Louisiana Republican Aims To Overturn Roe v. Wade

[Seth]

Fucking idiots. You CANNOT legislate this, it's already been ruled on by SCOTUS. This is just political grandstanding. There are only two routes open for the prolife crowd, a constitutional amendment or a ruling by SCOTUS reversing Roe v Wade. Neither is likely to happen. All they do is cost the taxpayers money as the laws are inevitably knocked down.

Actually, states still have substantial latitude to regulate abortion under Roe v. Wade, particularly in the second and third trimesters.

And the Court's booting of the question of "when does life begin" by referring to ancient religious beliefs and practices is rather more than a little suspect, given our present scientific knowledge about the smallest details of human biological development.

The Court simply evaded the objective science, which clearly demonstrates that "life" begins when the zygote is formed, by reciting a litany of historical practices and ignoring advances in medical knowledge, while at the same time making an entirely arbitrary distinction that the state may regulate abortion in the 2nd trimester for reasons of maternal health, but in the third trimester in order to preserve the "life" of the fetus, without ever acknowledging the scientific facts involved.

The Court acknowledged that if "life" begins at conception, or rather, as biology tells us, at the formation of the zygote, about 24 hours after fertilization, then that person's life would be protected by the 14th Amendment.

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument." Source: Roe V. Wade

Therefore, instead of acceding to the wisdom of the state legislatures, whose duty it is to balance the rights of the fetus and the rights of the mother in making laws that reflect the needs and desires of the residents of the states, the Court chose to make law itself, which is called "judicial activism" and is generally reversible error, instead of granting the usual substantial deference to both state legislatures and state high courts in determining the breadth of a woman's "right to privacy" and a fetus' "right to life." The reasoning used to justify this intrusion on state's rights is weak at best, and consists primarily of a historical review of past practice that utterly ignores the fact that the whole purpose of a legislature is to make laws that serve the present needs of the community, even when those laws differ from past practice. For example, drunk driving was once a mitigating factor in an accident, but now it's an aggravating factor.

That's why we no longer subscribe to Hammurabi's Code or the dictates of the Torah, or ancient Egyptian law. Using the same "Wayback Machine" rationale the Court used would put our entire jurisprudence back about 5000 years, which is nonsensical.

In order to rule as it did, and in order to evade the natural implications of science, the Court had to stretch two concepts to the breaking point: First, the concept of "personal privacy," which the Court admits is nowhere found in the Constitution, and second the notion that historical practice and belief, mostly religious belief, is of greater importance than current scientific knowledge in determining when life begins, and therefore when constitutional protections attach.

This is why Roe v. Wade is a weak case that has a substantial likelihood of being overturned eventually.

[Geoff]

...the objective science, which clearly demonstrates that "life" begins when the zygote is formed...

[citation needed]

[Coito ergo sum]

Fucking idiots. You CANNOT legislate this, it's already been ruled on by SCOTUS. This is just political grandstanding. There are only two routes open for the prolife crowd, a constitutional amendment or a ruling by SCOTUS reversing Roe v Wade. Neither is likely to happen. All they do is cost the taxpayers money as the laws are inevitably knocked down.

Actually, states still have substantial latitude to regulate abortion under Roe v. Wade, particularly in the second and third trimesters.

Very true. In the third trimester, States may limit abortions almost entirely except where there is a danger to the life of the mother, etc.

And the Court's booting of the question of "when does life begin" by referring to ancient religious beliefs and practices is rather more than a little suspect, given our present scientific knowledge about the smallest details of human biological development.

Life is not the question - "person" is the question. My fingers are alive, but they're not people. Moreover, the trimester set-up is an acknowledgement of the general idea of fetal development. In the first trimester, it's very early on in the development and isn't as much like a born human as it is in the last few weeks, where it can actually be born prematurely and be fine.

The Court simply evaded the objective science, which clearly demonstrates that "life" begins when the zygote is formed, by reciting a litany of historical practices and ignoring advances in medical knowledge, while at the same time making an entirely arbitrary distinction that the state may regulate abortion in the 2nd trimester for reasons of maternal health, but in the third trimester in order to preserve the "life" of the fetus, without ever acknowledging the scientific facts involved.

Life actually begins when the sperm and egg are formed in the gonads of the parents. Sperm are alive, and eggs are alive. And, they are human. Yet, I kill millions of them almost daily.

The trimester idea is not based on the idea of life beginning at a certain time - it is instead a balancing of fundamental rights that are coming into conflict and the interest of the State.

It's kind of like the rule that if Joe is on a bridge and sees Bill hanging by his fingertips pleading to be helped up. Even if Joe entails 0 risk to himself, he is not obliged to pull Bill up. He can walk away, and has every right to do so, even if Bill dies. Bill has a right to life, but that right does not overcome Joe's liberty to do as he pleases, and Joe can't be compelled to help Bill.

In the womb, a fetus is interfering with the mother's rights - early on in the pregnancy, the fetus not very developed with no sentience, etc., and cannot survive outside of the mother. So, the mother's rights are said to outweigh the fetuses' rights. And, the State's interest in preserving life at that stage is relatively low. Later in the pregnancy, the State's interest in protecting life attaches, and the fetus, which is almost a born baby. It's a balancing test, not a black-and-white - is it life or is it not life - issue.

The Court acknowledged that if "life" begins at conception, or rather, as biology tells us, at the formation of the zygote, about 24 hours after fertilization, then that person's life would be protected by the 14th Amendment.

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument." Source: Roe V. Wade

Therefore, instead of acceding to the wisdom of the state legislatures, whose duty it is to balance the rights of the fetus and the rights of the mother in making laws that reflect the needs and desires of the residents of the states, the Court chose to make law itself, which is called "judicial activism" and is generally reversible error, instead of granting the usual substantial deference to both state legislatures and state high courts in determining the breadth of a woman's "right to privacy" and a fetus' "right to life."

You're actually misstating it. There is no rule of "deference" to state legislatures and state courts on FEDERAL rights. Note, also, the court's use of the term "personhood" and not "life."

The reasoning used to justify this intrusion on state's rights is weak at best, and consists primarily of a historical review of past practice that utterly ignores the fact that the whole purpose of a legislature is to make laws that serve the present needs of the community, even when those laws differ from past practice. For example, drunk driving was once a mitigating factor in an accident, but now it's an aggravating factor.

It's an interpretation of the 14th Amendment which is itself the biggest intrusion into states rights that has ever occurred. It limits what States may deprive their citizens of, and it has a substantive aspect and procedural aspect. Substantively, the State may not deprive a person of a fundamental liberty without a compelling state interest and by means narrowly tailored to effectuate that interest without going beyond that interest or the necessary means. The woman has rights, and those rights include the right to privacy which is found to be implied in the Constitution (and/or within the "penumbra" of other rights) - it's the same right that affords a woman (or man) a fundamental right to take birth control.

That's why we no longer subscribe to Hammurabi's Code or the dictates of the Torah, or ancient Egyptian law. Using the same "Wayback Machine" rationale the Court used would put our entire jurisprudence back about 5000 years, which is nonsensical.

I don't think the Court did what you say it did. Certainly the part you quoted doesn't do it.

In order to rule as it did, and in order to evade the natural implications of science, the Court had to stretch two concepts to the breaking point: First, the concept of "personal privacy," which the Court admits is nowhere found in the Constitution,

The Court admitted no such thing. It specifically found the right of privacy was a "natural implication" of the rights explicitly set forth in the Constitution. The exact word "privacy" is not used in the Constitution, but other words are used which ultimately, when taken together, have the natural implication of guaranteeing a right of privacy.

and second the notion that historical practice and belief, mostly religious belief, is of greater importance than current scientific knowledge in determining when life begins, and therefore when constitutional protections attach.

Again - the court did not base its decision on when "life" begins, nor did it find that the beginning of life was the touchstone of the issue.

This is why Roe v. Wade is a weak case that has a substantial likelihood of being overturned eventually.

Perhaps, but abortion will always be legal, I suspect.

[Seth]

Fucking idiots. You CANNOT legislate this, it's already been ruled on by SCOTUS. This is just political grandstanding. There are only two routes open for the prolife crowd, a constitutional amendment or a ruling by SCOTUS reversing Roe v Wade. Neither is likely to happen. All they do is cost the taxpayers money as the laws are inevitably knocked down.

Actually, states still have substantial latitude to regulate abortion under Roe v. Wade, particularly in the second and third trimesters.

Very true. In the third trimester, States may limit abortions almost entirely except where there is a danger to the life of the mother, etc.

And the Court's booting of the question of "when does life begin" by referring to ancient religious beliefs and practices is rather more than a little suspect, given our present scientific knowledge about the smallest details of human biological development.

Life is not the question - "person" is the question. My fingers are alive, but they're not people. Moreover, the trimester set-up is an acknowledgement of the general idea of fetal development. In the first trimester, it's very early on in the development and isn't as much like a born human as it is in the last few weeks, where it can actually be born prematurely and be fine.

The Court said of this: "Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Source: Roe v. Wade."

The Court also said, in reference to the definition of "persons," "But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application."

The error here is that the Court deliberately chooses a narrow interpretation of "person" based only on the Constitution, but fails to acknowledge that the Texas legislature is competent to define a "person" for the purposes of a state regulation in a manner that is broader, but not narrower than the definition found in the 14th Amendment.

Section one says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment, which extends all Constitutional rights to "persons" born or naturalized, was designed to make sure that slaves, who were previously not "persons" under the Constitution, had rights. But this is the federal MINIMUM standard for the enjoyment of rights. Nothing prevents (or is supposed to prevent) a STATE from providing BROADER rights or BROADER descriptions of "persons" than the Constitution does.

What the Court did, which is rather novel, is to deliberately DENY a living human being constitutional protections that were extended to that being by a state legislature. That's a violation of state sovereignty.

While Texas is forbidden to infringe upon the rights of constitutionally-defined "persons" (which includes former slaves) by treating them as "non-persons," and the Constitution has been likewise seen to protect even non-citizen "persons" in the corpus of illegal aliens and Texas may not treat them as "non-persons," the Court abused its authority by overruling a legitimate act of the Texas legislature which extended the protections of "personhood" to the fetus. The Courts are supposed to defer to the elected representatives of the People unless their action infringes upon some superior constitutional right.

Note that the Court did not say "a fetus is not a person," it pettifogged and obfuscated around that fundamental issue by saying that:

"All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."

But that was not the issue before the Court in this particular point. The issue before the Court was, or should have been, does Texas law define a fetus as a "person?" Since the definition of "person" insofar as Texas' constitutional authority to make law is not a matter that in and of itself impacts any constitutional right, it does not fall under the strict scrutiny requirements, and the Court was obliged to respect Texas' definition if there was a rational basis for that legislative decision.

But the Court recognized that if Texas was permitted to define a fetus as a "person," it's machinations and rationalizations regarding the right of privacy of the mother would be severely damaged, so it departed from good jurisprudence and "made law" itself by artificially (and for the first time since the 14th Amendment was ratified) narrowing the scope of protection of the 14th Amendment by excluding fetuses from its protections.

And the essential question is, by what authority did the Supreme Court overrule the sovereign judgment of the Texas legislature in broadening the protections of the state and federal Constitutions to another class of "persons?"

It's one thing to say that a woman's right of privacy is founded in the 14th and 9th Amendments, but it's quite another to say that a state is not authorized to more stringently protect the rights of a class of individuals defined as fetuses by extending constitutional protections to them. That's an action more in harmony with the Dred Scott decision that denied "personhood" and humanity to slaves than it is modern, enlightened jurisprudence.

And in fact the Court did not end up simply making fetuses "non-persons," in fact it took the opposite tack shortly later in ruling that the woman's right to privacy is not absolute, and that the state does have a legitimate interest in preserving a fetus in the third trimester.

So, here's the dichotomy: By what legal authority does the Supreme Court determine when a fetus becomes a "person" in the law? That is the duty of the legislature, not the courts. Courts are supposed to be restricted to making determinations of law based on legislative acts. The legislature passes a law, and the Court decides if that law complies with the Constitution.

In this case, in addition to determining that the Texas law violated the privacy rights of Roe, which was a legitimate judicial act, the Court went far beyond its legal authority to make a legislative determination as to when a fetus becomes a "person" in the law. That is a clear usurpation of the power of the legislature and the Separation of Powers Doctrine, and it's reversible error.

The Court simply evaded the objective science, which clearly demonstrates that "life" begins when the zygote is formed, by reciting a litany of historical practices and ignoring advances in medical knowledge, while at the same time making an entirely arbitrary distinction that the state may regulate abortion in the 2nd trimester for reasons of maternal health, but in the third trimester in order to preserve the "life" of the fetus, without ever acknowledging the scientific facts involved.

Life actually begins when the sperm and egg are formed in the gonads of the parents. Sperm are alive, and eggs are alive. And, they are human. Yet, I kill millions of them almost daily.

And those are parts of your body, so you may do so. But when the sperm and egg unite and the parental chromosomes align along the spindle apparatus, embryologists universally agree that the first cell of the new, unique, living human organism comes into existence. This is the only important metric in this discussion. When does a NEW HUMAN LIFE begin?

The trimester idea is not based on the idea of life beginning at a certain time - it is instead a balancing of fundamental rights that are coming into conflict and the interest of the State.

Correct, but the Court cannot balance the fundamental rights of a non-person, now can it? If it's not a "person," then there is no need to balance any rights at all. Indeed, that was the argument of several of the amici in the case, who argued that until birth, a woman's right to terminate a pregnancy is absolute.

But implicit in the decision is the acknowledgment that at some point during gestation a "person" exists that the state has an interest in protecting. The Court was deliberately vague about when this point of demarcation occurs, but obviously it occurs at some point. The logical question that follows is why is one point any more or less valid than any other point?

Legally speaking, the 14th Amendment says that all "persons" are protected in their right to life, and if the fetus is a "person" at any point during gestation, then it has rights that must be protected. The Court acknowledged that this is the case, but refused to be more specific about when those rights attach. What they did, explicitly, is leave the decision up to the states to decide when a fetus is to be protected, at least in the second and third trimesters.

But this "balancing of rights" is an equivocation of the requirements of the 14th Amendment and the individual's right to life because it fails to provide any objective basis to decide at what point a fetus becomes a "person" while insisting that at some point, it does become a person. They leave that up to the states to decide, but they restrict that authority by prohibiting them from banning abortion in the first trimester.

So once again we have a tension between state sovereignty and constitutional interpretation. The Court says to Texas, "You may consider a fetus a person at some arbitrary point in the second or third trimester, but you may not extend the protections of the Constitution to a fetus in the first trimester."

This raises the question of what authority the court has to CONSTRAIN a state legislature's broadening of constitutional protections?

It's kind of like the rule that if Joe is on a bridge and sees Bill hanging by his fingertips pleading to be helped up. Even if Joe entails 0 risk to himself, he is not obliged to pull Bill up. He can walk away, and has every right to do so, even if Bill dies. Bill has a right to life, but that right does not overcome Joe's liberty to do as he pleases, and Joe can't be compelled to help Bill.

In the womb, a fetus is interfering with the mother's rights - early on in the pregnancy, the fetus not very developed with no sentience, etc., and cannot survive outside of the mother. So, the mother's rights are said to outweigh the fetuses' rights. And, the State's interest in preserving life at that stage is relatively low. Later in the pregnancy, the State's interest in protecting life attaches, and the fetus, which is almost a born baby. It's a balancing test, not a black-and-white - is it life or is it not life - issue.

The problem with that argument is that it disregards the constitutional protections afforded to all persons, which does not distinguish between the convenience of one person and the life of another person. The imposition on the mother's rights is an imposition on her convenience or comfort (absent some legitimate threat to her life) while the imposition on the fetus is its death. That's not a "balancing" of anything in the estimation of many people. You also disregard the duty and obligation the mother took on by voluntarily having sex, which is a known factor in pregnancy. That voluntary act, in the opinion of many, substantially reduces the "interference" justification.

The Court acknowledged that if "life" begins at conception, or rather, as biology tells us, at the formation of the zygote, about 24 hours after fertilization, then that person's life would be protected by the 14th Amendment.

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument." Source: Roe V. Wade

Therefore, instead of acceding to the wisdom of the state legislatures, whose duty it is to balance the rights of the fetus and the rights of the mother in making laws that reflect the needs and desires of the residents of the states, the Court chose to make law itself, which is called "judicial activism" and is generally reversible error, instead of granting the usual substantial deference to both state legislatures and state high courts in determining the breadth of a woman's "right to privacy" and a fetus' "right to life."

You're actually misstating it. There is no rule of "deference" to state legislatures and state courts on FEDERAL rights.

That's the problem. The Court had to concoct a "federal right" in order to have jurisdiction in the first place. Their arguments regarding privacy are exceedingly strained and grasping. And it also had to disrespect the rights of the fetus to get to its conclusion.

Clearly this was a political decision and an act of judicial lawmaking, not a proper exercise of judicial power.

Note, also, the court's use of the term "personhood" and not "life."

Note that the court uses "life" on numerous occasions, including in reference to a state's interest in protecting a fetus in the 2nd and 3rd trimester.

The reasoning used to justify this intrusion on state's rights is weak at best, and consists primarily of a historical review of past practice that utterly ignores the fact that the whole purpose of a legislature is to make laws that serve the present needs of the community, even when those laws differ from past practice. For example, drunk driving was once a mitigating factor in an accident, but now it's an aggravating factor.

It's an interpretation of the 14th Amendment which is itself the biggest intrusion into states rights that has ever occurred. It limits what States may deprive their citizens of, and it has a substantive aspect and procedural aspect. Substantively, the State may not deprive a person of a fundamental liberty without a compelling state interest and by means narrowly tailored to effectuate that interest without going beyond that interest or the necessary means. The woman has rights, and those rights include the right to privacy which is found to be implied in the Constitution (and/or within the "penumbra" of other rights) - it's the same right that affords a woman (or man) a fundamental right to take birth control.

But it deprives the fetus of fundamental liberties by defining it as a non-person in the first trimester. Moreover, it deprives the states of their sovereign right to define a fetus as a person and extend protection to the fetus. The question becomes whether or not a woman's right to privacy is outweighed by the fetus' right to live, and the state's right to protect it. Given the weak nature of the woman's right to privacy, and the deadly consequences to the fetus, many people believe the court struck the wrong, and indeed an illegal balance.

That's why we no longer subscribe to Hammurabi's Code or the dictates of the Torah, or ancient Egyptian law. Using the same "Wayback Machine" rationale the Court used would put our entire jurisprudence back about 5000 years, which is nonsensical.

I don't think the Court did what you say it did. Certainly the part you quoted doesn't do it.

It's rationale the Court used to claim that fetuses are not persons is based on a historical review going clear back to the beginning in which the Court discusses "quickening" and historical regulation of abortion as a justification for claiming that the 14th Amendment doesn't apply to fetuses. The problem with this rationale is that a state legislature has full authority to EXPAND the protections of the 14th Amendment by enacting STATE legislation that defines a fetus as a person. At that point, the "balancing" of rights by the Court must acknowledge the state's determination that a fetus (in that state) is worthy of protection and it must, if it chooses to do so, balance the privacy right of the woman against the rights of the fetus. But in so doing, it must acknowledge that the fetus does have rights.

The court did so, obliquely, in its final ruling, but without any careful analysis. It reached a largely pre-determined conclusion by fitting its examination of the historical record to the conclusion rather than making a careful examination of the constitutional requirements for protecting life over the mere inconvenience and discomfort of the mother.

In order to rule as it did, and in order to evade the natural implications of science, the Court had to stretch two concepts to the breaking point: First, the concept of "personal privacy," which the Court admits is nowhere found in the Constitution,

The Court admitted no such thing. It specifically found the right of privacy was a "natural implication" of the rights explicitly set forth in the Constitution. The exact word "privacy" is not used in the Constitution, but other words are used which ultimately, when taken together, have the natural implication of guaranteeing a right of privacy.

Right. It constructed a "right of privacy" regarding abortion by claiming a "natural implication" but without any credible evidence that any such right of privacy has been acknowledged by any society. Indeed, its review of abortion practice clearly demonstrates that abortion has more often been prohibited than permitted.

and second the notion that historical practice and belief, mostly religious belief, is of greater importance than current scientific knowledge in determining when life begins, and therefore when constitutional protections attach.

Again - the court did not base its decision on when "life" begins, nor did it find that the beginning of life was the touchstone of the issue.

And therein lies the problem with the ruling. For the quintessential question remains unanswered, and so the law is in question.

This is why Roe v. Wade is a weak case that has a substantial likelihood of being overturned eventually.

Perhaps, but abortion will always be legal, I suspect.

To some extent, and in some places, and that's precisely what the Constitution contemplates with the Separation of Powers. The issue should be properly returned to the states to regulate, which is where it belongs in the first place.

[laklak]

From the Libertarian party Platform:

1.4 Abortion

Recognizing that abortion is a sensitive issue and that people can hold good-faith views on all sides, we believe that government should be kept out of the matter, leaving the question to each person for their conscientious consideration.

Makes sense to me. No mention of state's rights, or personhood, just an individual's "conscientious consideration".

[apophenia]

I haven't yet gotten around to reading the actual decision (more than to note whether you were quoting out of context or not). In the meantime, my nosing about seems to imply that the court made no determination about the beginning of life, but oriented their decision around viability. Indeed, until the fetus can survive on its own with the aid of modern medicine, it's hard to look upon it as anything other than a parasite -- its sole existence predicated on the forced servitude of its host. It's in that frame of reference that the court chose not to recognize a fetus' right to exist until it could do so on its own -- thus the balancing act, arguably on suspect grounds. The argument of judicial overreach versus state's rights is an ongoing debate, but is hardly one to be settled by fiat. There is some support for states broadening the meaning of personhood, as abolition of slavery in the northern United States occurred somewhat piecemeal, though I find no instance where state definitions came into conflict with federal definitions (until the Emancipation Proclamation, which wasn't even law, but rather an executive order). Nonetheless, if the great state of Texas broadened the definition of personhood to include chickens, and attempted to execute a man for killing a chicken, I feel rightly confident that the federal government would intercede. You're welcome to argue the converse, that they should not.

PBS' Frontline has an interesting page on Roe v. Wade and significant cases since then. (Here.)

[kiki5711]

its sole existence predicated on the forced servitude of its host.

Hey, they stay in that mode even after they're born until about age of 25, if not longer.

[Coito ergo sum]

[

The Court said of this: "Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Source: Roe v. Wade."

My point exactly. The issue doesn't have anything to do with "when life begins." A legitimate state interest need not stand or fall on the belief that life begins at conception or at some other point prior to live birth. It can stand or fall at some other point.

But, anyway, the context of that quote is very important. It's in section VII of the court's opinion which says: "Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.....The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151].... It is with these interests, and the weight to be attached to them, that this case is concerned."

So, the court is expounding upon the reasons and justifications advanced for criminalizing abortions, and is telling the reader that the case is about these alleged interests and the weight to be accorded them. It's not a holding or a finding.

The Court also said, in reference to the definition of "persons," "But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

The error here is that the Court deliberately chooses a narrow interpretation of "person" based only on the Constitution, but fails to acknowledge that the Texas legislature is competent to define a "person" for the purposes of a state regulation in a manner that is broader, but not narrower than the definition found in the 14th Amendment.

In federal constitutional interpretation, the definition of "person" is a function of federal constitutional law, not state law. If every state could define "person" differently than the federal constitution could mean something different in every state.

Moreover, here is the context of your quote:

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

The court expounded on the history of the meaning of the word "person" in the Constitution. It didn't include the unborn.

Section one says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment, which extends all Constitutional rights to "persons" born or naturalized, was designed to make sure that slaves, who were previously not "persons" under the Constitution, had rights. But this is the federal MINIMUM standard for the enjoyment of rights. Nothing prevents (or is supposed to prevent) a STATE from providing BROADER rights or BROADER descriptions of "persons" than the Constitution does.

Nothing allows the States to individually define terms within the Constitution. A State can't, for example, define what "speech" is. That's a federal Cosntitutional matter. The 14th Amendment applies to federal "persons" and states that States may not deprive persons of life, liberty, or property. There is nothing that says that the a State can broaden the definition of "person" and, say, include dogs and cats as "persons" for 14th amendment purposes and then allow them rights equal to humans.

What the Court did, which is rather novel, is to deliberately DENY a living human being constitutional protections that were extended to that being by a state legislature. That's a violation of state sovereignty.

The 14th Amendment is inherently a violation of State sovereignty, so of course. Any limitation on the State's power to legislate is a limitation on its sovereignty. That's what the 14th Amendment does and what it was intended to do.

While Texas is forbidden to infringe upon the rights of constitutionally-defined "persons" (which includes former slaves) by treating them as "non-persons," and the Constitution has been likewise seen to protect even non-citizen "persons" in the corpus of illegal aliens and Texas may not treat them as "non-persons," the Court abused its authority by overruling a legitimate act of the Texas legislature which extended the protections of "personhood" to the fetus. The Courts are supposed to defer to the elected representatives of the People unless their action infringes upon some superior constitutional right.

...the woman's right to privacy. But, no, the Court's are not to "defer, unless..." - they are to interpret and apply the Constitution, and if a state law violates the 14th Amendment, then it is struck down.

Note that the Court did not say "a fetus is not a person," it pettifogged and obfuscated around that fundamental issue by saying that:

"All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."

But that was not the issue before the Court in this particular point. The issue before the Court was, or should have been, does Texas law define a fetus as a "person?" Since the definition of "person" insofar as Texas' constitutional authority to make law is not a matter that in and of itself impacts any constitutional right, it does not fall under the strict scrutiny requirements, and the Court was obliged to respect Texas' definition if there was a rational basis for that legislative decision.

With all due respect to what you think "should have been" the issue before the Court, the Court rendered its opinion on the issues before it.

And, the Court did find that Texas violated a fundamental right.

But the Court recognized that if Texas was permitted to define a fetus as a "person," it's machinations and rationalizations regarding the right of privacy of the mother would be severely damaged, so it departed from good jurisprudence and "made law" itself by artificially (and for the first time since the 14th Amendment was ratified) narrowing the scope of protection of the 14th Amendment by excluding fetuses from its protections.

And the essential question is, by what authority did the Supreme Court overrule the sovereign judgment of the Texas legislature in broadening the protections of the state and federal Constitutions to another class of "persons?"

Again, the State legislature does not have the power to define and re-define the terms used in the federal Constitution. That's a matter of federal Constitutional law. Using your logic, the State can define a fetus as person today, and then when the liberals take the State legislature next year, they can define the fetus as not a person, and we can ping pong back and forth. And, all 50 states would have the same right, so by crossing the State lines, the fetus in a woman's uterus would have federal constitutional rights in State X, lose them in State Y, and gain them back again in State Z, depending on the vicissitudes of the State legislature.

You've got that part wrong, and it is the foundation of your entire argument.

It's one thing to say that a woman's right of privacy is founded in the 14th and 9th Amendments, but it's quite another to say that a state is not authorized to more stringently protect the rights of a class of individuals defined as fetuses by extending constitutional protections to them. That's an action more in harmony with the Dred Scott decision that denied "personhood" and humanity to slaves than it is modern, enlightened jurisprudence.

A State could not say that Gorilla's were persons, and then bind the entire US in doing so, and the meaning of the term person in the 14th Amendment can't include Gorillas in Texas, Chimpanzees in Washington, and neither of them in Idaho, and unborn gorillas in Ohio. Again, the States don't get to define the word "person" for the purposes of the federal constitution. They may have a definition of the word person for the purposes of State law, but they can't, for example, define an appendix as a "person" and then the rights of born humans are thereby extended to appendixes in that State. Your logic would require that States have that power.

And in fact the Court did not end up simply making fetuses "non-persons," in fact it took the opposite tack shortly later in ruling that the woman's right to privacy is not absolute, and that the state does have a legitimate interest in preserving a fetus in the third trimester.

Yes - a State's legitimate interests do not rest exclusively on when life begins. The court said that explicitly.

So, here's the dichotomy: By what legal authority does the Supreme Court determine when a fetus becomes a "person" in the law?

The United States Constitution under Article III, wherein the SCOTUS is the Supreme Court of the land, and has the authority to interpret and apply the Constitution of the United States. That means that the SCOTUS will define what "free speech" is and what "religion" is and what a "person" is and what a "citizen" is. States don't get to redefine "religion" - that has a meaning under federal Constitutional law as found by the SCOTUS. Similarly, it's up to the SCOTUS to interpret the meaning of the word "person."

Your logic would allow for the following - two cases are filed, one in State X and one in State Y, challenging the abortion law. State X defines the fetus as a person from conception, and State Y defines it from birth. All other facts are the same. The Court would have to defer to the States, and render two rulings - one would be that the same law is Constitutional under the US constitution in State X and unconstitutional in State Y, and a 14th Amendment person is something different in each State.

That is the duty of the legislature, not the courts.

It is the duty of the Court to interpret the meaning of the words used in the 14th Amendment and elsewhere in the federal Constitution. It is not the duty of State legislatures to define those terms.

Courts are supposed to be restricted to making determinations of law based on legislative acts. The legislature passes a law, and the Court decides if that law complies with the Constitution.

Yes. And, the Court found that the Texas law in Roe v Wade did not comply with the US Constitution.

In this case, in addition to determining that the Texas law violated the privacy rights of Roe, which was a legitimate judicial act, the Court went far beyond its legal authority to make a legislative determination as to when a fetus becomes a "person" in the law. That is a clear usurpation of the power of the legislature and the Separation of Powers Doctrine, and it's reversible error.

Actually, no. The court said of the "person" issue: "This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations."

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

The SCOTUS is basically saying, "we aren't going say when life begins, but we acknowledge that the woman has privacy rights in her own body, and the State has interests both in protecting the mother's life and health, and protecting EVEN THE POTENTIALITY OF LIFE. And, the court alludes to the sliding scale that is the trimester rule when it says "each grows in substantiality as the woman approaches term and at a point during pregnancy each becomes compelling.

The Court went on to say:

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.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

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 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.

No issue of when "life" begins. The Court ruled based only on the State's interests - in the first trimester, there is no compelling interest. In the second trimester and beyond the State begins to have a compelling interest, but that interest is to regulate abortions to protect the mother. After viability, the State has a compelling interest in protecting the unborn.

The Court simply evaded the objective science, which clearly demonstrates that "life" begins when the zygote is formed, by reciting a litany of historical practices and ignoring advances in medical knowledge, while at the same time making an entirely arbitrary distinction that the state may regulate abortion in the 2nd trimester for reasons of maternal health, but in the third trimester in order to preserve the "life" of the fetus, without ever acknowledging the scientific facts involved.

Life actually begins when the sperm and egg are formed in the gonads of the parents. Sperm are alive, and eggs are alive. And, they are human. Yet, I kill millions of them almost daily.

And those are parts of your body, so you may do so. But when the sperm and egg unite and the parental chromosomes align along the spindle apparatus, embryologists universally agree that the first cell of the new, unique, living human organism comes into existence. This is the only important metric in this discussion. When does a NEW HUMAN LIFE begin? [/quote]

That is not universally agreed, and the Court addressed the fact that medical science has not been uniform as to when human life begins, and the court also said that it does not matter for the purposes of its decision. YOU want it to be about when when life begins. The Court explained quite clearly that it wasn't making that determination and that it was finding that the State can even have an interest when POTENTIAL human life exists.

The trimester idea is not based on the idea of life beginning at a certain time - it is instead a balancing of fundamental rights that are coming into conflict and the interest of the State.

Correct, but the Court cannot balance the fundamental rights of a non-person, now can it? If it's not a "person," then there is no need to balance any rights at all. Indeed, that was the argument of several of the amici in the case, who argued that until birth, a woman's right to terminate a pregnancy is absolute.

I should have said the Court declined to find that a fetus is a person, and declined to rule on when human life begins, because neither of those questions were necessary to its decision. The Court did find that the woman is a person, and that the State has different and distinct compelling interests that change during the course of the pregnancy, and that's what the trimester rule recognizes.

But implicit in the decision is the acknowledgment that at some point during gestation a "person" exists that the state has an interest in protecting.

The Court noted that the State can have a compelling interest in protecting non-persons - "potential" human life. You're missing it. The State's compelling interest is what allows it to violate or limit a fundamental right. In this case, the woman's fundamental right to privacy can be violated after viability, because the State has a compelling state interest in preserving potential life after that point.

The Court was deliberately vague about when this point of demarcation occurs, but obviously it occurs at some point. The logical question that follows is why is one point any more or less valid than any other point?

The Court wasn't really vague at all - first trimester, no interest in the State to prohibit abortions. Second trimester, State has a compelling interest to protect the health of the mother and may regulate abortions to that extent. After viability, then the compelling interest to protect the fetus attaches.

Legally speaking, the 14th Amendment says that all "persons" are protected in their right to life, and if the fetus is a "person" at any point during gestation, then it has rights that must be protected. The Court acknowledged that this is the case,

It did not acknowledge that fetus was a person. It said that if a fetus was a person under the 14th Amendment, then the ruling would be different.

but refused to be more specific about when those rights attach. What they did, explicitly, is leave the decision up to the states to decide when a fetus is to be protected, at least in the second and third trimesters.

Except that those protections must further the compelling State interests involved. See above.

But this "balancing of rights" is an equivocation of the requirements of the 14th Amendment and the individual's right to life because it fails to provide any objective basis to decide at what point a fetus becomes a "person" while insisting that at some point, it does become a person. They leave that up to the states to decide, but they restrict that authority by prohibiting them from banning abortion in the first trimester.

The Court did not say that the fetus does at some point become a person in utero.

So once again we have a tension between state sovereignty and constitutional interpretation. The Court says to Texas, "You may consider a fetus a person at some arbitrary point in the second or third trimester, but you may not extend the protections of the Constitution to a fetus in the first trimester."

No, the court said Texas can't infringe on the rights of the mother to have an abortion in the first trimester (whether or not the fetus is alive), and Texas can limit the right to abortion in the second trimester insofar as that limitation furthers the compelling state interest of protecting the life and health of the motioner (whether or not the fetus is alive), and that Texas could regulate and prohibit abortions after viability to further the compelling state interest of protecting even the potentiality of human life. These changing interests recognize the biology of fetal development.

This raises the question of what authority the court has to CONSTRAIN a state legislature's broadening of constitutional protections?

The authority to interpret and apply the US Constitution. I addressed this above.

It's kind of like the rule that if Joe is on a bridge and sees Bill hanging by his fingertips pleading to be helped up. Even if Joe entails 0 risk to himself, he is not obliged to pull Bill up. He can walk away, and has every right to do so, even if Bill dies. Bill has a right to life, but that right does not overcome Joe's liberty to do as he pleases, and Joe can't be compelled to help Bill.

In the womb, a fetus is interfering with the mother's rights - early on in the pregnancy, the fetus not very developed with no sentience, etc., and cannot survive outside of the mother. So, the mother's rights are said to outweigh the fetuses' rights. And, the State's interest in preserving life at that stage is relatively low. Later in the pregnancy, the State's interest in protecting life attaches, and the fetus, which is almost a born baby. It's a balancing test, not a black-and-white - is it life or is it not life - issue.

The problem with that argument is that it disregards the constitutional protections afforded to all persons,

Fetus has not been found to be a 14th Amendment person.

which does not distinguish between the convenience of one person and the life of another person. The imposition on the mother's rights is an imposition on her convenience or comfort (absent some legitimate threat to her life) while the imposition on the fetus is its death. That's not a "balancing" of anything in the estimation of many people. You also disregard the duty and obligation the mother took on by voluntarily having sex, which is a known factor in pregnancy. That voluntary act, in the opinion of many, substantially reduces the "interference" justification.

Your opinion is noted.

The Court acknowledged that if "life" begins at conception, or rather, as biology tells us, at the formation of the zygote, about 24 hours after fertilization, then that person's life would be protected by the 14th Amendment.

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument." Source: Roe V. Wade

Therefore, instead of acceding to the wisdom of the state legislatures, whose duty it is to balance the rights of the fetus and the rights of the mother in making laws that reflect the needs and desires of the residents of the states, the Court chose to make law itself, which is called "judicial activism" and is generally reversible error, instead of granting the usual substantial deference to both state legislatures and state high courts in determining the breadth of a woman's "right to privacy" and a fetus' "right to life."

You're actually misstating it. There is no rule of "deference" to state legislatures and state courts on FEDERAL rights.

That's the problem.[/quote]

Then push to amend the Constitution.

The Court had to concoct a "federal right" in order to have jurisdiction in the first place.

14th Amendment was ratified, not concocted.

Their arguments regarding privacy are exceedingly strained and grasping. And it also had to disrespect the rights of the fetus to get to its conclusion.

Your opinion is noted. I find the opinion as rational and rendering a reasonable opinion in a difficult case with no completely satisfying solution.

Clearly this was a political decision and an act of judicial lawmaking, not a proper exercise of judicial power.

That's not at all "clear," but your opinion is noted.

Note, also, the court's use of the term "personhood" and not "life."

Note that the court uses "life" on numerous occasions, including in reference to a state's interest in protecting a fetus in the 2nd and 3rd trimester.

Sure - the Court said that the state may have a compelling interest even in protecting potential life, and it made no determination as to if/when a fetus, like Peter Frampton, comes alive.

The reasoning used to justify this intrusion on state's rights is weak at best, and consists primarily of a historical review of past practice that utterly ignores the fact that the whole purpose of a legislature is to make laws that serve the present needs of the community, even when those laws differ from past practice. For example, drunk driving was once a mitigating factor in an accident, but now it's an aggravating factor.

It's an interpretation of the 14th Amendment which is itself the biggest intrusion into states rights that has ever occurred. It limits what States may deprive their citizens of, and it has a substantive aspect and procedural aspect. Substantively, the State may not deprive a person of a fundamental liberty without a compelling state interest and by means narrowly tailored to effectuate that interest without going beyond that interest or the necessary means. The woman has rights, and those rights include the right to privacy which is found to be implied in the Constitution (and/or within the "penumbra" of other rights) - it's the same right that affords a woman (or man) a fundamental right to take birth control.

But it deprives the fetus of fundamental liberties by defining it as a non-person in the first trimester.

And, the court explained the litany of precedent for a fetus not being a person.

Moreover, it deprives the states of their sovereign right to define a fetus as a person and extend protection to the fetus.

Already addressed - the States don't have the "sovereign right" to define what "person" means in the 14th amendment any more than they have the right to define what "liberty" means. That's a function of federal Constitutional law and is in the purview of the SCOTUS to decide what those words mean.

The question becomes whether or not a woman's right to privacy is outweighed by the fetus' right to live,

That's the question you'd LIKE it to become. But, that's not the question. The question is whether the State has a compelling state interest to interfere with the woman's fundamental right. The SCOTUS found that it did not in the first trimester, and it did in the second trimester (to protect the mother), and it did after viability (to protect the potentiality of human life).

and the state's right to protect it. Given the weak nature of the woman's right to privacy, and the deadly consequences to the fetus, many people believe the court struck the wrong, and indeed an illegal balance.

Your belief is noted. You've not shown "illegal" balance, because you've merely asserted some State "sovereign right" to define the words in the federal Constitution on an ad hoc state-by-state basis. That right has never existed.

[Seth]

I haven't yet gotten around to reading the actual decision (more than to note whether you were quoting out of context or not). In the meantime, my nosing about seems to imply that the court made no determination about the beginning of life, but oriented their decision around viability. Indeed, until the fetus can survive on its own with the aid of modern medicine, it's hard to look upon it as anything other than a parasite -- its sole existence predicated on the forced servitude of its host.

But there is another aspect that requires consideration when you try to characterize a fetus as a "parasite" that "forces servitude" upon the mother, and that is the matter of consent to the occupation of the womb by the fetus on the part of the mother. I maintain that while it is true that the fetus acts "parasitically" on the mother, if the mother voluntarily engaged in sexual relations, she did so knowing that pregnancy was a risk she was undertaking, and that therefore she assumes the consequences of that known risk and can be required to support the fetus at least through viability. In this balancing of rights, the mother does not have absolute autonomy to terminate the life of the fetus at any stage because she engaged in knowing, voluntary conduct that creates a contract with both the fetus, the father, and the state that binds her to specific performance for a defined period.

In other words, if it's "servitude," which I agree it is, it's neither "forced" nor "involuntary" servitude, its a servitude that is the product of her own knowing actions for which she can be held accountable, and which must be measured in the balancing of her interests and the interests of the fetus, the father, and the state.

It's in that frame of reference that the court chose not to recognize a fetus' right to exist until it could do so on its own -- thus the balancing act, arguably on suspect grounds. The argument of judicial overreach versus state's rights is an ongoing debate, but is hardly one to be settled by fiat. There is some support for states broadening the meaning of personhood, as abolition of slavery in the northern United States occurred somewhat piecemeal, though I find no instance where state definitions came into conflict with federal definitions (until the Emancipation Proclamation, which wasn't even law, but rather an executive order).

Actually, I believe there were numerous examples of states restricting the rights of blacks after Emancipation that had to be resolved by the federal government, sometimes by military force, as in the desegregation of schools in the South. But in all those cases they were illegal and unconstitutional EXCLUSIONS or narrowings of the definition of "person" and what rights a black person had versus a white person. Never, so far as I'm aware, in our history has the federal government challenged a law which BROADENS the protections offered to individual persons EXCEPT when it comes to fetuses.

The situation of a fetus in utero is similar to that of a gay person, who at present, under the DOMA, does not enjoy precisely the same rights as any other person. But DOMA does not RESTRICT states from offering gays greater civil rights protections, it says that a state may not be compelled to offer marriage rights to gays using the "full faith and credit" provisions of the Constitution, and it prohibits federal extension of benefits to gays.

DOMA is, of course, a direct violation of the "full faith and credit" provisions of the Constitution and should therefore be overturned on that basis, but the point is that the federal government permits states to offer broader civil rights protections, but not narrower ones, to a particular group within a state, under state law, than is offered in a different state. So the situation is analogous with respect to a fetus, and it should be up to the individual state how broad the protections offered are. And indeed the Court allows precisely that with the caveat that "viability" is the general demarcation point for when a state may so act.

That is not an irrational or completely arbitrary demarcation, although it is rather ambiguous, but it does not acknowledge our scientific understanding very carefully, and it's a political, not a scientific balancing of the right to life versus the right to privacy because obviously prior to viability, the mother can terminate the life of the fetus thereby preventing it from reaching viability. Thus, in this "balancing" the mother's privacy is given, in many people's opinion, far too much weight given the irreversible consequences of her decision to the fetus, which will never reach the stage where its rights are protected and has no say in the matter in the first trimester. Nor under current law does the father, who absolutely has an interest in the equation, have any say in whether the fetus is to be permitted to reach viability or be born, nor does the state.

So to many, it's not a balancing at all, it's a complete surrender to the mother of all rights, without exception, to the detriment of the rights of the fetus, the father and the state.

Nonetheless, if the great state of Texas broadened the definition of personhood to include chickens, and attempted to execute a man for killing a chicken, I feel rightly confident that the federal government would intercede. You're welcome to argue the converse, that they should not.

This is something of a reductio ad absurdum red herring argument don't you think? A human fetus is still a human fetus, not a chicken after all.

[Seth]

[

The Court said of this: "Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Source: Roe v. Wade."

My point exactly. The issue doesn't have anything to do with "when life begins." A legitimate state interest need not stand or fall on the belief that life begins at conception or at some other point prior to live birth. It can stand or fall at some other point.

I think you misread the quote. The Court said that even POTENTIAL LIFE gives the state the power to assert an interest in protecting that POTENTIAL LIFE.

But, anyway, the context of that quote is very important. It's in section VII of the court's opinion which says: "Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.....The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151].... It is with these interests, and the weight to be attached to them, that this case is concerned."

So, the court is expounding upon the reasons and justifications advanced for criminalizing abortions, and is telling the reader that the case is about these alleged interests and the weight to be accorded them. It's not a holding or a finding.

Correct. I didn't suggest it was. I was merely pointing out the illogic of the Court. In this section it says that the state may assert interests beyond the protection of the woman alone, but then it disrespects Texas' assertion of precisely that interest in ruling that Texas may NOT assert that interest during the first trimester. Instead, the court legislates from the bench by making a determination of when the state can assert this interest rather than it's constitutionally-defined duty to rule only whether a law duly passed by a state is constitutional.

In other words, while the Court had the judicial authority to say "Texas, you went too far in making your law and you tipped the balance against the privacy right of the mother too much," it does NOT have the judicial authority to say "Texas, the proper balance is X, Y or Z." That's called judicial activism and legislating from the bench because it is the province of the legislature, not the court, to strike a balance according to the representative democratic legislative process. The Court's duty is to then look at that balance, test it against the Constitution and say whether it is a proper balance or not. If it deems it is not a proper balance, then the Court is obliged to simply overturn the law and return the question to the legislative process for another try.

The Court also said, in reference to the definition of "persons," "But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

The error here is that the Court deliberately chooses a narrow interpretation of "person" based only on the Constitution, but fails to acknowledge that the Texas legislature is competent to define a "person" for the purposes of a state regulation in a manner that is broader, but not narrower than the definition found in the 14th Amendment.

In federal constitutional interpretation, the definition of "person" is a function of federal constitutional law, not state law. If every state could define "person" differently than the federal constitution could mean something different in every state.

That's exactly the case. But it's a one-way difference. Let's look at the question of gay rights. In some states gays do not have the same rights as others, but in other states they do, through legislative action.

Where the Court gets involved is when a state DENIES gays rights it offers to others on the basis of their class. This occurred in Colorado, where Amendment 2, which denied gays the right to marry, was struck down because it created a separate, distinct class of people from whom rights were TAKEN AWAY. But the obverse is true in states where civil rights protections are EXPANDED for gays. The federal government cannot challenge the extension of civil union rights to gays in California, for example, because an EXPANSION of civil rights protections is not a violation of the 14th Amendment. Only a CONTRACTION of existing rights creates such a violation.

In the case of Texas, the state legislature EXPANDED the civil rights protections offered to fetuses by defining them (defacto) as "persons" who enjoy civil rights protections in Texas. The Supreme Court denied that a fetus is a person, sort of, at some points in gestation, and argued that it was justified in doing so because historically other cultures, including previous American society, sometimes offered fewer protections to a fetus.

But what the Court ignored in this bit of judicial activism is that as I have said, a state has a right under its sovereign powers and the 9th Amendment to expand the civil rights protections beyond the minimum requirements of the 14th Amendment through the sovereign judgment of its state legislature. That, in fact, is the legislatures duty and power. It is not within the power of the Courts to set the balance or dictate how far a state may go in extending civil rights protections. The Courts only have the power to examine a law duly passed to see if that law violates the MINIMUM protections offered by the 14th Amendment.

And the Court booted their responsibility by simply evading the responsibility to examine the Texas legislature's determination that Texas chooses to offer MORE protection to a fetus than the 14th Amendment does. It did this by saying:

When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [as to when life begins], the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

What the Court utterly ignored is that the Texas General Assembly DID arrive at a legislative consensus as to when life begins to be a protected civil right under Texas law.

By ignoring the sovereign authority of Texas to extend civil rights by legislative act using a fallacious and evasive argument that scientific authorities differ on when life begins, the Court neatly, if mendaciously, evaded its responsibility to grant "great deference" to the legislative acts of the state of Texas. And then it legislated from the bench by not simply overturning the law, but by setting the benchmarks for when a state may regulate the abortion process. That is a legislative duty, not a judicial one.

Moreover, here is the context of your quote:

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

The court expounded on the history of the meaning of the word "person" in the Constitution. It didn't include the unborn.

It was not required that the 14th Amendment include the unborn in its protections for the General Assembly of the State of Texas to determine, on it's own sovereign legislative authority under the 9th and 10th Amendments, that in Texas, civil rights protections under state law are extended to a fetus in utero at any time after conception.

In other words, that the 14th Amendment did not contemplate fetuses as entitled to 14th Amendment protections does not prevent a state, in this case Texas, from legislatively determining that under its laws (and the 9th and 10th Amendments) a fetus IS entitled to civil rights protections.

Note that this would not prevent the Court from examining the 14th Amendment balancing of the competing rights of the fetus and the mother, but it does require the Court to not simply ignore the valid concerns of the state with protecting "even potential life" when it analyzes the balance.

The Court should have both acknowledged Texas' sovereign right to extend civil rights protections to a fetus in it's assessment of the proper constitutional balance between the mother and the fetus and the state's interests, and it should have refrained from creating or announcing what the proper balance is to be, because that is judicial legislation, which is unconstitutional. It should have examined the balance and determined if the balance was CONSTITUTIONALLY AUTHORIZED, not whether it was just, equitable or reflects it's notion of good public policy. Whether such a balance is good public policy is not up to the Court, only the raw constitutionality of the balance is. If the Court found, after giving due consideration and deference to the acts of the Texas legislature, that the balance between the state's interests, the mother's privacy interests, and the fetuses interests was constitutionally impermissible, then the Court should have simply thrown the law out without saying more and returned the matter to the Texas legislature for refinement using the designated representative democratic process, if Texas chose to try again to regulate abortion.

And that's all it should have done. It should NOT have substituted its judgment for the wisdom and judgment of the Texas General Assembly. That is a well-known canon of judicial ethics and what the Supreme Court did is reversible error in any other court in the land. It's just as reversible in the Supreme Court, only there is no court of appeal that can do so, which is unfortunate.

Section one says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment, which extends all Constitutional rights to "persons" born or naturalized, was designed to make sure that slaves, who were previously not "persons" under the Constitution, had rights. But this is the federal MINIMUM standard for the enjoyment of rights. Nothing prevents (or is supposed to prevent) a STATE from providing BROADER rights or BROADER descriptions of "persons" than the Constitution does.

Nothing allows the States to individually define terms within the Constitution. A State can't, for example, define what "speech" is. That's a federal Cosntitutional matter. The 14th Amendment applies to federal "persons" and states that States may not deprive persons of life, liberty, or property.

But as the Court noted, the Constitution is SILENT on the definition of "person." This leaves the definition subject to two forms of interpretation/reinterpretation: common historical use (common law), which the Court used exclusively to build its ruling on, and legislative action. A common law definition is always subject to being changed by a statutory definition under the legislative principle that it is the legislature that is tasked with creating laws and definitions of words used in the law. This general power is subject only to the minimum standards set by the federal or state Constitutions.

When it comes to a definition that affects a federally-protected right however, a state legislature may overrule the common law or common usage of a term defining something in ways that EXPAND that protection, but not in ways that CONTRACT the definition. Thus, a state may say "in this state, the definition of "person" includes a fetus" because this act does not disparage or infringe on the existing definition or the rights of any existing person under the law, it expands coverage to a new group insofar as the actions of state law are concerned. If the state said "in this state, the definition of "person" does not include homosexuals," that would infringe on the 14th Amendment description of "person" by contracting the scope of the protection, notwithstanding that the effect of the new definition would affect only state residents.

There is nothing that says that the a State can broaden the definition of "person" and, say, include dogs and cats as "persons" for 14th amendment purposes and then allow them rights equal to humans.

This is obviously a red herring reductio ad absurdum argument. We are discussing human beings, not dogs and cats.

What the Court did, which is rather novel, is to deliberately DENY a living human being constitutional protections that were extended to that being by a state legislature. That's a violation of state sovereignty.

The 14th Amendment is inherently a violation of State sovereignty, so of course. Any limitation on the State's power to legislate is a limitation on its sovereignty. That's what the 14th Amendment does and what it was intended to do.

But the 14th Amendment is silent on the definition of "person," and therefore it only limits state sovereignty in one direction: exclusion of some group of human beings from the protections of the law.

It does NOT prohibit a state from determining that some group of human beings IS ENTITLED to civil rights protections within that particular state.

Under the 9th and 10th Amendments, because the 14th Amendment is silent on the definition of "person," the canon of legislative interpretation that guides the courts in analyzing any amendment to that definition is the canon that says, "nless otherwise defined, statutory words will be interpreted as taking their ordinary, contemporary, common meaning." Note the "otherwise defined" language.

What the Supreme Court did in Roe v. Wade was to examine the historical context of the word "person" and apply its "ordinary, contemporary, common meaning." But what the Court utterly ignored is that Texas, in passing its abortion statute, redefined that word in a way that provides broader protections of persons. The Court should have acknowledged and given due deference to this legislative decision in assessing the balancing of the various interests.

While Texas is forbidden to infringe upon the rights of constitutionally-defined "persons" (which includes former slaves) by treating them as "non-persons," and the Constitution has been likewise seen to protect even non-citizen "persons" in the corpus of illegal aliens and Texas may not treat them as "non-persons," the Court abused its authority by overruling a legitimate act of the Texas legislature which extended the protections of "personhood" to the fetus. The Courts are supposed to defer to the elected representatives of the People unless their action infringes upon some superior constitutional right.

...the woman's right to privacy. But, no, the Court's are not to "defer, unless..." - they are to interpret and apply the Constitution, and if a state law violates the 14th Amendment, then it is struck down.

Correct. And had the Court simply struck down the law based on its belief that the privacy interests of the mother prevailed over the legislative acts of the State of Texas in extending civil rights to a fetus, it would have been on firm legal ground.

But by dismissing the Acts of the Texas legislature from the equation by ignoring Texas' authority to expand the definition of "person" within the state of Texas, the Court ignored an important aspect of the balance it had a duty to analyze. Therefore the determination it made that the law violated the 14th Amendment is invalid because it deliberately ignored and dismissed important constitutional considerations of 9th and 10th Amendment state sovereignty. Moreover, rather than simply stating that the 14th Amendment's privacy right it found tipped the balance in favor of the mother, and therefore the law is unconstitutional, it went far beyond and engaged in legislating from the bench in SETTING THE BALANCE. That's not within the proper purview of any court. That is a quintessentially legislative act under the Separation of Powers Doctrine.

Note that the Court did not say "a fetus is not a person," it pettifogged and obfuscated around that fundamental issue by saying that:

"All this, together with our observation, supra, that, throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn."

But that was not the issue before the Court in this particular point. The issue before the Court was, or should have been, does Texas law define a fetus as a "person?" Since the definition of "person" insofar as Texas' constitutional authority to make law is not a matter that in and of itself impacts any constitutional right, it does not fall under the strict scrutiny requirements, and the Court was obliged to respect Texas' definition if there was a rational basis for that legislative decision.

With all due respect to what you think "should have been" the issue before the Court, the Court rendered its opinion on the issues before it.

And, the Court did find that Texas violated a fundamental right.

This is just a fallacious appeal to authority. Yes, obviously the Court did what it did, but we are presently discussing whether what the Court did was procedurally and legally correct, or whether the Court made egregious judicial errors in its ruling.

But the Court recognized that if Texas was permitted to define a fetus as a "person," it's machinations and rationalizations regarding the right of privacy of the mother would be severely damaged, so it departed from good jurisprudence and "made law" itself by artificially (and for the first time since the 14th Amendment was ratified) narrowing the scope of protection of the 14th Amendment by excluding fetuses from its protections.

And the essential question is, by what authority did the Supreme Court overrule the sovereign judgment of the Texas legislature in broadening the protections of the state and federal Constitutions to another class of "persons?"

Again, the State legislature does not have the power to define and re-define the terms used in the federal Constitution.

Wrong. A state absolutely has the right to define in statute terms that are NOT DEFINED by the Constitution, so long as that redefinition does not reduce the protections offered by the federal Constitution.

Using your logic, the State can define a fetus as person today, and then when the liberals take the State legislature next year, they can define the fetus as not a person, and we can ping pong back and forth.

Not quite. It's a one-way relationship. Once a state has expanded the scope of a civil right it creates a vested right to that protection in the affected group, and the state cannot come back later and reduce the protection. Once such a law has been enacted in a state, only a court throwing the law out can retract that protection.

And, all 50 states would have the same right, so by crossing the State lines, the fetus in a woman's uterus would have federal constitutional rights in State X, lose them in State Y, and gain them back again in State Z, depending on the vicissitudes of the State legislature.

Wrong. You are now conflating the 14th Amendment privacy right expounded by the Supreme Court, which applies equally nationwide, with a state's legislative determination that a fetus is a person under state law for the purposes of state abortion law.

What we are discussing right now is the authority of a state to define a fetus as a person for the purposes of regulating abortion within that state, not whether a woman has a federal right to privacy in the decision to have an abortion. The state may regulate the actions of abortion providers to one degree or another without interfering with the mother's right to decide to have an abortion. That she may not be able to have a convenient local abortion because a state chooses to regulate abortion is an entirely different question. It may be that the Supreme Court would rule that a convenient local abortion is a civil right, but then again that may not be the case, and such an issue would need to be adjudicated.

Roe v. Wade makes it quite clear that states DO have the power to regulate abortion in the 2nd, and ban abortion entirely in the 3rd trimester, which several states already do, so you really can't argue that they don't.

What we are discussing is state sovereignty under the Separation of Powers Doctrine and the 9th and 10th Amendments, which preclude the federal government from interfering in the affairs of a state unless it has constitutional authority to do so.

You've got that part wrong, and it is the foundation of your entire argument.

No, you're mischaracterizing my argument.

It's one thing to say that a woman's right of privacy is founded in the 14th and 9th Amendments, but it's quite another to say that a state is not authorized to more stringently protect the rights of a class of individuals defined as fetuses by extending constitutional protections to them. That's an action more in harmony with the Dred Scott decision that denied "personhood" and humanity to slaves than it is modern, enlightened jurisprudence.

A State could not say that Gorilla's were persons, and then bind the entire US in doing so, and the meaning of the term person in the 14th Amendment can't include Gorillas in Texas, Chimpanzees in Washington, and neither of them in Idaho, and unborn gorillas in Ohio.

Red herring reductio ad absurdum fallacy.

Again, the States don't get to define the word "person" for the purposes of the federal constitution.

Yes, they do, if the word is not defined in the Constitution, subject to the constraints I've already elucidated several times.

They may have a definition of the word person for the purposes of State law, but they can't, for example, define an appendix as a "person" and then the rights of born humans are thereby extended to appendixes in that State. Your logic would require that States have that power.

Red herring reductio ad absurdum fallacy based in, evidently, your presumption that an embryo or fetus is the equivalent of an appendix. But science says something entirely different, and a state legislature is empowered to expand the definition of "person" to include a human embryo or fetus for the purposes of its state laws if, in its sovereign legislative judgment, it is appropriate to do so. Nothing in federal law or the Constitution prohibits a state from doing so, so long as in so doing it does not tread upon the existing 14th Amendment or other constitutional civil rights of others. Whether such a definition would do so is a matter for legislative consideration and ultimately judicial review of course.

And in fact the Court did not end up simply making fetuses "non-persons," in fact it took the opposite tack shortly later in ruling that the woman's right to privacy is not absolute, and that the state does have a legitimate interest in preserving a fetus in the third trimester.

Yes - a State's legitimate interests do not rest exclusively on when life begins. The court said that explicitly.

"Not exclusively" is the equivalent of saying "the state may assume a legitimate interest in a human being's rights when life begins."

So, here's the dichotomy: By what legal authority does the Supreme Court determine when a fetus becomes a "person" in the law?

The United States Constitution under Article III, wherein the SCOTUS is the Supreme Court of the land, and has the authority to interpret and apply the Constitution of the United States. That means that the SCOTUS will define what "free speech" is and what "religion" is and what a "person" is and what a "citizen" is. States don't get to redefine "religion" - that has a meaning under federal Constitutional law as found by the SCOTUS. Similarly, it's up to the SCOTUS to interpret the meaning of the word "person."

And yet the SCOTUS in Roe v. Wade did NOT determine the meaning of "person" in Roe, it simply said in dicta that it found no support in the legislative or judicial record of the past that the 14th Amendment's provisions included a fetus within the definition of "person" as a rebuttal to amicus claims that the 14th Amendment's protections attach at conception. And in its holding, it implicitly recognized that at some stage of development, a fetus can be a "person" for the purposes of state regulation of abortion. Thus, the only question that remains is whether or not the point in gestation chosen by the Court is the only, or most appropriate point at which "personhood" attaches.

But to address the actual question, the Court has no power to create definitions not found in the Constitution, that is the province of the Congress at the federal level, and the state legislatures at the state level. The Court did not create such a definition in Roe, it merely said in passing that it found no support for the idea that historically the 14th Amendment included a fetus under the common, ordinary and contemporaneous definition of the word.

This does not mean that no one but the Supreme Court is competent to codify a different definition of "person" than the "common, ordinary and contemporaneous" understanding of the word used today. Both Congress and the state legislatures may do so, to some extent as I have explained, in the absence of a specific statutory definition found within the Constitution itself.

Your logic would allow for the following - two cases are filed, one in State X and one in State Y, challenging the abortion law. State X defines the fetus as a person from conception, and State Y defines it from birth. All other facts are the same. The Court would have to defer to the States, and render two rulings - one would be that the same law is Constitutional under the US constitution in State X and unconstitutional in State Y, and a 14th Amendment person is something different in each State.

.

It's hardly uncommon for the rights of an individual to be different from state to state. In Colorado our state constitutional right to keep and bear arms "shall never be called into question." In California, a citizen has no state constitutional right to keep and bear arms AT ALL.

In Colorado gays cannot marry. In other states they can.

And yes, depending on the nature of the claim in the cases you posit, the Court would have to defer to the states, if the right implicated is not a fundamental right protected by the US Constitution. People in Kansas have different rights to late-term abortion than people in Colorado. That's what state sovereignty means, and it's what the 9th and 10th Amendments were enacted to ensure: state sovereignty in state actions.

The Roe Court established a limited nationwide 14th Amendment right to privacy regarding abortion decisions in the first trimester only. That does not mean that states cannot regulate abortion, or prohibit abortion in the third trimester.

So, your argument fails. Yes, the Supreme Court is required to defer to state law unless and until the state law infringes on a superior constitutional right.

That is the duty of the legislature, not the courts.

It is the duty of the Court to interpret the meaning of the words used in the 14th Amendment and elsewhere in the federal Constitution. It is not the duty of State legislatures to define those terms.

It is within the power of the state legislatures to define terms as they apply to state law, provided that the definition does not trench upon a superior constitutional right. States may define terms that apply to both federal protections and state laws in ways that expand the ambit of the federal protections, but not in ways that contract or infringe upon those federal protections. Viz: gay marriage laws.

Courts are supposed to be restricted to making determinations of law based on legislative acts. The legislature passes a law, and the Court decides if that law complies with the Constitution.

Yes. And, the Court found that the Texas law in Roe v Wade did not comply with the US Constitution.

But the complaint is that the Court when far beyond its judicial authority and legislated from the bench by setting standards that it had no judicial authority to set.

In this case, in addition to determining that the Texas law violated the privacy rights of Roe, which was a legitimate judicial act, the Court went far beyond its legal authority to make a legislative determination as to when a fetus becomes a "person" in the law. That is a clear usurpation of the power of the legislature and the Separation of Powers Doctrine, and it's reversible error.

Actually, no. The court said of the "person" issue: "This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations."

Sophistry.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

Judicial evasion. As I have explained above, what "experts" think is irrelevant when the Texas legislature exercised its sovereign authority to determine when "life begins" for the purposes of state abortion law. Legislatures are empowered to overrule the opinions of "experts" and they do it all the time.

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

The SCOTUS is basically saying, "we aren't going say when life begins, but we acknowledge that the woman has privacy rights in her own body, and the State has interests both in protecting the mother's life and health, and protecting EVEN THE POTENTIALITY OF LIFE. And, the court alludes to the sliding scale that is the trimester rule when it says "each grows in substantiality as the woman approaches term and at a point during pregnancy each becomes compelling.

Yup, and that's where the Court crosses the line from its proper judicial role of determining the constitutionality of a state law into judicial activism and legislating from the bench.

The Court went on to say:

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.

And this is legislating from the bench. It is not within the proper purview of the Court to set legislative policy, it is the duty of the court to examine the legislative acts of the states to determine whether they comport with the Constitution, no more, no less.

This means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

Again, legislating from the bench. The Court's duty was to overturn the law and return the matter to Texas for another try at complying with the Constitution, not to legislate from the bench by announcing what the law will henceforth be.

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 during that period, except when it is necessary to preserve the life or health of the mother.

Fair enough, but not within the purview of the Court's judicial authority. Determinations of social policy and the state's intrusion into the matter are made by the state legislatures, not by the Court.

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.

No issue of when "life" begins. The Court ruled based only on the State's interests - in the first trimester, there is no compelling interest.

And it only succeeded in doing so by first ignoring the state's legislative declaration that it chose to extend civil rights protections to a fetus. The court's exegesis on the history of abortion, while interesting, ignores the fact that history, while indicative of historical intent, generally falls when a legislative act overrules the historical or "common law" practice. Only by ignoring the fact that Texas asserted its sovereign right to expand the coverage of civil rights laws to unborn fetuses was the court able to sustain the argument that there is no compelling interest on the part of the state. The Court also ignored the rights of the father as well, who certainly has an interest.

In the second trimester and beyond the State begins to have a compelling interest, but that interest is to regulate abortions to protect the mother. After viability, the State has a compelling interest in protecting the unborn.

Correct statement of the holding, but again you are making a fallacious appeal to existing practice rather than examining whether the court's logic and reasoning is sound.

The Court simply evaded the objective science, which clearly demonstrates that "life" begins when the zygote is formed, by reciting a litany of historical practices and ignoring advances in medical knowledge, while at the same time making an entirely arbitrary distinction that the state may regulate abortion in the 2nd trimester for reasons of maternal health, but in the third trimester in order to preserve the "life" of the fetus, without ever acknowledging the scientific facts involved.

Life actually begins when the sperm and egg are formed in the gonads of the parents. Sperm are alive, and eggs are alive. And, they are human. Yet, I kill millions of them almost daily.

And those are parts of your body, so you may do so. But when the sperm and egg unite and the parental chromosomes align along the spindle apparatus, embryologists universally agree that the first cell of the new, unique, living human organism comes into existence. This is the only important metric in this discussion. When does a NEW HUMAN LIFE begin? [/quote]

That is not universally agreed, and the Court addressed the fact that medical science has not been uniform as to when human life begins, and the court also said that it does not matter for the purposes of its decision.

It didn't say it didn't matter, it said it WOULD matter, but that it was simply going to punt on the question because there is contention among "experts" about it, while ignoring the Texas legislature's declaration that it does matter. In so doing, it violated its duty to both consider and give deference to the acts of state legislatures. It didn't analyze that argument, it just flatly ignored it.

YOU want it to be about when when life begins. The Court explained quite clearly that it wasn't making that determination and that it was finding that the State can even have an interest when POTENTIAL human life exists.

And then it went on to ignore the state's legislative determination that it does matter when life begins.

The trimester idea is not based on the idea of life beginning at a certain time - it is instead a balancing of fundamental rights that are coming into conflict and the interest of the State.

Correct, but the Court cannot balance the fundamental rights of a non-person, now can it? If it's not a "person," then there is no need to balance any rights at all. Indeed, that was the argument of several of the amici in the case, who argued that until birth, a woman's right to terminate a pregnancy is absolute.

I should have said the Court declined to find that a fetus is a person, and declined to rule on when human life begins, because neither of those questions were necessary to its decision.

Correct, which leaves the question open to state interpretation as regards state abortion law.

The Court did find that the woman is a person, and that the State has different and distinct compelling interests that change during the course of the pregnancy, and that's what the trimester rule recognizes.

Right, but it did so without taking into proper consideration the fact that Texas asserted a compelling interest through legislation, which is due consideration and substantial deference by the Court, which consideration was entirely absent, and deliberately so. For if the Court had given due consideration to Texas' legislative acts, it might have found a different balance. But the Court wanted to reach a pre-determined conclusion, so it only viewed that evidence that it considered to be germane to its decision, and it rejected and ignored the rest, as is commonplace at the Supreme Court precisely because it is above review or criticism.

But implicit in the decision is the acknowledgment that at some point during gestation a "person" exists that the state has an interest in protecting.

The Court noted that the State can have a compelling interest in protecting non-persons - "potential" human life. You're missing it. The State's compelling interest is what allows it to violate or limit a fundamental right. In this case, the woman's fundamental right to privacy can be violated after viability, because the State has a compelling state interest in preserving potential life after that point.

I'm not missing it, I'm pointing out that in saying that the state's interest in protecting "even potential human life" the Court necessarily admits that human life is present somewhere in the process, and that it is not within the purview of the Court to determine when that occurs, that is properly a legislative act subject to review by the Court.

The way it's supposed to work is that Texas says "here is the point at which life begins." The Court says,"Nope, that's not it." Then the state says "Okay, how about here?" The Court then says, "Nope, still not it." And the state legislature tries again until it finds the point at which its laws comport with the Constitution as interpreted by the Court. The Court is NOT supposed to say to Texas, "You were wrong, and now we're going to create the law for you." But that's exactly what it did...not just for Texas but for the entire nation. That's judicial activism and lawmaking from the bench, which is prohibited.

This raises the question of what authority the court has to CONSTRAIN a state legislature's broadening of constitutional protections?

The authority to interpret and apply the US Constitution. I addressed this above.

And the court has a duty to give due consideration and deference to the acts of the state legislatures. Viz; Gay marriage laws.

The Court had to concoct a "federal right" in order to have jurisdiction in the first place.

14th Amendment was ratified, not concocted.

A woman's federal "right to privacy" was concocted, not ratified.

Their arguments regarding privacy are exceedingly strained and grasping. And it also had to disrespect the rights of the fetus to get to its conclusion.

Your opinion is noted. I find the opinion as rational and rendering a reasonable opinion in a difficult case with no completely satisfying solution.

Oh, I do too, but it could have been a better decision with a more satisfying solution if the Court had done only what it was supposed to do, which was to either overturn the law or not overturn the law and leave the legislating to the legislatures.

The reasoning used to justify this intrusion on state's rights is weak at best, and consists primarily of a historical review of past practice that utterly ignores the fact that the whole purpose of a legislature is to make laws that serve the present needs of the community, even when those laws differ from past practice. For example, drunk driving was once a mitigating factor in an accident, but now it's an aggravating factor.

It's an interpretation of the 14th Amendment which is itself the biggest intrusion into states rights that has ever occurred. It limits what States may deprive their citizens of, and it has a substantive aspect and procedural aspect. Substantively, the State may not deprive a person of a fundamental liberty without a compelling state interest and by means narrowly tailored to effectuate that interest without going beyond that interest or the necessary means. The woman has rights, and those rights include the right to privacy which is found to be implied in the Constitution (and/or within the "penumbra" of other rights) - it's the same right that affords a woman (or man) a fundamental right to take birth control.

But it deprives the fetus of fundamental liberties by defining it as a non-person in the first trimester.

And, the court explained the litany of precedent for a fetus not being a person.

While ignoring that precedent is overruled by legislative acts.

Moreover, it deprives the states of their sovereign right to define a fetus as a person and extend protection to the fetus.

Already addressed - the States don't have the "sovereign right" to define what "person" means in the 14th amendment any more than they have the right to define what "liberty" means. That's a function of federal Constitutional law and is in the purview of the SCOTUS to decide what those words mean.

Wrong. Viz: Gay marriage laws. Since the 14th Amendment does not define "person," that definition is open to amendment at various levels, as I've described, including definition by Congress. At the state level, such a statutory definition applies to state laws and the court has to find that there is no rational basis for that definition or that the definition itself violates the 14th Amendment either on its face or as applied.

[kiki5711]

"I brought you in, and I can take you out!" one more word, and you're gone! hear me? gone!

kids are physical (in the beginning) and then later (emotional) blood sucking vampires.

[apophenia]

Seth, dear, you're adorable, but you appear to have been possessed of some clever sounding words and phrases, much like an annoying song that sticks in your head, and you seem to think that liberally sprinkling them about enhances your argument. If I never hear one more use of pettifoggery it will be too soon. This latest is yet another case in point. Somewhere along the way, you got it in your head that "reductio ad absurdum" is a bad thing. You even go so far as to refer to it as a fallacy. Let's peek in Wikipedia and see what they say it is. "Reductio ad absurdum (Latin: "reduction to the absurd") is a form of argument in which a proposition is disproven by following its implications logically to an absurd consequence." It is not a fallacy, it is a form of proper argumentation. I have a book chock full of proofs of the existence of God based on reductio ad absurdum. Indeed, it is one of the workhorses of philosophy, in line with the maxim that the exception probes (or tests) the rule. It is a perfectly valid form of argument, and as such is no red herring but directly addresses whether the given principle or argument holds. (Indeed, Wikipedia notes that Anselm's venerable ontological proof for the existence of God is a reductio ad absurdum argument.) Your referring to such arguments as "red herring reductio ad absurdum fallacy" only demonstrates that you have a predilection for tossing out words and terms you don't understand in the hope that, magically, they'll make the errors in your logic and weaknesses in your argument go away.

[Coito ergo sum]

[

The Court said of this: "Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. Source: Roe v. Wade."

My point exactly. The issue doesn't have anything to do with "when life begins." A legitimate state interest need not stand or fall on the belief that life begins at conception or at some other point prior to live birth. It can stand or fall at some other point.

I think you misread the quote. The Court said that even POTENTIAL LIFE gives the state the power to assert an interest in protecting that POTENTIAL LIFE.

I didn't misread the quote. That's exactly what I said, and exactly what the court based its decision on. Yes, the state can assert an interest in protecting that potential life, however, whether that interest is "compelling" enough to justify limiting a fundamental liberty depends on all the facts and circumstances. Under Griswold, the State did not have a compelling enough interest to prevent women from using birth control (even though they asserted compelling interests to protect the health of women, to protect family unity, to discourage promiscuity, and to protect the potential life that was being blocked from developing naturally). In Roe v Wade, the Court found that the state's interest in protecting potential life in the first trimester of pregnancy was not compelling enough to warrant any limitation on the mother's right to abort. In the second trimester, the only state interest that was compelling enough to warrant state intervention was the life and health of pregnant women. After viability, the Court found that the State could assert the interest of protecting the life or potential life of the viable fetus, and could regulate and limit and outlaw abortions after viability (except that it couldn't do so in situations where the life of the mother is at stake), because the state's interest in the fetus could be reasonably said to be "compelling" at that time.

But, anyway, the context of that quote is very important. It's in section VII of the court's opinion which says: "Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.....The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. 45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. [410 U.S. 113, 151].... It is with these interests, and the weight to be attached to them, that this case is concerned."

So, the court is expounding upon the reasons and justifications advanced for criminalizing abortions, and is telling the reader that the case is about these alleged interests and the weight to be accorded them. It's not a holding or a finding.

Correct. I didn't suggest it was. I was merely pointing out the illogic of the Court. In this section it says that the state may assert interests beyond the protection of the woman alone, but then it disrespects Texas' assertion of precisely that interest in ruling that Texas may NOT assert that interest during the first trimester. Instead, the court legislates from the bench by making a determination of when the state can assert this interest rather than it's constitutionally-defined duty to rule only whether a law duly passed by a state is constitutional.

You haven't pointed out any illogic of the court. No, that section does not state what the State may, or may not, do. It is a historical exposition of what interests States HAVE sought to assert. It is not a holding or a finding that the State is justified in that assertion.

And, you are wrong when you say that the court did not make a determination about whether a law passed by the state is constitutional. That is exactly what the court did, and it found that the law was not constitutional as applied to first trimester abortions, and was only constitutional in second trimester abortions to the extent that the law protected the health and life of the mother. After viability, the law was constitutional.

In other words, while the Court had the judicial authority to say "Texas, you went too far in making your law and you tipped the balance against the privacy right of the mother too much," it does NOT have the judicial authority to say "Texas, the proper balance is X, Y or Z." That's called judicial activism and legislating from the bench because it is the province of the legislature, not the court, to strike a balance according to the representative democratic legislative process. The Court's duty is to then look at that balance, test it against the Constitution and say whether it is a proper balance or not. If it deems it is not a proper balance, then the Court is obliged to simply overturn the law and return the question to the legislative process for another try.

The Court does not have to just say "thumbs up" or "thumbs down" on the whole statute. If a law is unconstitutional as applied to a given situation, and not another situation, the Court can set that out, which is what it did. If a law is overly broad as applied, the Court can state the application of the law that would be constitutional, and indicate that the case before it falls outside that limit.

The Court also said, in reference to the definition of "persons," "But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.

Obiter dictum. It's a long opinion, and not everything in it is essential to the holding. The court was, again, expounding on some historical features in the law in this area, and it often does so to help the reader better understand and interpret the opinion. The Court said that in all or nearly all of prior instances the term person only applies post-natally. In that regard, the court simply stated a fact, and did not make a ruling.

The error here is that the Court deliberately chooses a narrow interpretation of "person" based only on the Constitution, but fails to acknowledge that the Texas legislature is competent to define a "person" for the purposes of a state regulation in a manner that is broader, but not narrower than the definition found in the 14th Amendment.

I don't see where you get that power of the Texas legislature. Do you have any legal, constitutional, or judicial authority for it? The State of Texas does not get to define the term "person" in the 14th Amendment differently than its meaning in any other state. It can certainly define "person" to include cows, for example, for the purposes of state law, but for the purposes of federal constitutional law, cows are not persons, and the Supreme Court is not required to defer to the Texas state legislature in that regard.

In federal constitutional interpretation, the definition of "person" is a function of federal constitutional law, not state law. If every state could define "person" differently than the federal constitution could mean something different in every state.

That's exactly the case. But it's a one-way difference. Let's look at the question of gay rights. In some states gays do not have the same rights as others, but in other states they do, through legislative action.

I know it's exactly the case that you assert it. It's not the case in the law. You're wrong, and you have as a result not advanced any support in law for your assertion. When you do, I'm open to be persuaded.

Regarding the gays, the rights given to gays are not definitions applicable to the 14th Amendment or otherwise under federal constitutional law. They are rights and privileges applicable under state law.

Where the Court gets involved is when a state DENIES gays rights it offers to others on the basis of their class. This occurred in Colorado, where Amendment 2, which denied gays the right to marry, was struck down because it created a separate, distinct class of people from whom rights were TAKEN AWAY. But the obverse is true in states where civil rights protections are EXPANDED for gays. The federal government cannot challenge the extension of civil union rights to gays in California, for example, because an EXPANSION of civil rights protections is not a violation of the 14th Amendment. Only a CONTRACTION of existing rights creates such a violation.

The federal government can't challenge the granting of civil unions because there is no federal issue implicated. Marriage is a state issue. Equal protection is a federal issue.

In the case of Texas, the state legislature EXPANDED the civil rights protections offered to fetuses by defining them (defacto) as "persons" who enjoy civil rights protections in Texas. The Supreme Court denied that a fetus is a person, sort of, at some points in gestation, and argued that it was justified in doing so because historically other cultures, including previous American society, sometimes offered fewer protections to a fetus.

And, Roe v. Wade was decided on the basis of an infringement of the mother's fundamental rights and the State's interests (when and whether the interest is "compelling" at certain points). The discussion of "personhood" was not ultimately part of the basis of the Court's ruling.

But what the Court ignored in this bit of judicial activism is that as I have said, a state has a right under its sovereign powers and the 9th Amendment to expand the civil rights protections beyond the minimum requirements of the 14th Amendment through the sovereign judgment of its state legislature.

...except where doing so infringes on a federally protected right, which in this case it did.

With your logic, or illogic actually, the State of Texas can declare sperm and eggs to be "persons" and outlaw all birth control and masturbation by males, and blowjobs and anal sex to completion, because of the interest in protecting the chance of one sperm or another to fertilize the egg. After all, the State would just be expanding the rights of personhood to another class. However, the State couldn't do that because for 14th Amendment purposes sperm and eggs are not persons, and the fundamental right of privacy to do with their own sperms and eggs what they please trumps the rights of the sperm and eggs.

That, in fact, is the legislatures duty and power. It is not within the power of the Courts to set the balance or dictate how far a state may go in extending civil rights protections. The Courts only have the power to examine a law duly passed to see if that law violates the MINIMUM protections offered by the 14th Amendment.

You have advanced no support for this proposition. The Supreme Court has the power to interpret and apply the law, and to strike down all or part of a law as unconstitutional, or to find that a law is overly broad and therefore unconstitutional as applied to some cases but not to others.

And the Court booted their responsibility by simply evading the responsibility to examine the Texas legislature's determination that Texas chooses to offer MORE protection to a fetus than the 14th Amendment does. It did this by saying:

When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [as to when life begins], the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.

What the Court utterly ignored is that the Texas General Assembly DID arrive at a legislative consensus as to when life begins to be a protected civil right under Texas law.

Texas does not get to define "person" for the purposes of the 14th Amendment. That's a federal question. And, Texas can't extend civil rights to one person of people by violating the fundamental liberties of another person. The Court is free to find that the State has violated someone's fundamental liberties and it can't do that. That's what happened in Roe.

By ignoring the sovereign authority of Texas to extend civil rights by legislative act using a fallacious and evasive argument that scientific authorities differ on when life begins,

When life begins was completely irrelevant to the decision in Roe v Wade. It was not foundational to the holdings in the case.

the Court neatly, if mendaciously, evaded its responsibility to grant "great deference" to the legislative acts of the state of Texas.

You quote this as if it's from something besides your own head. What's your authority? The only thing the Court is required to do is interpret the law of the State of Texas and the Constitution and make a ruling whether the state law is violative of the Constitution in some way. In Roe v Wade, it did just that and said that in the first trimester the state law was unconstitutional because the state's interest was not compelling enough to warrant invading the woman's fundamental liberty interest, and in the second trimester the law could only go so far as protecting the woman's health and life, and after viability the State's interest was compelling enough to invade the woman's fundamental liberty interest.

There is nothing wrong with the court having done that, and deference to legislative acts is only a rule of construction designed to preserve separation of powers, but deference does not mean that the court must find on behalf of Texas because Texas said something. Quite the opposite - the Court has very often struck down legislative acts "duly enacted" by the "sovereign" State of whatever.

And then it legislated from the bench by not simply overturning the law, but by setting the benchmarks for when a state may regulate the abortion process. That is a legislative duty, not a judicial one.

It basically struck down the law in part, and said where the law would be enforceable. That's not legislating from the bench.

In other words, that the 14th Amendment did not contemplate fetuses as entitled to 14th Amendment protections does not prevent a state, in this case Texas, from legislatively determining that under its laws (and the 9th and 10th Amendments) a fetus IS entitled to civil rights protections.

The State of Texas can expand civil rights all it wants, but it can't violate the FEDERAL fundamental rights of any individual without a compelling state interest that is narrowly tailored only to effectuate that interest and which is not overly broad and is not too vague. In Roe v. Wade, the court found that the law in the State of Texas violated an individual's fundamental liberty and the state had no compelling interest at all to do so in the first trimester, and the state had a compelling interest to protect the life and health of the mother in the second trimester, and the state had a compelling interest sufficient enough to prohibit abortions after viability if it wanted to.

The fact that a State intends to expand civil rights to A doesn't mean it has carte blanche to violate the fundamental liberties of person B.

Note that this would not prevent the Court from examining the 14th Amendment balancing of the competing rights of the fetus and the mother, but it does require the Court to not simply ignore the valid concerns of the state with protecting "even potential life" when it analyzes the balance.

The Court did not ignore the concerns of the state. In fact, it took those concerns into consideration - the interest in the state protecting even potential life was exactly why the court found the statute in question to be constitutional after viability.

The Court should have both acknowledged Texas' sovereign right to extend civil rights protections to a fetus in it's assessment of the proper constitutional balance between the mother and the fetus and the state's interests, and it should have refrained from creating or announcing what the proper balance is to be, because that is judicial legislation, which is unconstitutional.

Well, then your beef is with the entire line of 14th Amendment jurisprudence and every case decided by the SCOTUS about the 14th amendment, since in each and every such case the SCOTUS strikes a balance between the State's compelling or not compelling interests and the extent of fundamental liberties of the individual. The proper constitutional balance must be struck in order for the court to know that the statute was on the wrong side of the balance.

It should have examined the balance and determined if the balance was CONSTITUTIONALLY AUTHORIZED, not whether it was just, equitable or reflects it's notion of good public policy.

Please quote the part of the opinion where the Court based its decision on notions of good public policy, equity or justness. The Court found that Texas was not constitutionally authorized to invade the mother's federally guaranteed fundamental liberty by preventing her from getting an abortion in the first trimester, and said that in the second trimester the mother's right could only be limited in the interests of protecting her life/health, and after viability the statute is constitutional. The opinion was squarely based on an interpretation of the 14th Amendment and cases thereunder.

Whether such a balance is good public policy is not up to the Court, only the raw constitutionality of the balance is. If the Court found, after giving due consideration and deference to the acts of the Texas legislature, that the balance between the state's interests, the mother's privacy interests, and the fetuses interests was constitutionally impermissible, then the Court should have simply thrown the law out without saying more and returned the matter to the Texas legislature for refinement using the designated representative democratic process, if Texas chose to try again to regulate abortion.

The Court threw part of the law out, and sustained the rest. That's pretty common. And, the Court's opinions are usually lengthy and contain lots of explanatory material to provide guidance and understanding. Those parts aren't precedent, but they are common and there is nothing wrong with the court doing that. You may wish the court "simply threw out the law without saying more..." and your opinion is noted. However, if your wish was what was really the only allowable verbiage, then the SCOTUS's opinions would be commonly one or two pages: A recitation of only those facts on which the court based its holding, and a ruling either way.

And that's all it should have done. It should NOT have substituted its judgment for the wisdom and judgment of the Texas General Assembly. That is a well-known canon of judicial ethics and what the Supreme Court did is reversible error in any other court in the land. It's just as reversible in the Supreme Court, only there is no court of appeal that can do so, which is unfortunate.

What is your basis for saying "that's all it should have done." If that were the case, then R v W would have been unique in its length as an opinion. I assure you, it's not. Federal Courts always provide explanatory material.

Section one says:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment, which extends all Constitutional rights to "persons" born or naturalized, was designed to make sure that slaves, who were previously not "persons" under the Constitution, had rights. But this is the federal MINIMUM standard for the enjoyment of rights. Nothing prevents (or is supposed to prevent) a STATE from providing BROADER rights or BROADER descriptions of "persons" than the Constitution does.

Nothing allows the States to individually define terms within the Constitution. A State can't, for example, define what "speech" is. That's a federal Cosntitutional matter. The 14th Amendment applies to federal "persons" and states that States may not deprive persons of life, liberty, or property.

But as the Court noted, the Constitution is SILENT on the definition of "person." [/quote]

It's also silent on the definition of speech, religion, arm, person, house, paper, effect, jury, testify, establishment, free, exercise, thereof, grand, jury, punishment, cruel, unusual....

This leaves the definition subject to two forms of interpretation/reinterpretation: common historical use (common law), which the Court used exclusively to build its ruling on, and legislative action. A common law definition is always subject to being changed by a statutory definition under the legislative principle that it is the legislature that is tasked with creating laws and definitions of words used in the law. This general power is subject only to the minimum standards set by the federal or state Constitutions.

The State has no more power to define "person" (for the purpose of the 14th Amendment) than it does to define "house" for the purposes of the 14th amendment. The SCOTUS interprets those words based generally on what they supposedly meant when the Constitution was written.

You're really reaching here - and you're contradicting all of your "intent of the founders" arguments you've used elsewhere. Texas can't define a "house" to include something that wasn't a house, and the State of Texas can't redefine "Warrant" to mean "the subjective opinion of a police officer on the spur of the moment. The State of Texas can't say that "probable cause" means "the subjective opinion of a police officer in the line of duty." At least not for the purposes of the 14th Amendment and federal Constitutional rights. We have a right that warrants shall only issue on probable cause. By your logic, Texas could make a law that that means that police officers can write down whatever they subjectively believe and sign it themselves, and that's a warrant, and that probable cause means that police officer has said it's probable cause. The SCOTUS would strike that down saying that for the purposes of the 14th and 4th Amendments, a warrant is a document issued by a court calling for someone's arrest or the search of certain premises, and it is based on sworn statements and demonstrable OBJECTIVE facts.

When it comes to a definition that affects a federally-protected right however, a state legislature may overrule the common law or common usage of a term defining something in ways that EXPAND that protection, but not in ways that CONTRACT the definition.

A state may not expand protection by invading a person's fundamental liberties.

Thus, a state may say "in this state, the definition of "person" includes a fetus" because this act does not disparage or infringe on the existing definition or the rights of any existing person under the law,

...except a woman...

it expands coverage to a new group insofar as the actions of state law are concerned. If the state said "in this state, the definition of "person" does not include homosexuals," that would infringe on the 14th Amendment description of "person" by contracting the scope of the protection, notwithstanding that the effect of the new definition would affect only state residents.

There is nothing that says that the a State can broaden the definition of "person" and, say, include dogs and cats as "persons" for 14th amendment purposes and then allow them rights equal to humans.

This is obviously a red herring reductio ad absurdum argument. We are discussing human beings, not dogs and cats.

Human being, in your own argument, is what the State legislature says it is. So, nothing is absurd. I think your calling zygotes and blastocysts "human beings" is as absurd as calling a dog a "human being." In your view, however, it's up to Texas and Florida and all the other states to define the word as they see fit, and then the SCOTUS must give "great deference" to their definition.

What the Court did, which is rather novel, is to deliberately DENY a living human being constitutional protections that were extended to that being by a state legislature. That's a violation of state sovereignty.

The 14th Amendment is inherently a violation of State sovereignty, so of course. Any limitation on the State's power to legislate is a limitation on its sovereignty. That's what the 14th Amendment does and what it was intended to do.

But the 14th Amendment is silent on the definition of "person," and therefore it only limits state sovereignty in one direction: exclusion of some group of human beings from the protections of the law.[/quote]

So what? The Constitution has no definitional section, and is silent on the definition of liberty, property, religion, speech, free, exercise, militia, arm, etc. That's what the SCOTUS is for - to interpret the words.

It does NOT prohibit a state from determining that some group of human beings IS ENTITLED to civil rights protections within that particular state.

Of course not. And, R v W just said that the State couldn't invade the mother's federally protected constitutional rights, except where the State's interest is compelling enough.

Under the 9th and 10th Amendments, because the 14th Amendment is silent on the definition of "person," the canon of legislative interpretation that guides the courts in analyzing any amendment to that definition is the canon that says, "nless otherwise defined, statutory words will be interpreted as taking their ordinary, contemporary, common meaning." Note the "otherwise defined" language.

Cite your source. The canons are not a book - they are rules made by the Supreme Court itself in its own opinions. And, Texas does not get to define "person" FOR THE PURPOSES OF THE 14th Amendment. Now, if the US Congress defined "person" that way, then there would be Constitutional crisis, I'm sure.

What the Supreme Court did in Roe v. Wade was to examine the historical context of the word "person" and apply its "ordinary, contemporary, common meaning." But what the Court utterly ignored is that Texas, in passing its abortion statute, redefined that word in a way that provides broader protections of persons. The Court should have acknowledged and given due deference to this legislative decision in assessing the balancing of the various interests.

TEXAS DOESN'T GET TO REWRITE THE 14TH AMENDMENT BY REDEFINING IT'S TERMS. For noGod's sake! This has to be one of your practice arguments where you are advancing some notion to test your own arguments, and you can't really believe this to be the case.

By your logic, if rules of construction require the SCOTUS to defer to the definition of any term to the State Legislature, then Texas could redefine person to not include men. You invent some proposition out of whole cloth (without ever providing legal support or citation for it) that states can modify the meanings of words in the Constitution only to broaden applicability. However, if the terms are "left undefined" then there is no definition, and the court could only have been going by the customary or common usage of the word which as you say ONLY APPLIES IF IT'S NOT OTHERWISE DEFINED. So, by your logic, the Texas legislature can "otherwise define" it, even to limit it.

Moreover, your logic allows Texas to expand the word "person" to such a degree that it limits the fundamental liberties of another person. They can't limit the fundamental liberty of a person without a compelling state interest.

I can't keep on with this....it's mostly repetition.

[Warren Dew]

And it was only a year ago that they tossed stare decisis to the wind in CU v. FEC.

Kind of like they did in Brown v Board of Education, eh?

Citizen's United was about as clear cut a case as ever comes before the supreme court. Ruling otherwise than they did would have permitted Congress to prohibit newspapers from running editorials on elections. Far from being a "conservative" decision, it was a necessary defense of constitutional liberty and the first amendment.

[kiki5711]

so what exactly do you mean?