The words of the constitution emanate unwritten meanings and cast penumbras. Those emanations and penumbras are detectable by liberal justices and mean that democratically enacted laws are unconstitutional when they don’t comport with the liberal dogma of the day. The same analysis doesn’t apply to reach conservative results - it’s a one way street. It turns out that one of those emanations means that it’s unconstitutional to impede a woman’s right (found in a penumbra) to commit infanticide in certain cases. This summary is 100% true and serious.
No - that type of jurisprudence came later. The emanations come from the actual written guarantees in the bill of rights. The real trick is that it’s only possible for liberal justices to discern these emanations. Then they can figure out what rights are found in their penumbras.
Date: May 20th, 2019 3:27 PM Author: adventurous lettuce
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty" are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Date: May 20th, 2019 3:35 PM Author: Glittery Godawful Shitlib Business Firm
So is it fair to say that while everyone (lib and con justices) agrees the constitution gives us the right to privacy, the question for decades has been whether the right to privacy included the right of a woman to abort?
Date: May 20th, 2019 3:37 PM Author: adventurous lettuce
No
Everyone agrees there are certain times where the constitution protects certain things that are private in certain contexts
There's no freestanding "right to privacy"
Better question for court today: does the fact that the state shall not deprive anyone of "liberty" without "due process of law" include the "liberty" to abort
That's so 1993. Now we're at: does the fact that the constitution provides that no one shall be deprived of "life" forbid the state from countenancing abortion under any circumstances? (the answer is yes)
con justices do not believe the constitution provides a freestanding "right of privacy." They believe the constitution provides many specific protections - such as a right to be free from unlawful search and seizure - but that there is no general protection for privacy anywhere.
it has been years since law school, but basically, the state has to balance the woman's interest in privacy with the state's interest in protecting the baby and then came up with a trimester approach, where the woman's interest trumps in the first trimester, the state's interest can trump in the third trimester, and in the second trimester there can be reasonable limitations.
This later got morphed into something like the state cannot put undue burdens on women before viability of the fetus
Date: May 21st, 2019 12:13 PM Author: adventurous lettuce
Casey kind of does four things law geeks care about.
1. Roe is like an important kind of precedent we can't just toss out.
2. While we were kind of uncertain where in the Constitution talks about abortion, we're saying it's a woman's "liberty" under the Fourteenth Amendment.
3. The "trimester" framework we made up was SPS so we're throwing it away and instead saying the woman's liberty interest is high before fetal viability and low after fetal viability.
4. Any laws restricting abortion before fetal viability can't place an "undue burden" on the woman (which means pretty much whatever 5 justices say).
It’s just made up. All the vanguard liberal opinions are just edicts announced by five disconnected “intellectuals” dressed up in 50 - 200 pages of obfuscatory “legal reasoning” and “constitutional law”.