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Posted: 8/26/2004 2:39:52 PM EST
Please do not debate the abortion issue here! I was just wondering in a nutshell what was the reasoning behind the decision. What part of the Constitution was cited?
Link Posted: 8/26/2004 2:41:56 PM EST
Link Posted: 8/26/2004 2:42:03 PM EST
privacy
Link Posted: 8/26/2004 2:51:04 PM EST
[Last Edit: 8/26/2004 2:52:03 PM EST by The_Macallan]

Originally Posted By thebeekeeper1:
None--an imaginary "right to privacy" not found in the Constitution.

A "right" doesn't have to be written in the Constitution for it to exist.

The 9th Amendment makes that perfectly clear: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

But.... the SCOTUS was still wrong in their ruling that banning abortion infringed on this unwritten "right to privacy".

Link Posted: 8/26/2004 3:19:51 PM EST
taggged for when i come back with beer and popcorn since i know this is going to turn into a big long debate
Link Posted: 8/26/2004 3:20:19 PM EST
Ok so it had nothing to do with whether or not a fetus is considered a person? What I'm trying to figure out is why is there opposition to the new federal law that makes it a double murder if you kill a pregnant woman. I could see their point if this somehow undermined the basis of the Roe V. Wade decision, but this doesn't seem to be the case.
Link Posted: 8/26/2004 3:21:19 PM EST

Originally Posted By cyrax777:
taggged for when i come back with beer and popcorn since i know this is going to turn into a big long debate



There's nothing to debate here. I just want info, nothing else.
Link Posted: 8/26/2004 3:21:41 PM EST
Liberal baby killers.

They want to make abortion legal until age 18.

CRC
Link Posted: 8/26/2004 3:28:59 PM EST
Murder is a state crime. If it were to have been argued as a murder issue, it never would have gone to the Supreme Court. Punishment and definition of what is or is not murder is a state power and responsibility. The more recent ruling by the Supreme Court made this very clear.

The only thing I am aware of that could make a murder a federal issue is if it met "hate crime" requirements.
Link Posted: 8/26/2004 3:29:37 PM EST
Link Posted: 8/26/2004 3:33:10 PM EST
"emanations from the penumbra"
Link Posted: 8/26/2004 3:44:55 PM EST

Originally Posted By The_Macallan:

Originally Posted By thebeekeeper1:
None--an imaginary "right to privacy" not found in the Constitution.

A "right" doesn't have to be written in the Constitution for it to exist.

The 9th Amendment makes that perfectly clear: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

But.... the SCOTUS was still wrong in their ruling that banning abortion infringed on this unwritten "right to privacy".




The right to keep & bear arms doesn't seem to exist despite hte fact that it clearly is in the Constitution.

And the right to freedom of speech appears to apply to pornography, but not to political speech. Certainly not any political speech that John McCain doesn't care fore.

But the right to privacy no where mentioned in the BoRs or Constitution appears to be the most important law of the land. That, and the seperation of church and state right, which also doesn't appear any where in the BoRs.
Link Posted: 8/26/2004 4:01:15 PM EST
There are no rights defined in the Constitution. It is a fallacy perpetrated by the government for the explicit reason to infringe.
If the Constitution enumerated rights a debate would ensue as to what those rights specifically meant. Something the designers of the Constitution understood perfectly but we fail to understand today.
The Constitution is a document that outlines those powers granted to the government by the people. It explicitly catalogs the rights of citizens that our Founding Fathers felt were so important that they listed them as a reminder. These rights are essential to our freedom; they are so sacred that we are going to list them in order to quell any debate on the issue.
If you believe your rights are defined in the Constitution then you can only deduce that you have very few rights to begin with because there are none listed but those in the Bill of Rights.
We can never maintain our liberty until all of us understand the basic concept of the Constitution and pass it to all those we can.
www.restoretherepublic.org
Link Posted: 8/26/2004 4:08:28 PM EST
Link Posted: 8/26/2004 4:38:19 PM EST
The "right to privacy" was an extrapolation of the 4th Amendment protection against unlawful searches & seizures; supposedly in the spirit of the intent of the 4th. Call it judicial license, if you will. I understand that Harry Blackmun basically spelled out his intentions in some of his writings before he even pondering the case, so the fix was already in.

Abortion as a form of birth control is a trait of a cruel & unconscionable mind, IMO.

Still, I do think that abortion should be legal in certain cases involving life-threatening circumstances & rape. I don't believe it's reasonable to force someone to bare the child of her attacker against her will. Pregnancy does involve a woman's body, & so I think some level of rights should belong to the woman in that case. However, I don't think such a right should be absolute.

Specifically, I think the test used to determine whether a person is brain dead should be applied to abortion. If an unborn child's brain wave activity becomes detectable, knowable in existence, then this fact should be a reasonable basis for blocking an abortion in that event. There has to be a point during pregnancy when we must all agree that there's a person going on there, & so it should be hands off. In regard to the argument that life begins at conception: this view is based on a religious vantage, & is not universally shared, even in the medical community. The presence/absence of brain wave activity, OTOH, is universally accepted as the valid standard for judging if/when a person is no longer alive, so it would seem reasonable that this same, generally accepted test could also be applied as the standard for blocking an abortion.

Seems a reasonable compromise. The again, hot-button issues never make for compromise. What was I thinking?
Link Posted: 8/26/2004 4:57:14 PM EST
[Last Edit: 8/26/2004 5:16:39 PM EST by PAEBR332]
Roe is not based upon any specific written provision of the Constitution. In Roe the Court extended the right of privacy first "discovered" in Griswold v. Connecticut in 1965. That was the infamous decision in which Justice Douglas found that the Constitution had "penumbras formed by emanations" from the specific written provision. Griswold struck down state laws that made the sale of birth control to married couples illegal.

The Court later expanded Griswold in Eisenstadt v. Baird to cover the procurement of birth contol by non-married individuals. In Eisenstadt the Court held that the state had no business involved in a decision so intimate as involving the decision "to bear or beget a child." At that point, Roe was just waiting to happen.

One interesting point about Roe is that all previous abortion cases failed to ever reach the SCOTUS since they were always moot by the time the appeal got that far. It takes way more than 9 months for a case to get all the way through the appeals process. Roe managed to get a Court hearing, even though Norma McCorvey was no longer pregnant when it got that far. She had delivered two years before the decision. In fact, McCorvey many years later became an abortion opponent.

Thanks for the chance to write this. Privacy rights was my area of concentration during my Doctoral studies.
Link Posted: 8/26/2004 5:04:56 PM EST
Perhaps I am a no law school attendin' dumbass, but I see a significant right to privacy in the 4th ammendment. The document doesn't have to say 'green', when it gets there by including a mix of yellow and blue.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Regardless of your opinion on abortion, the right to a large degree of privacy free from government meddling does exist.
Link Posted: 8/26/2004 5:07:32 PM EST
[Last Edit: 8/26/2004 5:11:58 PM EST by KBaker]
Here's the decision. Read it yourself.

Edited to add excerpts from the opinion:

. The common law. It is undisputed that at common law, abortion performed before "quickening"-- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy(20)--was not an indictable offense.(21) The absence [p133] of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became "formed" or recognizably human, or in terms of when a "person" came into being, that is, infused with a "soul" or "animated." A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.(22) This was "mediate animation." Although [p134] Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the l9th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40- 80-day view, and perhaps to Aquinas' definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide.(23) But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited [p135] passage, Coke took the position that abortion of a woman "quick with childe" is "a great misprision, and no murder."(24) Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view.(25) A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime.(26) This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law,(27) others followed Coke in stating that abortion [p136] of a quick fetus was a "misprision," a term they translated to mean "misdemeanor."(28) That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

4. The English statutory law. England's first criminal abortion statute, Lord Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick fetus, § 1, a capital crime, but in § 2 it provided lesser penalties for the felony of abortion before quickening, and thus preserved the "quickening" distinction. This contrast was continued in the general revision of 1828, 9 Geo. 4, c. 31, § 13. It disappeared, however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. § 6, and did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c. 100, § 59, that formed the core of English anti-abortion law until the liberalizing reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34, came into being. Its emphasis was upon the destruction of "the life of a child capable of being born alive." It made a willful act performed with the necessary intent a felony. It contained a proviso that one was not to be [p137] found guilty of the offense "unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother."

A seemingly notable development in the English law was the case of Rex v. Bourne, [1939] 1 K. B. 687. This case apparently answered in the affirmative the question whether an abortion necessary to preserve the life of the pregnant woman was excepted from the criminal penalties of the 1861 Act. In his instructions to the jury, Judge Macnaghten referred to the 1929 Act, and observed that that Act related to "the case where a child is killed by a wilful act at the time when it is being delivered in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of the word "unlawfully," imported the same meaning expressed by the specific proviso in the 1929 Act, even though there was no mention of preserving the mother's life in the 1861 Act. He then construed the phrase "preserving the life of the mother" broadly, that is, "in a reasonable sense," to include a serious and permanent threat to the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had acted in a good-faith belief that the abortion was necessary for this purpose. Id., at 693-694. The jury did acquit.


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, Griswold v. Connecticut, 381 U. S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U. S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 [p153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S.158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925), Meyer v. Nebraska, supra.

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, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's [p154] decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).



Link Posted: 8/26/2004 5:13:31 PM EST
[Last Edit: 8/26/2004 5:15:22 PM EST by FLAL1A]
You will have to read the opinion to believe it. It is the most amazing dog's breakfast of home-made half-assed reasoning you will ever see in a legal opinion. It is the apotheosis of a priori jurisprudence. It is, completely apart from the outcome a thoroughgoing abomination.

I have not read the opinion in years, but when I last did so, the conclusion I reached apart from that already stated was that the court deliberately avoided relying on the 9th Am., which would have been the logical place to find (or manufacture) the right they declared because they were smart enough to realize that predicating a widely read decision on that amendment would raise the specter of actual freedom for the citizenry, which was an intolerable possibility. This is despite the fact that the only place the Constitution could be deemed to recognize a right of privacy is in the retention of autonomy set out in the 9th Am.

It is among the worst decisions ever rendered by the USSCt, from a jurisprudential standpoint, ranking up there with the Wheat Cases and the other court-packing retrenchment cases of the 30's in terms of outright dishonesty. Moreover, it absolutely reeks of the arrogant prissiness, counterfeit precision, and absurd pretense to intellectual rigor that so often characterizes the work of judicial activists. Whatever you think about abortion, the majority/plurality should have been doused with gasoline and set alight on the steps of the Capitol for their shameless assault on the Constitution, reason, and the rule of law.
Link Posted: 8/26/2004 5:15:22 PM EST

Originally Posted By FLAL1A:
You will have to read the opinion to believe it. It is the most amazing dog's breakfast of home-made half-assed reasoning you will ever see in a legal opinion. It is the apotheosis of a priori jurisprudence. It is, completely apart from the outcome a thoroughgoing abomination.

I disagree. U.S. v Miller has to be the most half-assed SCOTUS decision I've EVER read.
Link Posted: 8/26/2004 5:22:45 PM EST

Originally Posted By DriftPunch:
Perhaps I am a no law school attendin' dumbass, but I see a significant right to privacy in the 4th ammendment. The document doesn't have to say 'green', when it gets there by including a mix of yellow and blue.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


Regardless of your opinion on abortion, the right to a large degree of privacy free from government meddling does exist.



Then you found it where the Court did not. The right of privacy was found to extend from provisions of the First, Third, Fourth, Fifth and Ninth. Of course, what they really used was substantive due process, though Justice Douglas specifically denies this in the opinion. You should read Griswold. Griswold v. Connecticut
Link Posted: 8/26/2004 5:35:50 PM EST

Originally Posted By KBaker:

Originally Posted By FLAL1A:
You will have to read the opinion to believe it. It is the most amazing dog's breakfast of home-made half-assed reasoning you will ever see in a legal opinion. It is the apotheosis of a priori jurisprudence. It is, completely apart from the outcome a thoroughgoing abomination.

I disagree. U.S. v Miller has to be the most half-assed SCOTUS decision I've EVER read.



I have to agree with FLAL1A. Miller wins as laziest decision in Court history. It is obvious they expended ZERO effort in researching that decision and writing the opinion.

The intellectual dishonesty of Roe is staggering. How anyone could believe the discussion of how abortion bans always were meant solely to protect the life of the mother, or how the Hippocratic Oath proscription of abortion really did not mean what it said, is beyond me. In grad school even my professors who supported abortion did nothing but criticize the shoddy reason and total disregard for historical accuracy found therein.
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