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Roe vs Wade overturned in the US

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stui magpie Gemini

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Joined: 03 May 2005
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PostPosted: Tue May 03, 2022 9:30 pm
Post subject: Roe vs Wade overturned in the USReply with quote

<split from "Random News Stories" thread>

In 2022, this is just depressing.

https://www.theage.com.au/world/north-america/what-was-roe-v-wade-and-why-is-everyone-talking-about-it-now-20201009-p563jp.html

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pietillidie 



Joined: 07 Jan 2005


PostPosted: Thu May 05, 2022 11:29 am
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^Yeah, that's a horror show of Luddite backwardness. You can't see the US finding any sort of social resolution with a pre-Enlightenment, gun-toting Christian Taliban imposing itself at every point and turn. I would never in a million years live there even if I could. I understand people have to make good of life as it finds them, but there's a whiff of Stockholm Syndrome about it all.

At this rate, the rest of the world will be accepting American refugees. Perhaps we could send some Enlightenment missionaries over before all memory of Western liberalism is lost.

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David Libra

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Joined: 27 Jul 2003
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PostPosted: Thu May 05, 2022 12:17 pm
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It's probably not a popular sentiment right now, but my impression of Roe vs Wade – like more than a few epoch-defining twentieth-century Supreme Court decisions – is that it was always a bit of a dodgy constitutional interpretation and something of an end run around the more difficult political work of actually passing legislation (and risking conservative voter backlash).

Unfortunately, through "creative" decisions like that and the court's usefulness at various points in time to activists on both sides of politics, this group of nine unelected ideologues has been allowed to become the most powerful body in the country – and, through partisan lifetime appointments, able to be moulded by the government of the day into whatever serves their purposes. It's a farce and a blight on American democracy, and the entire court should be scrapped and rebuilt from scratch as a non-partisan body with term-limited appointments free from political influence. If that requires a constitutional amendment, so be it.

Otherwise, Americans can sit back and enjoy another three decades or more of having pivotal laws interpreted at will by a minority bloc of Catholic extremists. That seems to be the choice here.

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Last edited by David on Thu May 05, 2022 12:27 pm; edited 1 time in total
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David Libra

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Joined: 27 Jul 2003
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PostPosted: Thu May 05, 2022 12:26 pm
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Here's an analysis of the draft ruling from a Facebook friend who works in the US as a human rights lawyer:

Quote:
I didn’t think it would happen. I didn’t think it wouldn’t happen, necessarily, but I expected the Supreme Court’s attack on Roe v. Wade to follow the Roberts Court’s typical legal strategy of these last decades—chipping away at liberal rights not by repealing them on paper, but by expanding other legal rights to let businesses or officials undermine liberal rights in practice. I didn’t know the runaway right-wing majority would jettison Chief Justice Roberts’ middle-of-the-road conservatism and launch a direct assault on Roe itself. What I did know was that Roe was built on a shaky foundation (judicial creation). It was based on flimsy precedent and problematic legal doctrine (“substantive due process”: the anti-democratic legacy of slaveholders and libertarian business interests). It was conceptually muddled (locating abortion rights in an ill-defined “right to privacy,” or, as in later cases, in a New Agey “right to define one’s own concept of existence, of meaning, of the universe…”). It was a mistake to treat the judiciary—a relic of feudal aristocracy—as the custodian of progress, to see its power as an instrument of emancipation, to applaud its (historically marginal) handful of good opinions, all while the religious right conducted a sweeping, concerted, systematic, well-oiled and well-funded takeover of the courts at every level. The Supreme Court giveth, the Supreme Court taketh away.

One thing that stands out to me in the leaked draft opinion is that the Court shied away from affirmatively ruling on an expansive “right to life.” (This, at least, would have put the Catholic dictatorship known as the Supreme Court to the test on theological consistency when it comes to capital punishment.) Instead, the opinion rejects abortion for not being "deeply rooted” enough “in this Nation’s history and tradition” to count as a “fundamental” liberty interest, as would be protected under the 14th amendment. To do so, the opinion spends much time (and a lengthy appendix) citing various State laws, at the time of the 14th’s passing, that prohibited or regulated abortion. It was scandalous back then, the argument goes—so how can it be “fundamental”? Now, I share many conservatives’ misgivings about judicially created rights—this was actually the left’s historical position, back when “judicial activism” was mainly committed by the right—but the Court’s reasoning, and the jurisprudence it’s based on, is unsettling. Taken to its logical conclusion, it would undermine the very bases of all sorts of legal rights that are now certainly a part of our constitutional tradition. More importantly, it seems to me logically unsound. The whole point of the 14th amendment was, explicitly and specifically, to guarantee liberties which the States were denying at the time. This was true in 1868, and it’s how the 14th has been utilized throughout its history since then. If the constitution states that no State shall deprive any person of liberty, it makes little sense to circumscribe that liberty according to what the States were still depriving.

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Pies4shaw Leo

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PostPosted: Thu May 05, 2022 3:01 pm
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https://www.abc.net.au/news/2022-05-05/victorian-liberal-bernie-finn-praying-for-abortion-ban/101041168
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stui magpie Gemini

Prepare for the worst, hope for the best.


Joined: 03 May 2005
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PostPosted: Thu May 05, 2022 3:29 pm
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I've read a few more articles on this and it is messy.

I can see the argument about how it was an incorrect decision in the first place based on the constitution and how it should be returned to the States to manage, as we do here but that doesn't help the people who live in states with lots of fundamentalist fruitbats.

The people who believe life begins at conception aren't going to change their opinion.

This article of from October last year, describing what was happening WITH Roe v Wade in place. https://www.abc.net.au/news/2021-10-12/life-of-american-abortion-doctor-bulletproof-glass-surveillance/100524398

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David Libra

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PostPosted: Fri May 06, 2022 12:39 pm
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An interesting analysis of how Roberts (the one "moderate" conservative justice) might be able to achieve a compromise:

https://slate.com/news-and-politics/2022/05/after-abortion-decision-leak-what-can-the-chief-justice-do-now.html

The one thing I don't get is why the author thinks Barrett (a right-wing Catholic fundamentalist) would be party to any such decision. Kavanaugh, sure. Perhaps I've underestimated Gorsuch's unmovability on this issue, but I would have thought combining him and Kavanaugh with two of the progressive judges would be the more likely path.

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stui magpie Gemini

Prepare for the worst, hope for the best.


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PostPosted: Fri May 06, 2022 3:32 pm
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I'm not clear on how the powers work between states and Congress, would congress be able to legislate that Abortion is legal and states cannot make it illegal or impose undue restrictions, or something like that? States could still have their own framework, but it has to be "reasonable".

lets assume for the sake of argument that a bill could actually get through both houses without the usual bullshit.

Does Congress have that power or could the states just flip them the bird and do what they want?

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Pies4shaw Leo

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PostPosted: Fri May 06, 2022 5:09 pm
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Congress has power to legislate on specific subject-matter listed in the Constitution, under specific constitutional amendments (eg, the 14th Amendment's so-called "equal protection" head of power) and under a specific "necessary and proper" (effectively, incidental) power. To the extent that the Congress has the requisite power, it can bind the States because of Article VI, clause 2 (the so-called "Supremacy Clause").

Ultimately, though, the question of whether a particular subject-matter - and the specific legislation in respect of that subject-matter - is within the legislative power of Congress - and, indeed, the scope of operation of the "Supremacy Clause" in any particular case - falls to be determined by the Supreme Court.

The general answer to your question is that Congress could certainly legislate (one can always find a basis in a head of constitutional power to argue that just about any legislation is within power) - to "guarantee" abortion. The real question is whether such a law would survive constitutional challenge in the Supreme Court, given the likely attitude of the Supreme Court, as variously constituted from time to time, to such a law and the prior jurisprudence of the Court.

Because it did not pass the Senate, the question of constitutionality did not get tested but the House of Representatives did pass such a law last year: https://www.congress.gov/bill/117th-congress/house-bill/3755/text
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Pies4shaw Leo

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PostPosted: Fri May 06, 2022 6:33 pm
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Pies4shaw wrote:
https://www.abc.net.au/news/2022-05-05/victorian-liberal-bernie-finn-praying-for-abortion-ban/101041168


https://www.theage.com.au/politics/victoria/guy-issues-ultimatum-to-mp-who-prays-for-abortion-to-be-banned-20220506-p5aj69.html

Quote:
Opposition Leader Matthew Guy has lashed out at colleague Bernie Finn for saying he was “praying” for abortion to be banned and warned the upper house MP to be a part of the Liberal team or leave the party and sit on the crossbench.

Other Liberal MPs are furious with Finn over Facebook posts in which he also said rape victims should not be allowed to have abortions and, according to Liberal sources, are discussing the option of expelling him from the parliamentary party.
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stui magpie Gemini

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PostPosted: Fri May 06, 2022 6:57 pm
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Bernie Finn's mother should have swallowed.

Thank you for the response on the US Congress powers, so Congress is limited to making laws pertaining to stuff in the constitution. I'm assuming there would be virtual shipping containers full of case law relating to the constitution and what each part does and doesn't cover, but a cursory reading doesn't provide a lot of hope that this matter could be covered. There's not even a mention of "Health" .

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Pies4shaw Leo

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PostPosted: Fri May 06, 2022 9:13 pm
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^ The legislative basis isn't in "health" - it's in "equal protection", I think. Read the recitals, rather than the operative provisions - I think you'll see from them how the argument as to constitutional power is being put. There's likely a massive body of "scholarly" discourse in which the usual hopelessly partisan "legal experts" trot out why such legislation is and isn't within Congress' power.

Ultimately, I don't think there's much merit in trying to assess closely what the Supreme Court "should" do - because it's so political and has very little to do with with the operation of that which we recognise as "law" (it's true, of course, that "law" and "politics" are never separated by far - but they almost merge in the US). Anyway, there's more likelihood that the Republicans will get control of both houses at the mid-terms and pass a contrary law, relying upon the same purported head of power, than that the Democrats' legislation will pass the Senate.
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Pies4shaw Leo

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PostPosted: Thu May 12, 2022 9:08 am
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https://www.theguardian.com/us-news/2022/may/11/senate-abortion-rights-bill-vote

Quote:
The Senate roll call was a stark reflection of the partisan divide over abortion rights, with all Republicans and one conservative Democrat, Joe Manchin of Virginia, voting against the measure. The final tally was 49-51, well short of the 60 votes necessary to overcome a filibuster in the Senate.
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David Libra

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PostPosted: Thu May 12, 2022 10:00 am
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Nice to see them finally referring to Manchin as a "conservative" rather than as a "moderate", as they usually do – there's nothing remotely moderate about him.
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swoop42 Virgo

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PostPosted: Thu May 12, 2022 3:48 pm
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I've read that polls consistently show between 60 to 70 percent of Americans support a woman's right to abortion and yet 100% of these Republicans seemingly don't.

So much for the separation between church and state.

This should be a wake up call for every Australian also who respects a women's right to choose as it's pretty obvious that organised religion in this country (just like America) is increasingly looking to infiltrate political parties (the Coalition in particular) with candidates to stay relevant and influential as their congregation numbers fall year on year.

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