Author Topic: What the Leaked Abortion Opinion Gets Wrong About Unenumerated Rights  (Read 865 times)

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Online Kamaji

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What the Leaked Abortion Opinion Gets Wrong About Unenumerated Rights

The Constitution protects many more rights than it mentions.

DAMON ROOT
5.3.2022

The leaked "1st Draft" opinion of the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization that was published yesterday by Politico would, if officially released by the Court, overturn both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the key precedents securing a woman's constitutional right to terminate a pregnancy.

The author of the leaked draft opinion, Justice Samuel Alito, makes the standard conservative argument against abortion rights. "The Constitution makes no reference to abortion," Alito writes, "and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito continues: "The right to an abortion does not fall within this category."

But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category. Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity. And the right of bodily integrity has a very impressive historical pedigree indeed. In fact, as the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity may be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported from English law into the Constitution.

The constitutional right at issue in Dobbs only fails the "deeply rooted" in history and tradition test (a test wholly invented by the Supreme Court, by the way) when the Court defines the right narrowly. But when the right is defined broadly—defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.

I am reminded of the words of the political theorist Stephen Macedo, who, while debating the late Robert Bork in 1986, offered this memorable description of the American constitutional system: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the founders, as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."

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Source:  https://reason.com/2022/05/03/what-the-leaked-abortion-opinion-gets-wrong-about-unenumerated-rights/
#Cayler Ellingson

Offline DefiantMassRINO

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To be a Constitutional right, doesn't it need to be enumerated in the US Constitution?

A better question may be, does the US Constitution, or state constitutions grant government the powers to regulate or restrict abortion?

The Rights of Man come from God.

The Powers of Government are granted to them by the consent of the governed, and those powers can also be withdrawn by the consent of the governed.

Have the governed given their consent to grant Government the power to regulate and restrict abortion?
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Online Kamaji

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To be a Constitutional right, doesn't it need to be enumerated in the US Constitution?

A better question may be, does the US Constitution, or state constitutions grant government the powers to regulate or restrict abortion?

The Rights of Man come from God.

The Powers of Government are granted to them by the consent of the governed, and those powers can also be withdrawn by the consent of the governed.

Have the governed given their consent to grant Government the power to regulate and restrict abortion?


The Ninth Amendment makes clear that, in the view of the Framers, the enumeration of certain rights in the Constitution did not mean that other rights no longer existed.  The question then is, to the extent that there is a right that was recognized at common law, for example, but which was not enumerated in the Constitution, does the Constitution's requirements for due process give rise to federal protections for those unenumerated rights?

It seems to me that without some mechanism to enforce an unenumerated right as against the government, the Ninth Amendment is essentially wasted verbiage, and the only place where that enforcement mechanism is going to come from, ultimately, is some provision in the Constitution.
#Cayler Ellingson

Offline Hoodat

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But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category.

It's an enumerated right, not an unenumerated one.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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Online Kamaji

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It's an enumerated right, not an unenumerated one.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.



No, the right under discussion is an unenumerated right, subject to the Ninth Amendment.
#Cayler Ellingson

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No, the right under discussion is an unenumerated right, subject to the Ninth Amendment.

Abortion isn't a right.
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Online Kamaji

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Abortion isn't a right.

The right is that of bodily integrity.  The right to decide what does, and does not, happen with one's own body.  The very same right that is used to argue against mandatory vaccinations.
#Cayler Ellingson

Offline roamer_1

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The right is that of bodily integrity.  The right to decide what does, and does not, happen with one's own body.  The very same right that is used to argue against mandatory vaccinations.

It is not the woman's body that is in question, nor her rights.

Online Kamaji

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It is not the woman's body that is in question, nor her rights.

Actually, it is.
#Cayler Ellingson

Offline roamer_1

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Actually, it is.

No, Actually it is not. The right to Life transcends any transitory offense she might have over her voluntary decisions.

Offline Hoodat

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It is not the woman's body that is in question, nor her rights.
Actually, it is.

No right can come at the expense of another.
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Offline Hoodat

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The right is that of bodily integrity.  The right to decide what does, and does not, happen with one's own body.  The very same right that is used to argue against mandatory vaccinations.

In that regard, a woman has complete unequivocal right to decide what she does with her body.  If a woman chooses to allow a man to ejaculate inside of her, she has every right to do so.  She alone is in charge of her body.

But that isn't what abortion is all about.  Pregnancy (i.e. the creation of a new, unique, singular life) is a consequence of a woman exercising her unenumerated 'bodily integrity' right.  So is contracting HIV.  In neither case does she have a right to evade that consequence at the expense of another human being.

Dobbs isn't about the non-existent 'right' [sic] of abortion.  It is about the very real right of a State to establish its own laws.  And that applies regardless of whether you are pro-abortion or anti-abortion.
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Offline roamer_1

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In that regard, a woman has complete unequivocal right to decide what she does with her body.  If a woman chooses to allow a man to ejaculate inside of her, she has every right to do so.  She alone is in charge of her body.

But that isn't what abortion is all about.  Pregnancy (i.e. the creation of a new, unique, singular life) is a consequence of a woman exercising her unenumerated 'bodily integrity' right.  So is contracting HIV.  In neither case does she have a right to evade that consequence at the expense of another human being.


Precisely.

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Actually, it is.
It is not the only body involved, let's put it that way.

The developing child, although contained within her body, is a genetically unique human. TO argue otherwise is folly. That "fetus" will not develop into a dog or a horse or a lizard, but a human. No other outcome is biologically possible should the unborn child survive to term, or even long enough to be harbored through the remainder of its development in an NICU. It is human.

We have laws against killing humans. We universally accept a God-given Right to live, and that Right was mentioned first of the Rights mentioned in the Declaration of Independence, simply because all other Rights are moot if that one is not upheld.

To truly uphold that right, especially for humans who have committed no crime, petit or heinous, would require more than just the overturning of Roe,  but legislation in all of the 50 States to uphold that right of those helpless humans to live. This is merely a step in that direction, by not Federalizing protection of the act of terminating those helpless and innocent lives. The only justifiable cause has been traditionally held to be that when the continuation of the pregnancy would predictably result in the death of both the mother and developing infant as a consequence of medical issues (an ectopic or tubal pregnancy being one instance).

Traditionally, humanity has valued our offspring, and it speaks ill of our culture that the issue is even being debated.

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Offline Hoodat

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Does a person have a right to free speech?  Yes.
Does a person have a right to be given a publishing platform?  No.

Does a person have a right to bear arms?  Yes.
Does a person have a right to a government-supplied gun?  No.

Does a person have a right to practice religion?  Yes.
Does a person have a right to a congregation to preach to?  No.


In the latter case of each of those pairs, that so-called right came at the cost to another individual.  Thus, they aren't 'rights'.  Take Obamacare for example.  Does a person have a right to health care?  No, because that health care will come at a cost to someone else.  But does a person have a right to purchase health care?  Yes, because purchasing health care does not infringe on anyone else.

Does a woman have a right to have sex with whomever she wants?  Yes.  She is in control of her body.  Does she have a right to an abortion?  No.  Because an abortion comes at a cost to someone else.
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It is not the woman's body that is in question, nor her rights.

Unique dna, I agree with ya Roamer. (MY gout left hand is acting up, expect more than usual typos)
« Last Edit: May 03, 2022, 11:30:42 pm by Sighlass »
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Indeed our Founders were Wise Men, yet hardly of the same magnitude as the Wise of Classical Athens.
Plato defined our Soul (Psyche) and as well identified the Family Unit of Father, Mother and Children
as the eternal Essence & Foundation of culture & society, centuries prior to the establishment of theologically
structured religions.
Further, the neuroses of the left, harming the Family Unit, among them, abortion, homosexuality, transgenderism
among several, were declared verboten and condemned.
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Online Kamaji

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No, Actually it is not. The right to Life transcends any transitory offense she might have over her voluntary decisions.

Actually, it is. 
#Cayler Ellingson

Offline Hoodat

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Actually, it is.

So you are saying that a woman has a right to kill another human being based on a "bodily integrity" right which she already forfeited?  Just want to be clear on what this so-called "unenumerated" right actually says.
If a political party does not have its foundation in the determination to advance a cause that is right and that is moral, then it is not a political party; it is merely a conspiracy to seize power.

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Online Kamaji

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It is not the only body involved, let's put it that way.

The developing child, although contained within her body, is a genetically unique human. TO argue otherwise is folly. That "fetus" will not develop into a dog or a horse or a lizard, but a human. No other outcome is biologically possible should the unborn child survive to term, or even long enough to be harbored through the remainder of its development in an NICU. It is human.

We have laws against killing humans. We universally accept a God-given Right to live, and that Right was mentioned first of the Rights mentioned in the Declaration of Independence, simply because all other Rights are moot if that one is not upheld.

To truly uphold that right, especially for humans who have committed no crime, petit or heinous, would require more than just the overturning of Roe,  but legislation in all of the 50 States to uphold that right of those helpless humans to live. This is merely a step in that direction, by not Federalizing protection of the act of terminating those helpless and innocent lives. The only justifiable cause has been traditionally held to be that when the continuation of the pregnancy would predictably result in the death of both the mother and developing infant as a consequence of medical issues (an ectopic or tubal pregnancy being one instance).

Traditionally, humanity has valued our offspring, and it speaks ill of our culture that the issue is even being debated.



I totally agree with the firsthand sentence.  That’s what makes it such a contentious issue. 
#Cayler Ellingson

Online Kamaji

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So you are saying that a woman has a right to kill another human being based on a "bodily integrity" right which she already forfeited?  Just want to be clear on what this so-called "unenumerated" right actually says.

Let’s turn that argument on its side, and look at it again.  Do you have the right to kill another human being just because you believe he presents an imminent threat of bodily harm to you?
#Cayler Ellingson

Offline Hoodat

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Right to kill?  No.  Right to use lethal harm to defend my own life against a person willfully trying to cause me lethal harm?  Yes.

But then that's not what we're talking about here.  We're talking about an innocent baby that has no willful intent to cause harm.
If a political party does not have its foundation in the determination to advance a cause that is right and that is moral, then it is not a political party; it is merely a conspiracy to seize power.

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Online Kamaji

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Right to kill?  No.  Right to use lethal harm to defend my own life against a person willfully trying to cause me lethal harm?  Yes.

But then that's not what we're talking about here.  We're talking about an innocent baby that has no willful intent to cause harm.

Let’s not split hairs.  Anyone who claims the right to self-defense with lethal force claims the right to kill another human being under appropriate circumstances.

So, fundamentally, the argument is not about the “right to kill your baby” but the circumstances under which the government is allowed to interfere with that decision. 

In other words, the argument is about the circumstances, not fundamental principles.
#Cayler Ellingson

Offline Hoodat

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So, fundamentally, the argument is not about the “right to kill your baby” but the circumstances under which the government is allowed to interfere with that decision. 

The State government.  Which brings us back to where we are now.  Just as a State has the right to determine whether 'killings' are OK (e.g. self defense), that State also has a right to determine whether abortion killings are OK.

Game, set, match.
If a political party does not have its foundation in the determination to advance a cause that is right and that is moral, then it is not a political party; it is merely a conspiracy to seize power.

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