Alito's Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning

[Kamaji]

Alito's Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning

Plus: How abortion used to be less partisan, NFT sales have plummeted, and more...
ELIZABETH NOLAN BROWN
5.4.2022

The leaked draft of a Supreme Court opinion overturning Roe v. Wade continues to spawn confusion, anger, anxiety, and ample predictions. Today I'm going to hone in on some of these reactions to the draft opinion, starting with people questioning some key claims within it.

The February draft—published Monday by Politico and verified as authentic by Chief Justice John Roberts—concerns the case of a 15-week abortion ban in Mississippi (Dobbs v. Jackson Women's Health Organization). It was penned by Justice Samuel Alito and is labeled as the opinion of the Court. In it, Alito writes that the Court must overturn both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the main legal precedents upon which abortion rights in America are based.

Alito's logic in the draft opinion is raising many an eyebrow. Among his reasons for rejecting Roe and Casey, Alito notes that "the Constitution makes no reference to abortion." And while the 14th Amendment's Due Process Clause has been held to enshrine rights not explicitly mentioned in the Constitution, such rights must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty," writes Alito, adding that "the right to an abortion does not fall within this category."

*  *  *

University of Maryland history professor Holly Brewer points out that Alito derives support for his arguments from 17th century British common law, which sometimes made abortion a crime if it took place after the "quickening." But the quickening refers to the point in a pregnancy at which a mother can feel a fetus moving inside her—something that doesn't usually happen until around 16 weeks pregnancy at the earliest.

"This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs," notes Brewer. "So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence."

*  *  *

Source:  https://reason.com/2022/05/04/alitos-draft-opinion-that-would-overturn-roe-is-a-disaster-of-legal-reasoning/

[Hoodat]

And while the 14th Amendment's Due Process Clause has been held to enshrine rights not explicitly mentioned in the Constitution .  .  .

Liberals blurt out phrases like "Fourteenth Amendment" and "due process" as if the sound of those words alone suffice as proof that John Jay himself had abortion in mind when the Constitution was originally drafted.  However, a closer reading of Section 1 shows that it is the Roe decision that has violated 'due process' for the last half a century by removing the right of due process of the States while at the same time denying life and liberty to the affected party.  Always be wary when someone on the left announces a conclusion without revealing the premises the conclusion was drawn from.

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 missing part of this argument is that the "bodily integrity" of the child is being completely ignored.  If the "bodily integrity" argument holds for the woman, it holds for the baby as well.

And of course the clearly enumerated part of the Constitution that is being ignored here is Amendment X which explicitly states that powers not delegated to the US by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.  The People of the Great State of Mississippi have the right under a republican form of government to determine their own laws in shaping their own society within the confines of the Constitution.  And no New York liberal has the right to take that away from them.

[Kamaji]

Liberals blurt out phrases like "Fourteenth Amendment" and "due process" as if the sound of those words alone suffice as proof that John Jay himself had abortion in mind when the Constitution was originally drafted.  However, a closer reading of Section 1 shows that it is the Roe decision that has violated 'due process' for the last half a century by removing the right of due process of the States while at the same time denying life and liberty to the affected party.  Always be wary when someone on the left announces a conclusion without revealing the premises the conclusion was drawn from.


The missing part of this argument is that the "bodily integrity" of the child is being completely ignored.  If the "bodily integrity" argument holds for the woman, it holds for the baby as well.

And of course the clearly enumerated part of the Constitution that is being ignored here is Amendment X which explicitly states that powers not delegated to the US by the Constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.  The People of the Great State of Mississippi have the right under a republican form of government to determine their own laws in shaping their own society within the confines of the Constitution.  And no New York liberal has the right to take that away from them.

It's not, actually.  That was the whole point of the original three-part discussion in Roe v. Wade. 

[Hoodat]

It's not, actually.

What's not?

That was the whole point of the original three-part discussion in Roe v. Wade.

Roe is one of the most nonsensical cases ever handed down.  The Court acknowledged the right of the States to establish their own abortion laws, but only after some arbitrary time limit expires.  In other words, the Constitution only applies after the 24th week.  But before the 24th week, the Constitution is suspended - overruled by some made up penumbra with zero legal basis or foundation.

Seriously, read the Roe decision, and then tell me what part of the Constitution it referenced to deprive States of their guaranteed rights under Article IV and Amendment X.  You won't find it because it simply isn't there.  There is no right to privacy in Amendment XIV.  It does not exist.  They made it up, and then wrongly applied it to Due Process - the very thing that the Roe verdict caused to be denied.

[Cyber Liberty]

...and this is why I cancelled my subscription to Reason magazine years ago.

[DefiantMassRINO]

Do our rights come from God or the Government?

From what or whom does the Government get its powers?  Or is Government an omnipotent force, like God, that already has infinite powers, no beginning, and no end?

Does the Government have unlimited power to intrude upon doctor-patient relationship?
Does the Government have unlimited power to intrude upon lawyer-client relationship?
Does the Government have unlimited power to intrude upon parent-child relationship?
Does the Government have unlimited power to intrude upon doctor-patient relationship?
Does the Government have unlimited power to intrude upon spouse-spouse relationship?

What is Government?  Does it have a beginning and an end?  Or is it infinite without limit?

What's to prevent Chirstian Scientists from banning all extraordinary medical intervention on the grounds that it interfere's with God's plans?

If the Government can intrude upon pregnancy termination - miscarriage or abortion, what else can they intrude upon?  Vaccines?  Masks?  Ban birth control?  Ban vasectomies?

Those who want to ban abortion argue that life begins at conception.  If you have the Government intrude upon the pregnancy, aren't they also saying that Government's powers also begin at conception?  If the Government can interfere in the womb, what's to stop it from interfering in the home, at school, and every other facet of life?

Government needs to be limited or we are devolving back to the days of Puritan witch trials and Scarlett Letters - God and Government being one in the same.

[roamer_1]

Those who want to ban abortion argue that life begins at conception.  If you have the Government intrude upon the pregnancy, aren't they also saying that Government's powers also begin at conception?  If the Government can interfere in the womb, what's to stop it from interfering in the home, at school, and every other facet of life?

Government needs to be limited are we are devolving back to the days of Puritan witch trials and Scarlett Letters - God and Government are one in the same.

The foremost enumerated right is the Right to Life.

[LMAO]

Do our rights come from God or the Government?

From what or whom does the Government get its powers?  Or is Government an omnipotent force, like God, that already has infinite powers, no beginning, and no end?

Does the Government have unlimited power to intrude upon doctor-patient relationship?
Does the Government have unlimited power to intrude upon lawyer-client relationship?
Does the Government have unlimited power to intrude upon parent-child relationship?
Does the Government have unlimited power to intrude upon doctor-patient relationship?
Does the Government have unlimited power to intrude upon spouse-spouse relationship?

What is Government?  Does it have a beginning and an end?  Or is it infinite without limit?

What's to prevent Chirstian Scientists from banning all extraordinary medical intervention on the grounds that it interfere's with God's plans?

If the Government can intrude upon pregnancy termination - miscarriage or abortion, what else can they intrude upon?  Vaccines?  Masks?  Ban birth control?  Ban vasectomies?

Those who want to ban abortion argue that life begins at conception.  If you have the Government intrude upon the pregnancy, aren't they also saying that Government's powers also begin at conception?  If the Government can interfere in the womb, what's to stop it from interfering in the home, at school, and every other facet of life?

Government needs to be limited or we are devolving back to the days of Puritan witch trials and Scarlett Letters - God and Government being one in the same.

 I take the late Rush Limbaugh’s position on abortion. You don’t pass laws and ban abortion. You work to change the hearts and minds of people

How do you enforce an abortion ban? Do we decree that women who become pregnant must register with the state?

Years ago, I knew a woman who got pregnant by her bleep boyfriend. She didn’t know what to do and she asked me what she should do. I told her that whatever she decides she has to live with the consequence but not to do it  because the boyfriend was making claims that if she does it it’ll strengthen their relationship

[DefiantMassRINO]

But does the right to life come from God or Government?

When does life begin and end?

If Government says when life begins, can it not also say when life ends - i.e., Government Death Panels?

If Government is arbitor of the beginning and end of life, have we not elevated Government to be God?

If a woman miscarries, but someone sues her for having terminated her pregnancy, under Texas, state law, what is the burden of proof, and on whom is the burden of proof?  Does the plaintiff need to prove the defendant had an abortion or does the defendant need to prove she didn't have one?

Is the disagreement over abortion more about the beginning and end of life, or about the beginning and end of Government's intrusion into our lives?

[roamer_1]

But does the right to life come from God or Government?

When does life begin and end?

If Government says when life begins, can it not also say when life ends - i.e., Government Death Panels?

If Government is arbitor of the beginning and end of life, have we not elevated Government to be God?

If a woman miscarries, but someone sues her for having terminated her pregnancy, under Texas, state law, what is the burden of proof, and on whom is the burden of proof?  Does the plaintiff need to prove the defendant had an abortion or does the defendant need to prove she didn't have one?

This is nonsense. Tell me this: In what way can the government sanction death except by Just Cause or Due Process?

In FACT, your way is the way toward your very fears.

UNLESS Due Process or Just Cause, the Government, by its very existence, must protect LIFE.
It is literally what it is for.

[DefiantMassRINO]

Government, and insurance companies, can use power of the purse to write policies that determine when they will stop re-imbursing a healthcare facility for extra-ordinary efforts to keep someone alive.

At some point, a bean counter will determine the financial value and limit to keeping someone alive.

Government can't shoot you in the head, yet.  But, maybe they deny you access to care by not paying for it, or by outlawing it.

The rich will have private health insurance and can afford better care.  The poor are relegated to what government and charity are willing to pay for.

Restricting access to abortion is also another way the wealthy and powerful can assert their dominance over the poor.

Is the abortion debate really about the sanctity of life?  What about the unloved, abused, and neglected children that are killed without being noticed?  Where is their sanctity?

Jeremiah Oliver: https://www.lowellsun.com/2021/04/20/no-justice-in-jeremiahs-cold-homicide-probe/

Bella Bond: https://www.beverlybeckham.com/columns/2019/7/7/did-little-bella-bond-suffer-every-day

Harmony Montgomery: https://www.boston.com/news/local-news/2022/05/04/harmony-montgomery-office-of-the-child-advocates-report/

No one fought to save their lives.

The abortion debate is not about the sanctity of life if we are indifferent the suffering and deaths of children already among us.

The abortion debate is about power - those who have it, and those who don't.

People with means can travel to another state to access abortion.  The poor have, yet, another decision made for them and another opportunity to access care denied them by those in power.

[roamer_1]

Government, and insurance companies, can use power of the purse to write policies that determine when they will stop re-imbursing a healthcare facility for extra-ordinary efforts to keep someone alive.

At some point, a bean counter will determine the financial value and limit to keeping someone alive.

Government can't shoot you in the head, yet.  But, maybe they deny you access to care by not paying for it, or by outlawing it.

The rich will have private health insurance and can afford better care.  The poor are relegated to what government and charity are willing to pay for.

Exactly the OPPOSITE ... Using the novel means supplied by abortion laws - That novel means which allows the government to sanction death unconstitutionally, without Just Cause or Due Process, is precisely the way toward other novel means by which the government will sanction death... Even now, young children are on the fulcrum, and euthanasia will not be far away. ALL in ways that cheapen life.

Restricting access to abortion is also another way the wealthy and powerful can assert their dominance over the poor.

Is the abortion debate really about the sanctity of life?  What about the unloved, abused, and neglected children that are killed without being noticed?  Where is their sanctity?
 [...]
No one fought to save their lives.

The abortion debate is not about the sanctity of life if we are indifferent the suffering and deaths of children already among us.

The abortion debate is about power - those who have it, and those who don't.

People with means can travel to another state to access abortion.  The poor have, yet, another decision made for them and another opportunity to access care denied them by those in power.

More nonsense. The cost so far for your deep concern is MILLIONS of babies killed in the womb.
And it is not that government does not TRY to protect children that are at risk - There are reams of laws and whole agencies  dedicated to that task.

That they cannot keep up with it is a testament to more liberal 'freedoms' that destroy liberty... The free sex revolution with its no fault divorce and rampant drug use have created the very thing you point to... All relatively new problems coming right on the heels of the abortions that helped to cheapen life in the first place.

The way forward is certainly NOT the way we are going, with burgeoning single-parenthood  and a massive welfare state.

The way forward is to return the sanctity of life, and the sanctity of marriage.
NOT to go further down this insane and evil road.

[IsailedawayfromFR]

But does the right to life come from God or Government?

When does life begin and end?

If Government says when life begins, can it not also say when life ends - i.e., Government Death Panels?

If Government is arbitor of the beginning and end of life, have we not elevated Government to be God?

If a woman miscarries, but someone sues her for having terminated her pregnancy, under Texas, state law, what is the burden of proof, and on whom is the burden of proof?  Does the plaintiff need to prove the defendant had an abortion or does the defendant need to prove she didn't have one?

Is the disagreement over abortion more about the beginning and end of life, or about the beginning and end of Government's intrusion into our lives?

The Government gives no rights.

The Constitution is about limiting the government's control over citizens.

[Hoodat]

Government can't shoot you in the head, yet.  But, maybe they deny you access to care by not paying for it, or by outlawing it.

The rich will have private health insurance and can afford better care.  The poor are relegated to what government and charity are willing to pay for.

@DefiantMassRINO

You seem to forget that the Dobbs decision will put that power back into the hands of the people's representatives in each State - a power that has been denied for half a century.

Restricting access to abortion is also another way the wealthy and powerful can assert their dominance over the poor.

The wealthy and powerful are abortion's biggest advocates.  They already assert their dominance over the poor by encouraging poor people (especially the black ones) to kill their babies in the womb.  These same wealthy and powerful advocates even go so far to use the tax money of the middle class to help pay for it.  Planned Parenthood was purposed to cull the poor population.

When some rich dude knocks up some tart that he is been 'dating', he will be the first person to demand she get an abortion.  He has counted on Roe being there for him.

Is the abortion debate really about the sanctity of life?  What about the unloved, abused, and neglected children that are killed without being noticed?  Where is their sanctity?

No one fought to save their lives.

What do you expect from a society that kills babies in the womb?  Abortion devalues life.  What is the difference in killing a baby in utero at 6 months verses a baby post utero at six months?

As to your point, a child who dies from abuse and neglect does not justify killing another child in the womb.

The abortion debate is not about the sanctity of life if we are indifferent the suffering and deaths of children already among us.

We're not.  The pro-lifers are never indifferent to the suffering of anyone.

The abortion debate is about power - those who have it, and those who don't.

Dobbs isn't an abortion debate.  It is a Constitutional debate.  Bottom line, do the people of Mississippi through their elected Representatives have the right under the Constitution of the United States of America to establish their own abortion laws just as they do for murder, car insurance, shoplifting, fraud, vehicular homicide, etc., under Amendment X?

If you wish to advocate for abortion, then take it up with the Commonwealth of Massachusetts.  But stay the hell out of Georgia!  We can handle it from here.

People with means can travel to another state to access abortion.  The poor have, yet, another decision made for them

Uh, no.  The poor have just as much control over their bodies as do the rich.  Women are empowered, remember?  But if they can't afford to travel to another State, then they better make damn sure they don't let some man ejaculate inside of them while they exercise control over their own bodies.  But again, if you want to make sure they can kill their babies in the Commonwealth (saving some rich man the cost of 18 years of child support), then I recommend you advocate for the laws in your own Commonwealth.  But again, do not interfere with what we choose to do here in Georgia.

[Hoodat]

But does the right to life come from God or Government?

G-d.  We are endowed by our Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.

When does life begin and end?

That is to be left up to the members of a society through their representatives.  The same members who got to decide whether stealing a horse was a capital crime, whether torturing animals was to be allowed, or whether exceeding the speed limit was a punishable offense.

If Government says when life begins, can it not also say when life ends - i.e., Government Death Panels?

That decision should be left up to the Fourth branch of government.  They alone should decide how their society is to be shaped.

If Government is arbitor of the beginning and end of life, have we not elevated Government to be God?

That is EXACTLY what Roe did.  It elevated five black-robed tyrants to be god.  Dobbs frees us from that, restoring that power back to the People.

If a woman miscarries, but someone sues her for having terminated her pregnancy, under Texas, state law, what is the burden of proof, and on whom is the burden of proof?  Does the plaintiff need to prove the defendant had an abortion or does the defendant need to prove she didn't have one?

That's up to the people of the Republic of Texas.  It doesn't concern the Commonwealth of Massachusetts.  Worry about your own state.

Is the disagreement over abortion more about the beginning and end of life, or about the beginning and end of Government's intrusion into our lives?

You tell me.  Clearly, you prefer five black-robed tyrants setting the 'law' for you (as long as they render a decision you agree with).  But you seem to have some emotional aversion to allowing the people of Mississippi to make their own laws.