by Мастер » Wed Aug 03, 2022 4:12 am
So, I may be playing with fire here . . .
But, nearly all of the commentary I have seen (including here) focuses on the effect of this decision. Before, states were not permitted to outlaw abortion, or interfere with it too much - now they are. Now, either you like the change, or you don't. And just about everyone is saying it is a good decision, or a bad decision, based on whether they like the effect - abortion may now be restricted or outlawed entirely on a state-by-state basis. If you think that's how it should be, then it's a good decision, and if you preferred the way things were, then it's a bad decision.
I see very little commentary about whether the decision is a correct interpretation of the constitution and laws of the US.
So the US has a constitution. It sets up the basic structure of the government, and also imposes some limits on the powers of the national government. Sometimes, the wording of the constitution isn't as clear as it could have been, and sometimes, it is entirely silent on some issues that people care about. Not surprising - it was written in the 1780s, so it tended to focus on issues that were important to the people of the 1780s. Occasionally it has been amended, but the process is difficult - three-fourths of the states must agree. So largely, it reflects the concerns of the 1780s, and people of the 2020s may care a lot about some issues that really weren't important to people of the 1780s.
Similarly, there is a congress, which (either with the assent of the president, or with a supermajority, against the president's will) passes laws. Like the constitution itself, the laws are sometimes not written as clearly and unambiguously as they could be. And, sometimes the laws don't address important issues, either because an issue has only become important recently, or because there was no majority support for various proposed laws on various sides of the issue. And sometimes laws are passed that exceed the authority of the legislature, that is, that violate the constitutional restrictions on the power of the legislature. The idea that the courts could strike down such laws (rather than, let's say, the legislature policing itself) is actually not in the constitution, but was established fairly early in the history of the country by precedent.
So, sometimes issues go to the courts. At the lower court level, they decide facts - you did or did not rob the liquor store. At the higher level, they deal with interpretation of the laws - you did a certain thing, but does that actually violate the law, which does not state clearly and unambiguously whether the details of your particular case are permitted or prohibited? Or, even if you are clearly guilty of violating the law, did the legislature that passed the law exceed the constitutional limits on its authority, so that the law you have violated is invalid? (One issue with the US system - how do you know if a law is unconstitutional? You violate it, and if you end up in prison, then you know the courts thought it was constitutional.)
The constitution makes no reference to abortion. And it states that the powers not explicitly delegated to the national government, are reserved for the states. So how could it possibly be that abortion is a federal matter, protected by the constitution? If you commit a murder and get caught, you will most likely be tried for violating a state law. If you rob a liquor store and get caught, you will be tried for violating a state law. In fact, many of the ordinary everyday things we think of are regulated by the US states, not by the national government. So how is it that this one particular thing is federally regulated? A person who lives in one particular state, maybe has never left that state, shags someone who has also never left that state, and becomes pregnant. She decides to have the pregnancy terminated, within the same state, by a doctor from that state, paid for by funds working at a job within that state, etc. How is federal jurisdiction asserted?
The logic of Roe v Wade was, although there is no explicit right to abortion in the constitution, there is an implicit right to privacy, and abortion would be included under that umbrella. The recent court decision disagreed. Obviously, both decisions cannot both be correct. But, does the question of whether the US constitution has an implicit right to privacy, including abortion, have anything to do in the slightest with whether you think abortion should be legal?
It is possible to believe that abortion should be legal, and that the US constitution contains an implicit privacy right, which includes a right to abortion.
It is possible to believe that abortion should be legal, but that the US constitution does not contain an implicit privacy right, and therefore no right to abortion.
It is possible to believe that abortion should not be legal, but that the US constitution nonetheless contains an implicit privacy right, including a right to abortion.
It is possible to believe that abortion should not be legal, and that the US constitution does not contain any implicit privacy right, and therefore no right to abortion.
If your position is the first or fourth, then you believe the law says what it should say. If your position is the second or third, then you believe that the law says something different than what you think it ought to say. In that case, what to do? You can accept that the law is different than what you would like it to be, and live with that. Or you can lobby your elected representatives to change the law, or the constitution, if the latter document places the issue outside of the realm of things that the legislature may change at will. Or you can say to the courts, the law says one thing, but I don't like what it says, therefore you should decide that the law says something different than what it actually says. I believe when juries do this, it is called "nullification"; it seems the term "activism" is used when judges do it.
So, nearly all the commentary I see takes one of two positions - "abortion should be legally protected at the federal level, therefore the recent court decision is a bad decision", or "abortion should not be legally protected at the federal level, therefore the recent court decision is a good decision". So the decision is "good" or "bad" based on whether it conforms to the speaker's personal preference, not on whether it conforms to the law.
So, independently of how anyone feels about whether abortion should be legally protected at the federal level, does the recent court decision conform to the law (not anyone's idea of what the law ought to say)? If the law doesn't say what you think it ought to say, should the courts follow the law, or your preference?
They call me Mr Celsius!