"Right to abortion" in the Constitution

[jimnyc]

Anyone else here this being popped about in the past month? I can't find it in there?

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No, Abortion Isn't a Constitutional Right

In the past several weeks, a bevy of states have passed extensive new restrictions on abortion. Alabama has effectively banned abortion from point of conception. Georgia has banned abortion from the time a heartbeat is detected, as have Ohio, Kentucky and Mississippi. Missouri has banned abortion after eight weeks. Other states are on the move as well.

This has prompted paroxysms of rage from the media and the political left -- the same folks who celebrated when New York passed a law effectively allowing abortion up until point of birth and who defended Virginia Gov. Ralph Northam's perverse statements about late-term abortion. According to these thinkers, conservatives have encroached on a supposed "right to abortion" inherent in the Constitution.

This, of course, is a lie. There is no "right to abortion" in the Constitution. The founders would have been appalled by such a statement. The Supreme Court's decision in Roe v. Wade (1973) is a legal monstrosity by every available metric: As legal scholar John Hart Ely wrote, Roe "is not constitutional law and gives almost no sense of an obligation to try to be." The court's rationale is specious; the court relied on the ridiculous precedent in Griswold v. Connecticut (1965) that a broad "right to privacy" can be crafted from "penumbras, formed by emanations." Then the court extended that right to privacy to include the killing of a third party, an unborn human life -- and overrode state definitions of human life in the process.

Rest - https://townhall.com/columnists/benshapiro/2019/05/22/no-abortion-isnt-a-constitutional-right-n2546661

[Abbey Marie]

Look, I studied this pretty extensively in my Con Law class in law school. Not only is it not in there, it required a big unfounded stretch, and then another stretch, to make any argument that it is a right under the Constitution. My class was taught by the head of the ACLU in Philly, so you can imagine how hard he was trying to justify the ruling. But it was obvious even to 1st year student me and many others that it was an opinion that was backed-into. And I was pro-choice at the time.

[Surf Fishing Guru]

The problem is that the entire theory of penumbral rights is a work-around, a contrivance to allow the Court to avoid revisiting a decision handed down long ago that worked to invalidate the 14th Amendment's "privileges or immunities" clause (The Slaughterhouse Cases, 1873).

20th Century Courts were impotent recognizing and defending unenumerated rights against state infringement because the only legal mechanisms available to them to remedy violations of any rights were "due process" and "equal protection". This frustrated the application of the 14th Amendment's protections -- even for enumerated rights -- because "due process" & "equal protection" demand a case-by-case, issue-by-issue airing of challenges to law -- this begat "selective incorporation", a piecemeal, practically clause by clause application of the Bill of Rights over the last nearly 100 years.

The Warren led SCOTUS wanted to advance civil rights in a wide, broad manner and their solution was "penumbral rights theory". This allowed them to reinvigorate a principle that the Court essentially killed, that the Bill of Rights merely serves as examples of the areas where government can not step. The foundational treatise for the theory of penumbral rights theory (Justice Harlan's dissent in Poe v Ulman) posited that the Bill of Rights embodied an unbreakable, unalterable "rational continuum" of liberty. The Court said this principle of liberty demands the recognition of unenumerated rights like privacy which then demands "particularly careful scrutiny of the state justifications for their abridgment" and the striking down of "arbitrary impositions and purposeless restraints". So the Warren Court said that those specific examples of enumerated rights (Amendments 1-8) have "penumbras" and "emanations" and innumerable liberty interests reside within those auras and between the words . . .

This is where it gets sticky.

Nobody who is a "Constitutionalist" or "Originalist" or "original intent" supporter can dispute that the general theme of "penumbral rights" conforms to the principle grounded in the 9th Amendment. While I admit it is clunky and less than optimal, (optimal would be the Court revisiting and overturning Slaughterhouse), for now, penumbral rights theory is an acceptable work around of Slaughterhouse frustrating the enforcement of all of our rights against "arbitrary impositions and purposeless restraints".

I argue that "conservative" opposition to Griswold and Roe is not really a constitutional argument because the denial of a "right to privacy", including personal autonomy and ultimately reproductive choice, is absurd. Of course a right to privacy would be included in any assessment of rights spoken of in the 9th Amendment and the full enforcement of that right demands government stay out of the bedroom and the doctor's office.

Those principles embodied in the 9th Amendment are troublesome for some groups on the left and the right. On the left, statist authoritarians are frustrated because their agenda demands the acceptance that rights flow from the government and the state can and must limit people and the choices they make for the good of society (add in a pinch of Bolshevist communitarianism for good measure). This is quite evident in the left's attacks on the right to arms.

On the right we see dogma governed social/cultural conservatives off the constitutional rails with their all-encompassing opposition to abortion / gay rights. Those social / cultural agendas pollute their constitutional thinking with the, "it's not in the Constitution, so it's not a right" or "where's that right in the Constitution?" legal arguments. This position is in opposition to the principles of conferred powers and retained rights and the concept that the Bill of Rights is not the exhaustive listing of the citizen's rights and thus, at complete odds with the principles underlying the 9th Amendment.

In their beliefs on the extent of government's powers over citizens, dogma governed social/cultural conservatives and Constitution ignoring leftists have much in common. Each demand government taking a proactive role in "regulating" what they consider, their fellow citizen's unacceptable behavior. That many dogma governed social/cultural conservatives cloak themselves in the claim that they are Originalists or Strict Constitutionalists disgusts me as much as the outright lies and misrepresentations of Constitution ignoring leftists. That's why I have really grown to hold deep disdain for dogma governed social/cultural conservatives. I hate being lumped in with them when the left condemns all conservatives for opposition to abortion and gay rights.

It would do the reasonable left some benefit to make a distinction between Constitution focused political conservatives like me and "dogma governed social/cultural conservatives" because on many political issues we are at deep philosophical odds.

I have come to the belief that the left are constitutional ignoramuses. Listening to some of the Democrat candidates for President and their proposals for the right to arms, it strikes me that they don't comprehend what they are proposing -- as it relates to the right to privacy (and by extension, abortion and other reproductive freedoms) . . . I would like to ask them, can a right like privacy that is deemed to exist in the "emanations" and "penumbras" of the rights enumerated in the Bill of Rights, be more cherished, more respected, more vital and more secure than a right that is actually enumerated in the Bill of Rights?

Their stupidity creates a quandary . . .

If they can be successful in cutting the right to arms out of the Bill of Rights, essentially removing a link in the "rational continuum" of liberty, then they are proving the originating treatise of penumbral rights theory, its legal foundation, is utter BS. It would be funny if leftist success in killing the right to arms is the legal argument that demands and justifies invalidating the recognition and enforcement of abortion and gay rights . . .


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Just for reference, here is Harlan's dissent as quoted in Casey v. Planned Parenthood:


"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized:



'[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.'"




Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992)

[High_Plains_Drifter]

Many believe that if Roe vs. Wade was to be argued again in front of the SCOTUS, it would be overturned.

I'm totally pro life, but it may surprise some that in the case of rape or incest, I think abortion should be legal. I think if a woman is RAPED, then that's a very bad seed, conceived by actions prompted by the devil himself. She shouldn't be forced to carry an offspring by the man that raped her. Putting myself in the woman's shoes, I just think that's a hell no woman should have to endure. And incest, well, the reason why abortion should be allowed in that case should be obvious to anyone, and if the woman's life is in danger it should be done immediately.

But if you're out there with your legs wide open and no one is using protection or any form of birth control, then you have no excuse. You created a life, and it shouldn't get a death sentence for your carelessness.

[jimnyc]

SC judge Ruth Ginsburg is now stating as well that it's a constitutional right to have an abortion. And a woman that has an abortion is not a mother.

They ARE mothers, whether they abort in first trimester or the day before. They are just choosing to kill this child before it's born - to avoid those "undue burdens". Myself? I don't see babies as undue burdens, I find that offensive actually. Take personal responsibility of your situation if you don't want undue burdens. :rolleyes:

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Are women who have abortions also mothers? Here's what RBG said

U.S. Supreme Court Justice Ruth Bader Ginsburg said a woman who decides to have an abortion “is not a ‘mother,'” citing her “constitutionally protected right to terminate a pregnancy.”

Ginsburg contested Supreme Court Justice Clarence Thomas’s use of the word “mother” in a footnote in the Supreme Court case of Box v. Planned Parenthood of Indiana and Kentucky, Inc. by saying pregnant women who choose to terminate their pregnancies are not mothers.

“A woman who exercises her constitutionally protected right to terminate a pregnancy is not a ‘mother’; the cost of, and trauma potentially induced by, a post-procedure requirement may well constitute an undue burden,” she wrote in a footnote.

The Supreme Court decided Tuesday to uphold an Indiana measure requiring abortion clinics to cremate or bury the remains of aborted babies. However, the justices declined to move forward with the second provision of the Indiana law that banned discriminatory abortions.

Rest - https://dailycaller.com/2019/05/29/ruth-bader-ginsburg-abortion-mother/

[High_Plains_Drifter]

SC judge Ruth Ginsburg is now stating as well that it's a constitutional right to have an abortion.
She didn't happen to mention WHERE in the constitution the right to an abortion is mentioned... I'd like to read that.

[Abbey Marie]

She didn't happen to mention WHERE in the constitution the right to an abortion is mentioned... I'd like to read that.

Didnt you know? It’s written in invisible ink.

[STTAB]

How fundamentally dishonest do you have to be to argue that killing your unborn child is a right guaranteed by the COTUS but owning a gun isn't?

People who make this argument have no place running anything, much less a government.