Reply to Why does Alito claim that Roe was "egregiously wrong from the start?"

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe.  I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy.  Can someone explain the actual legal objections to Roe v. Wade?[/quote]

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.[/quote]

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.[/quote]

Can you provide some more detail/citation about Roe’s historical analysis being incorrect?

Also, FWIW, I think Alito (and his majority) is being very disingenuous when saying Dobbs overturning Roe would be limited because it is factually distinguished by life.  In fact, pro-life people believe that “life” begins at fertilization, which can be a couple of days before implantation in the uterus. This conception of the beginning of life could result in outlawing all hormonal and IUD forms of birth control because the pro-life people describe them as causing the abortion of a fertilized egg (hormonal are the most effective forms) and all post-intercourse forms of birth control (Plan B and Ella).  The “life” concept means that states could completely ban abortion without any exceptions not even for the life of the mother.  It means that states could regulate and criminalize pregnant women’s behavior in all kinds of ways in order to protect the “life” she carries. Practically speaking, because early pregnancy is not easily distinguishable such regulation would probs affect non-pregnant women as well.

Also, it is very clear that Alito is laying groundwork for a future Lochner-style realignment in SCOTUS case law in order to invalidate the whole line of cases stemming from the 14th amendment or claiming “implicit rights” (the marriage and contraception cases). It has long been the Republican/strict constructionist view that the Constitution only protects what it explicitly mentions and any rights not explicitly mentioned need to be legislated by the state or Congress or need to have a constitutional amendment.  In this view construction of the meaning of the Constitution is only possible within the context of what the Founders believed at the time of drafting. This is why Alito is using history to justify his decision (distorted and inaccurate as that history is).

If you believed “Roe is precedent” meant Roe would not be overruled, then OK - yeah - you can choose to believe Dobbs is only about “life” and won’t affect these other cases. [/quote]

I get it, but what’s so wrong in legislating abortion rights? Oh, yeah, you won’t get is through congress or most state legislatures.[/quote]

Because one doesn't legislate rights.  Rights are inherent.  Legislation is given.

That is what is so insane about this opinion.  It turns the fundamental principle of our democracy, limited grant of power to the State by the people, upside down.[/quote]

Loose language being used here on both sides. Rights can be natural or statutory in nature. You can indeed legislate rights, such as the right to vote. Just because a right is natural doesn't mean it can't be infringed upon. The path to recognize and protect natural rights is certainly through the legislature. [/quote]

That's some rich prevarication.  Rights cannot be legislated.  Legislation is inherently temporary while rights are permanent.  Rights can be regulated though which is what you are trying to conflate.  The draft opinion does not expand permissable regulation, that is Roberts' position, it eliminates rights.  [b]Benefits given by the government are not rights, they are privileges.[/b]  Privileges can be taken away while rights cannot.[/quote]

Pp here. We can't have a productive conversation if we can't even agree on the basic legal definition of a right and how it is treated in our system of government.[/quote]

There's literally centuries of philosophy defining the term.  There's also etymology backing it up.  It derives from "truth".l

Legislation is inherently malleable and temporary.  Something granted by legislation cannot be a right.  That the right (ha) wants to play prevaricating word games to obfuscate how big a philosphical and legal change this draft ruling is disappointing to say the least.  You are right (ha) when one side intentionally lies about the basic meaning of simple words for short term political gain we are in trouble.[/quote]

We are talking about rights in the present context of a western liberal democracy, post enlightenment, based upon English common law. If you want to explore other interpretations of rights, go ahead, but that's irrelevant to the topic at hand. [/quote]

Yes we are and that's what they say.  Two Treatises 4 Life![/quote]

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