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If Roe vs. Wade gets overturned. . .
Topic Started: Jan 23 2006, 06:15 PM (889 Views)
kenny
HOLY CARP!!!
. . . can't it just be reinstated when the winds change again?

I think all things swing back and forth.
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QuirtEvans
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I Owe It All To John D'Oh
Anything is possible, but it's unlikely.

First, it would require different Supreme Court justices.

And second, most Supreme Court justices would be very reluctant to swing the law back and forth. It calls into question the legitimacy of all of their decisions, if the decisions would change with the winds of the political climate. That's the entire basis of stare decisis.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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George K
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Finally
Let me ask this (and I have NO legal training whatsoever, so take this in the ignorant sense it it posted):

Wouldn't slavery and segregation be considered stare decisis? They were both well established precedents, and if memory serves "Separate but Equal" stood for longer than Roe v. Wade.

I don't see how that concept would prevent SCOTUS from overturning Roe - for it certainly didn't affect other decisions.

Thanks

(inquiring minds want to understand)
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kenny
HOLY CARP!!!
So, with Alito, we will have 9 that did not serve during RvW?

Then when these 9 are all gone it may swing back?

And how is it you say they are reluctant to swing the law back and forth?
Isn't that what will happen if RvW is overturned?
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gryphon
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Middle Aged Carp
Kenny, why do you think Roe v. Wade would be overturned because of Alito and Roberts?
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kenny
HOLY CARP!!!
Oh goodness no Gryphon.
It will be because it's God's will.

You see, sometimes America follows God and sometimes it goes astray.
That's what I mean about the wind.
:rolleyes:

Seriously, I have no opinion on your question.
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Mikhailoh
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If you want trouble, find yourself a redhead
I don't get any real indication that SCOTUS has any real enthusiasm for taking that case on.

But I do know here in Ohio pro-life groups are trying to start cases to get there. Ohio is considered a testing ground right now. See this article form the Cincinnati Enquirer, 1/16.



Bill seeks abortion's end in Ohio
Backers say it could help overturn Roe v. Wade

By Jon Craig
Enquirer Columbus Bureau

COLUMBUS - A Cincinnati legislator's bill to ban abortion in Ohio drew widespread support here Wednesday from a dozen groups eager to trigger a review of Roe v. Wade by what they see as an increasingly conservative U.S. Supreme Court.

At a Statehouse news conference marking this week's 33rd anniversary of the landmark 1973 decision, opponents called on the Ohio General Assembly to debate a bill banning all abortions.

Introduced nine months ago by Rep. Tom Brinkman, R-Mount Lookout, House Bill 228 would make it a felony to carry out abortions or transport a woman across state lines to have one. It would allow abortions only to save the life of a mother.

Nancy Keenan, president of Naral Pro-Choice America, warned that anti-abortion advocates "are using the states as laboratories" in their efforts to overturn Roe. Indiana, too, is considering a ban on abortions, and other states are adding restrictions to when abortions are allowed.

Mark Harrington, executive director for the Center for Bio-Ethical Reform Midwest, called Brinkman's bill a test case. Anti-abortion groups say that a Supreme Court reshaped by President Bush - with new justices John Roberts and, expected soon, Samuel Alito - will be inclined to overturn Roe.

"House Bill 228 provides the necessary constitutional challenge to strike down Roe versus Wade," Harrington said. "It will immediately be challenged in the courts, and that's the strategy. House Bill 228 is a trigger law. The U.S. Supreme Court needs a law to trigger a review of Roe versus Wade."

Cincinnati attorney Alphonse A. Gerhardstein, who represents a number of abortion providers across Ohio including Cincinnati Women's Services, questioned whether the ban would pass in Columbus.

"I guess I thought that was dead," Gerhardstein said. "If they pass a law knowing full well that it's unconstitutional, sure, there'll be a test case."

Ohio House Speaker Jon Husted, a Republican, earlier this month said the House would not hold hearings on Brinkman's bill, then reversed himself. Brinkman said Husted promised "at least one hearing."

If Roe v. Wade is overturned, states would have to pass their own laws, Brinkman said. "Abortion will not end in America automatically," he said. "Each state will have their own right to decide what is the best public policy for their state."

Rep. Michelle Schneider, R-Madeira; Dr. John Wilke, president of the Life Issues Institute of College Hill; Cincinnati attorney Thomas Condit of the Pro Family Network; and spokeswomen from Cincinnati-area anti-abortion groups also expressed support for Brinkman's bill.

The Associated Press contributed

Once in his life, every man is entitled to fall madly in love with a gorgeous redhead - Lucille Ball
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The 89th Key
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Kenny, good question. You're on a roll lately!

If RvW is overturned (as both Roe AND Wade now want!), I don't think the "winds will change" again. It would be bad to have the law change more than once or twice, as Quirt was saying. Then again, we really haven't had a law like this before, have we? One that is soooo 50/50 and vague...?
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QuirtEvans
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I Owe It All To John D'Oh
Kenny, there have been cases ... major cases ... decided one way, then overturned decades later.

But I can't think of a major legal principle that was decided by the Supreme Court ... then reversed by the Supreme Court decades later ... and then reversed back again.

I'm not saying it couldn't happen. I just don't ever remember it happening, and judges would have a great reluctance to keep flipping Constitutional interpretations back and forth. I can say with absolute certainty that if: (1) Roe were overturned, and (2) I was appointed to the Supremes a day later, and (3) the next year, the case came up for reconsideration, I'd vote against reconsideration. At some point, it's better to hold firm to a bad decision than to constantly be tinkering with Constitutional interpretation. You have to have a longer-term, larger-than-one-issue perspective.
It would be unwise to underestimate what large groups of ill-informed people acting together can achieve. -- John D'Oh, January 14, 2010.
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kenny
HOLY CARP!!!
So the Supreme Court "changing its mind" once is fine, but twice is not?
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ivorythumper
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I am so adjective that I verb nouns!
I think Quirt's point is valid. The notion of a capricious -- err, I mean constantly changing to whim -- judiciary -- err, I mean the guy in the black robes in the court -- would be bad for people's sense of trust in the whole system.

There are indeed worse things than abortion or slavery -- such as anarchy. Not that this is an either/or argument, but the common good demands a stable government and a lot of latitude can be given before the government is sooooo bad that it destroys the common life of the society.
The dogma lives loudly within me.
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Mark
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HOLY CARP!!!
Anarchy is worse than Slavery?

I can think of nothing that is worse than slavery.

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When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
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kenny
HOLY CARP!!!
ivorythumper
Jan 24 2006, 09:09 AM
I think Quirt's point is valid. The notion of a capricious -- err, I mean constantly changing to whim -- judiciary -- err, I mean the guy in the black robes in the court -- would be bad for people's sense of trust in the whole system.

There are indeed worse things than abortion or slavery -- such as anarchy. Not that this is an either/or argument, but the common good demands a stable government and a lot of latitude can be given before the government is sooooo bad that it destroys the common life of the society.

So why overturn RvW?

The Supreme Court has already spoken.

Why change to the current whim?

(Few simple words, thick with meaning.)
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ivorythumper
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I am so adjective that I verb nouns!
kenny
Jan 24 2006, 10:25 AM

So why overturn RvW?

The Supreme Court has already spoken.

Why change to the current whim?

(Few simple words, thick with meaning.)

Why overturn? Because among other reasons it is (arguably) a bad interpretation of the intent of the Due Process Clause of the 14th Amendment to fabricate a privacy issue regarding pregnancy. As far as I know, HIV+ persons and typhoid carriers are not protected as to their condition based on the 14th amendment. Do you think that people with HIV should be able to get away with legally not informing their sexual partners of their condition on the grounds of privacy?
The dogma lives loudly within me.
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kenny
HOLY CARP!!!
ivorythumper
Jan 24 2006, 09:35 AM
kenny
Jan 24 2006, 10:25 AM

So why overturn RvW?

The Supreme Court has already spoken.

Why change to the current whim?

(Few simple words, thick with meaning.)

Why overturn? Because among other reasons it is (arguably) a bad interpretation of the intent of the Due Process Clause of the 14th Amendment to fabricate a privacy issue regarding pregnancy. As far as I know, HIV+ persons and typhoid carriers are not protected as to their condition based on the 14th amendment. Do you think that people with HIV should be able to get away with legally not informing their sexual partners of their condition on the grounds of privacy?

But the Supreme Court has already spoken, and changing their decisions is whim.

(Unless whim is change YOU don't like.)
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John D'Oh
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MAMIL
ivorythumper
Jan 24 2006, 12:35 PM

Why overturn? Because among other reasons it is (arguably) a bad interpretation of the intent of the Due Process Clause of the 14th Amendment to fabricate a privacy issue regarding pregnancy. As far as I know, HIV+ persons and typhoid carriers are not protected as to their condition based on the 14th amendment. Do you think that people with HIV should be able to get away with legally not informing their sexual partners of their condition on the grounds of privacy?

Let's face it, that isn't the reason people want it overturning, though, is it?
What do you mean "we", have you got a mouse in your pocket?
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Jolly
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Geaux Tigers!
ivorythumper
Jan 24 2006, 09:09 AM
I think Quirt's point is valid. The notion of a capricious -- err, I mean constantly changing to whim -- judiciary -- err, I mean the guy in the black robes in the court -- would be bad for people's sense of trust in the whole system.

There are indeed worse things than abortion or slavery -- such as anarchy. Not that this is an either/or argument, but the common good demands a stable government and a lot of latitude can be given before the government is sooooo bad that it destroys the common life of the society.

How very Adamsonian of you.
The main obstacle to a stable and just world order is the United States.- George Soros
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ivorythumper
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I am so adjective that I verb nouns!
The point of it being based on a bad interpretation in retrospect suggests that it is not "whim". You might take some time reading the Roe vs Wade case. I see huge holes in the reasoning. For instance, Roe argued that "that the Texas statutes were "unconstitutionally vague" when they clearly gave exception "for an abortion by medical advice for the purpose of saving the life of the mother." The appelates (Roe and Doe) presented a whole slew of arguments to the court, very few of which stuck.

I would encourage you to spend some time with Roe v Wade

It is very interesting reading on the intent and even the history of abortion. It is certainly bad cherry picking scholarship on some historical points regarding the legality and illegality of abortion (for instance, the 7th century Irish Canons outlawed even the abortion of the "liquid material of the child" in an age before it was understood just how early the unique individual human body was formed; a 9th century "penitential" penalizes the abortion of any conceptus with varying penalties based on it degree of formation; the 7th century English canon law penalized all abortions again with penalties based on development and considered after 40 days to be the equivalent penalty of murder; etc). However, it gives a good framework for consideration.

It is also interesting to see the radical shift that this judical activism (pace Rick) caused. Before 1973 the overwhelming consensus of Americans -- both general and medical -- was against abortion on the reason that the fetus at all stages of development was a human being. As the AMA held and which was actually included in the Roe v. Wade text:

Quote:
 
In 1871 a long and vivid report was submitted by the Committee on Criminal Abortion. It ended with the observation, "We had to deal with human life. In a matter of less importance we could entertain no compromise. An honest judge on the bench would call things by their proper names. We could do no less."


If in 1871 the medical profession held that the fetus was a human life, tell me what have we discovered in the past 135 years that would show this to have been wrong? In fact, from what we know today about fetology and embryology, the case that the fetus is a living human being from conception can only be made stronger and with more certainty.



The dogma lives loudly within me.
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Mark
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HOLY CARP!!!
Anarchy is worse than Slavery?

???

___.___
(_]===*
o 0
When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
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ivorythumper
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I am so adjective that I verb nouns!
John D'Oh
Jan 24 2006, 10:45 AM
ivorythumper
Jan 24 2006, 12:35 PM

Why overturn? Because among other reasons it is (arguably) a bad interpretation of the intent of the Due Process Clause of the 14th Amendment to fabricate a privacy issue regarding pregnancy. As far as I know, HIV+ persons and typhoid carriers are not protected as to their condition based on the 14th amendment.  Do you think that people with HIV should be able to get away with legally not informing their sexual partners of their condition on the grounds of privacy?

Let's face it, that isn't the reason people want it overturning, though, is it?

There is are many reasons why it should be overturned, which reasonably differ from why people might want it overturned. It was based on bad premises and has bad consequences. It is not necessary to draw a relationship between these two considerations for either of them to be valid.
The dogma lives loudly within me.
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Mark
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HOLY CARP!!!
Anarchy is worse than Slavery?

???
___.___
(_]===*
o 0
When I see an adult on a bicycle, I do not despair for the future of the human race. H.G. Wells
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ivorythumper
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I am so adjective that I verb nouns!
Mark
Jan 24 2006, 11:33 AM
Anarchy is worse than Slavery?

???

Of course it is. Without an order to society, injustices such as slavery can never be overturned.
The dogma lives loudly within me.
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musicasacra
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HOLY CARP!!!
dude, your keyboard is stuck. :wink:
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bachophile
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HOLY CARP!!!
Quote:
 
Because among other reasons it is (arguably) a bad interpretation of the intent of the Due Process Clause of the 14th Amendment to fabricate a privacy issue regarding pregnancy. As far as I know, HIV+ persons and typhoid carriers are not protected as to their condition based on the 14th amendment. Do you think that people with HIV should be able to get away with legally not informing their sexual partners of their condition on the grounds of privacy?


i dont assume the audacity to understand the ins and outs of legal proceedings, im not a lawyer. but i wasted a few minutes and i read the original decision.

since my veiw of abortion is the benighted one and i dont think r vs w is so critical, nontheless i tried to see if your analogy is appropriate in light of the decision....

Quote:
 
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed.1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that, at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.


from what i see, blackmun didnt give a blanket ok to the privacy issue, he just said that under certain conditions, the right of privacy applies. certainly in the case of the HIV, this would not apply as i read the opinion.

again it boils down to "grey" areas, not everything is black or white, yes or no, which brings me back to our other exchange, and so...since we are back to square 1, i rest my case.

(thank god i didnt choose to go to law school, how boring)
"I don't know much about classical music. For years I thought the Goldberg Variations were something Mr. and Mrs. Goldberg did on their wedding night." Woody Allen
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ivorythumper
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I am so adjective that I verb nouns!
Jolly
Jan 24 2006, 11:28 AM
ivorythumper
Jan 24 2006, 09:09 AM
I think Quirt's point is valid.  The notion of a capricious -- err, I mean constantly changing to whim -- judiciary -- err, I mean the guy in the black robes in the court -- would be bad for people's sense of trust in the whole system.

There are indeed worse things than abortion or slavery -- such as anarchy. Not that this is an either/or argument, but the common good demands a stable government and a lot of latitude can be given before the government is sooooo bad that it destroys the common life of the society.

How very Adamsonian of you.

Hardly.

Adams' lack of objection to Jefferson on slavery was not about avoiding anarchy but for the sake of unifying for independence.
The dogma lives loudly within me.
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