Everybody acts like tech companies get tremendous value from analyzing PII. Almost all of tech (perhaps excluding fb) mostly just collects pii because it's easier to do so than not, and because everybody else is. If it were banned in a clear sensible way worldwide I don't think the tech would suffer much.
The revenue difference I have heard, ballpark, for targeted advertising (based on tracking) on the web, en masse is 2x. So the gajillion dollar online ad industry would only be set back by 4 or 5 years. So, 2018? Not bad. I say, do it. Ban targeted advertising on the web.
Yup - and we can go even further - the tech companies (& all companies) should by their own volition treat personalized data at what it is - highly toxic waste.
While it is mildly interesting, I've never read any articles, studies,or other info that the highly touted promise of PII to increase sales, effectiveness of advert spending, or ad relevancy for consumers is anything but a complete flop. Decades of effort by the top tech firms and investors, and contextual ads are still more relevant -just show ads quasi-related to what I'm reading/viewing right now.
Highly likely that Google could this afternoon vaporize every byte of PII they hold and be just fine. FB might suffer, but more because surveillance tech is their core worldview then that they couldn't survive.
If they are smart ,they'll vaporize it this week, without any legislation. But I'm not counting on it.
It's not the ad industry that would suffer, but small businesses that buy ads. Targeted advertising is how new products and services can bootstrap themselves into existence. As scale increases, targeting accuracy declines, so larger companies don't benefit as much. But if you want to put your product in front of 1000 people who will be highly likely to try it, targeted advertising is superb. If that goes away, it's the startup ecosystem that will be hardest hit.
> A sudden gap in location data could itself be used as evidence in court.
Google should drop visits to particularly personal locations, but they should also just ignore everything except the 10-15 places you visit the most. I have to believe they care much more about the fact that I go to the same Trader Joe's every week than that I went to a plumbing supply warehouse one time last year. This would provide a good screen for those sudden gaps in location data, and wouldn't noticeably affect the marketing applications of their precious, precious user profiles.
Store a hash of the location and a counter. On the xth visit save the location info unhashed?
Decrement the counter once a month then delete the saved info and switch back to a hash if the counter drops below x
I still don't understand how the Roe = privacy take has been legitimate when the US has completely ignored the privacy of its citizens in many other contexts, including decades of the NSA and other alphabet agencies spying on us.
Granted, I would love there to be an explicitly stated right to privacy from government (up to some limitations determined by the courts, e.g. when government needs to investigate, say, an actual murder (and not one of a fetus, just my opinion)). But obviously there is no such right when looking at the actual actions of the government which are de facto 'legal' as nothing is being done about it, no one is being punished.
> the US has completely ignored the privacy of its citizens in many other contexts, including decades of the NSA and other alphabet agencies spying on us.
You mean the spying that was struck down as illegal by the Court once the barriers to identifying it sufficient for a legal action and thus challenging it were broken through?
The constitutional right to privacy is, specifically, a right to government non-interference in matters considered to be private.
That the surveillance apparatus might know you visited a doctor, and what you discussed, does not grant the government the ability to prosecute you based on that information - because it is considered to be a matter of the private activities of a citizen.
i.e. who or how you have sex is between you and your partner(s) provided everyone consents - the matter remains private, even if in the course of doing so someone tapes it or something.
> That the surveillance apparatus might know you visited a doctor, and what you discussed, does not grant the government the ability to prosecute you based on that information - because it is considered to be a matter of the private activities of a citizen.
I'd be swayed by this except that post-Snowden we know that the surveillance apparatus can be used for "parallel construction" where the evidence to charge/try/convict a person may be based on evidence that hides the fact of illegal surveillance.
The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.
You've managed to completely miss the point: the issue is not whether someone knows about it. The issue is that it is your personal private business - the government can be aware of it all it wants, but the "right to privacy" is the right not to be interfered with.
This would include surveillance, but also includes legislation and prosecution on matters which do not involve anyone but the parties they pertain too.
"parallel construction" has no bearing here, because again, this is not about whether what you're doing can be known or even is known (this is also not at all how it works, but its beside the point so I'm not going further into it).
> your personal private business - the government can be aware of it all it wants, but
> the "right to privacy" is the right not to be interfered with
Ok, yes, I'm confused. In what way are the above two statements not completely opposite world-states? Is "information collection" (by government or others) not antithetical to the "right to privacy?"
Again I will refer to 'I've Got Nothing to Hide' and Other Misunderstandings of Privacy [0]:
The first general category is information collection, which involves the ways that data is gathered about people. The subcategories, surveillance and interrogation, represent the two primary problematic ways of gathering information. A privacy problem occurs when an activity by a person, business, or government entity creates harm by disrupting valuable activities of others. These harms need not be physical or emotional; they can occur by chilling socially beneficial behavior (for example, free speech and association) or by leading to power imbalances that adversely affect social structure (for example, excessive executive power).
We can only hope it this will drive some general improvements in privacy protection/data collection. However, I think it's far more likely that we get some hyper-specific protections tailored to avoid a general improvement (e.g. like we have for video tape rental information).
As much as I don't like laws against abortion, I like tech companies picking and choosing which laws they help the government enforce even less. What we really need is a blanket ban on law enforcement access to private mass collected databases in general.
That won't happen. There are too many cases where it helps law enforcement in reasonable ways.
I'm OK with tech companies choosing data retention practices that make them unable to answer certain kinds of questions, and, in fact, suspect this will be mandated in some locales. Until there is some law that prevents it, anyway.
Eh, this is the one thing I hoped would push non-tech people like my wife into a more active stance. I showed her one of the related articles discussing apps tracking menstrual cycles and poor HIPAA protections in today's world, but the result was sadly the opposite to what I hoped for. In that particular case, addiction to her favorite games clearly outweighed espoused concern of Roe vs Wade impact.
It is odd. I was sure it would make more of an impact. Maybe habits are stronger than proclaimed views.
Ahh, sorry, I assumed the connection is clear. Addiction to a set of casual games is preventing her from even considering dropping Facebook or, should we went that route, downgrading to a feature phone. Separately, she is unwilling to log into FB from PC, where there would be more control over what is done that machine. In this case, games are holding her hostage from adopting healthier privacy habits.
Now, privacy habits are related to Roe vs Wade in a more nuanced way. Some of the recent articles indicated that some data that could be used to identify women one way or another and puts tech sector in its sights as a result.
Hope it makes is a little more clear. I am a little sick so odds are my thoughts are not clearly expressed.
Thanks for the clarification, this does make things a lot more clear.
This makes me wonder if there's a good way to help others wake up to the risk.
When I chat with friends about Facebook, they acknowledge that they have too much data, and do seem concerned / occasionally disturbed by how much these platforms know about them, but it seems difficult for them to synthesize an understanding of actual risk / potential negative outcome.
For awhile, I thought that someone should create a tool/portal/app that would use data from social networks / data brokers / etc. to scare the shit out of people and help them realize how vulnerable they are. But the existence of such a tool would also seem to make the problem worse, especially if it did not have the intended effect (to get people off of these networks).
I'm now starting to think that someone needs to create a "Dieting App" for social media users. Something that would help explain and demonstrate the scary state of privacy when using these apps. Not unlike the "Noom" (have not used this before, not an endorsement) approach to dieting.
I don't see a way to break these addictions without somehow terrifying the user. That can either happen voluntarily, by willingly exploring the downsides (and this is where some kind of curriculum would be beneficial), or unwillingly, after real people are impacted by real overreach after it's too late.
Is this anything more than just fear-mongering? I don't see how this is related to the Roe reversal at all. Not a single state has given any inkling of ruling/law aimed at prosecuting the receiver of the abortion, only doctors/person who performs them.
Privacy is good and these issues should be evaluated, but to talk about them in the context of the recent Supreme Court decision is dishonest.
The legal basis for the roe decision is "a general right to privacy" which was argued on the basis that the 10th amendment reserves unenumerated rights(0) to be regulated by the states, then preserved for the individual. Since the constitution makes no mention of privacy, if you believe it's a right, it would fall into the category of "unenumerated". IIRC prior to roe, there are no supreme court decisions about the right to privacy, so it's considered the foundational legal precedent for privacy. Depending on how the arguments in the most recent case are written (I have not read them) it could be interpreted as no roe, no privacy, unless it's explicitly carved out by other decisions subsequent to roe (1)
(0) Technically the amendment makes a statement about powers, so you have to consider "rights" to be the inverse of "government power" for this argument to make sense.
(1) technically the constitution does not give the supreme court the power of judicial review - it was carved out of whole cloth by the courts itself, which is exactly the situation that the constitution is supposed to prevent Congress from doing (not surprisingly it's largely failed at that too) so the American system currently has gaping hole(s) in its legitimacy that you must look aside to accept all of these premises.
^ This. Roe vs. Wade wasn't about abortion, it was about privacy. That's why they're already talking about voiding gay and interracial marriage bans, they were based on that precedent.
Here's a consequence that should speak to tech-types: there are two arguments against mandatory NSA backdoors into encryption used by tech companies, 1) a fundamental right to privacy, and 2) these backdoors are intrinsically hackable.
The argument against #2 is "nuh-uh" and enough of our lawmakers are technically illiterate enough to believe that. #1 was based on judicial precedent that just went down the toilet.
> Roe vs. Wade wasn't about abortion, it was about privacy. That's why they're already talking about voiding gay and interracial marriage bans, they were based on that precedent.
This is factually untrue in the case of interracial marriage and deceptive in the case of gay marriage.
Loving v. Virginia, (which predates Roe) prohibiting bans on interracial marriage, was based on marriage as a fundamental right and the Equal Protection Clause of the 14th Amendment, not privacy and substantive due process like Roe. A Roe-like substantive due process argument was raised in Loving but not resolved by the Court because the EPC argument was sufficient.
Obergefell v. Hodges, prohibiting same-sex marriage bans, had two independent bases, an EPC basis resting on Loving and a substantive due process bases resting on Roe and related cases. (In Obergefell the Court didn't choose not to resolve the substantive due process argument despite the EPC being sufficient, unlike Loving.)
In strictly reasoning-of-the-case terms, Roe (or even, as Justice Thomas has suggested, the line of substantive due process cases on which Roe relies) being struck down has no impact on Loving and no decisive impact on Obergefell.
The real reasons these and other cases are talked about as targets isn't legal reasoning, it is power politics: both the left and right see an activist Court that has proven multiple times recently that it is willing to ignore settled precedent to write right-wing preferences into law, and one side is afraid of that and one side wants to maximize the benefit they can extract from that situation while it lasts.
The problem I have with this is that the court clearly never intended there to be an actual right to privacy, or else things like recreational drugs and prostitution would be legal, and mass data collection and tracking by the government would not. So really it seems like the right to "privacy" was contrived as a way to conjure a constitutional right to abortion, but never actually applied in all the ways we actually think of as privacy.
Interracial marriage bans are clearly ruled out by equal protection, so that really isn't a concern.
> Interracial marriage bans are clearly ruled out by equal protection, so that really isn't a concern.
It actually is, though indirectly; a key point of the logic underlying those bans is finding an unenumerated right to marriage as a fundamental right which cannot be unequally treated under the EPC, just as Roe relies on the unenumerated fundamental right to privacy which cannot be deprived without due process under the Due Process Clause.
(And it is even moreso when you stop pretending that a particular Supreme Court actually strictly applies the rules it articulates rather than acting politically, in the face of ample evidence to the contrary.)
> So really it seems like the right to "privacy" was contrived as a way to conjure a constitutional right to abortion,
This works, if you have no knowledge of the Supreme Court’s privacy cases going back ~80 years before any application to abortion. One might argue that the Roe was politically motivated, of course, but you can't credibly argue that the authors of all the cases pre-Roe on privacy were doing it just as part of a conspiracy focussed on abortion.
You've got the de facto situation in Texas though. Anyone being allowed to sue you for getting an abortion effectively means that the "state" can come after you. Make no mistake, these laws aim to harm anyone involved. The entire context of this discussion stems from the decision. You're wrong, and frankly, a little churlish.
Texas' situation is specifically worded for the state not to come after you. It's a citizen's matter. "this statute does not limit who can bring suit, so long as it is a private citizen"
Additionally, in the Texas case you can't sue the mother, only those who aid in performing the abortion.
It's hard to say the state isn't coming after you in this case though.
Why the hell does my neighbor get to care if a specific doctor performed an abortion? Why can they launch a civil case against and be compensated financially for something that doesn't affect them in any way?
So legally speaking, the person in a civil suit typically has to be the one harmed, or have some major interest in the harming of someone their connected to (if that person can't bring a suit themselves). Texas' working of this is that the baby/fetus/whatever you choose to call it was killed and can't bring suit itself, and they're explicitly allowing the society to bring suit on behalf of that.
My suspicion is that anyone can be considered a "private citizen" in a certain context. Trump certainly thought he could throw away his notes while in office. What do you want to bet that TX judges will recognize some county-registrar-who discovers-an-abortion's right to bring suit as an individual? At least when the state itself is officially bringing suit, there are a limited number of individuals who can decide to sue you. In reality, what will happen is that if the TX supreme court disallows an to state employee from participating in the suit, there will be a network of state employees who are able to inform others who are able to sue.
>but to talk about them in the context of the recent Supreme Court decision is dishonest
I disagree, this is an example of why data collection can be scary.
Data that was perfectly inane yesterday can be used against people tomorrow. How much data do the powers-that-be have access to that can be used similarly in the future? The dystopian view is that they'll be able to paint any narrative if you fall in their crosshairs. Of course who "they" are is subject to change.
Your instagram/Facebook likes alone reveal your gender, sexuality, relationship status and more. Add in a touch of PII to narrow it down to a single person.
> One of California's senior legal officials has shown his support for a young mother charged with murder after her stillborn baby boy was found to have toxic levels of meth in his system, reports Daily Mail.
The original comment said that prosecuting a mother for the death of a fetus was not a thing. I shared an article with multiple examples of that showing he was misinformed. That was my whole point. I don’t know what point you think I was making that was refuted, and I really don’t want to derail the conversation and get into the weeds of whether this particular case of stillbirth was a miscarriage or an abortion or manslaughter or murder. Have a nice day.
Yeah well, I believe the OP's comment was typed in reference to abortion, not mothers taking illicit substances and their pregnancies not being viable because of that.
NPR is funded by the federal government. They rely on the same fact checking services (the IFCC, PolitiFact / Poynter) that are funded by Soros, the Gates, the Clintons, the Koch foundation, etc...
They're probably the most anti-American media outlet in existence and I wouldn't trust the words they print further than I can ball them up and throw them.
They're constantly promoting the topics of critical race theory and BLM which one can easily lump in with other Marxist mass movements. Whatever the Biden administration feels is important tends to be what they cover - so right now it's all about race, how shitty America is, gun violence, LGBTQ+, etc... They never talk bad about the federal government, and they only give one side in any debate a platform - those who agree with their sentiments. No one else gets airtime.
I guess if you believe everything the federal government tells you, and you believe the federal government is a benign hegemon, then you'd have a tough time classifying NPR's content as misinformation / un-American. I don't fall into that camp so many of NPR's claims are debatable and the fact that the only give one side a voice and push for a neoliberal agenda, makes them anti-American in my humble opinion.
Have you looked at Tennessee's law? Not being the target of a specific law doesn't mean you aren't culpable. For example, if you drive someone to and from a bank robbery, you're still culpable for the bank robbery.
But others (read lawyers) say it better.
"Tennessee law does not criminalize women who have abortions, but that does not mean they can't be prosecuted. In fact, the women could be charged with conspiracy or solicitation for seeking an abortion. And [Constitutional attorney David] Raybin said that with abortion being illegal, the father of a child could now sue a doctor or mother for performing the procedure."
And frankly, does it matter if the recipient of an abortion won't be prosecuted, if they can't legally be a recipient? See the case of the 10 year old who was recently evacuated from Ohio to get an abortion.
There are more examples. The point is that those who received an abortion have been prosecuted even prior to Roe being overturned. It stands to reason that they will be prosecuted now.
Purvi Patel was sentenced to 20 years in prison in Indiana for inducing a miscarriage through abortion drugs. Indiana also charged Bei Bei Shuei with murder and attempted feticide after her baby died following her suicide attempt.
Not every state seems intent on charging women, but I think it’s hopelessly naive to believe that none will.
There is not a consensus that the baby was alive when she delivered it. The prosecution claimed that it was, based on a very old testing methodology called the “lung float” test, which posits that if the lung floats in water, the baby must have drawn at least one breath. It is an old and discredited methodology.
In both cases, intentional harm or neglect was caused by a person resulting in the death of the baby. I see no difference between this and someone being charged for double homicide in killing a pregnant mother. Still doesn't prove the point of any state aiming to prosecute a mother seeking legal options in another state.
The goalposts will move. These two were the test cases, to find out how much appetite there was for prosecuting a mother for losing her pregnancy, using two less sympathetic defendants. States like Indiana will continue to follow that line of reasoning as far as they can.
The people who have worked for decades to overturn Roe believe in their hearts that abortion is murder. They aren’t going to be okay with “murder” being legal in other states, or “murder” tourism. The end result of all of this is a federal ban on abortion.
Slippery slope argument aside, do you in your heart think that throwing a live baby in the trash to suffocate should be legal (assuming the facts are correct)?
Well that's something to think on when advocating for these cases and people. It makes sense to be scared of potential consequences but people need to find common ground and understanding as well.
We don't have a truth meter or a mind reader, and in any case people are allowed to be wrong. Most of us are wrong about most things.
If someone else is wrong or you feel they are, you should make a respectful case for the truth as you understand it. Alternatively, if you don't want to take the time to do that, chalk it up to someone being wrong on the internet and leave it.
Crude insults aren't just against HN's rules, they also are not in your interest, because they discredit your own argument. That's the worst way to represent your point of view, and in the case you happen to be right, you end up discrediting the truth for everybody. Not a win.
Plenty of uproar after Roe v Wade overturning, even here in the EU but.. The real shame is leaving lawmaking to the courts due to political opportunism.
I am fully in favor of legalized abortion, but why was it never codified in law?
Not a priority according to democratic politicians. Not a priority. So, you reap what you sow if you ask me.
I learned that many countries, including my own, made, and make that mistake as well. On many topics.
American here. I think it's important to not characterize judicial review in the Row case as lawmaking. Although lots of anti-abortion advocates criticized Roe as legislating from the bench, the court was actually doing was checking the power of various state governments to take away individual rights. Judicial review has certainly been misused by the court in other cases to legislate, and the concept is anti-democratic to a problematic degree, but it is an important check on governments taking away individual liberties in the US constitutional system, at least in theory.
In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
In cases where a majority doesn't have strong opinions, the US government doesn't really need to pay attention to the will of the voters. Politicians are rarely if ever punished for it. A similar dynamic played out with net neutrality during the last administration. Despite the public, including Republicans, being overwhelmingly for it, it was an issue they hardly cared about, and so the FCC was basically free to do whatever they wanted.
The other reason is that voters who are anti-abortion are not equally distributed amongst the population. Some, mostly smaller states are vehemently anti-abortion. As such, the senate would never muster the 60 votes needed to pass legislation protecting the right. Without Roe, for the last 50 years, we'd basically have been in the situation we're in now: legal in some states, illegal in others, with states fighting each other over whether or not residents can cross state lines to get an abortion.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
I don't get it - this seems like sophistry. Isn't the end result the same, i.e. nationally permitting abortion?
> It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]
Isn't this how the system is designed to work? And if that's not desired, why not change the system instead? "The SCOTUS gets to make the rules" only works about half of the time, and it seems mostly like a matter of dumb luck as for when it does and doesn't.
Using the courts to enforce uncodified abortion rights is like using a shoe to beat a nail in; it's pointlessly brutal, and makes a mockery of the rule of law. I get that it may be expedient for a specific purpose, but why do people celebrate it as a good system in the abstract?
> Isn't this how the system is designed to work? And if that's not desired, why not change the system instead? "The SCOTUS gets to make the rules" only works about half of the time, and it seems mostly like a matter of dumb luck as for when it does and doesn't.
Yes, this is how the system is designed to work. It's a bad system, but the system cannot be fundamentally changed in an environment much short of political unanimity. The biggest changes to the system only came after a civil war.
No system is perfect. The founding fathers did as good a job as they could at the time, but no system can work well without fundamental rethinking forever. Unfortunately, the compromises (i.e. slavery) that lead to the constitution are no longer relevant, but we are left with a system that is difficult to change specifically to protect those compromises.
> Using the courts to enforce uncodified abortion rights is like using a shoe to beat a nail in; it's pointlessly brutal, and makes a mockery of the rule of law. I get that it may be expedient for a specific purpose, but why do people celebrate it as a good system in the abstract?
It's not a good system, and people don't celebrate it as such. Pretty much everyone recognizes that lifetime appointments of un-elected individuals to the supreme court has serious drawbacks. But it's the only way to preserve rights within the current system, and people would prefer that to another civil war.
> Yes, this is how the system is designed to work. It's a bad system, but the system cannot be fundamentally changed in an environment much short of political unanimity. The biggest changes to the system only came after a civil war.
> No system is perfect. The founding fathers did as good a job as they could at the time, but no system can work well without fundamental rethinking forever.
Why not rethink it, then?
I understand that there was a civil war before, but doesn't secession make way more sense now? If only the Democratic states participate, then the necessary consensus to make serious changes (e.g. European-style parliamentary democracy) would be much easier; the Republicans would maybe also tolerate it, given that it would allow them to introduce the laws that they wanted to.
How are you going to keep your country together with the way things are currently going?
I basically agree with everything dragonwriter said, but I'd like to add.
> How are you going to keep your country together with the way things are currently going?
I can't dismiss the possibility that this may come to another civil war, but it would be catastrophic. It's not just that war is bad. The world's largest superpower and nuclear power going to war with itself will end poorly for the entire world. If a civil war between somewhat equal forces breaks out, the sides will not restrain themselves. It's imperative that another civil war is prevented if at all possible.
Luckily, I don't think it's inevitable. As divided as we are, all sides still see themselves first and foremost as Americans. Even those who fly Confederate flags virtue signal all the time about how proud they are to be American. This is not Scotland or Catalonia, where there's a distinct national identity. Even those whose identities are wrapped up in the states in which they live still consider themselves foremost American.
And that's why, even though some may call to secede from Republican states, I don't think it will go anywhere. We have family and friends in those states. We don't want to abandon them to state governments that will treat them as inferior citizens based on race, sex, etc. It would be like Germany volunteering to be split into east and west following WWII.
Why would it need a civil war? It could be done peacefully.
Grant that people wouldn't want to abandon their friends (on both sides!), but surely nobody would feel it worthwhile to fight a war over people in other states having the right to vote?
It could not be done peacefully. Any secession in the US will result in civil war. The two possible exceptions to this are Hawaii and Texas, since both have somewhat legitimate, but still legally controversial, justifications for secession.
But depending on circumstances, it could be a quick, unbalanced war. The US has the largest, most powerful military in the world, and that's only possible because of the union of all 50 states. The military has a huge interest in keeping the union together, and no group of states can hope to stand up to its might.
Active-duty service members from seceding states will not be universally for secession, but you can guarantee nearly every service member from other states will be against it. Even among those who support it, a good number will follow orders to suppress it.
In such a scenario, the only defense seceding states have is the threat of nuclear warfare. The case for Scottish independence would be similarly dangerous if Scotland were not willing to abandon their nuclear weapons. US states seceding cannot do the same because they would be immediately conquered by the nuclear states.
Speaking of, if secession did succeed, we'd be left with 2 nuclear states antagonistic to each other sharing borders. It would be India-Pakistan, but with many, many more nukes. A bad situation all around.
But again, I don't think there's a popular case for secession. It's not like e.g. the people of California hate the people of Tennessee and no longer want to be in a political union with them. There is a lot of hated between political groups, but the borders of that hatred are not state borders. Liberal voters in California hate those running and supporting the government in Tennessee (and vice-versa), but they don't hate the liberal voters in Nashville, Tennessee's capital. The split is mostly urban-rural, not state vs. state.
It creates a situation where we may hate those living only a few km away, but sympathize with the plight of our fellow American thousands of km away. And again, a lot of those people are our friends and family. We don't want to just abandon them.
> surely nobody would feel it worthwhile to fight a war over people in other states having the right to vote?
The US civil war was fought in part by those who felt those being enslaved in other states was an injustice. Modern war is much more catastrophic, but starting civil wars for the rights of our fellow citizens in other states is an American tradition. For all the reasons I hope there won't be war, this is the one thing that makes me fearful another war might start.
> I understand that there was a civil war before, but doesn't secession make way more sense now?
No, it doesn't. The idea that basic human rights are of subordinate priority to sovereignty and something that we will just agree to disagree on has less currency now than in the 1860s; secession as a means of handling this kind of disagreement made much more sense then than now, and it didn't make a lot then, either.
So what's the strategy then? To be blunt, it doesn't seem to me like the US and human rights are going to have the best possible relationship in the next 10-20 years. Wouldn't it be better then to cut away from it?
> I don't get it - this seems like sophistry. Isn't the end result the same, i.e. nationally permitting abortion?
I'd argue whether or not this is sophistry depends on how you view rights. If you only have rights when the government grants you rights, then yes, this is sophistry.
Taking this to the extreme, however, one could main the claim that people are not allowed to do do innocuous actions like jumping jacks unless the government legislates that it's allowed.
However, if you instead take the more reasonable position that individuals have all rights except those curtailed by the government for the sake of maintaining a stable social contract, then it's not sophistry.
In Roe, the court ruled that the right to an abortion, within certain limitations, is not one of the rights that governments can curtail.
FWIW, most rights you and I have are not codified in the constitution. That doesn't mean those rights don't exist. This whole debacle is two SCOTUS arguing over whether privacy, and thus bodily autonomy, is one of those rights.
Ultimately the constitution is a, relative to the case law and interpretations the SCOTUS has generated from it, miniscule document.
I should read a bit more on this, but also wonder, what would be the problem with people deciding it is illegal in some states, and illegal in others?
Although I find it should be legal, within certain limits, what's holding people back from voting, or moving to another state which more closely matches their politician views?
Similar to the EU it is low friction to move state, right? When plenty of people apparently oppose abortion, why not let them..
> but also wonder, what would be the problem with people deciding it is illegal in some states, and illegal in others?
In practical terms, we're already seeing problems with state governments getting into beefs with one another. Some states which have outlawed abortion are attempting to make it a crime to go to another state to obtain one. California is running ads in Florida telling residents to move to California to preserve their rights, but California has a housing crisis so severe that people literally cannot afford to move to California.
Like imagine the issues that would come up if Poland was attempting to restrict freedom of movement of women traveling to Germany for an abortion, while Germany is running TV/radio ads in Poland encouraging people and businesses to move to Germany.
All these interstate arguments are supposed to be the domain of the federal government, but states which have outlawed abortion believe the supreme court will side with them and keep the federal government off their backs. Nobody is foolish enough to believe this decision is solely about the constitutionality of abortion bans. Conservative states recognize that the supreme court will now side with them no matter what.
But philosophically, the problem is that abortion (and privacy) is a fundamental human right, and these rights are being denied to Americans. The US is not the EU. We're not Ohioans and Texans and Californians like EU citizens are French, and Germans, and Poles. We are all Americans. We fought a war and then passed the 14th amendment partially on this basis. Individual rights for American should be available to all Americans, no matter what state they reside in.
> What's holding people back from voting, or moving to another state which more closely matches their politician views?
> Similar to the EU it is low friction to move state, right? When plenty of people apparently oppose abortion, why not let them..
It's not that simple for a number of reasons. The simplest is that minors aren't allowed to move on their own, barring certain exceptions, but they can get pregnant. Even after people reach the age of majority (18 in the US), because of the way our economy and health insurance systems evolved, people can be dependent on their parents for shelter and healthcare well into their mid-20s.
But the bigger problem is that the US is a very large but sparsely-populated country. in the most extreme example, Wyoming is a state the size of the UK, but has a population of less than 600,000. The states that outlaw abortion tend to be more sparsely populated, but still cover roughly half of the population, simply because there are so many of them. West coast states are also fairly sparsely populated, but partially because so much of the land is owned from the federal government, and the population centers are crowded near the coast.
If say, 20% of the total US population wanted to move from states that have outlawed abortion to states that haven't, that's a huge migration, and there isn't enough housing available. The US has been building less housing than we need for natural population growth since the 2008 crash.
And, to be fair, a small amount of that population growth in liberal states has been from people fleeing conservative states. But even in the most liberal states, so much of our economy is based around stable/rising real estate prices, which prevents building new housing at the rate that we need it. We're totally unprepared for citizens fleeing states where abortion is illegal.
EDIT: In case it wasn't obvious from the above, many people residing in states where abortion is now illegal cannot afford to move. It would be like asking the average citizen in rural Poland to move to Zurich.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
That's a good distinction, but that distinction was not well-founded as a matter of jurisprudence, if my understanding of Alito's opinion in Dobbs is correct.
Roe had SCOTUS getting far over its interpretive skis, into societal matters that had a corrosive effect on the court, as witnessed by Sen. Ted Kennedy's character assassination of Robert Bork on the Senate floor some 15yrs after Roe.
> Roe had SCOTUS getting far over its interpretive skis
Roe had SCOTUS identifying privacy and therefore bodily autonomy as one of the un-enumerated rights which is still protected by the constitution.
Dobbs was the current SCOTUS saying "no, it's not an un-enumerated right" because it wasn't "commonly practiced in the founder's time".
Which isn't entirely true, there were some existing state laws on the books from the late 1700's which made abortion perfectly legal. But even if the majority had recognized that, they could have simply changed their examples to justify the change.
> In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.
Correct, it did not pass a law, it made a ruling that read like legislation that struck down the laws of States passed by people’s elected representatives, i.e. the people selected to pass laws.
The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
> The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
This is arguably correct prior to the passage of the 14th amendment. However, Roe was decided on 14th amendment grounds. The 14th amendment provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…" This means that any state which does infringe on individual rights does conflict with the federal constitution, and therefore may be checked.
I'm not going to pretend that's not controversial. It came out of the civil war and was forced on a lot of states as part of reconstruction. We may have to fight another civil war over it, among other things, in the future. But the Supreme Court definitely has the power to check states when they curtail individual liberties.
1. The United States Constitution is the supreme law of the United States of America per the United States Constitution.
2. The 14th Amendment is part of the United States Constitution including the “privileges or immunities” clause.
3. Privileges or immunities is constrained by judicial jurisprudence post-Slaughter House which basically interprets it to mean that the States will not infringe on the privileges or immunities (not to be mistaken for privileges and immunities) that US citizens have as US citizens. You might be thinking the first 8 amendments of the Bill of Rights, but the joke would be on you because those were incorporated via the Due process clause.
Unfortunately nobody really knows what the privileges or immunities clause was for except as a worse reading of privileges and immunities per Article IV because this is a Civil War amendment, like the 13th and 15th, and unlike the founding era amendments (excluding the 11th), the Civil War amendments were written at a time when lawmakers were all feeling a little bit French and a little bit Fancy with their legal prose because this was now a post-Napoleonic Code world. Clarity and brevity were not the high points of this era of lawmaking, but at least we had mostly started to standardize spelling and grammar.
What it boils down to is you have the right to travel, including take up residency and citizenship in another State. If there is anything else it protects, the Supreme Court does not appear to have found it yet.
So when you say:
> But the Supreme Court definitely has the power to check states when they curtail individual liberties.
You’re not actually contradicting me because as you quoted:
>> The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.
This includes the US Constitution.
SCOTUS is governed chiefly by Article III, and here from Section 2:
> The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State; —between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
That’s their basic jurisdiction. The Congress has established inferior courts, so SCOTUS typically acts as a final court of appeal rather than taking original jurisdiction over cases, but there are cases where they can take original jurisdiction (arguably must, but well that varies by Court era).
In other words, they take cases in law and equity according to the laws of the United States. Not one word in there is about “checking” or “balancing” State power except pursuant to the laws of the United States. If a State infringes on someone’s rights, it is not under the jurisdiction of SCOTUS unless it is also a violation of United States law. That is an important and very easy to miss distinction, but not irrelevant. We have a lot of laws with a lot of “rights” that Congress has passed per Article I, the Bill of Rights and also the 14th Amendment, but the important thing is they either have to be in the Constitution or in a law which Congress has passed in order for it to be a controversy which the Supreme Court or the inferior Federal courts could take jurisdiction over. Without a case to substantiate it, SCOTUS does not have wholesale power to “check” the States because “checking” power is not what they do: they arbitrate disputes and pass judgements in accordance of laws.
That's all correct. There's no precedent for the court using using the "privileges or immunities" clause as a rationale for jurisdiction, and Roe was decided on the due process clause. The privileges or immunities clause is indeed poorly written, and subject to lots of debate.
I should have quoted at least up to the due process clause, but omitted it for space. However, I still think there's a strong case that the due process provides jurisdiction for the court to "check" a state over abortion for the due process clause, and possibly the "privileges or immunities clause", though that's, as you pointed out, untested territory.
Post-Griswold, the due process clause applies to unenumerated rights in the constitution. Privacy, or even bodily autonomy, could easily be one of those rights.
Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty.
It wouldn't stand a chance with the current court, but I could see it flying on a modern court with a different makeup. After all, Corfield v. Coryell decided that New Jersey could prevent nonresidents from gathering clams. I can't see such state discriminatory laws passing muster post civil war.
> Gun to my head, if I were forced to argue solely on privileges or immunities, I would attempt to argue that the wording was changed from or to and as a result of Corfield v. Coryell because Congress did not wish for it to be so limited, and given the context within which the 14th amendment was passed, the purpose was to bring the states within the power of the court with regards to individual liberty.
The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.[1]
The context of the 14th amendment was that post-emancipation there were millions of freedmen who under the laws of the United States up until that point were of questionable legal status regarding citizenship and rights under the Constitution or the State they resided in. The 14th amendment was intended to try and settle that without leaving it to the Courts. I mean, you can read up on the history of the Jim Crow era to see how well that went specifically, but arguably even that could have been far worse without the 14th Amendment serving as something of a bulwark for freedmen.
So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause?
EDIT:[1] After posting I decided to dig this out, but I think a lot of people who quote the wonders of the mysteries of the 14th amendment’s due process and privilege or immunities clause forget this part, but there is a Section 5 and it reads as follows:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
This is not a delegation of power to the Courts. To the extent the Courts have additional power under the 14th, it is because Congress has additional powers to make new laws beyond the scope of Article I. When Congress’s power to pass laws is expanded, the Executive has the ability to enforce those laws and the Courts to adjudicate and pass judgement under those expanded laws. Congress is the supreme federal branch, and the powers of the Executive and Judiciary are downstream from there.
> The States are within the power of the Court per the laws of the United States. The Courts just don’t have the power to make those laws; that’s what Congress is for.
Right, correct. However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law. That's not true, the Court can enforce the due process clause even when there's no explicit federal law or enumerated right.
If this were not the case, Loving v. Virginia could not have been decided. The court ruled that the state law had violated both the equal protection and the due process clauses. Congress hadn't passed a law mandating that states allow interracial marriage, and it wasn't explicitly enumerated in the constitution.
The court ruled that
1. Marriage is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
There's nothing stopping the court from using those exact same clauses to rule
1. Abortion prior to viability is a fundamental constitutional right
2. States depriving people of that right was unconstitutional
Of course, you could go all Andrew Jackson on it and say that the court has overstepped its bounds (though I'd disagree), but the court ultimately won. Given how vague a lot of the language we're talking about here is, history has shown repeatedly the court can essentially interpret it as strictly or as loosely as they want, as long as they can convince the rest of the country to go along with it.
> So are you arguing that you can find the equivalent of Roe v Wade in the privileges or immunities clause?
Like I said, I don't think I should look to the privileges or immunities clause first, but I could definitely envision a much broader interpretation of what "privileges or immunities" are to cover any fundamental human right.
> “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Because this doesn't say "exclusive power", it the court has leeway to interpret itself into a role here. It may have been intended to be an exclusive power, but the court is very big on plain language.
> However, I think where we disagree is the assumption that the Court can only perform judicial review on state laws when they violated explicitly enumerated rights in the constitution or US federal law.
Actually no. I think there are unenumerated rights: marriage, procreation, inheritance, paternal and maternal rights, and countless others.
Abortion is not one of them unless you are also arguing against the paternal interest of the Father and the life interest of fetus (mind I’m not going to say that begins at birth, I actually don’t have a strong position on that specific question at this time). That’s what makes it no longer simply a matter of privacy, or bodily autonomy or whatever substantive due process claim you could make; another human being is implicated.
That doesn’t mean we shouldn’t pass any legislation at all legalizing abortion to a point, but we have to make a political determination where that point is, and that will vary State to State, and it has to be legislation, not the Courts. That said I’ll give you this, if the courts want to step in at some point and protect the right to abortion in the cases of ectopic pregnancies, I’m all for it. I just hope they never have to.
The US's constitutional system doesn't work well in a polarized environment. There are too many veto points, two conflicting branches that can each claim to be "legitimately elected", and even the elected branches don't represent the popular will due to compromises made in the pre-modern era.
We've papered over the effects of this paralysis by delegating power to the executive agencies and the Courts, but this era is now coming to an end. Some folks believe that as we remove those options our legislative system will be "forced" to work properly. But there's no evidence to support this: most Presidential democracies have collapsed into autocracy, and our own system has previously collapsed into secession and civil war.
The most law that affects the most people day to day has always been State law. I wouldn’t expect any kind of legislation coming out of Congress on this (but many attempts both ways regardless), and I think if there were any that passed that would not actually help our politics. Not everything need be an Act of Congress. Every State has an elected legislature.
> The most law that affects the most people day to day has always been State law.
So, I'd actually disagree. This argument isn't well thought out yet, but... until you're actually breaking local laws, most of the laws you interact with are actually interstate and international laws. Most of the businesses you interact with are either engaging in interstate or international commerce.
For example, all of your interactions with Amazon are governed by Federal laws first and foremost. With state taxes being the notable exception.
Even your rent, mortgage, power, water, internet... they're all private companies that are quite often multi-state or multi-national.
I appreciate you trying but no, the laws that affect your direct surroundings are State, because the State is the direct sovereign power over the land you live on whether you rent or own or squat.
The streets around you are governed by State laws; the parks around you may have park hours and if not set directly by the State are governed by a State-empowered entity like your City (national parks are the obvious exception to this). The utilities you mentioned are typically local businesses, except maybe the banks and the ISPs and even the ISPs are operating with local charters and the bank branches are operating under local business rules.
You don’t think about it because it’s so pervasive as to be invisible, but local and State laws are a massive influence in your daily life. The most regular encounter most people have with the Feds is the postal service. Even our “federal” elections are run by the States.
I live in a high-tax state and pay vastly more to the Federal government than I do to all state and local agencies. Budget isn't a perfect proxy for state power, but it's a pretty damned good one. (And those taxes have a huge effect on my life every single day.)
>The US's constitutional system doesn't work well in a polarized environment
It was also designed as an inherently change resistant system to support an alliance of states. This is why super majority vote thresholds are common opposed to simple majority votes. Change in many areas was intended to require more than 51% popular support. You see this in the Senate, to a lesser degree in the house, and the way the president is elected.
Some see this as minority rule, but it was intended to be rule of the status quo unless there was broad support for change. This is what is out of line with modern expectations
I think there’s more preventing the passage of a law protecting an individuals right to abortion than whether it was a matter of political priority.
To pass such a law would require 60 votes in the senate AIUI. Given that this has been a massive part of the republican platform there’s no way ten senators would flip in the current senate.
It could have been passed in the Obama years but I wonder if the public would have had the appetite for it with the assumption that Roe vs Wade would have remained. Let sleeping dogs lie and all that
What this shows to me is the intentional inability for the senate to pass anything but the least offensive bipartisan bills and force other institutions such as the courts to intervene. However as we’ve seen the courts have their own agenda too
the legislature as an institution is not really designed or intended to pass 'offensive' bills, it is supposed to reflect the consensus of the states which should hopefully reflect the will of the public at least to some degree. it should also be considered the same gridlock barring federal abortion rights also prevents a federal abortion ban so those who blame all political failures on the filibuster should really keep that in mind. if the people of tennessee, mississippi arkansas etc decide that legal abortion is a defining issue then their representatives would in kind be expected to reflect those values on the floor. while that precludes short-term solutions (once again, as intended) i do not believe that it is a political impossibility as is so often claimed. however, for the first time in a long while, democrats will be required to actually 'do politics'
Isn't that a contradiction? If it could have passed in the Obama years but was ignored, then it simply wasn't a priority to do so, which was the original point made. Obama years were pretty recent.
Does the court have an agenda here, or is this the removal of a previous agenda? I don't understand these claims that the court is simply doing the same as before but right wing instead of left. They haven't changed things to make abortion illegal at the federal level. They've just removed a ruling based on shaky legal reasoning and kicked the decision back to where it was meant to be all along, which would seem to be lack of an agenda.
This article is illustrative of the ignorance, malice, and hypocrisy of America's social elite. Jessica Biel implies France has women's rights while the U.S. does not. And yet:
* Neither France, nor any other nation I am aware of, provides a constitutional right to abortion.
* The law upheld by the Dobbs decision is less restrictive on abortion than France's current abortion laws!
Speaking of hypocrisy, We see rage from so many people who frequently bemoan the state of "our democracy" and at the same time could care less about democracy. They only care about winning. If they can win through democratic vote, fine. If they can win through a supreme court ruling, fine. If they can win via executive fiat, fine. All that matters is winning.
Wanda Sykes is basically asking for a wealth-based oligarchy to rule the U.S. All the folks in middle states need to "shut up" because the wealthy elites on the coasts are making all the money, so they should make all the decisions!
I remember as a kid being baffled by our so called progressive country sending the abortion boat "women on waves" to Ireland to provide Irish women with abortions in international waters. Also activists shooting anti conception over the border with Poland.
But isn't all of this antithetical to ever growing government structures?
I get a feeling the world is heading towards a new fundamental discussion on this topic, and others, but I am afraid it will not be friendly discussions.
> Neither France, nor any other nation I am aware of, provides a constitutional right to abortion.
I don't see why it has to be a constitutional right (constitutions aren't the only things that codify rights), but for what it's worth there's an ongoing proposal which will probably pass, overwhelmingly, to add abortion as a constitutional right in France.
What that right would entail remains to be seen, but it won't be elective abortions in the 3rd trimester.
The legal timeframe to terminate a pregnancy in France was extended from 12 to 14 weeks in the last legislature. In 2018 and 2019, lawmakers unsuccessfully tried to amend the constitution to include the right to abortion.
>Not a priority according to democratic politicians. Not a priority.
In the US, a ruling like this(ironic to say right now) is so much more ironclad than a law is in general, if people are going to come after it. Legal challenge after legal challenge slowly boils laws away until you have so many exceptions about portions of a law specifically struck down that the whole thing doesn't even make sense anymore. And of course, any time Republicans controlled the House/Senate they'd probably do something with it, just like every time a Republican is elected President they stop giving monetary support to organizations GMOs that provide abortion services in foreign countries. You can't really have laws about "controversial" things for very long.
This was overturned no? So is this now also more ironclad? And the whole point of elections and politics and lawmaking is to keep up with changing culture and norms?
I see your point in practicality, but are they mutually exclusive?
>> In the US, a ruling like this(ironic to say right now) is so much more ironclad than a law is in general, if people are going to come after it.
> This was overturned no? So is this now also more ironclad?
Roe v. Wade was basically a backdoor constitutional amendment where seven judges bypassed the actual process for amending the constitution (and also ran ahead of the legislatures in all but a handful of states). The recent Dobbs opinion just nullifies that amendment.
A lot of people seem to think that, since the constitution is so hard to amend through the prescribed process, they should be able to use the courts to get the amendments they want. The problem with that is that it explicitly politicized the court, burning up its legitimacy in the process. We're seeing the later stages of that (the next step is something to undermine the court's independence, like court packing or mass impeachment). It also foolishly relied on a fantasy that only one side could abuse the court in this way, and the other side would forever remain helpless.
> they should be able to use the courts to get the amendments they want
The court makes tens to hundreds of interpretations of case law and its interaction with the constitution every year. They've generated thousands, if not tens of thousands, of pages of interpretations and case law over the years.
And it's worth noting that rights not explicitly enumerated in the constitution are still rights protected by the constitution. The current SC just disagrees with the previous SC's decision on what those un-enumerated rights are.
EDIT: Side note - the court wasn't even being asked to overturn Roe v Wade - they took that upon themselves. All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW). Highly sus that they decided to take this on with such an unrelated court case.
> And it's worth noting that rights not explicitly enumerated in the constitution are still rights protected by the constitution. The current SC just disagrees with the previous SC's decision on what those un-enumerated rights are.
I think your phrasing there is awkward. Which rights? All imaginable ones? (you probably should have said "some rights" to block this inprepretation) Rights with specific kinds of historical precedence? Novel rights "our" faction wishes were there and that "our" judges can read into it through deliberate effort? Reading novel rights into the constitution is the kind of backdoor amendment I was referring to.
> All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW).
No, I don't think that's actually what happened. IIRC, it could have chosen to resolve it that way, but the parties turned the case into a challenge about Roe v. Wade itself in their arguments, which gave an opening for a broader ruling.
FWIW, my wording is based on the constitution. specifically, Amendment 9, which states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave.
For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric. But since the founders didn't do it (debatable, there were laws allowing abortions on the books at the founding of the US), it's OK to take that right away.
> the parties actually turned into into a challenge about Roe v. Wade itself
The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling.
"... the State never argued that we should grant review for that purpose [overturning RvW]."
"The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case."
> "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
> So what rights are those? That's up to the courts and lawmakers to decide. And they have. Folks disagree with the choices they made and the justifications they gave.
I'm not a lawyer, but the word "retained" seems pretty significant there. You can't retain something you don't have. I wouldn't be surprised if that was meant not as some kind of mechanism for adding new rights in the future, but as clarification to not remove rights that were understood at the time but not listed (e.g. for reasons of economy or forgetfulness).
Also, IIRC, Roe v. Wade did not appeal to the Ninth Amendment, so bringing it up is a bit of a red herring.
> For example, I disagree that a right which has been in place for 50 years, with millions of women exercising that right yearly, is somehow not part of the US' social and moral fabric.
I was talking about it being an de-facto amendment relative to the situation when it was passed in 1973.
>>> EDIT: Side note - the court wasn't even being asked to overturn Roe v Wade - they took that upon themselves. All that was being contested was a state's ability to limit abortions beyond the first trimester (something commonly allowed as part of the "balance" between states rights and women's rights built upon RvW).
>> IIRC, it could have chosen to resolve it that way, but the parties turned the case into a challenge about Roe v. Wade itself in their arguments, which gave an opening for a broader ruling.
> The SCOTUS did that. As noted in Roberts' concurring opinion (which was still one of the 4 votes against), this specific case could have been solved without tearing down the RvW ruling.
> In the [Mississippi’s] petition seeking Supreme Court review, officials told the justices that “the questions presented in this petition do not require the court to overturn Roe or Casey,” though lawyers for the state did raise the possibility in a footnote. Once the court agreed to hear the case, the state shifted its emphasis and began a sustained assault on those precedents.
It's true the court could have rejected that and went narrower (Robert's preference), but it appears to not be true that "the court wasn't even being asked to overturn Roe v Wade" -- it was during oral arguments.
One SCOTUS said you do have it. One says you don't. Who's right?
Not that it matters. Like I said, it's on Congress now.
> footnote
And the decision was still with the SCOTUS, footnote or no footnote. Regardless of what the lawyers say, it's ultimately up to the judges to determine what's an appropriate response to their arguments.
If every footnote begging for an overturning of precedent was taken to this extreme, we would see a lot more turnover. This sweeping and disruptive change is solely on the SCOTUS' heads.
Like I said above, the whole Ninth Amendment thing seems to be a red herring, since that apparently wasn't even cited part of Roe v. Wade's reasoning. It apparently actually relied on the "the Due Process Clause of the Fourteenth Amendment" instead.
> One SCOTUS said you do have it. One says you don't. Who's right?
The one that doesn't make major policy decisions decree by turning its opinions backdoor constitutional amendments, which is what the Roe court did. IMHO, it's antithetical to democracy for a council of nine unelected people to make major, near-unchallengable decisions by edict. Also, to argue equivalence between making such an edict and its later repeal is even more undemocratic.
> And the decision was still with the SCOTUS, footnote or no footnote.
Why are you focusing on that footnote? The parties make arguments after their petitions, and I said that was when the court was asked to overturn Roe v. Wade. Did you stop reading after the first sentence of the quote?
It lasted 50 years, and helped provide the framework for many other privacy related protections, which the current supreme court is now dismantling, basically because they can. Many other privacy related rulings, including those for mixed-race marriages and rights to contraception, where built partially upon RvW.
One thing the RvW ruling had that a law wouldn't is a reluctance for most supreme courts to overturn it, since an interpretation exists and now helps form the basis for laws in the US. There's a specific name for this codified reluctance that I don't know at the moment. This is one of the things that the 4 "no" votes openly criticize the majority opinion for. "We're overturning it because we want to," is a short version of the majority's opinion on that.
Ironically, it's court-based interpretations of the constitution that have been performed over the years also help provide the very case law that the SC uses to do the overturning. As one Tiktok creator pointed out, the constitution can fit in a pretty small booklet. The interpretations and the case law built off those interpretations fill thousands, if not tens of thousands, of pages.
But in that case, what's the problem? If you can't get the legislation through because it isn't popular enough, that seems like a pretty solid case of "Won't fix: working as intended".
Congress still has the ability to pass those laws, should they want to.
My understanding is the state of the law before Dobbs was that late term abortions couldn't be legally prevented if continuing the pregnancy put the woman's physical or mental health at risk. I think depending on how late the abortion is and how grave the danger is a lot of people will flip their position between permitting it and not permitting it.
It's a federation, not a democracy. States themselves are federations of legislative districts, the borders of which are drawn by the same legislature (without, thanks to today's supreme court, the checks and balances of judicial oversight). In a democracy, sensible legislation that appeases a large majority is possible.
The thing where politicians hold any sort of progressive legislation hostage with extortionate demands over unrelated issues is a common theme across countries.
Like government funded Catholic schools in Canada. Something that shouldn't exist anymore but whoops it's in the constitution so it's going to be there forever now because no one would ever agree to just one change.
It can be changed. Quebec used to have to fund Protestant (probably Anglican) schools. At some point in the last few decades, their part of the Constitution was updated so that they have to fund English-language schools. Ontario currently doesn’t have the political will to change this, but it isn’t entirely immutable. (Interestingly, there are a few Protestant schools funded in some places in Ontario, where the majority of the population were French Catholic.)
Quebec is in the process of making it difficult for anyone to attend English-language schools, but I see Quebec bills 21 and 96 potentially causing major pushback against the notwithstanding clause (hopefully it will kill the damned thing) and causing another round of people and companies to leave Quebec as they did because of René Lévesque and the PQ.
I don’t live in Quebec, and I’m also an immigrant to Canada. I’m looking at Bill 21 and seeing a legislature that does not understand secularity or religion. I’m looking at Bill 96 and seeing a legislature that is making hard decisions and getting them wrong.
It is very clear that the Quebec legislative assembly knew that both Bill 21 and Bill 96 were undemocratic and wrong-headed from the beginning, since they preemptively invoked the notwithstanding clause to override charter rights (which they knew that both bills would walk all over).
Not all of 96 is bad. I sympathize with the need to protect the French language and am not against legislative measures to do so. (The decision against Villeneuve’s restaurant "New Town" years ago was just silly, though.)
However, there are clear negative messages being passed by other parts of 96 which make it extremely xenophobic (just like 21), such as ending services for new immigrants in any language other than French after six months.
With respect to history…Toronto was not the preeminent city in Canada. That was Montréal, until the first referendum. Tens of thousands of anglophones left their homes in Quebec as they no longer felt welcome, and numerous businesses shifted their base of operations from Montréal to Toronto, and Toronto has benefited ever since.
In recent years, Montréal has attracted a number of companies back to the point where I have worked with (as a vendor) a couple of companies that closed secondary headquarters in majority English Canada and forced their employees to move to Quebec in order to remain employed. I am hearing that some of those employees are now feeling (once again) unwelcome in Quebec, and those companies may be reconsidering their headquarters in Quebec because of the lack of consideration for charter rights by the current government.
I love Quebec. I think that much should be done to protect the French language there. But I don’t think that preemptively violating charter rights is the right way to do it.
IANAL but in common law, precedent should guide the interpretation of the law. And the precedent was Roe v. Wade.
Of course there's other precedent that we do effectively ignore, like Plessy v. Ferguson. So you're right, it should have been codified in law. But any such law would be erased by Congress too next year when everything turns red.
Also Europe based, I see that as big over sight. I am absolutely sure, so, that the republicans will use there judicative power to fullest extent together with a majority in the House should they get said majority. And they will throw out the filibuster in the senate with the blink of an eye if it serves them.
> Not a priority according to democratic politicians.
Hindsight (or the view from the sidelines) is always 20/20, isn't it? It wasn't codified into law because it didn't seem necessary while Roe v. Wade was still in place and there were so many other issues that also needed addressing. You know - wars, pandemics, economic downturns, that kind of thing. Which of these other issues would you have let slide so you could pass a highly contentious law with no immediate practical effect in an environment of razor-thin vote margins and staunch opposition? The Democrats would have gotten plenty of "friendly fire" for that too. Sure, in retrospect it seems like a giant missed opportunity, but we shouldn't pretend there weren't reasons at the time.
Also leaving old laws in when they are ruled null by a court. As a result, many states' laws changed immediately after Dobbs was ... (issued? enrolled? made in force?).
It's like leaving data in memory such that a new pointer gets the old value. Pure crust.
> I am fully in favor of legalized abortion, but why was it never codified in law?
The US constitution made leeway for rights to be unenumerated, or not explicitly spelled out (9th amendment [1])
Up until this current supreme court, a right has never been removed. That was not standard jurisprudence.
Now, however, we have radicals on the court who take the view that "if it's not in the text, it isn't protected" completely ignoring the 9th amendment and often only applying it when they favor the text ideologically (see: gun laws. Plenty of historical documents show that the 2nd amendment was about states being able to form militias and not arming individuals. It literally wasn't until about the 1990s that lobbying from the NRA successfully reinterpreted the amendment to mean "everyone gets a gun").
The next problem is that in order to pass new laws, you need to have a super-majority in the senate, a majority in the house, and the presidency to go along with the law. Pretty difficult when the republican party has decided they want absolutely no new laws and certainly no expansion of rights. (See: how hard they are fighting against the HR-1 the voter rights act [2])
But, of course, while abortion rights are wildly popular (~80% of the population supports them in some circumstances. ~50% in all circumstances [3]), we don't run the country as a democracy, but rather a representative republic. And that's the problem. While the people want this, the representatives do not. A combination of gerrymandering and voter suppression has angled them into a position where the population that elected them doesn't track with the general population.
This is exactly the same issue with climate change. 60% of the population view it as a dangerous problem and 40% of the population view it as overblown. [4] That 40% ends up with a larger portion of power in the senate because any action to realistically curtail climate change ends up being filibustered.
The issue america has is we have 1 party with the motto that "The scariest phrase is I'm from the government and I'm here to help" as such, they block any and all regulations and government actions they can feasibly stop. The setup of our government favors that strategy. Their voters don't CARE that they aren't passing laws, they prefer it that way. This kills the ability to compromise.
> The next problem is that in order to pass new laws, you need to have a super-majority in the senate, a majority in the house, and the presidency to go along with the law. Pretty difficult when the republican party has decided they want absolutely no new laws and certainly no expansion of rights. (See: how hard they are fighting against the HR-1 the voter rights act [2])
Why isn't this abolished, then? Does a majority of the U.S. electorate actually want to abolish the filibuster and so on? If not, then it seems like a logical series of propositions:
1. A majority of the U.S. population want >60% majorities to pass laws.
2. A majority, but less than 60%, support nationally permitting abortion.
3. Therefore, while a majority of the U.S. support abortion, they don't support any system that would actually allow it to become law.
"The federal government is hopelessly useless" and "the states shouldn't get to decide anything" seem to me like two contrary positions. Either:
1. The current federal system is fine, and there is no need to change anything.
2. The current federal system is not fine, but it can be changed. Therefore, it should simply be reformed.
3. The current federal system is not fine, but it can't be changed. Therefore, the states should have the power instead.
There are 50 states in the US. Each state gets 2 senators. States with low populations (think, Wyoming) tend to lean republican while the few states with high populations tend to lean democrat. The end result is these rural states end up with a disproportionate level of voting power in the senate where the fillibuster exists.
Were the US population evenly distributed then this wouldn't be as much as a problem.
There's also been a massive shift in political attitude with the republicans. Back in the Clinton presidency, democrats and republicans often worked together on bills and compromises to keep the government functioning. This changed with the tea party and Newt Gingrich at the end of Clinton's presidency.
After Clinton, Obama was the next democrat president. He had a filibuster proof majority briefly but lost it + the house for the rest of the presidency after the first half of his first term. He was still working on compromises with the republican party (unsuccessfully) and in his second term when he lost the senate it was simply too late to get anything done. Mitch McConnell launched the "we won't approve anything you want to do" policy.
Now, with Biden as president, the senate is 50/50 R and D. 2 democrat senators have said "we will not eliminate or change the filibuster under any circumstance" and that's where we currently sit. Democrats do not have the votes to move anything.
It's not really hopeless. Assuming democrats turn out in the midterm to vote for democrat senators (we just need 2 more) then a lot of positive changes can happen. However, if instead they take the "nothing we do matters" approach then we are boned probably for the next 2 years and maybe even longer still.
What's really distressing is republicans are now deciding that "any election that doesn't result in us winning was stolen" and they are putting into place laws to allow them to decide that "We don't think the people voted right or the democrats cheated" so they can effectively steal elections. We are heading head first into tyranny.
I can't stress enough how important it is to vote for democrats in the upcoming elections. I get that people don't like them in many issues, but america is currently facing a take over by a party that has turned fascist.
> There's also been a massive shift in political attitude with the republicans. Back in the Clinton presidency, democrats and republicans often worked together on bills and compromises to keep the government functioning. This changed with the tea party and Newt Gingrich at the end of Clinton's presidency.
It's changed with the Democrats, too. It wasn't too long go that the Democrats had a significant contingent of pro-life officials and were competitive in conservative farm states.
The nationalization of politics has created an unhealthy situation where candidates have to pass national litmus tests to win a nomination that will doom them in their actual election.
> There are 50 states in the US. Each state gets 2 senators. States with low populations (think, Wyoming) tend to lean republican while the few states with high populations tend to lean democrat. The end result is these rural states end up with a disproportionate level of voting power in the senate where the fillibuster exists.
> Were the US population evenly distributed then this wouldn't be as much as a problem.
Isn't that pretty much what I said? Even if >50% want a national abortion law, <50% want to do the necessary ground-work of "cutting Wyoming down to 0.2 senators".
If people do not want it, then how can it happen? Cutting the filibuster only makes sense if you control the Senate, which is about 50/50 for both parties.
> <50% want to do the necessary ground-work of "cutting Wyoming down to 0.2 senators".
No, that's not the case. I'd dare say >50% of the population wants to cut Wyoming down to 0.2 senators. But how do they accomplish that? The only viable route is a constitutional amendment. For that to pass, you need 2/3s of the senate to agree AND you need 3/4s of the states to ratify.
By saying "oh, well the majority can just insist on the change" ignores the fact that the current system gives the minority power to say no.
The only hard work the majority could actually do is move from these high population states into low population states to re-balance the voting power.
The US is not a democracy. 50% of the population wanting something means nothing. And without an actual civil war and new constitution, that won't change.
Grant this, but at some point, there's still a lack of majority support somewhere. >50% might support cutting Wyoming down to size, but <50% support removing the supermajority requirement for constitutional amendment.
The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right to privacy" that protects a pregnant woman's liberty to abort her fetus. [1]
In other words, *the SCOTUS finding said* abortion was codified in law -- the U.S. Constitution.
Edit: clarified the summary to attribute the finding to the SCOTUS and not to my opinion
> that protects a pregnant woman's liberty to abort her fetus.
Unfortunately the 14th amendment does not explicitly say that. Therefore we've been operating off of the court's previous interpretation of the 14th amendment, which has now changed.
So unless Congress can pass legislation legalizing it federally without any ambiguity, it's going to be left up to the states.
I don't really understand the ramifications. If you have a vegetative child, are you obligated to keep them on life support for the rest of his life?
My grandmother died last month. We chose to keep her under morphine despite the fact that she couldn't take her heart medecine anymore, and to not install another IV (she refused to be taken out of her home and to be sent to a hospital the day prior). Would we have been able to do that?
I know worse! a very young and talented violonist, friend of my parents when i was a kid, suffered a weird disease that would excite her nerves, hurting her even when staying still. The pain was so high her brain was shut down most of the days until she took her own life. If this disease triggers in an infant not able to speak yet (and who won't be able to learn, ever), what happen? I'm pretty sure this is debilitating, so the infant would need life support for at least ten years, and then be unable to learn anything, only suffering or being dosed with morphine. Would letting this infant off life support be prosecuted?
This is really interesting philosophically. I am a negative utilitarist of sort (Karl Popper is the base of half my opinions tbh),so the answer to all the questions are evident. For classical utilitarists or deontologists though, those should be really interesting. Where do you draw the line?
You're correct. But that means it's up to the courts to decide what is a right. One SCOTUS ruled that privacy - bodily autonomy - was a right. The current SCOTUS ruled that it is not.
Their logic is dodgy, but that doesn't matter, sadly. The ball is in Congress' court now.
From a distance, it seems like some States will get the go from SCOTS to revert everything back to Jim Crow / pre-Civil Rights movement. Pretty scary actually, even for non-Americans.
Yeah its getting tiring watching the increasingly convoluted mental gymnastics to make companies and individuals responsible for completely failed lawmaking and rabid dog enforcement agencies.
Literally in the article:
“Be smart: Congress won't save us, or these companies, from this battle.
…
But long efforts by legislators to pass a national privacy law — an effort many companies support — remain stalemated this summer, as they have been for years.”
No, your fucking government is unable or unwilling to act in the interests of its people. What is a government that is unaccountable to its citizens (whether due to gridlock or malice) called?
National privacy laws would apply to all companies, present and future and to all cases of overreach. Instead, we are all supposed to fight the current big tech cos and fiddle with Google settings to delete location data and buy pinephones and gmail alternatives and drop facebook and use Signal and don’t buy a smart TV and don’t use Github and on and on? Maybe we need to invest more energy into fixing a dead government instead of tech.
Neoliberalism is an economic philosophy. It's not tied to "progressivism" or "conservatism". In short, it promotes free-market economics without borders.
Where did I mention progressivism or conservativism? Neoliberalism is intrinsically tied to politics because you can't affect economic policy without getting involved in the political system...
Regardless, your implications surrounding my comment, and my intent by making it, are incorrect. Both movements have been disastrous for the United States.
Neoliberalism is entirely unrelated to neoconservatism. The "liberal" part refers entirely to free-market economics.
The two philosophies are similar only in name. It is possible to be both a neoliberal and a neoconservative.
For example, every Republican president from the 1980s up to Trump was a neoliberal. This includes Bush who you mention as a counterexample. Trump was the first anti-neoliberal president we have had in decades as he, unlike his predecessors, promoted tariffs.
The confusion stems from the introduction of "neoconservatism" into a thread which just before was topic-centered around neoliberalism. To a reader it looks as if it's trying to establish that neoliberalism and neoconservatism belong to the same category and together form a unity of opposing forces. It reads as if neoconservatism is a conservative form of neoliberalism (or vice versa).
It's something that has been part of the US since the beginning, but the more people are left behind economically, the more they are swayed by these narratives.
Neither could. Critical race theory isn't prescriptive. Black Lives Matter is, but advocates for equal outcomes (primarily in policing). This isn't Marxism, but just regular justice.
The only thing Marxist about them is that the right has tried to tie them in with Marxism as part of the FUD, and some 'leaders' in the movements also advocate for Marxist solutions. Christopher Rufo was explicit in his intent to do so for Critical Race Theory. It's precisely the same red scare tactics used to punish people with different ideology in the 50s as enemies of the state.
can you cite some examples? generally it seems like people are exercising their first amendment rights against people they don't like, which has at times been misdirected, but to my knowledge hasn't destroyed anyone
This. Social Media has advanced the fiefdoms at an alarming rate. No matter how strange or out of touch your ideas, you can find similar people to reinforce them. When your only connection is with people that agree with you it becomes 'us vs them' and extremely insular. Throw in 'click bait' news and you have a growing level of fear and uncertainty that adds to the comfort of staying within your tribe.
Civil society takes work and we aren't doing that work in the US right now. No one wants to discuss things, they just want to yell down the other person. We need to get out on the front porch and talk instead of posting from our basements.
i mean, if that is the case then it happened in the 18th century when the industrial revolution caused the undoing of the jeffersonian ideal and the supremacy of the yeoman farmer. i tend to gather that most of this site's users are not planters, candlestick makers or slave owners.
if anything destroyed the fabric of communities in post-new-deal-industrial-world-superpower-america, it was financialization and trade agreements.
We might as well go back to the social contract then. My comment written to open up some historical debate about when the downfall of America started, but to point out that big tech is a fundamental contributor to the destruction of the fabric of America. I never claimed there were no other contributors or that it started with the advent of big tech.
First I believe in equality and all humans should have a shot at a good life based on merit.
However, I also see that the road to hell is paved with good intentions and we are on this trajectory.
We decided that men and women are equal (which they are to a large degree) on all aspects. We believe in this part of the world that women should have just the same say and power as the most powerful men (usually white) do.
Yet all we've done is concentrate power at the most attractive, most white , most affluent group of men and women while taking it away from other groups.
We told ourselves that we achieved a better society with this skewed distribution of power because finally, women and men are able to compete for the same jobs AND same sexual powers that we've traditionally never dealt with.
Contraception is THE main enablers of this new paradigm shift. However, what society deems women who are unattractive or "not it" do not benefit. Similarly, men who society deems unattractive or "not it" do not benefit. These groups are further pushed away into the fringes while the "it" crowd receives all the benefits. Contraception technology increases women's sexual capital because they no longer have to worry about pregnancy. This creates losers on both side of the gender and they both engage in toxic competition. Social media further magnifies and increases the impact on people's mental health. The same groups are also aligned with this political scaffolding because they benefit by not having to discriminate by genders or race, and able to hire people based largely on merit.
Outside this bubble, there is a growing sense of anger, especially in regions where they've largely witnessed the loss of the old power structure and economic powerhouses that once provided the social stability.
Coupled with the fact that there is the greatest amount of highly educated young, marginally employed demographic, who are online all the time, you get a recipe for unstability.
I absolutely believe that an individual should have agency over their own body and mind. However, I also recognize that we've confused individual liberty and freedom with apathy. Apathy is in demand because people think that's what enables their freedom, it only pushes people away into isolation, extremism. The freedom to think, say, act whatever is the power they believe must champion all else and because of this attachment that an individual forms with his own thoughts and ideas, it is unable to reconcile the differences in reality vs expectations which is filled with ideals and half baked ideas.
So with all these things in mind, is it not a natural progression that this society creates angry, self-loathing, self-obsessed, individuals looking for an escape? The ideal avatar they create online vs the real one they need to live as, this cognitive dissonance when paired with apathy from society and the individual creates extreme stress.
This is my take on America. Take it or live it but I will leave this bit:
The perfect slave engages in a self-dialogue that convinces himself they are free and that they belong to an apathetic, materialistic, shallow, vapid society we've built today. All started with nothing but good intentions.
This debate seems headed towards the question of whether or not one state can control what people do in another state, or restrict the free travel of people who intend to do things which are legal in other states? Utah doesn't allow gambling, can Utah build a wall to keep Utah residents inside so that they can't gamble in other states?
The interstate commerce clause is heavily abused, but not allowing states to control behavior in other states seems a pretty straightforward interpretation. The states were always intended to have different laws, from the beginning of the country.
A blanket rule on data collection isn't tampering with evidence. They are not examining the particular information they are deleting in order to determine whether it is potentially evidence.
> They are not examining the particular information they are deleting in order to determine whether it is potentially evidence.
Of course they are, unless I am misunderstanding what they are doing. It seems that they are specifically deleting location data with regards to visits to abortion clinics. [1]
Their intent is pretty clearly to protect the privacy of women seeking healthcare at facilities that do provide abortions. But they are not peeking at what sort of healthcare the women are seeking. There's a clear distinction.
"Without regard to the purpose of their visit" is going to pass muster pretty much anywhere.
The fact that people are willing to conflate visits to those facilities with seeking abortion is itself a clear justification to discard all data about visits to those facilities!
The current SCOTUS steamrolling isn't just about abortion, it's part of a long fought right-wing battle to give more power to the states, and less to the federal government.
And with that said, I think people must simply prepare for some states having absolutely abysmal and regressive laws / protections when it comes to privacy, gender / sex, etc., while the rest will continue to live in the present day.
I'm not a fan of slippery slope arguments, but do you really think people that will fight this hard for essentially making abortion illegal (in certain states) will be content with just that? Or are fundamentally the type of people to only control one aspect of life?
Absolutely not. The SCOTUS is signaling that anything that's not an originalist black-or-white interpretation of the constitution, is going to be fair game at the state level in the future.
> Driving the news: Google announced Friday a new program to automatically delete the location data of users who visit "particularly personal" locations like "counseling centers, domestic violence shelters, abortion clinics, fertility centers, addiction treatment facilities, weight loss clinics, cosmetic surgery clinics, and others."
Yay google! Giving a touch of privacy back to those causes it deems acceptable!!
