Disaster! (Justice Kennedy Resigns)

[Cenedril_Gildinaur]

I'm pretty sure that CG is pro-choice, Prim. I don't think you need to convince him that abortion should be legal.

No, C_G is pro-states-rights. It is impossible to be "pro-choice" and to also believe that individual states should be able to have the option to ban abortion.

Actually I am pro choice. Also I believe in federalism, not state's rights. The two are not synonymous.

Given the current political climate, a realistic and practical view dictates that federalism is the way to protect choice.

[Frelga]

I find that argument so obviously absurd that I feel ridiculous for even having to explain why. I am hoping that someone besides me or CG is capable of seeing why. I'm hoping that there are people on this board who can understand the position of people they disagree with without thinking them liars. Is anyone here still capable of that?

I honestly have no idea what you are trying to say. V's logic is perfectly clear to me. You either support the woman's right to determine her reproductive choices, or the state's right to take the choice away. It is perhaps the most binary of all political decisions.

[Primula Baggins]

A pro-choice person believes that abortion should be legal (maybe with some restrictions) throughout the country. A pro-choice person living in the real world knows that this is not going to be the case if Roe is overturned. Given the choice between a pro-life law that applies to the entire country and a patchwork of state laws varying from 100% pro-life to 100% pro-choice, a reasonable pro-choice person would support the patchwork, because at least some women would have their rights. Thus it is not at all impossible for a pro-choice person to prefer state-level decisions when a national pro-choice law is, for now, out of reach.

Yes, this means accepting that some states will pass laws outlawing abortion even to save a woman's life, and therefore women will die. But would that not be the case under a national ban, too? A national ban on abortion might make the usual exceptions for nonviable fetus/rape or incest/life of the mother, but I'm guessing it would be written so as to allow individual states to make the law even more draconian. I don't see why a pro-choice person would not prefer the state-to-state patchwork to one law denying the right everywhere.

[Dave_LF]

Clearly, one can believe in a woman's right to choose but still respect and abide by the results of the democratic process if it comes to a different conclusion.

[Frelga]

OK, but then you believe that state has the right to override the woman's choice. I am not talking about the reality that it WILL, I am talking about taking the position that it SHOULD.

[yovargas]

Frelga - it seems that perhaps you are unfamiliar with the idea of "states rights" as debated in American politics? In case you are, it is the position that the Constitution limits the authority of the federal government in some areas (which it does), and that therefore, laws where the federal government does not have authority should be decided by the individual states. Those who say "this is a states rights issue" are saying that they see this issue as falling outside of the federal government's constitutional authority.

Which I know very well V-man understands and which, very obviously IMO, has nothing to do with one's views on legal abortion.

[Frelga]

Yov, I know you meant it kindly, but I am well aware of the concept. It's a matter of which governing body gets to control which issues.

Let's take it to the extreme. Imagine something completely, outlandishly, unequivocally evil, like government agents snatching toddlers off the street and putting them in cages. Oh, wait... OK, and feeding them to dogs. In this completely hypothetical situation, I don't imagine you would say, nah, let the states decide. You would work to make the practice stop across the land, and you would be clear that people who wanted to leave it to the states were by that position supporting some of the states feeding children to the dogs.

You can support state rights, sure. On many issues, it has been the path to accessing individual rights that were not available nationwide. But when the states are going to override an individual right that is currently available nationwide, like not being fed to dogs, or marrying a consenting adult of your choice, or not being forced to die of pregnancy, supporting state rights is the opposite of supporting the individual right.

[yovargas]

I hate that I have to say it as it is so absurdly obvious to me but apparently I do have to say it - the question of whether or not the federal government has Constitutional authority to pass or rule on a specific law has nothing (or should have nothing) to do with what one wants the law to be.

As far as I can tell, the vast majority of people decide what they want the law to be, and then "interpret" the Constitution whichever way fits with what they want. But just because that is how most people operate does not mean it is the only way.

[Inanna]

Deleted.

[Frelga]

Yov, that's orthogonal to the question. If you support state rights under ALL circumstances, you support curtailment of individual rights under SOME circumstances. I am perfectly OK with saying that the state rights should prevail when they increase individual freedom and take a back seat where they reduce it.

Eta to circle back to the actual topic: that's precisely the job of the courts - to decide whether a state law is consistent with the Constitution. You can't be arguing that the states are free to pass any laws they please.

[yovargas]

Okay, let's put it very simply: the question of "is this law Constitutional?" and "should this law be Constitutional?" are distinct, separate questions. It is very possible - as in not impossible - to answer "no" to one and "yes" to the other.

[Frelga]

And that's why we have courts. And why Supreme Court appointee is important.

Eta again, because I went to refresh my memory. Roe v. Wade reasoning was that the right to abortion was protected by the 14th amendment and therefore the laws curtailing that right were unconstitutional. Or, as I said above.

BTW, the same article pointed out that until 1827, when the Illinois law passed, terminations before "quickening" were not only legal but entirely uncontroversial.
https://www.history.com/this-day-in-history/roe-v-wade

[yovargas]

Frelga, this whole tangent was just me contesting V-man's assertion that you cannot be pro-choice and pro-state's rights. I am not arguing for any specific position, just saying that that position is certainly "possible" without "lying to yourself".

[Túrin Turambar]

The thing is, every contentious question must be resolved somewhere. To me, saying abortion should be decided by state legislatures isn't making a statement on your position on abortion any more than saying it should be decided by the Supreme Court or Congress is. There are a significant number of people who are pro-life but believe abortion is an issue for the state legislatures (from memory, Ted Cruz is one). Because these people are accepting that abortion will probably be legalised in some states, by Frelga's and V's logic, they aren't actually pro-life. In that case, what are they?

[Frelga]

"Accept" is not the same as "agree".

If the court ruled in 1973 that state laws were unconstitutional, what is the argument for sending the decision back to the states except "what you want the law to be"?

Anyway. A more universal concern with the appointment of any Justice is that they will weigh in on legal matters involving the person who appointed them.

[Cenedril_Gildinaur]

The argument for sending it back to the states is the judges deciding whether or not RvW is constitutional. It has happened before that the court has reversed itself.

I said I'm not state's rights, I'm a federalist, as distasteful as that word is to me. That means I truly believe that the rules the government has to obey should be VERY strictly enforced. If you get to pick and choose the constitution you don't have a constitution.

On deciding legal issues, there are three questions in play: constitutional vs. unconstitutional, legal vs. illegal, and right vs. wrong. Technically any law that is unconstitutional should be considered null and void, but it takes time between the passing of the law and a court hearing a case against it and overturning it, so during that interval there are unconstitutional laws in effect. Right and wrong is a moral issue.

To clarify, I'll use a much older issue, prohibition. It's a good one to use because back then people still had enough respect for the constitution to amend it when they wanted to give the government additional powers.

Now let us say that in the time before the constitutional amendment was passed, suppose congress tried to make a law prohibiting booze. Then a police officer arrests someone for violating that federal law.

That arrest is legal. That law is unconstitutional. The law and the arrest are both wrong to me.

Then the amendment gets passed. Then congress passes a new law. Then a police officer arrests someone for violating that federal law.

That arrest is legal. That law is constitutional. The amendment, the law, and the arrest are all wrong to me.

Then the amendment gets repealed, and the laws go away. Some overzealous police officer arrests someone anyway.

That arrest is not legal. It is also unconstitutional. It is also wrong to me.

So, I'm pro-choice, except by Voronwë's logic. By that same logic Ted Cruz is pro-choice, even though he's pro-life. Whatever I may want, I also believe that if you don't strictly bind the government to the constitution you are in a bad place. What we really need is this settled by amendment, not verdict. The ruling was on shaky constitutional grounds in the first place, which is why the ruling is in doubt now.

[Voronwë the Faithful]

The thing is, every contentious question must be resolved somewhere. To me, saying abortion should be decided by state legislatures isn't making a statement on your position on abortion any more than saying it should be decided by the Supreme Court or Congress is. There are a significant number of people who are pro-life but believe abortion is an issue for the state legislatures (from memory, Ted Cruz is one). Because these people are accepting that abortion will probably be legalised in some states, by Frelga's and V's logic, they aren't actually pro-life. In that case, what are they?

That's not correct, Túrin. The vast majority of those who identify themselves as "pro-life"(including Ted Cruz) believe that abortion is taking a life and should be illegal in all circumstances. They would support a nation-wide ban on abortion if there was any political reality that it could happen. But because there is no such reality, and is unlikely to be in any foreseeable future (in order for that happen, the GOP would need to keep the White House and the House of Representative and gain a super-majority of at least 60 senators who did not include pro-choice moderates like Collins and Murkowski), the best they can hope for is to allow the decision to be made by a state-by-state basis, since in many states, they do hold such power. The one exception in Congress is probably Rand Paul. As for pro-choice, the term is generally accepted in the U.S. to mean believing that a woman has a right, implied in and therefore guaranteed by the U.S. Constitution, to make her own choices about reproductive rights. Like any right guaranteed in the Constitution (like, say, the right to bear arms), that right is subject to reasonable regulation by the states, but cannot be taken away by the states. Any person can, of course, call themselves "pro-choice" or "pro-life" (or any other term) and mean whatever they want by those terms. But under the accepted definition of those terms, someone who is pro-life believes that abortion should be illegal in all circumstances other than to save the life of the woman, and someone who is pro-choice believes that no state should be able to abolish or ban abortion.

As a practical matter, there are only two basic possibilities moving forward in the U.S. Abortion will continue to be legal throughout the country, but subject to some degree of regulation by the states and the U.S. government (an example of the U.S. government regulating abortion was the so-called partial birth abortion ban that was passed by Congress in 2003 and signed by President Bush, and then upheld as constitutional by the Supreme Court in Gonzales v. Carhart in 2007 (I say "so-called" because medically there is no such thing as a partial birth abortion and what the law actually does is ban intact dilation and extraction. The Supreme Court had previously invalidated a broader so-called partial birth abortion ban passed in Nebraska in 2000 in Stenberg v. Carhart.)

[Dave_LF]

As for pro-choice, the term is generally accepted in the U.S. to mean believing that a woman has a right, implied in and therefore guaranteed by the U.S. Constitution, to make her own choices about reproductive rights.

Huh. I've always interpreted "pro-choice" to mean a belief that women should be (for the most part) permitted to terminate their pregnancies at will; not specifically that the US Constitution guarantees this as a fundamental right. Obviously if you believe that, it becomes tautological that the matter shouldn't be left to the states, but wouldn't that imply you can't meaningfully be "pro-choice" anywhere but in the US? For my part, I see no logical problem with a hypothetical American being in favor of abortion rights as a matter of principle but also believing that the Constitution is effectively silent on the matter.

[yovargas]

I've always interpreted "pro-choice" to mean a belief that women should be (for the most part) permitted to terminate their pregnancies at will; not specifically that the US Constitution guarantees this as a fundamental right.

Indeed.

[River]

So I looked it up.

The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Justices Burger, Douglas, and Stewart filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. Burger's, Douglas's, and White's opinions were issued along with the Court's opinion in Doe v. Bolton (announced on the same day as Roe v. Wade). The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.[37]

Emphasis mine. Just to cut through the noise a little.