Posts Made By: James Brown

Originally Posted by Rod Kaufman

Lol! It's the duty of a judge to hear a case, any case, in an objective and unbiased manner, In the case of Clarence, he clearly advocated for overturning Roe Vs Wade in a presentation in 2020 and obviously before hearing this one. In the case of the three other liars on the court, as you can see from the article in The Hill, all had essentially considered and previously stated during their nomination process that the precedents behind Roe Vs Wade constituted "settled law"...  

Hi Rod:  Roe v. Wade was settled law.  No honest judge could deny that.  This question of whether or not the Roe decision was settled law misses the point by a mile though.  Think about some of the things that were once settled law, and that have been changed over time:  

Legal slavery, segregation, bussing and so on.
Male landowners having the sole right to vote
Legal private ownership of machine guns and bombs
Child labor
Recreational drugs; legal, illegal, then legal again
Booze; legal, illegal, then legal again
And so on, the list is endless.

Society changes over time.  The polling shows that a majority of Americans support access to abortion before about 12-15 weeks gestation.  A vast majority oppose late term abortion, except to save the life of the mother or in the case of grave life-threatening fetal abnormality.  Let the people of the states decide!  That is the way it always should have been.  

I think it is funny that the D's on one hand accuse the R's of being elitists and with the other hand are terribly afraid of letting the legislative process legislate the reasonable parameters that society should place on abortion.  Power to the People!  

Jim

Originally Posted by Richard Davis

Holy smokes you're still stinging from what...10 years ago? 

Dang Dude, I kinda' feel sad for you.  Don't fret counselor you haven't anything to worry about from me. I promise that I wouldn't ever hurt you if I saw you on the street.  LOL.  

It must be something to still be thinking about all of our past encounters on this forum, and still be openly reacting with such personal distress and slight.

I've been told that terrified, snowflake college students are offered safe spaces at their Universities, but I don't know if they would allow you some time to work out your personal issues there.  Perhaps you could contact them.  

Had I known that you're still bothered by things, and still afraid, I would never have said anything like that to you.

I hope for your sake soon that you get over your fear, torment, and that your deep wounds heal someday. 

After all, its only been what?  10 years or more and you're still in distress over it all?  

Have you sought professional counseling?  It just might help.  

Sigh...  I had hoped you would be in on the joke.  

Originally Posted by Rod Kaufman

Lol! It's the duty of a judge to hear a case, any case, in an objective and unbiased manner, In the case of Clarence, he clearly advocated for overturning Roe Vs Wade in a presentation in 2020 and obviously before hearing this one. In the case of the three other liars on the court, as you can see from the article in The Hill, all had essentially considered and previously stated during their nomination process that the precedents behind Roe Vs Wade constituted "settled law"...  

So you would think that Sotomayor's well documented bias in favor of gun control would disqualify her from hearing a 2nd Amendment case then?

Originally Posted by James Lacey

But, Jim, the federal government must regulate some societal issues. Yes? For example, I know you would not have been ok with leaving the issue of slavery up to the states. So, why are reproductive rights best left up to the states? Why are reproductive rights any different from any other right that hinges on the equal protection clause of the 14th amendment? Or is it that you don't think a woman's right to control her reproductive life falls under equal protection or fairness?

By the way, the best way to handle the issue of abortion IMHO is to do everything in our power to make it safe and legal, and rare. Any other approach has way too much harm and unfairness.
 

Hi James:

A full reply would take volumes, as you know, you have touched upon enormous issues of constitutional law and federalism. 

Roe was not decided on the equal protection clause or any other aspect of the 14th amendment.  Roe was decided based upon the penumbra of the right to privacy which is laced throughout the bill of rights.  I think Roe was decided wrongly.  I also think, generally speaking, that matters of health care are best handled at the state level.  I am not naïve though, all sorts of things like education are, according to the constitution, state and local matters.  But in the modern era these local topics are greatly effected by federal law.  The usual method to give teeth to the federal legislation (for education issues and many other things that affect day-to day life) is to tie federal funding to adherence to the federal laws and standards. 

This could probably work fine if Congress passed a federal abortion statute too.  It is not 1850.  As noted above, the feds meddle in all sorts of state-law things that were not contemplated by the Constitution.  I would readily say that I see the benefit of a federal abortion regulation, certainly for the young woman who wants an abortion in a deep red state.  Nonetheless, the Supremes got it wrong in 1973 and if they had not meddled then, the states would have sorted this out by now.

Do you think the feds have the will and skill to pass a national abortion statute?  I do not. 

A.  The people by and large want abortion safe, legal, rare, and permitted only before 15 weeks gestation or so.  With exceptions for the life and health of the mother and in specific cases of fetal abnormality.  There are numerous polls.

B.  Obviously, the activist base of the D party will not tolerate any restrictions on abortion up to an including rare and gruesome late term abortions.  NY repealed their own partial-birth abortion ban.  Why would they do that?  The D party dropped "rare" from their platform after Clinton.

C.  Obviously the activist base of the R party will not tolerate any abortions whatsoever.  

Under these circumstances I do not think that Congress has the courage or the skill to pass a reasonable federal compromise.  So I think we will end up with blue states allowing basically unrestricted abortion and red states enacting near total bans.  Purple states will have something to fight about and hopefully will reach a compromise.

For some, not for you, it seems important to state outright that this post is legal and political discussion and does not entirely reflect my own personal views on abortion.  Next post, after lunch, I want to touch on the 14th amendment.  Jim

Originally Posted by James Lacey

No, I don't, but I don't trust (most) states to get it right either, and I certainly no longer trust the Supremes to get it right either. There is too much inter-party factionalism to reach a reasonable compromise in the federal legislature. State legislatures will foist whatever their viewpoints are onto their constituents. And if the incredibly flawed and weak Alito majority draft is good enough to garner five votes from the conservatives, then it's clear the court is not functioning correctly. By the way, I'm well aware that the leaked majority draft was far from a final opinion, but it's pretty disturbing that the conservatives were signaling they were willing to sign on even to that draft.

I don't think you can draw that conclusion.  True, the conservatives have voted in the majority.  Only Alito's thought process is reflected in the draft, however.  His reasoning might not be fully reflected, although some conservative legal scholars think even the first draft is a masterpiece.  We won't know where the other justices stand until the formal opinion, dissents, and concurrences are released.

Originally Posted by James Brown

Next post, after lunch, I want to touch on the 14th amendment.  Jim

Lunch and a long walk, it is really pretty here today!  

The 14th amendment has among other things a privileges and immunities clause, an equal protection clause, and the due process clause:  No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 

Equal protection and the due process clause focus on "classes" of people.  The original class was blacks.  The lofty goal of the 14th is to strike down as unconstitutional any law that was applied unequally between blacks (the protected class) and whites.   Also the existing laws must be applied with proper due process no matter what the race of the subject.  Since the reconstruction the classes protected at the federal level have grown to include race, color, national origin, religion, sex, age, disability, and most recently orientation.  Not all of the classes get the same level of protection.

Most recently, the equal protection and due process clauses were the foundation for the Court's reasoning when striking down statutes prohibiting gay marriage in Obergefell v. Hodges.  The idea is that one class (gays) was denied access to all of the myriad civil, tax, property, evidentiary, divorce, etc. laws that benefit straights when they choose to legally bind themselves to the one they love under the eyes of the law.    

In 1973, the 14th Amendment was narrower than it has become.  That alone may explain why the Roe Court did not rely upon it.  Hypothetically, if we consider a "right" to abortion, how would one make the 14th applicable?  A law banning gay marriage or a law prohibiting blacks from voting clearly has an affected target class, blacks and gays, while there is a larger population of whites and straights that are not subject to these sorts of law.  What class would be targeted in an anti-abortion statute?  

The easy answer of course is "women." I think this answer is defective because abortion laws are not applied with respect to gender.  They are applied only against pregnant people, which for biological reasons happens to overlap with the much larger population of women.  In other words, no one can get an abortion legally under a routine abortion regulation.  There is not a class that can be identified who gets better treatment than another class under the existing abortion statutes.  This is why I think it is not typical today to argue the 14th amendment in the abortion context, on the pro-choice side anyway.

It is common for pro-life advocates to argue the 14th amendment in favor of striking down laws permitting abortion, such as have been passed in many states.  The big hurdle is defining a fetus as a "person" which reflects back to my original post.  If you get over that hurdle though, it is hard not to accept that the fetus is denied life and liberty without due process if an abortion is permitted.  Jim 

Originally Posted by James Lacey

Really? The Alito draft is a masterpiece? I guess it's true what they say then, "No one wants to hear it unless it's the party line."

I have not read it.  I have seen headlines though.  Of course they were partisan, but no more partisan that the counter headlines that claim Alito is a hack.  Jim

Originally Posted by James Brown

I have not read it.  I have seen headlines though.  Of course they were partisan, but no more partisan that the counter headlines that claim Alito is a hack.  Jim

To personalize this some, no matter what Alito writes Rich will think it is brilliant, and Rod will think it is intellectually sub-human.  That cake is baked.  It would be nice if the partisans would read the final opinion and try to understand the reasoning, especially if they disagree with the outcome.  I have asked people to do that with the Heller 2nd Amendment opinion.  No one ever takes me up on it...  Jim

Originally Posted by James Lacey

But, Jim, the federal government must regulate some societal issues. Yes? For example, I know you would not have been ok with leaving the issue of slavery up to the states. So, why are reproductive rights best left up to the states? Why are reproductive rights any different from any other right that hinges on the equal protection clause of the 14th amendment? Or is it that you don't think a woman's right to control her reproductive life falls under equal protection or fairness?

By the way, the best way to handle the issue of abortion IMHO is to do everything in our power to make it safe and legal, and rare. Any other approach has way too much harm and unfairness.
 

Short answer that may have been missed in my longer replies, "because the Constitution says nothing about reproductive rights or other healthcare issues, therefore these issues are left to the states."

Regarding the second clause I highlighted; I think that your position is reflective of the majority of citizens.  According to a majority of citizens; abortion should be permitted at the discretion of the mother up to about 15 weeks.  After that only to save the life of the mother, in cases of rape or incest, or certain grave fetal conditions.  (This last one opens a whole other can of ethical worms).

We agree that the Feds are unlikely to pass a well reasoned abortion law (and leverage the commerce clause to provide teeth).  So it is up to the states to do their best.

Originally Posted by James Lacey

I'm pretty sure they did rely on the due process clause of the 14th amendment some.


A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

— Roe, 410 U.S. at 164.

I am sure you are correct.  The fog of 35 years...  long time since I last read Roe.  That does seem like an edge case though, and not the reasoning behind the whole Roe framework.  

p.s.  (after skimming Roe)  Not really an edge case.  The Texas criminal law being applied unequally was the law being considered by the Court in Roe.  They could have basically said, "no due process in the application of this TX law, 14th Amendment, case over."  That is not what the Court chose to do however.   They went for the big sweeping change, giving birth to something we fight about now, almost 50 years later.  (sorry for the dark pun...)