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View Diary: The Power Of The State: Privacy Rights and Economic Rights (296 comments)

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  •  Aren't There Distinctions Between Roe and Griswald (none)
    One can arguably be consistent in believing in a Constitutional right to privacy and major restrictions on Roe.  My understanding of Roe is that the right to privacy only applies in first trimester, thereafter any privacy rights have to be balanced with the state's interest in the well-being of the fetus.

    I believe Casey got rid of the trimester tests in place of the 'viability of fetus' standard, but nonetheless recognized that the state still has an interest in the well-being of the fetus that trumps privacy rights at some point in the pregnancy.

    Let's say the Court backed off a little on abortion, letting states, for example, ban third-trimester abortion. That backing off would embolden states to go further and set up challenges to Roe.

    Seems to me that states can already ban all third trimester abortions in be in complaince with Roe, just as long as there is a life/health of mother exception in the law.

    So it appears that Roe v. Wade is flawed to begin with because abortion laws should either be wholly based on Consitutionally protected privacy rights, or on state based health and welfare laws.  What Roe and Casey does is say privacy rights attach at beginning of pregnancy, then at some point which is not really defined certain, those privacy rights become subservient to the state's rights.

    Griswold seems to be different because the right to contraceptions does not ripen then disappear.

    Would the abortion debate not be simpler if there was a finite period of time during which abortions are legal, say 1st 12 weeks of pregnancy, then thereafter all abortions are illegal, except health of mother ?   That way we don't have any balancing act, any examination of whether restrictions are an undue burden, etc.


    •  Half right (none)
      The Roe Court established the trimester framework, but based it on viability.

      I have had this discussion a lot here because I believe Casey is perfectly consistent with Roe on this.

      The SCOTUS is Extraordinary.

      by Armando on Thu Nov 03, 2005 at 11:13:13 AM PST

      [ Parent ]

      •  Nonetheless, the 'Privacy Right' Disappears... (none) some point in the pregnancy with respect to an abortion decision.  

        I have trouble with the concept of a Constitutional right that has an time glass running on it.


        •  No it doesn't (4.00)
          It is overcome by a compelling State interest.

          The SCOTUS is Extraordinary.

          by Armando on Thu Nov 03, 2005 at 11:29:03 AM PST

          [ Parent ]

        •  Then you must also (none)

          Have a problem with free speech "violations" such as the ever-favored restriction on your right to yell "Fire!" in a crowded movie house, or use speech for incitement, or speech for defamation/libel.  Those are all accepted and acceptable restrictions on Free Speech that are not mentioned in the Constituton.  Yet such restrictions are valid and do not negate the fact that you still have a right to Free Speech.

          "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." --9th Amendment

          by praedor on Thu Nov 03, 2005 at 11:45:57 AM PST

          [ Parent ]

          •  Restrictions on Free Speech... (none)
   defamation or shouting fire are imposed for the purpose of protecting other persons who may be harmed.

            If Constitutionally protected privacy rights are supposed to be the basis for an abortion, then what is the rationale for having any restrictions during the period when such privacy rights are supposed outweigh states' interests ?  

        •  Not anymore (none)
          this may have been true under Roe's trimester system, but Casey's "undue burden" test is now the controlling law, not Roe's system.

          As Armando has stated previously, the state needs a compelling state interest to place such an undue burden on a woman at any point during pregnancy.

          The Ayotte decision this Court term could and probably will go a long way in determining how much viability the undue burden test has nowadays.

          Dems will fight for a Renewed Deal with the American people.

          by Hoyapaul on Thu Nov 03, 2005 at 11:49:02 AM PST

          [ Parent ]

    •  The wrong angle on Griswold (none)
      I think many are missing the point with Griswold.

      We ask how are people protected to their right to use contraceptive?

      The appropriate question is where does the constitution give the government the right to regulate such a thing? I don't see how the government could possibly claim an interest or an authority in regards to such a thing.

      •  Re: angle on Griswold (none)
        I can see a clear right to privacy in the application of Griswold.  You get your contraceptive, you can use it when you like and your right to privacy is never imposed upon.  

        In Roe, the court claims there is a right to privacy but then says but it is outweighed after a certain period of time and there can be restrictions that are not unduly burdensome.  

      •  Wrong angle (none)
        The law at issue in Griswold was a state law not a federal law. States can regulate anything which is not forbidden by the federal constitution or their own constitution. State governments are not governments of enumerated or limited powers.
        •  Not quite the case... (none)
           The states do not have unlimited power. The grant of authority comes from the people.

           In addition, if one reads the 9th and 10th Amendments, it is quite clear from the text that the people retain rights so it is not true that the states are not limited.

           Perhaps what we should be debating is what are those limits as apllied to the states?

          "Most people would sooner die than think; in fact, they do so."

          by sebastianguy99 on Thu Nov 03, 2005 at 03:15:15 PM PST

          [ Parent ]

    •  Abortion rights (none)
      I bet you didn't know that at the time the Constitution was adopted,abortion was only illegal when the child had "quickened"which was the common law rule. The abortion statutes struck down in Roe were passed in the 1830's and 1840's for the most part.

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