Thread: Legal opposition to Roe V Wade?

Originally Posted by Leighton

No. Supreme Court trumps all. Unless they reverse their own decision (unlikely). Whatever is in that opinion is the law.

edit: there is one other way. Amend the Constitution. GL with that though.

So....where did Roe V Wade come from in the first place to be tried before the Supreme Court? Wasn't it an issue that couldn't be decided in the lower courts, and thus had to be argued all the way up the ladder?

Roe V Wade is/was not an ironclad decision (and thus contributing to continuing contention), if a legal argument could be made via other legal precidents as I mentioned above (I'm no legal eagle, so paternity testing was what I could come up with as a first example) could it not therefore be overturned?.

If a new challenge to an existing law can be brought to court, does that not thereby allow the same issue to once again be brought before the Supreme Court and allow it to rule on the issue again, as there is now possibly new evidence (such as DNA testing, which was not around in 1974, right?) to weigh in the Court's decisions?

Originally Posted by jockeys

they are the person's own cells, made from their dna, but mutated.

a child is also made from a person's dna, but mutated. (primarily by combining with someone else's dna, but random mutation also plays a small role)

I don't think that's a scientifically valid use of the term mutated. Genetic combination vis a vis reproduction I would think is vastly differentiated from random mutation scientifically (and just common sensically).

Originally Posted by smokelaw1

I think I inderstnad your point, and I'm saying that even if the fetus IS separate DNA formed through whatever process begins at whatever stage that will allow it to eventually become human, it is still recognized as THE WOMAN'S BODY. Now, COULD a different SCOTUS say that our right to privacy no longer extends to tissue made up of different DNA inside our bodies? Sure, and it would be a reasonable argument. Do I see it working in the current judicial-political landscape? Not likely. At least not for the next 4 years. The woman's body is still affected by the decision, even if the growing fetus is not her body. The argument being about the woman changes the terms, a bit, granted, but that is where the right is founded, if I understand it correctly (big IF).

DNA testing is already accepted as a scientific avenue, so no precedent is neccesary. What is neccesary for your argument to change anything legally, is to be able to show something that the court hasn't considered before, such that it would change its position on what has been held to be a fundamental right (privacy in one's body, and by extension, of course, what IS one's body). On top of that, the fetus would have to be more than simply "not her body" but an actual human with rights. Otherwise, the fact that she wants to do something to the tissues surrounding that "not her body" element would STILL hold privacy rights.

As for cancer, you VERY well may be right, I simply lack the knowledge to say.

EDIT: As fascinating and enjoyable as these conversations are, I need to put a big old disclaimer on my posts today. I'm going on and off very busy, and have been hitting "submit" before I read over things to make sure they make sense. For today, please excuse any dumber than usual posts.

Is that just your opinion, or has that been legally argued and ruled on?

Has a father of an unborn child brought a case to court arguing that the life within the mother is just as much HIS as it is HERS? And that could be shown via scientific evidence.

Instead of allowing whatever happens within the womb to be argued as some sort of mystery, legally speaking (i.e.- we don't really know when a fetus becomes a human, etc. etc) and talking about it circumspectly, my opinion versus yours, how about arguing the case directly based on genetic data that will most certainly show that the cells with the womb are most certainly distinct from the mother's own, and therefore they should not fall under the ability of the mother to do as she pleases with them?

"Well, why should the government impose such requirements on a woman to have to take responsibility for that entity within her? That impinges on HER rights!"

Well, aren't there laws on the books dealing with the fact that indeed mothers (and fathers) do already have to care for their children, or be charged with neglect, child abuse, etc? Is that an unfair position for the government to take? Why can't they just stay out of the whole thing?

Originally Posted by smokelaw1

DNA testing is already accepted as a scientific avenue, so no precedent is neccesary. What is neccesary for your argument to change anything legally, is to be able to show something that the court hasn't considered before, such that it would change its position on what has been held to be a fundamental right (privacy in one's body, and by extension, of course, what IS one's body). On top of that, the fetus would have to be more than simply "not her body" but an actual human with rights. Otherwise, the fact that she wants to do something to the tissues surrounding that "not her body" element would STILL hold privacy rights.

This is simple. The case goes to trial. The prosecution calls for a witness in their behalf. The judge calls for a postponement of not more than 9 months. After that period of time the witness for the prosection would be available for questioning, admittance as evidence, etc....

Instead of concentrating on the whole, you need to look that the parts.

Roe v. Wade has been chipped at since its "conception" (I know I know). The only way to "overturn" a landmark like this is to overturn a small part that the whole rests on.

If you can remove or establish parental rights to the parasite then you may have an argument.

Parasite from Merriam-Webster:

something that resembles a biological parasite in dependence on something else for existence or support without making a useful or adequate return.

Originally Posted by Seraphim

Is that just your opinion, or has that been legally argued and ruled on?

I am prety sure the case has been tried and decided, though not by SCOTUS. Not positve, though.

Instead of allowing whatever happens within the womb to be argued as some sort of mystery, legally speaking (i.e.- we don't really know when a fetus becomes a human, etc. etc) and talking about it circumspectly, my opinion versus yours, how about arguing the case directly based on genetic data that will most certainly show that the cells with the womb are most certainly distinct from the mother's own, and therefore they should not fall under the ability of the mother to do as she pleases with them?

Well, I am not "allowing" it...I think it is neccesary. just because it is genetically separate doesn't make it a human with rights that are on par with the woman.

Well, aren't there laws on the books dealing with the fact that indeed mothers (and fathers) do already have to care for their children, or be charged with neglect, child abuse, etc? Is that an unfair position for the government to take? Why can't they just stay out of the whole thing?

There is no longer doubt, once they are children, that they are humans with those rights.

Sorry, no time at the moment to break it out into separate quotes. My day looks like it is going to end on a busy note, like it started, so it looks like I'll have to sign off the debate for today. As always, thanks to all who make me question my own position.

Originally Posted by singlewedge

Instead of concentrating on the whole, you need to look that the parts.

Roe v. Wade has been chipped at since its "conception" (I know I know). The only way to "overturn" a landmark like this is to overturn a small part that the whole rests on.

If you can remove or establish parental rights to the parasite then you may have an argument.

Parasite from Merriam-Webster:

something that resembles a biological parasite in dependence on something else for existence or support without making a useful or adequate return.

Also from Merriam Webster:

Embryo:
1 aarchaic : a vertebrate at any stage of development prior to birth or hatching b: an animal in the early stages of growth and differentiation that are characterized by cleavage, the laying down of fundamental tissues, and the formation of primitive organs and organ systems ; especially : the developing human individual from the time of implantation to the end of the eighth week after conception.




Is the newborn child also considered a parasite, as it is wholly dependant on something else for existence or support without making a useful or adequate return?

Is the "parasite" argument part of the Roe V Wade legal defense? Or is it just part of the theoretical argument people have in regards to abortion rights?

Originally Posted by Seraphim

So....where did Roe V Wade come from in the first place to be tried before the Supreme Court? Wasn't it an issue that couldn't be decided in the lower courts, and thus had to be argued all the way up the ladder?

Roe V Wade is/was not an ironclad decision (and thus contributing to continuing contention), if a legal argument could be made via other legal precidents as I mentioned above (I'm no legal eagle, so paternity testing was what I could come up with as a first example) could it not therefore be overturned?.

If a new challenge to an existing law can be brought to court, does that not thereby allow the same issue to once again be brought before the Supreme Court and allow it to rule on the issue again, as there is now possibly new evidence (such as DNA testing, which was not around in 1974, right?) to weigh in the Court's decisions?

Apparently it came to the SCT through the federal district courts through a constitutional challenge against the rights of the state to criminally punish abortions.

Roe v. Wade

DISCLAIMER!!!!!!!!!!
The following is not a legal opinion. Nor is it any sort of opinion. What follows are exerpts from the Supreme Court Decision found at the above link. The citation is 410 U.S. 113. The commentary is simply a paraphrase of what the court has said or what is contained within the quoted material.


relevant TX statute:

The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's Penal Code. ^[n1] These make it a crime to "procure an abortion," as therein [p118] defined, or to attempt one, except with respect to "an abortion procured or attempted by medical advice for the purpose of saving the life of the mother." Similar statutes are in existence in a majority of the States. ^[n2] [p119]

Roe's Constitutional Claim involved the personal liberty right of the 14th Amendment. :

The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring). Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws.

Apparently under the common law, an abortion performed before quickening was not an indictable offense. Thus, all anti-abortion laws are therefore purely statutory in nature and have no basis in the common law.

The magic words:

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy

After that quote the court enunciates some rationale behind the decision.

The privacy right is not absolute

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The [p154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) ( sterilization).

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

Where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest," Kramer v. Union Free School District, 395 U.S. 621, 627 (1969); Shapiro v. Thompson, 394 U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. Griswold v. Connecticut, 381 U.S. at 485; Aptheker v. Secretary of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307-308 (1940); see [p156] Eisenstadt v. Baird, 405 U.S. at 460, 463-464 (WHITE, J., concurring in result).

"A person does not include the unborn"

The court refuses to define where life begins.

When the state may regulate abortions:

With respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that, until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

...

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother.

...
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

And that was a very interesting read. Well Seraphim, clearly the SCt opinion does not provide you the answer you seek, thus the legal options the expectant father may or may not have probably resides within that specific states jurisprudence. I'm emailing you as you read this.

Thanks for the legal look-up Leighton.

I'm sorry but I only read some of that Leighton.

isn't it clear what the 14th amendment concerns by looking at historical context?