It is deeply wrong, very dangerous, and completely anti-democratic to use the judiciary to circumvent the legislative process. The judiciary should not legislate. SCOTUS should interpret the Constitution, which is its only role. It should not invent new rights whenever these rights can’t be passed legislatively. It should not abrogate rights already in the Constitution when these rights can’t be curtailed legislatively.
The people who are upset about the repeal of Roe should lay the blame at the feet of their lazy politicians who didn’t want to bother to do the work of legislating and instead farmed off the task to SCOTUS.
Whatever you feel about abortion itself, finding a right to it in the US Constitution was egregiously wrong and set a terrible precedent. We should all walk away from that immediately. And then hash out the issue where it belongs, which is state legislature.
If we don’t have our time-tested and effective system of government with its three separate branches, we have nothing. Preserving that system is more important than anything.
Again, I’m saying this as somebody who always supported abortion rights. In the phrase “abortion rights” the word “rights” is the most important. We won’t have any rights at all if we ditch our democratic system of government. There’s too much discussion of the merits and demerits of abortion and precious little of what really is at stake here.
Clarissa's Blog 
Roe didn’t codify abortion, though. It was a right to privacy case. This is in the Constitution—in Roe, it was determined that the decision for an abortion is included in the right to privacy, not that it’s just legal regardless. It’s extremely lazy on the parts of both Congress and SCOTUS.
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I know the justification the court came up with back in 1973. But nobody seriously thinks that the authors of the constitution meant anything remotely like the right to abortion. If we start saying that “right to pursuit of happiness” includes absolutely anything we like, we’ll get to a scary place very soon. There should be limits to interpreting the text.
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I will disagree with you there but agree on the most important point: that everyone relies on the equivalency of precedence with codification when they really shouldn’t. It’s extremely lazy to make that assumption and the conflict right now is the price we all pay. I agree completely that legislatures have the job of codification. Once precedence has been set it should open the doors for codification—instead, all it does is make people assume that the opinions of the court are the same as law.
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The ninth amendment specifically states that just because a right is not explicitly mentioned in the Constitution does not mean it doesn’t exist. There will always be people on both sides of the interpretation argument but the fact remains that this clause still exists. Which is why precedence matters so much to the court. In fact the ninth amendment was specifically added by founders who believed that strict interpretationists would try to argue that certain rights don’t actually exist because they’re not specifically mentioned in the Constitution. This is why things like same sex marriage or marital privacy or healthcare privacy is not necessarily encoded in law in the first place.
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Of course. But we can safely assume that the founders would have been horrified by the idea of both abortion and same sex marriage and would not have the same reaction to healthcare privacy.
My original question stands. Why not do this legislatively, like every other country? Why involve the Supreme Court at all?
Let’s not pretend we don’t know the answer. This is nothing but an attempt to create laws from the bench because there’s no electoral support.
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The troubling thing to me is Roe v Wade was established precedent and had been upheld multiple times. This opens the door for a lot of other things to also be overturned. This was after the judges said that established precedent would be respected.
I’m honestly less inclined to vote Republican in the upcoming elections. What if they decide the would like to ban abortion all together? Who is to stop them from doing that? Or maybe go after gay marriage, interracial marriage, Brown v Board…
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Can anybody explain why gay marriage wasn’t decided legislatively, like it should?
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I don’t know. But a LOT of things were not initially decided legislatively. See Brown v Board.
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The real reason that it couldn’t. There was no support, and everybody knew it. This is an important philosophical question. Should the judiciary impose laws that the majority of people, either rightly or wrongly, don’t support? And if so, then why have legislature at all? Why not just leave it all in the hands of a few unelected judges?
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I don’t know about that Clarissa. But I don’t believe the Supreme Court should abolish established precedent from many decades ago; that is not good for the stability of a country. Especially after they promised they wouldn’t do that.
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It’s not like the court hasn’t overturned previous decisions before. We got through it.
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“not initially decided legislatively. See Brown v Board”
That was a very different case and about clear infringements of rights (sp. equal protection)
I’m not too hyped up about this beyond noting that it’s the end of the republican party regarding abortion (that carefully upheld RvW for years to keep its base riled up). That issue is gone and only the fringe (not the base) is going to be on board with things like a constitutiona amendment.
Now democrats are going to use yesterday’s decision to keep their based riled up. Note that democrats had plenty of time to address abortion access legistlatively and they always deferred because they wanted to run on the idea of upholding RvW.
And how much of this is due to RBG’s failure to resign when the resigning was good? (probably not that much but recent attempts to elevate her to sainthood are very irritating).
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Democrats were hoping to continue ramming all sorts of things with no electoral support through the courts. And now all of a sudden the gig seems to be temporarily up, so they are upset.
But you are absolutely right, Republicans will finally lose this distraction mechanism. Maybe then they’ll have the time to notice what voters really care about.
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“they’ll have the time to notice what voters really care about”
Sweet summer child…. the Republicans know what voters care about (as do the democrats) the problem is that the decision makers in both parties hate what the voters really care about.
One of the two main parties really needs to die so that something else can be born from it….
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I’ll also add that Thomas is now on record as saying he would like to do away with rulings on contraception and same sex marriage; and it seems this is just getting started.
Like I’m saying, this is not good for stability.
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He even put it in his official concurrence. Griswold was an important case, but it rests on the same principles as Roe: that the right to this kind of privacy is implied in several different articles of the Constitution, even though it’s not explicitly stated. SCOTUS overturned a state law criminalizing all forms of birth control. Because this was then established as precedence, no one bothered to enshrine these rights into law—but clearly if you can just overturn precedence on a whim that should probably change. The whole point behind precedence was that people didn’t need to encode every single little thing into law. The ironic thing is that that same precedence can also be used to deny the states their own rights to encode their own laws. It’s meant to provide a check on the state and federal governments but it’s lacking balance.
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The left killed Roe when it went all-in on vaccine mandates. We just established there is no such thing as a right to bodily autonomy or medical privacy.
That made it OK to repeal Roe. Roe has always been a bad legal decision. Vaccine mandates made it OK to act on it.
I’m absolutely against abortion, but I am not happy about this development, and afraid of what it portends for the future.
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@Pen, @ed, @Clarissa
This is how it works under Italian law. When/If Italy’s Constitutional Court (the equivalent of SCOTUS) discovers/invents an apparent right in the Constitution of the Italian Republic which nobody had even thought of, it can only state it in principle: it cannot make law, since lawmaking is the exclusive purview of Parliament. In the same way, when it strikes down a law as unconstitutional, such a law is allowed to stand until a new law replacing it is passed.
When the Constitutional Court found in favour of the right of same-sex couples to see their unions legally recognised, no couples were allowed to marry until a law was passed (about three years later).
I used to think that this was undemocratic, but in the light of later pronouncements from the Court (15 judges appointed to renewable terms) I have come to think that our Founding Fathers were extremely wise: the Court may only act as a form of judicial review. The Founding Fathers dictated that lawmaking power should reside exclusively in elected legislators and that it must be left in their hands alone, as they alone are accountable to the electorate.
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“Whatever you feel about abortion itself”
Just gonna throw this out there (I like my dead horses very well flogged).
It’s no coincidence that Roe v Wade happened during an unprecedented push to get women into the workforce and it was struck down when capital is no longer very interested in women’s labor….
Judicial opinions are usually part of bigger socio-economic trends….
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@Cliff Arroyo
“It’s no coincidence that Roe v Wade happened during an unprecedented push to get women into the workforce and it was struck down when capital is no longer very interested in women’s labor….”
Well, apparently lots of “au fait” companies have already pledged to pay for any abortion related costs, which is doubly ironic considering that the US does NOT have a countrywide provision covering paid leave for pregnant woment and their partners and that maternity leave provisions in the US are quite poor compared to what is available in similar industrialised countries.
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“lots of “au fait” companies have already pledged to pay for any abortion”
It’s like official full-time jobs in Spain – they come with massive perks so companies do everything they can to keep from officially employing people full time…. (I imagine it’s similar in Italy)
Women whose labor is needed will have access, it’s the large pool of gig employees who’ll be hardest hit and most unable to make life plans…
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“lots of “au fait” companies have already pledged to pay for any abortion”
also….
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It’s called “legislating from the bench” within the practice of law.
Apparently it’s totally acceptable when Progressives do it and a moral crime of the Nuremberg variety when anyone else does.
And some people wonder if “mass formation psychosis” is an actual thing …
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We all know by now that “rules for thee but not for me” is the name of the game for progressives. No principles (which apply to everyone equally), only power (them over everyone else).
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Re “some people wonder if mass formation psychosis” is an actual thing”
It IS an actual reality BUT…. not in the way it is presented by both laypeople and intellectuals.
The official framing of the mass formation “phenomenon” is misleading and wrong. The false hope-addicted psychologists and their acolytes want you to believe this is “just some temporary occasional” madness by the masses that has been going on for a couple of centuries when it is but a spike of a CHRONIC madness going on for aeons with “civilized” people — read “The 2 Married Pink Elephants In The Historical Room –The Holocaustal Covid-19 Coronavirus Madness: A Sociological Perspective & Historical Assessment Of The Covid “Phenomenon”” …. https://www.rolf-hefti.com/covid-19-coronavirus.html
One of these mainstream psychologists who have been spreading this whitewashed reality, Dr. Desmet, also fails to see that the PLANNED Covid Psyop is a TOTALLY deliberate ploy because he doesn’t think (after more than 1 year, even 2 years, into this total PLANNED scam!) it’s ALL intentionally sinister as he stated in a prior podcast (this makes him witting or unwitting controlled opposition).
In the May of 2022 podcast with James Corbett he stated that “some people tend to overestimate the degree of planning and intentions” (behind the COUNTLESS, VERIFIABLE, FULLY INTENTIONAL, FULLY PLANNED atrocities by the ruling tribe of psychopaths over the last century alone) and see all of it as being planned which Desmet called “an extreme position” … Sound logical thinking is “extreme” and therefore false and sick in his demented delusional view!!!
In his overpriced misleading whitewashing old material regurgitated book the psychology of totalitarianism he too states that “There are countless … examples that seem to point in the direction of a plan being implemented, such as the fact that the definition of ‘pandemic’ was adjusted shortly before the coronavirus crisis; that the definition of ‘herd immunity’ was changed during the crisis, implying that only vaccines can achieve it … [he continuous with several other obvious facts of an ENTIRELY PLANNED event, especially discerned through the totality of all these facts].” “SEEM to point in the direction of a plan”??? No! They most evidently, clearly, and irrefutably DO demonstrate and prove it IS a COMPLETELY AND FULLY DELIBERATE PlanDemic! A big scam. An Entirely Planned Holocaust against the non-ruling herd of people (see cited link above). A coherent 12-year old kid can figure that out.
It clearly shows Desmet’s own complete lunacy. But because almost everyone in the culture is a member of mass formation (madness), including the “woke” people of the alternative media domain, hardly anyone recognizes Desmet’s lunacy. Not surprising that he has even become some type of popular “guru” among the adherents of the alternative media landscape.
With his false use of language Desmet obscures or hides the true reality instead of directly and uncompromising exposing it — aiding the obfuscation of the vital reality of what the ruling authorities really are. He does the same thing when he speaks of ‘the elite’ (as he does in a number of podcasts) when, in reality, they are THE SCUM OF HUMANS because they are REALITY-VERIFIED PSYCHOPATHS (see referenced source above). Yet in the Corbett podcast he “teaches” us that we, the masses, need to start thinking differently. Right… how about YOU start with sane instead of insane thinking/talking/”teaching”/etc, Dr. Desmet?
How do self-styled “truth-tellers” wake up the masses to the so-called truth when they THEMSELVES use lies with their deceitful fake language???
No one is “teaching” or “waking up” the ignorant masses to the CORE truths with lies, with the official “language of lies” (see cited source above).
This all means Desmet is ALSO a member of the masses of lunatics, an ACTIVE CARD-CARRYING MEMBER of mass formation!!! When, if at all, will he wake up from his state of mass psychosis, his “invisible” stupidity? When, if at all, will he face the TRUE and FULL reality instead of hiding behind fantasies such as his whitewashed “reality” of human civilization?
It shows we live in a global mental asylum with criminal and/or delusional mainstream psychologists, scientists, and docs as the guards, “teachers” and “therapists” … The blind/criminal/mad leading the blind/criminal/mad; the blind/criminal/mad adhere to the blind/criminal/mad = the human madhouse.
Worst of all, perhaps, the mass formation/mass psychosis notion frames the problem as the public being a mere unaccountable non-culpable victim in this phenomenon (the gist of the circular argument is: the masses should change their thinking but they got brainwashed so they’re victims). Nothing could be further from the truth (see referenced source above).
Desmet is right in that truth-activists must fight against mass formation psychosis (human madness). That also means exposing HIS deeply destructive mad part of it. This comment serves, in part, that objective.
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