Red Mosquito

blueviper wrote:is there a specific section of the Constitution that was being used to uphold R v W ?

4/5 wrote:If Scalia was alive that wouldn't have been a solo dissent. He "warned" in Lawrence that it was going to lead to all sorts of apocalyptic things like the same-sex marriage.

4/5 wrote:So Roberts concurred but his concurrence sounds more like a dissent. He would have upheld the Mississippi law but not overturned Roe. So does that make it 6-3 though?

Alito wrote:We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, 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.”

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

4/5 wrote:

Alito wrote:We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, 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.”

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

So, looks like originalism through and through.

4/5 wrote:So Roberts concurred but his concurrence sounds more like a dissent. He would have upheld the Mississippi law but not overturned Roe. So does that make it 6-3 though?

Clarence Thomas wrote:Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process
cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.


But, in future cases, we should “follow the text of the Constitution, which sets forth certain substantive rights that cannot be taken away, and adds, beyond that, a right to due process when life, liberty, or property is to be taken away.” Carlton, 512 U. S., at 42 (opinion of Scalia, J.). Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.

blueviper wrote:

4/5 wrote:

Alito wrote:We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, 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.”

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

So, looks like originalism through and through.

I guess ban all guns that weren't around in 1789. You are only granted the right to bear muskets.

Evvo wrote:Republicans really do seem obsessed with dragging your country back to the stone ages. And for what? Women will die as a result of this decision but that's just fine for gun-obsessed ideologues. Astonishing.

Hope the Democrats fight this with every tool available to them.

Green Habit wrote:The obvious retort to Thomas wanting to reconsider all those other cases decided on substantive due process grounds is that they can all be answered on Equal Protection Clause grounds instead. That's what O'Connor wanted to do this in Lawrence to try to justify joining the majority in Bowers.

simple schoolboy wrote:

Green Habit wrote:The obvious retort to Thomas wanting to reconsider all those other cases decided on substantive due process grounds is that they can all be answered on Equal Protection Clause grounds instead. That's what O'Connor wanted to do this in Lawrence to try to justify joining the majority in Bowers.

Which is why he is right about substantive due process, and if Roe had been decided on 9th Amendment grounds we wouldn't be revisiting this.