Weird because the courts striking down laws as unconstitutional is literally their job description.
Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
Men are still lawfully required to register for the draft for military service (even though active conscription is currently on hold since 1973). It could be argued that being sent into war is life threatening.
I can go to jail for refusing to be drafted sure but my life would not be at risk the same way someone with a rough pregnancy might. Anecdotal but my sister in law would not be alive today if she had not had the option to end unsafe pregnancies prior to having 2 healthy children.
Unlike saying no to being drafted, abortion is a medical procedure. Women can't simply choose to abort, they must have medical assistance. Even with that it's never a simple choice.
Not to mention that when a war threatens the country you being drafted is taking the lion's share of the risk, because someone not doing it is also risky and to everyone.
Here women have to risk their lives and jail because a bunch of religious extremists and fascists have nothing better to do. There is no logical, philosophical, moral or even religious reason for it. It's tyranny for tyranny's sake. It's a demonstration of the power these people have over society.
> Weird because the courts striking down laws as unconstitutional is literally their job description.
Funnily enough, it's literally not in their original job description. Judicial review, like so many things about the Supreme Court, is just based on precedent [1].
>> Equal protection under the law would be my first pick for constitutional protection of abortion[..] Yet the law can compel a women to carry a fetus to term against her will?
But wouldn't that introduce the issue of whether or not the foetus should be entitled to equal protection (which most anti-abortion voters would suggest is a child and should be protected/have rights)? Seems odd to make it a man/woman equality issue.
For example, i have two lungs. You are in a car accident and both your lungs have failed. I could donate a lung and save your life.
Your right to live comes up against my right to control my own body. My right overrules your right. Even if I was the one who caused the accident that damaged your lungs. I can be found to have broken laws causing the accident, but I can’t be forced to donate an organ.
My view has always been that it does not even matter if the fetus has full rights.
People do not have the right to physically attach themselves to another person, and leach blood, oxygen, nurturant etc off the other person. Period. Fetuses would not be an exception.
I feel that a person who wakes up with another person surgically attached to them by some sort of mad-scientist doctor could have surgery to have the second person removed, even if this means certain death for the second person. I don't view abortion as any different.
I could support a ban on abortion methods that directly kill the fetus, but as long as the method is primarily about severing the connection to the mother and removing it from the body, I see nothing wrong with that, even if removal means certain death for the fetus.
If people feel fetuses have human rights, I could also support laws or medical ethics requiring doctors to attempt to save the fetus after it is expelled (if the condition was such that saving them might be possible) just like they would try to save any other person.
>> This is exactly the point for me. Roe V Wade embraced a court that decided that judges could/should legislate (that is, make new laws) rather then enforce the text of existing laws.
> Weird because the courts striking down laws as unconstitutional is literally their job description.
Not really, because the question is actually "what makes something unconstitutional." Should the standard be "we nine unelecteds don't like it, and can read whatever we want into text that is actually silent on the issue"?
> Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
That frankly doesn't make any sense. The law doesn't say that men are permitted to get abortions but women aren't, and the law clearly must be able to regulate things that one sex is incapable of doing (e.g. penetrative rape, and please don't waste time trying to argue the illustration instead of the point). Also, I believe most, if not all, anti-abortion laws apply to people other than the woman getting the abortion.
> Should the standard be "we nine unelecteds don't like it, and can read whatever we want into text that is actually silent on the issue"?
I mean that’s what every ruling is. The court exists because the text isn’t clear. No text is clear enough to handle reality. There are always exceptions, shifting definitions, changing technology. No document can be the full representative of its meaning - a system of rules based on documents will always have a layer of interpretation built on top of it
>> Should the standard be "we nine unelecteds don't like it, and can read whatever we want into text that is actually silent on the issue"?
> I mean that’s what every ruling is.
No, it clearly isn't. If it was, you might as well abolish the other branches of government, because the government is really an oligarchy of judges.
> The court exists because the text isn’t clear. No text is clear enough to handle reality. There are always exceptions, shifting definitions, changing technology. No document can be the full representative of its meaning - a system of rules based on documents will always have a layer of interpretation built on top of it
That's true, but only to a point. Take it too far, and you are just using an oligarchy of judges to bypass the legislative process.
Actually, the power to strike down laws as unconstitutional was arbitrarily claimed by the court in 1803. It is not written down anywhere, except maybe the original federalist papers.
Well, lately, men can get pregnant. I haven't really thought this through, but I think that if you take the liberal position and regard trans men as men, then you can't claim equal protection as an argument against abortion restrictions.
The constitutionality of the draft is debatable. Congress can raise armies, per the constitution - that doesn’t mean they can compel any individual to fight.
> Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?
I don't think it's the court's job to equal the playing field on biology.
But since you put it like that, wouldn't that mean the father also has the right to decide for or against the abortion of his child?
It literally is not. The ability of the court to strike down laws is something the court came up with for itself. It's not literally in the Constitution, it's an inferred authority.
> Weird because the courts striking down laws as unconstitutional is literally their job description.
"Unconstitutional" is never as straightforwardly defined as one would like. For example, protesting against the draft was ruled by the Holmes court as unprotected speech. Today, you can burn a flag with impunity.
> Equal protection under the law would be my first pick for constitutional protection of abortion.
While I'm supportive of the, for lack of a better term, "spirit" of Roe vs Wade, it was never premised on equal protection under the law. After all, men don't have an acknowledged right to avoid parenthood. The opinion itself only justifies abortion on a limited right to privacy and explicitly rejects the "my body, my choice" justification that it is mythologized to have:
"The 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, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization)."
> There are very few life threatening things that the law compels men to do.
Selective service and compelled paternity.
> Yet the law can compel a women to carry a fetus to term against her will?
The law can compel a man to support a child even if he man is not the biological father. It can compel one be vaccinated against his/her will. It can also compel sterilization if it determines that one is mentally defective.
Compelled paternity isn’t a matter of bodily autonomy
Child support isn’t a matter of bodily autonomy.
Both of those apply to both men and women.
The law can theoretically compel everyone to be vaccinated, not just men.
That’s equal protection under the law. It’s also only available in public health crises - not routine.
Again sterilization has been applied to men and women.
Selective service is maybe the only analog to forced birth, and even that has carve outs for religious and moral beliefs.
>Compelled paternity isn’t a matter of bodily autonomy
>Child support isn't a matter of bodily autonomy
A man can be ordered by a court to obtain a job to pay for the child or risk being thrown in prison for refusing to comply. Even terminating parental rights does not remove him from the obligation of paying child support. There has never been a case of compelled maternity (compulsion to mother a child) as every state, even the ones that will now be able to criminalize abortions, allow a mother to surrender her child within a period of at least 72 hours.
> The law can theoretically compel everyone to be vaccinated, not just men. That’s equal protection under the law. It’s also only available in public health crises - not routine.
Equal violation is not equal protection. Otherwise slavery would be OK as long as you could find a persuasive or compelling enough interest for it and found that it could be equally applied to men and women. That's not how rights work. They're inalienable. You either have them or you don't.
> Again sterilization has been applied to men and women.
Same as above.
> Selective service is maybe the only analog to forced birth, and even that has carve outs for religious and moral beliefs.
Carveouts and concessions only make the violation of a right palatable, not reasonable or justifiable. Several states that oppose abortions have carveouts for incest, rape, and/or threats to the health of the mother. In spite of these carveouts, I reject that states or even the federal government should have a say on what one does with one's body in the first place with "special" cases being negotiated after the fact.
Well then we mostly agree. I’ve just been trying to draw consistent lines through an inconsistent system. I believe the system should be consistent, and I believe that there is no consistent system that men could live with that would also include banned abortion.
Then you share my own interest. I would certainly enjoy a constitution that was consistently interpreted to acknowledge and protect negative rights from first principles. But anyone who's read case law will find the actual practice of law to be more disappointing.
Judicial Review is something the court granted itself, it’s not in the constitution. This idea that that court can basically invent or remove the laws of the land by interpretation of a 200 year old document, then decide oh, that’s wrong and now it’s this way… is basically insane. It does not work like this basically anywhere else in the world.
Equal protection under the law would be my first pick for constitutional protection of abortion. There are very few life threatening things that the law compels men to do. Yet the law can compel a women to carry a fetus to term against her will?