Legal opposition to Roe V Wade?

[Seraphim]

OK, so I've been thinking about this for some time.

My original thought was that a father of an unborn child could bring legal action to stop an abortion from happening, as it is his child as well as the mother's.

Turns out this has been tried before and was thrown out, as apparently Roe V Wade is predicated on the woman being free to do "with her own body" as she sees fit.

So then I thought, can we not then bring science to bear on the subject, and via DNA testing of the embryo/fetus clearly show that indeed the life now in the womb is genetically seperate from that of the mother, thereby making it not "her own body", and thus nullifying her "right" to do with it as she pleases?

[smokelaw1]

Interesting thought. However, IF the fact that the fetus is the "woman's body" is a settled "fact" under the law (yes, "fact is in quotes because it is a "fact" in the legal sense, I'm not saying it is well settled either morally or in the public view), then I don't see what DNA evidence saying it is genetically separate has to do with it.

(unrelated thoughts about father's rights deleted)

Don't cancer cells (no, I am not equating the miracle of potential life to cancer) have different DNA than the person it is growing in?

[singlewedge]

Problem being that states do not recognize a fetus as a life until it has a social security number. At that point it is a citizen.

Even if you could DNA type the fetus it would have to be developed beyond the 3rd trimester if I understand what I have read.

The odd thing is that if, knowing the above about fetal rights, you kill the mother, ie murder, or cause her to die and the fetus dies as a result that is a double homicide. Which has confused me.

I will not state my position here as it is a personal one so all you will get from me is devil's advocate.

Basically anything growing in a women is her's. Until you murder her or cause her to die and it dies, then it automatically becomes a person.

On the flip side at one time children were considered property under the law so that if you injured a child you would have to pay the family in recompense for the loss of that child's earning potential. Think farm related stuff here. Your son is away at the market trying to sell some beef or milk and you run him over with a cart and his leg is crushed. Well he is about as much use to the farmer/father as he would be in a butt kicking contest. The driver would have to pay the farmer to make up for the loss of the farm hand.

Have we evolved?

[jockeys]

as an explanatory aside, I believe it's because the fetus relies on the mother's body. that is, if you were to remove the fetus without harming it, it would still die (unless it was in a very late stage of development).

if we have synthetic wombs someday maybe it won't be an issue, but right now an early stage fetus cannot be removed from the mother without resulting in its death, whether it's immediate or later on

[Seraphim]

Interesting thought. However, IF the fact that the fetus is the "woman's body" is a settled "fact" under the law (yes, "fact is in quotes because it is a "fact" in the legal sense, I'm not saying it is well settled either morally or in the public view), then I don't see what DNA evidence saying it is genetically separate has to do with it.

(unrelated thoughts about father's rights deleted)

Don't cancer cells (no, I am not equating the miracle of potential life to cancer) have different DNA than the person it is growing in?

What I'm getting at is a way to overturn that legal *ahem* "fact". That is what legal arguments are all about, and why cases are brought before the Supreme Court.

DNA testing is legally acceptable as a means to detrmine paternity in a child support legal situation. Could that not show some legal precident for making a claim such as this?



From what I understand about cancer cells is that they are the person's own cells that for some reason continue to multiply beyond what they are designed to, and thus cause tumors, etc. As far as I know, they are made up of the person's own DNA?

[Leighton]

What I'm getting at is a way to overturn that legal *ahem* "fact". That is what legal arguments are all about, and why cases are brought before the Supreme Court.

DNA testing is legally acceptable as a means to detrmine paternity in a child support legal situation. Could that not show some legal precident for making a claim such as this?



From what I understand about cancer cells is that they are the person's own cells that for some reason continue to multiply beyond what they are designed to, and thus cause tumors, etc. As far as I know, they are made up of the person's own DNA?

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.

[Seraphim]

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?

[Leighton]

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.

[jockeys]

From what I understand about cancer cells is that they are the person's own cells that for some reason continue to multiply beyond what they are designed to, and thus cause tumors, etc. As far as I know, they are made up of the person's own DNA?

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)

[Seraphim]

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).