A Deeply Fractured US

[suffolkowner]

If a state bans abortions, can't people just vote in politicians who will unban abortions?

Yup, or relocate to jurisdiction that aligns with their beliefs.

How far can we extend this though? To contraceptives? To marriage equality? Same-sex relationships? Inter-racial relationships?

If the shoe store doesn't sell to black people just go to one that does?

 

[Fishbone Jones]

A triumph for the Anti-Federalists in the end?

It seems a dangerous path/justification to have taken in my mind, where the federal government is not responsible or the guarantor of an individuals rights but that they can differ from state to state?

The US Supreme Court ruled abortion is not a Constitutional right.

 

[Brad Sallows]

This is basically the walking back of a federally enshrined right that had existed in law for 49 years

Sure, and for the almost 200 years preceding that, abortion was regulated in many jurisdictions and few thought it was a constitutionally protected right. Then some justices - not a particularly diverse crew, oddly enough - decided to stretch privacy.

 

[Fishbone Jones]

If a state bans abortions, can't people just vote in politicians who will unban abortions?

It's called democracy.

 

[brihard]

Sure, and for the almost 200 years preceding that, abortion was regulated in many jurisdictions and few thought it was a constitutionally protected right. Then some justices - not a particularly diverse crew, oddly enough - decided to stretch privacy.

And now the US gets to deal with the fallout of stripping a right that half of their population has been protected by for 49 years.

It's called democracy.

I suppose this serves to answer the question I asked you above.

There is going to be a massive clash between Americans who believe that the right to abortion is a right women possess regardless of what a legislature says, and those who do not. There will be many Americans who do not accept that a legislature can legitimately command women's bodies in this manner. Some will leave, others will put up a fight, whatever that means to them. Some will simply get pregnant, be forced by circumstances to access unsafe abortions (or to be unable to), and will die.

Taking something away from people carries risks over and above refusing to give it to them in the first place. This is a hill some will fight and, if necessary, die on.

 

[Brad Sallows]

How far can we extend this though? To contraceptives? To marriage equality? Same-sex relationships? Inter-racial relationships?

Thomas would like to go over, and probably remove, the "substantive due process" argument which underpins some of the rulings relevant to those. But there are other, stronger grounds on which those freedoms would likely be upheld.

 

[Brad Sallows]

There is going to be a massive clash

That's the job of legislatures to deal with, not courts. All the hand-waving about what might happen if a law is held/upheld? Irrelevant (or should be) to a court.

 

[suffolkowner]

Sure, and for the almost 200 years preceding that, abortion was regulated in many jurisdictions and few thought it was a constitutionally protected right. Then some justices - not a particularly diverse crew, oddly enough - decided to stretch privacy.

I think 200 years is a stretch. There's very little "regulation" of abortion before the mid 19th century and even then was mostly focussed on quickening. So really more like a 100 year stretch in the human continuum. IMO abortion is preferable to infanticide and contraception to abortion but the world is not an ideal place. In the US over 50% of abortions are likely pharmaceutical today and most third trimester abortions are medical emergencies numbering in around a 1000 a year. Realistically this shouldn't be near as big an issue as it is made out to be

 

[brihard]

That's the job of legislatures to deal with, not courts. All the hand-waving about what might happen if a law is held/upheld? Irrelevant (or should be) to a court.

You're right on that, and I'm not suggesting that social upheaval and turmoil should decide a court case. When I speak of consequences, it's a 'whole of government' problem.

Thomas would like to go over, and probably remove, the "substantive due process" argument which underpins some of the rulings relevant to those. But there are other, stronger grounds on which those freedoms would likely be upheld.

If one SCOTUS justice wants to go for it, sure as hell there are already some ideologically aligned interest groups and lawyers starting to write the statements of claim that will kick exactly this off. I've not yet had time to read in enough depth into some of the other cases to see if they'll stand absent buttressing by the 14th. Surface reading suggests that enough learned people think it's a real concern.

Go figure... I'm procrastinating on a law paper about Canadian medical assistance in dying and I find myself stumbling back to the Roe v Wade thread...

 

[Fishbone Jones]

but what makes it a state right over a federal one? In Canada health care is a provincial responsibility but section of 7 of the Charter overides, correct?

Here's a quick explanation how it works, and why.

Federalism and State Powers | Encyclopedia.com

FEDERALISM AND STATE POWERSThroughout U.S. history, the division of power between the federal government and state governments has been the subject of continuous political and legal battles. Source for information on Federalism and State Powers: Supreme Court Drama: Cases That Changed America...

www.encyclopedia.com

 

[Halifax Tar]

How far can we extend this though? To contraceptives? To marriage equality? Same-sex relationships? Inter-racial relationships?

If the shoe store doesn't sell to black people just go to one that does?

As I said previously, this sets a terrible precedent. Your concerns are valid.

 

[suffolkowner]

The US Supreme Court ruled abortion is not a Constitutional right.

sure but an individual still has rights do they not

That's the job of legislatures to deal with, not courts. All the hand-waving about what might happen if a law is held/upheld? Irrelevant (or should be) to a court.

again sure but legislatures overreach and courts ajudicate

Here's a quick explanation how it works, and why.

Federalism and State Powers | Encyclopedia.com

FEDERALISM AND STATE POWERSThroughout U.S. history, the division of power between the federal government and state governments has been the subject of continuous political and legal battles. Source for information on Federalism and State Powers: Supreme Court Drama: Cases That Changed America...

www.encyclopedia.com

Yes but more and more I think the US state/government/constitution is extremely flawed even our own Charter I find puzzling as to the organization of which but I am appreciative that we have a section 7 instead of a 14th ammendment

 

[Fishbone Jones]

As I said previously, this sets a terrible precedent. Your concerns are valid.

Water will always find it natural level.

 

[brihard]

sure but an individual still has rights do they not

again sure but legislatures overreach and courts ajudicate

Yes but more and more I think the US state/government/constitution is extremely flawed even our own Charter I find puzzling as to the organization of which but I am appreciative that we have a section 7 instead of a 14th ammendment

It was written by dudes who literally owned a bunch of other human beings. Some flaws will inevitably have become apparent with the passage of time.

 

[Jarnhamar]

It was written by dudes who literally owned a bunch of other human beings.

Ah yes, slavery. Imagine being in a position where you can be thrown in jail for refusing to work or obey your boss

 

[Fishbone Jones]

The Great Experiment has survived 246 years. Lots of trials and tribulations. It's a shit show at the moment, but is still following basic, democratic principles.

We've been going for 155 years and are bordering on an authoritarian government, going through the motions of democracy.

 

[Brad Sallows]

It was written by dudes who literally owned a bunch of other human beings.

Some of the dudes literally also had doubts about slavery and literally also knew that removing slavery would have meant "no deal" on what they were trying to get rolling.

Those dudes put a lot more thought and deliberation into their product than the crew who produced what was expedient for themselves in 1982 in Canada.

 

[brihard]

Some of the dudes literally also had doubts about slavery and literally also knew that removing slavery would have meant "no deal" on what they were trying to get rolling.

I accept that. Nonetheless, even if it was the best available compromise (certainly not the only ugly compromise the authors of the US Constitution had to make), it still illustrates that it is, at best, the best product that could be conjured out of a very different time.

Those dudes put a lot more thought and deliberation into their product than the crew who produced what was expedient for themselves in 1982 in Canada.

The vast majority of our constitution in 1982 was carryover from the century+ prior to that. The Charter was new, but the division of powers and most of the basic functioning of our institutions greatly predated that. I don't see it as readily apparent that any less care was taken into the construction of Canada's constitution. Ours simply arrived at a (thankfully) different result. Certainly there was expediency in some of the decisions made and compromises struck, but that's simply going to be a reality in any major thing arrived at through a parliamentary process and where the buy-in of the provinces must, generally, be achieved.

 

[Brad Sallows]

Sure, but rather than be glib, try acknowledging that many of them had a good grasp of history and political structures going all the way back to classical times, and the government they designed shows it.

 

[lenaitch]

The US Supreme Court ruled abortion is not a Constitutional right.

Perhaps semantics, but they ruled that abortion wasn't constitutionally protected.