not to be murdered or robbed in the Constitution, for example. Yet that right exists. That at some point a court had to say as much doesn’t mean they made it up.

Yeah, total waste of paper to spell out all those rights in those other amendments. Could have just made the ninth the first and only amendment! Can’t believe right to not be enslaved was in there the whole time! <slaps forehead>

That’s straight out of the Bill of Rights.

That’s a bit simplistic. Every lawyer involved in the drafting of and debating the constitution and Bill of Rights was educated in the Common Law tradition. Crimes and Torts were already well-defined; no one expected laws to be re-created from first principles. No US court had to invent the concept of murder.

Correct, the Miranda decision was made on the basis of existing amendments. It simply wasn’t expressed as the literal “right to remain silent” that we think of today until that decision. You know, just like Roe vs. Wade.

Let me point to an operative bit of my comment:

but what you call “making up rights”

There is of course another take on the whole abortion issue entirely which is that when right wingers say “where is the right to abortion in the Constitution???” they are full of shit in terms of sleazy and manipulative framing. Framing this about the right to choose an abortion misses the elephant in the room: anti-choice laws have a massive, disproportionate, and discriminatory impact on women. Under the principle of equal protection of the law (14th Amendment) you don’t have to find a specific right but can look at whether the law is treating people equally and obviously the impact of anti-abortion laws is not equal.

I haven’t seen any legal defense of the anti-choice position that properly addresses the issue of equal protection of the law for women. They just ignore it, or “distinguish the question” using technical BS or what have you.

Fundamentally, this entire debate is about affording women the equal protection of the law. That’s the main principle IMO.

But we live in a country where the majority of the Supreme Court no longer cares about principle.

The Miranda decision was not about creating some new right; it was about obliging the state to tell people what their rights were so they were less likely to be coerced into self-incrimination. These were implementation details for an already fully enumerated constitutional right.

So, let’s address an underlying premise that seems to be happening in this conversation.

“Democrats politicized the supreme court when a liberal activist court made up the right to abortion.”

Now, one can debate if I’m wrong to phrase the position this way. Though humor me and explore this.

We have now in this thread established that the court that decided Roe vs. Wade was not made up of liberal democrats.

We have shown that if we want to look at who first politicized the supreme court, it was done in 1801 literally to prevent the Democratic party (of the time) from appointing judges including a supreme court judge!

We have also demonstrated that the right to an abortion is an interpretation built on rights enshrined in he constitutional amendments, exactly like the right to remain silent.

So, can we dispense with this notion?

Edit: I had initially said “the bill of rights” rather than constitutional amendments, corrected as while that is true for Miranda, Roe is based on the 14th (which was also cited in Miranda along with the 5th and 6th).

Just do a find and replace all the operative terms with those from Roe vs Wade.

Because it was understood to exist already, despite not being written down.

Maybe a better question is what rights do you think courts have made up?

I always assume a lot of knowledge in these conversation that may lead to me talking past people. So, let me just leave this here:

The court held that a woman’s right to an abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution.