That's not what the ruling was though. And it makes sense. "If" a fetus is a viable human at some point, then claiming privacy when ending its life wouldn't pass muster any more than privately killing someone in your basement would. It's not a matter of privacy. Privacy has nothing to do with it, which was their point.
Roe was always on shaky ground and it's surprising it took 50 years to get overturned. Meanwhile, these issues can and should be solved through legislation, not cutesy legal arguments in front of judges.
That was my point. Roe didn't establish a right to privacy but it was justified with a right to privacy. Roe was overturned because the SCOTUS now argues that there is no constitutionally guaranteed right to privacy so Roe was invalid.
This “privacy” was clearly a made up argument. It doesn’t apply in any other case (e.g. “selling your kidney” is also privacy without interference of the state yet nevertheless illegal).
You can easily overturn Roe while leaving all other rights in place.
The entire underpinnings of Roe v Wade rely on the concept that we as individuals have a constitutional right to privacy. That was the logic used for the ruling: That the government cannot intrude on abortion because it violates a woman's rights to privacy.
Now with the supreme court set to argue that there is no constitutional right to abortion this also follows that there is no constitutional right to privacy either. The argument is essentially that the constitution does not directly spell out a right to either, therefore the previous rulings are null and void. Anyone that cares even an iota about privacy should be very concerned about this.
Except there isn't a explicit right to privacy either in the constitution or the bill of rights. Which is why RBG always argued that Roe v. Wade was poorly decided.
The Roe v Wade decision was based on an implied, if not explicit, right to privacy in the constitution.
If the court is basing decisions like abortion access on a right to privacy, then they should also start enforcing an actual right to privacy, including access to encryption.
Roe v Wade was based on a purported right to privacy (I don’t understand the legal contortions that link abortions to privacy).
When they overturned Roe v Wade last year they simultaneously overturned the previous rulings that established a (limited by international standards) right to privacy in the US.
>SCOTUS now argues that there is no constitutionally guaranteed right to privacy
That's not correct. They found that the right to privacy didn't cover abortion in the exact, specific and detailed manner that Roe set precedent for (see my previous comment about the specific rules for each trimester).
14th amendment "liberty" covers privacy covers abortion, only the abortion precedent was overturned privacy was not. Thomas took aim at privacy in his opinion but that's not supported by the rest of the court.
Morality plays in some way. Basically, Roe tried to rewrite and ignore some history, according to the court, in order to establish an implicit privacy principle in the constitution. Where the morality comes in is that the court clearly fears things like hooking and drug use (which they mention explicitly in the ruling) and they tie this to Roe and Casey's arguments about privacy and autonomy while also demonstrating that Casey tried to eschew many of Roes arguments. They kept referring to this as "ordered liberty" which I took for morality.
Therein lies the rub though, as Alito said. Without a right to privacy - or explicitly stated "liberty" the court then has to review what the people want. Half the country is on a spectrum within a spectrum about morality, and the other half is on a different spectrum within a spectrum. He also called out a third group, which wants abortion under certain circumstances. Thus, the court then reverts to history, which abortion has been historically highly illegal.
So, some technical, some historical, some moral.
Would an actual privacy amendment really provide a pathway for abortion is my broader question.
"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 ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether to terminate her pregnancy."
> Roe vs Wade's right to privacy only applies to abortion.
That's true in the narrow sense that Roe on its face only applies directly to abortion, but Roe explicitly is an application of the reproductive privacy applied in Griswold and Eisenstadt regarding contraception, and is in turn foundational in the development of the case law of sexual privacy that federal courts, or state courts applying federal Constitutional law, have held invalidated, among other things, sodomy bans (Lawrence v. Texas), bans on same sex marriage and it's federal recognition (US v. Windsor, Obergefell v. Hodges), differential age of consent laws for same-sex vs. opposite-sex sexual conduct, bans on sex between unmarried people, and bans on sex toys (though there was, and I think remains, a circuit split in the federal appeals courts on this issue).
I really like this as a response to OP. Thanks for taking the time.
OP laments that people who are bodily affected by these abortion rules aren't willing to have an abstract debate about the constitutional definition of privacy. Of course constitutional lawyers can construct plausible arguments that move privacy protections around. The debate can be imagined, even constructed, but it's irrelevant to the actual power struggle that's playing itself out.
The move by the court was a political one. The angles have been worked by a donor class and a compliant Senate for a decade and more. The consequences of this ruling will be unpopular and will result in needless suffering and (obviously) lawbreaking. "Fuck that noise" is a perfectly legitimate response, under the circumstances.
The fact that most commenters here can't see what's going on --- as opposed to the "logical" thing they wish were going on --- is one of the major blind spots of this discussion board.
This is simply a matter of law. The justification for Roe Vs Wade doesn't hold water, it never did, it asserts a right to privacy that apparently only applies in the specific case of abortion and not in warrantless surveillance or any other matter. It was a legal fiction.
Roe v. Wade was a pure exercise in legislating from the bench, and even many of its supporters will admit that.
O'Connor got it right in Casey when she distanced the right to abortion from the right to privacy: "That is because the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law."
From Roe:
"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 (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 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights."
That handwave-y language ("does not explicitly mention", "a right of personal privacy, or a guarantee of certain areas or zones of privacy", "at least the roots") doesn't exactly inspire confidence in the existence of a broad, fundamental right to privacy in the Constitution. Also, it uses "privacy" in a somewhat different sense than the surveillance debate. In Roe, it's used more like "liberty."
Roe v. Wade ruled that women have a right to get an abortion because of an (unenumerated) right to privacy. The draft opinion argues that there is no such right. If there is no right to privacy, then there is no constitutional basis to oppose criminalization of encryption.
This blog post touches on a topic with far-reaching consequences that I think a lot of people are missing because they are focusing only on the question of abortion, and that is PRIVACY. In a nutshell, Roe makes abortion legal by guaranteeing the privacy of a woman to make that decision with her doctor. If Roe is overturned then it's this assumption of privacy which will have been vacated... and once it is I suspect there will be policy and legislation to exploit the court's striking down of privacy in a way that will be more Orwellian than we can currently imagine.
No... it's really not. She said the way it was argued (privacy) was not a solid legal ground, which is correct. Roe v Wade the case was not about abortion as a whole (which is still legal in the United States as a whole, since there's no law banning it). Roe v Wade was a case that said the Constitution has a right to privacy that includes abortion, which it does not.
Maybe in the future, someone will attempt to argue an equal rights case. Maybe not.
Either way, that case will not be Roe v Wade. Supporting abortion is not the same as supporting Roe v Wade. Two separate things when it comes to law.
Roe was always on shaky ground and it's surprising it took 50 years to get overturned. Meanwhile, these issues can and should be solved through legislation, not cutesy legal arguments in front of judges.
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