Posts Made By: James Brown

Originally Posted by James Brown

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.  

I just skimmed the opinion to freshen my memory.  I think the punch line of Roe is this:

"79 We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation."

It is important to note that the "right to privacy" (if it exists at all) is not express in the Constitution.  It is derived from the 9th and 14th Amendments and maybe others.  I understand this reasoning, even though I don't think it is the best Constitutional interpretive result.

From the Roe majority:  

76  The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889 (1968), Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 510, 19 L.Ed.2d 576 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), see Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485, 85 S.Ct., at 1681-1682; in the Ninth Amendment, id., at 486, 85 S.Ct. at 1682 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454, 92 S.Ct., at 1038-1039; id., at 460, 463465, 92 S.Ct. at 1042, 1043-1044 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925), Meyer v. Nebraska, supra.

77  This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. 

Originally Posted by Russ Carroll

The inescapable issue that the court can’t duck forever is when a life exists and has rights of his/her own. That can’t be left to states. What fraction of a person is a 7-month old premie yet to be born, 3/5ths? ( that was sarcasm btw)

The Court can and likely will duck that issue forever, at least for a very long time, I think.  This is a foundational issue that was considered in Roe (James guilted me into re-skimming it yesterday).  In 1973 the court talks about legal personhood, and historical quickening, and included all sorts of analysis along those lines.  Of course they also considered the woman's rights and tried to weigh them against the rights of the "person" in the womb.  Even in 1973 and all time since, the state has been the entity passing laws to protect that person in the womb.  The Court provided limits on those laws.  It is pretty clear that the current Court is getting out of this business, at least until the composition of the Court changes dramatically.  J

Originally Posted by Richard Davis

Please Dude, now you're going to try and play it off?  Give the world a break.

You've tried this little trick several times now, whereby you go on a tirade about me, with you acting like a butt hurt little boy, then you claim when I tell you to get over it, that you were "only joking"?    

Sorry Jim, but that only works one time.

I say this with all sincerity, move on counselor, its been 10 years now.  You're sounding like James or the other whiners here, who bring up all the traits about me that you find offensive, over, and over, and over, and over..... ad nauseum.   

I am sorry for you that all of my decades of responses to you are still stuck in your craw, and that they bother you so damned much. 

Its called a political forum man.

At the end of the day, its not a life changing event, so stop with the all the drama would you?

Maybe meditation would help you?  I really don't know.  At this point though, I'm out of suggestions.  LOL!  

Anyone who can not see that my reply to Russ was in jest is incapable of reading comprehension.  As was Russ's humorous reference of going "Richard" on me when he Fisked my earlier post.  Sorry that you missed the humor in all this.  

Originally Posted by Richard Davis

Please Dude, now you're going to try and play it off?  Give the world a break.

You've tried this little trick several times now, whereby you go on a tirade about me, with you acting like a butt hurt little boy, then you claim when I tell you to get over it, that you were "only joking"?    

Sorry Jim, but that only works one time.

I say this with all sincerity, move on counselor, its been 10 years now.  You're sounding like James or the other whiners here, who bring up all the traits about me that you find offensive, over, and over, and over, and over..... ad nauseum.   

I am sorry for you that all of my decades of responses to you are still stuck in your craw, and that they bother you so damned much. 

Its called a political forum man.

At the end of the day, its not a life changing event, so stop with the all the drama would you?

Maybe meditation would help you?  I really don't know.  At this point though, I'm out of suggestions.  LOL!  

p.s.  The final line in the post you find offensive included the concept of reaching "Richarvana"  That was pretty clever and funny if I do say so myself.  Jim

Originally Posted by Russ Carroll

The inescapable issue that the court can’t duck forever is when a life exists and has rights of his/her own. That can’t be left to states. What fraction of a person is a 7-month old premie yet to be born, 3/5ths? ( that was sarcasm btw)

Why not?  Why are the states any less well suited than a Court to make such a profound legal decision.  I think the states are better suited to make this sort of decision because they are (or at least should be) more receptive to the will of the people in their state.  Jim

Originally Posted by James Lacey

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.
 

A majority agree with you James, at least according to the polls.  

According to Wiki:  "Abortion in France is legal on demand during the first 14 weeks of pregnancy.  Abortions at later stages of pregnancy are allowed if two physicians certify that the abortion will be done to prevent grave permanent injury to the physical or mental health of the pregnant woman; a risk to the life of the pregnant woman; or that the child will suffer from a particularly severe illness recognized as incurable."

This is the kind of compromise that might work in the US.  I believe a majority favor this sort of law.  Please recognize that I am putting on my politics hat here and ignoring personal feelings on the subject.

The Supreme Court has no authority to directly enact that kind of law.  Even in Roe, the Court came up with a sliding scale to avoid a specific event or time that coincided with legal rights or "personhood" for the life growing in the womb.  

Russ, Rod, and many many others do not trust the states to get it right.  Obviously the states that have enacted laws range favor laws ranging from bans to extreme permissiveness.  No national consensus is possible at the state level.  

So, it is up to Congress and the President if the goal is national consensus.   Is that a worthwhile goal?  If it is, is it remotely achievable?   Jim

Originally Posted by Mel Maki

People would see to it that there could always be two physicians available to "...certify that the abortion would be done to prevent grave permanent injury to the physical or mental health of the pregnant woman..."
Mental health could cover any situation that the physical health does not.

I reckon you are right Mel.  There are no satisfactory answers.  

Originally Posted by Rod Kaufman

"People would see to it that there could always be two physicians available to "...certify that the abortion would be done to prevent grave permanent injury to the physical or mental health of the pregnant woman..."
It works for an entire country-France-  but oh no, ya could always find two physicians available to...
So, in other words, don't even try it.
Excuse me while I go to the bathroom and throw up after reading that...  (Emphasized by JLB)

Hi Rod:

That's unnecessarily hostile.  When CO first passed a medical marijuana law, maybe a decade ago, certain "in-house" physicians were willing to make money by writing pot prescriptions for any malady, real or imagined.  I do not know if France has a class of physicians willing to authorize late term abortions.  Hopefully not.  Even so, Mel's observation is valid.  Also, I did not think his point was "don't even try."

Jim  

Originally Posted by Richard Davis

Angry?  I've been laughing at your side for years  now. 

I guess you missed all the emoticons I've used, but then I understand your ineptness at being clued in on anything. 

Same old Gigantic IQ you're sporting there.  

This must be why you missed the jokes passing between me and Russ in our earlier posts.  We didn't use emoticons.  Here is the sad part, there was a glimmer of the occasionally seen "intelligent and respectful Richard" in your very first reply to Russ.  Go back and read it.  I was encouraged.  It seemed a little insider humor leveraging the "ranting Richard" persona might work, since "intelligent and respectful Richard" was then ascendant.    My bad.  

Originally Posted by James Lacey

You know, people will mock Collins with chalk sticks for the rest of her life.

If I were a high-level D strategist I would make it my life's work to see that Collins was never mocked.  Her vote is one of the most valuable in the nation.