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Altio's draft opinion is policy masquerading as constitutional law. At critical points in the argument, Alito abandons legal analysis for pure policy preference. At other points, his argument relies on weak evidence.
The most obvious resort to policy over constitutional analysis in Alito's opinion is where he tries to assure that overturning Roe will not impact other privacy rights, like interracial marriage. Alito says abortion is different than other privacy rights because there is a fetal life involved. But that isn't a constitutional basis for distinguishing those other rights. It is not based on history & tradition or the nature of constitutional rights. Many rights have negative consequences on third parties, including most obviously the Second Amendment right to keep and bear arms. The unwritten right to contraception can be said to have a similar third-party impact as abortion. All the other privacy rights are clearly in jeopardy, despite Alito's assurance. Contraception, interracial marriage, sexual intimacy -- none of those rights could withstand Alito's history and tradition test that looks only to the law existing before the 14th amendment. Alito also departs from standard constitutional practice by disregarding decades of precedent (over an above Roe) on due process. Obergefell, Lawrence, Harlan in Poe, early incorporation cases -- all said history is a guide but not the only basis for finding of a right. Yet Alito says that a strictly historical understanding of liberty is the settled way of doing due process analysis. In fact, that approach was explicitly rejected in Obergefell and other cases. Alito's argument about how the common law treated abortion is also remarkably weak. Nearly all the evidence that he cites shows that *pre-quickening* (about 16 weeks), abortion was not criminalized. Alito cites one source for saying that person who unlawfully kills a fetus before quickening by giving the woman an elixir would be guilty of murder if the woman dies. Note what is missing: The historical source did NOT say that the delivery of an elixir that kills the fetus would be guilty of murder. No law that Alito cites says that. Alito offers no history to support pre-quickening illegality, other than a seemingly offhand use of the word "unlawfully" by one source -- who wasn't even discussing abortion by choice. Perhaps a good decision could be written overturning Roe & Casey, one based on strictly constitutional reasoning rather than hidden policy choices. But Alito hasn't written it. His analysis gives history and tradition a bad name. Posted from my iPhone/Mobile device |
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Does vaginal delivery fall within the scope of the Interstate Commerce Clause or the Welfare Clause or any other federal enumerated power in the Constitution? |
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"Come for the abortions, stay for the insurance!" |
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When you willfully ignore the impact to the babies, abortion doesn't seem so bad. Which is like saying if you ignore the iceberg, the maiden voyage of the Titanic doesn't seem so bad. |
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yep that's about right
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ever heard of robert bork? the american people freely chose to give senate control to republicans. America wanted a republican senate. and look up “The Biden rule”. that’s literally, exactly what McCinnell did. He enacted The Biden Rule. Why was it ok for biden to say the senate should block SCOTUS nominees late in the term of a potus in the other party? if that was ok, why was what McConnell did, wrong? Posted from my iPhone/Mobile device |
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Thanks TDF. Posted from my iPhone/Mobile device |
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but, you know what the biden rule is. What McCinnell did, literally and exactly, was to enact the Biden Rule. if it was swell for biden, please explain why it was bad for McConnell. Spence here’s a very simple question. Do you think i oppose abortion because i want to enslave women, or because I’m a racist? or because i’d prefer babies be born, to their being slaughtered by the tens of millions? Posted from my iPhone/Mobile device |
can any of the lefties here, please tell us where the constitution says that we the people, through our elected officials in the states, cannot regulate abortion as we wish? some will wish to restrict it, some will wish to provide it at will.
democracy will dictate this, if the draft holds. The left is appalled at the thought of democracy. It horrifies them. Posted from my iPhone/Mobile device |
It's right there next to "filibuster," after the section where it says the Supreme Court can only have nine Justices.
Before the section that limits the House to 435 members? Or the section that prohibits DC statehood? Or the one that says a sitting President is immune from criminal prosecution? It would also be hard to find abortion in the constitution because it doesn’t mention woman at all nor anyone who wasn’t a white male as having rights so not the best document to look at for words like that. Posted from my iPhone/Mobile device |
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And are afraid it would pass .. but be sure they would disregarded it , McConnell Explains How He’ll Steal Another Supreme Court Pick From Another Democratic President The Republican signals that if his party retakes the Senate, he’ll block Biden’s high court nominees in 2024—and very probably in 2023. Yep rule of law , court precedent All forsaken for power vis the minority Posted from my iPhone/Mobile device |
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Please tell us, in a statewide election/referendum, what effect gerrymandering has? Answer - none. It makes zero difference in a statewide contest, because every vote counts the same, regardless of which district it's in. Where do you get the idea that democrats don't gerrymander? When CT lost a congressional seat a few years ago, they re-drew the one conservative district (rural) in the state, and re-defined it to include enough of Waterbury (urban) to make it reliably blue. Gerrymandering helps you win statewide contests. Honest to god... "McConnell Explains How He’ll Steal Another Supreme Court Pick From Another Democratic President" Did the democrats in the senate steal Bork's seat when they rejected him? Why is it OK for senate democrats to block a republican nominee, but "stealing" when senate republicans block a democrat nominee? The Biden Rule. If it was OK for Biden, it's OK for McConnell. What's good for the goose... |
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Look up Plessy V Ferguson. There, the SCOTUS said segregation was legal. Then, 50 years later, SCOTUS reversed that in Brown V Board of Ed. Decisions sometimes get reversed. It's not a crisis when a decision gets reversed. |
Question doses anyone honestly think that if Roe is struck down and becomes a State rights issue as suggested by those on the Right ..
That those states or the anti Abortion activists are going to stop ? And go home . They will be after a National ban next Rubio targets 'woke executives' covering travel for employees to get abortions Sen. Marco Rubio's new bill wouldn't let employers deduct travel expenses that pay for abortion or trans care for minors I guess this is how Republicans respect the privacy and freedoms of companies and their employees Freedom for me not for thee because I disagree Little Marco is appealing to you guessed the rabid MAGA base not the avg American… just like the SC Posted from my iPhone/Mobile device |
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My good god. The basis of the draft opinion, is that it's not a federal issue, but a state issue. "Sen. Marco Rubio's new bill wouldn't let employers deduct travel expenses that pay for abortion or trans care for minors" And if his constituents don't like that, they will vote him out. "I guess..." 5 minutes ago, you guessed that gerrymandering can rig a statewide election, and you won't concede you were wrong. Maybe think a bit more, before you offer your guesses. I'll ask you what I asked Spence, and of course he didn't answer... do you think I'm prolife because I hate women, because I'm racist, or because I have empathy for the baby? Your side spends 100% of its time talking about the impact to the mothers (and that's a valid point, but it's not the only point), and 0% of your time talking about the baby. Because every single one of you know, that any discussion of that side of this, makes your position look barbaric. |
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Trump got 74,000,000 votes in 2020, which is the second-most any candidate has ever gotten (not enough, obviously). None of those 74M were average Americans? Maybe your view of what's average, is a tad askew. |
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wdmso, another question…
you’re upset the court overturned precedent. Well the court has done that before, my favorite example is Plessy V Ferguson which legalized segregation, that was overturned 50 years later. If you’re ok with that being overturned, that means you’re ok with bad rulings being overturned. You can’t say “i support the idea of overturning precedent, but only when i like the outcome.” Either the idea of overturning precedent is ok, or it’s not. it’s not “ok, but only when it moves us to the left. “. which is obviously your position. Posted from my iPhone/Mobile device |
Since Detbuch is convinced that a fetus is a human being at conception
If the "fetus" is considered a human being, then it would be a constitutional basis. If a fetus is a person at 6 weeks pregnant, is that when the child support starts? Is that also when you can't deport the mother because she's carrying a U.S. citizen? Can I insure a 6 week fetus, and collect for a miscarriage? Maybe the radical clerics that issued the Fatwa against abortion will clarify it. |
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Did you know when it was overturned white Christians pulled their kids from public school to white only Christian ones .. Jim like every thing , it’s not the reversal it’s the logic for the reversal Segregation was discrimination using the current courts logic it should not have been turned over because segregation was a Traditional value in America yet the logic suddenly changed with 3 holy rollers on the bench.. from what it was 2 years prior to their appointments coincidence? Nope most rational people see this for what it clearly is . An emotional religious ruling not a legal one.. And if you think a National ban isn’t next .. your not paying attention Just out Senate Republicans are working with antiabortion activists already to put together a bill banning abortion if they win control of the chamber in November’s midterm elections. Posted from my iPhone/Mobile device |
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then why are you complaining about the reversal in so many of your posts? “it’s the logic for the reversal” have you stated a legal opinion as to why the reversal is wrong? or is it legally wrong simply because you don’t like it? can you tell me, legally, why Alito draft is wrong on the law? the leak has resulted in barricades around the scotus building, and calls for protesting the homes of the judges. but a conservative did that, right? Alito had to cancel public appearances because of concerns for his safety. you going to tell us that conservatives threatened him? last year, Schumer said justices would reap the whirlwind, pay a price, and never know what hit them, if they did things he didn’t like. but that was ok. Posted from my iPhone/Mobile device |
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