But that’s exactly what the Roe v Wade decision was - decide what policy you want, then have the court come up with an argument as to why that right exists.
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
The U.S. should pass a law rather than relying on a court decision. Roe v Wade was a poor decision from a legal standpoint. For example, why were abortions in the first trimester considered due process under the 14th amendment but in the last 2 trimesters they were not? The court should not be creating the law, the legislature should be doing that. Pass a law in the U.S. legislature and that will take precedence over state law (see the Supremacy Clause in the U.S. Constitution).
That works in principle but not in practice. The core issue in roe v wade was tossing out precedent while failing to show reasoning why tossing out precedent should be ok. So now the court seems to be chaotic. Whatever the makeup of the court, they may toss out precedent that doesn’t match the current majority’s interpretation of the constitution (of which there are many). Then suppose the scotus becomes a liberal majority. Then they may reinstate all the tossed out precedents. That’s just chaos, with the main focus becoming which party chooses justices, not any reasonable continuity and coherence of constitutional law.
This is exactly the point for me. Roe V Wade embraced a court that decided that judges could/should legislate (that is, make new laws) rather then enforce the text of existing laws. This is not new from the court - separate but equal, Bush v. Gore, Citizens United, Dredd Scott - all basically where examples of the court taking matters into their own hands.
This simply says "Abortion is a legislative matter - the constitution does not say that abortion must be legal until the moment of delivery".
Roe vs Wade upended precedent before it, so precedent alone is a bad argument. The majority ruling specifically rebutted what it thought were nonsensical arguments in the Roe decision for tying the right to privacy to some inherent right in the constitution. Neither right should be viewed as constitutional and even if the right to privacy were, tying abortion to it is a fantastical leap of logic.
Which is why laws should be made through legislation, not judicial fiat. The majority in Dobbs v. Jackson made it very clear that a law requiring the same principle as Roe v. Wade would be legitimate.
Roe v. Wade was an interpretation of the Constitution. You might not think it's the correct interpretation, but the decision itself is, in fact, an interpretation of the Constitution rather than a piece of legislation grounded only in itself.
Alito's opinion deciding that there isn't a right, or distinguishing one case from another, is as much a way of "legislating" as Roe was.
And frankly, due to the high likelihood of conflicts in law, this SHOULD be a federal issue. Should states be able to decide who is, and who is not, a human being? Under the Constitution, full faith and credit must be given to the rights afforded by those in other states. If state A says that an unborn child is a person and state B says that they're not, and a pregnant woman travels from state A to B, which state law controls?
The purpose of a judiciary is often to interpret laws that are complicated, often ambiguous, and sometimes in conflict. When people say that judges should just "interpret law" and not "make law," or that these issues should be determined by states... well, the issue will eventually come back to the federal level.
Regardless of my opinion on whether states should be able to restrict abortions, I really didn't like Roe vs. Wade. This should be a law that congress votes for/against and be held responsible for by their voters.
I wonder how such a legal framework would work if the court could go to their respective law makers and say that the law is unclear in this case and require them to vote on it. Then, rather than Roe vs. Wade being passed in the first place, the supreme court would order congress to vote for/against a new law forbidding states from being able to restrict abortions.
While I agree that much of the time they do try to rule based on law, it is clear that precedent is being looked at as mere suggestions by this new court. I wonder what the score will be when the challenges to Roe hit their bench.
Your argument is an excellent argument against the Supreme Court having originally decided Roe v. Wade the way that they did. It is not an argument for overturning it now.
Our country is based on rule of law. And a lot of that body of law is established by a body of past precedent. These precedents extend back nearly 1000 years, and are part of a web of what is called Common Law. The Supreme Court's unique authority and main job is continuing to add to and clarify that precedent.
What the Supreme Court is doing now is overturning long-established precedent. Originalism can be used to overturn virtually any past precedent you don't like. It is hard to overstate how much. Let me quote one of the current supreme court justices on the topic (see https://scholarship.law.upenn.edu/cgi/viewcontent.cgi for the full context):
Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education. Originalists have been pressed to either acknowledge that
their theory could generate major disruption or identify a principled
exception to their insistence that judges are bound to enforce the
Constitution’s original public meaning.
Her solution to this is:
No one is likely to ask the Supreme Court to rethink arguably nonoriginalist decisions like the constitutionality of the Social Security Administration, paper
money, or segregated public schools—and if anyone did ask, the Court would deny certiorari.
In other words, the limit on how much of the fabric of current law the current court can dismantle is to be found in the restraint of the justices in being willing to avoid hard questions, and not in the reasoning process that they apply to their decisions. But these things tend to be a slippery slope. The more of our rule of law that they undermine, the more that they will come to see it as reasonable to undermine more rule of law. And the more chaos that they create, the less willing everyone else will be to go along with what they said.
There was no need to codify it into law, as it was already law! That's the whole point of a court ruling!
Roe v. Wade determined that the Constitution itself implied abortion as a right, meaning that there already was a law on the books which protected abortion.
The Supreme Court absolutely does legislate from the bench. For example, regardless of how one feels about abortion rights, the famous Roe v. Wade case essentially invented a new law with no explicit Constitutional foundation.
Roe v. Wade is a typical originalist example because they came up with first and third trimester lines for regulating a medical procedure that the authors of the document they were interpreting did not know existed.
A much older example is the authority of the supreme court to interpret the constitution. It's actually a self-assigned power that built up over the first fifty or so years of the United States' history as they grew bolder in challenging the legality of laws. It is not conferred in the constitution.
Maybe, but here is the thing: that’s not the argument actually put forward in Roe v. Wade. This thread is not about litigating whether there is a constitutional right to abortion. Instead, it’s whether the particular case, Roe v. Wade, was correctly decided as a matter of law. If you want to argue that it was, you need to refer to the actual arguments put forward in it, instead of some (arguably) better arguments they could have used instead.
Despite the merits of abortions, the Supreme Court’s job is to determine the constitutionality of laws, not create new laws or twist existing laws to say what they wish they did.
The concept of “legislating from the bench” should terrify everyone in America as it is a sidestep of the checks and balances among the 3 branches of government.
It is the job of Congress to enshrine the right to an abortion into Federal law.
"Simply a matter of law" is a meaningless statement. All rights, including Constitutional rights and the laws which support them, are legal fictions. Roe v. Wade held water simply because the Supreme Court decided it did, until today when the Supreme Court decided it didn't.
I’m not talking about abortion. I’m talking about a mode of legal interpretation of which the abortion precedent is the clearest example. That’s clearly on topic in a thread about legal interpretation.
Courts are not supposed to legislate from the bench. Roe v Wade was clearly inappropriate ruling from day one. It undermined the integrity of the supreme court.
Abortion should be ingrained as legal via state/federal law.
It’s not supposed to work that way. The legislature makes laws, the court interprets under the framework of the Constitution.
Precedent is important, but it’s not supposed to create law out of thin air. It’s supposed to be based on a firm set of decisions that flow from the Constitution and law.
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