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There are 11 comments on POV: What Rights Could Unravel Next, in Light of Draft Opinion by SCOTUS Overturning Roe v. Wade

  1. In a democracy the people ought to decide — not the courts. In a diverse culture there will be different views. Let the people in each state or community decide what’s best for them. We just might end up with a tapestry of diversity.

    1. Two major flaws with your argument–

      1. Letting the people decide is for things like whether to raise state income tax, not whether to award them fundamental human rights. Do you really want to live in a country where it’s up to the popular vote whether you’re allowed to marry or have control over your medical decisions?

      2. The people don’t even really get to decide, with how gerrymandered many states are. Representatives often don’t reflect the will of the electorate, and even when they do, it’s not like states are 90% pro-life and 10% pro-life, or vice versa. At most it’s 40/60 one way or another, leaving a sizeable chunk of the population subject to the whims of the small majority.

      1. #1 Are some things are too important to be resolved democratically, or are some things are so important that they ought to be resolved democratically? I doubt any electorate would vote against their own rights.

        It seems to me that the most fundamental human right is the right to life.
        I guess I’m an old-line liberal: I can see and value the viewpoints of others, even those with whom I disagree, and I care about those without a voice.

        #2 That’s why I think local control is better than federal control. One size simply does not fit all.

        1. Both of these points imply that this decision functionally returns the question of abortion rights to the electorate, but (as has already been pointed out) this is far from the case. Every robust poll that has been conducted in the past few years indicates that a majority of Americans support upholding the rights granted under Casey and Roe, and if this question were ever put to a national referendum, it is a strong likelihood that the electorate would indeed vote this way. The problem with your argument is that a referendum is not (and likely never will be) on the table. Instead, we get a performative 51-49 vote in the Senate.

          You might counter this with your second point, arguing that this is an issue that should be decided at the local level, rather than nationwide. Setting aside the fact that this sets the stage for a wildly inconsistent patchwork of conflicting laws, the argument relies again on the assumption that state-level legislation actually reflects the beliefs of the electorate in that state, but when state legislatures are gerrymandered to the point where a party can maintain a stranglehold on government with the support of only 40% of the population, it simply can’t be argued that legislation passed this way is in any way “democratic.”

          It is easy to slip into a debate around whether access to abortion is a fundamental human right or a question of policy to be determined by the will of the people, but this is fundamentally a red herring. This decision is not about resolving a controversial issue through democratic means, but rather, transferring control to the hands of a reactionary and entrenched minority. Those who claim to care about the right of the people to decide what’s right for them should be terrified by this move, which places the beliefs of those long dead above the rights of those living today.

    2. Respectfully, I have a different opinion about that. I live in Texas. A “tapestry of diversity” indeed exists here—Texas cities are some of the most diverse in the nation—yet that does not protect people with “different views” from persecution. Through redistricting and voter oppression, the government here has effectively created a rigidly conservative, right-wing Christian bully-pulpit where “aggrieved” conservatives continually attack those in the community they don’t agree with—undermining the rights for gay and trans people, maligning Black Lives Matter and other movements that strive for justice and equality as “rioters.” Here, the government has taken pains to criminalize parents who support their trans children as “abusers”; embolden people to snitch on/sue their neighbors who seek abortions after six weeks; censor books in schools and libraries that contain inconvenient truths about race or describe sexual orientations that are not heterosexual; eliminate the need for a license to carry a gun in public, and so on. In some cases, only the courts stand between this pure hostility and human rights, and sometimes they rule on the side of common sense and justice. The problem with this Supreme Court majority, which is illegitimate in my opinion, is that they are activist in the guise of “constitutional.” They are not protecting people, but narrow “traditions.” It is a MAGA court that wants us back in the intolerant, petrified 1950s, where women and minorities are subjugated to the oppressive will of white male America.

    3. Because there is no exception to protect the right of medical care for women having a natural miscarriage or an ectopic pregnancy, which without care is 100% fatal, the laws being passed in Texas and other states amount to murder. One woman in Texas with an ectopic pregnancy has already had to flee to New Mexico to save her life. The States are now NAZI type Christian Nationalist regimes that believe murder is acceptable when women have serious conditions during a natural failed pregnancy. All women should educate themselves on ectopic pregnancy and bleed outs due to serious miscarriages. Texas has chosen to ASSume that a miscarriage is always caused by an abortion attempt. I lost 2 children to miscarriage. If I lived in Texas I would be incarcerated for something that was God’s will. It is cruel and criminal and should be abhorred by all.

  2. These are very tough questions and I struggle with them. When do the rights of a woman end and those of her baby begin? No one is arguing that a woman has no right to control her body. However, when is a baby worthy of protection under the law? Is it when the baby can live on its own (mine is 22 and it’s touch and go)? Is it when the baby is aware of itself? If a pregnant woman is violently attacked and her baby is killed, isn’t it a crime? Why does it matter whether the woman wants the baby? I think these are complex issues that should be debated by elected representatives (accountable to the people) with the help of doctors, not lawyers and judges with life appointments.

  3. In a representative democracy the people should decide, state by state, community by community. It shouldn’t be the courts; it should be the elected representatives.

    Using the current conversation for an example, let the town council of town A decide that abortion is a bad idea and won’t be permitted in their town and let the town council of town B decide that abortion is a good idea and it will be permitted in their town. A blanket ruling from the federal government is not democratic.

    1. The problem with each locality having absolute autonomy to establish criminal laws for themselves is that these laws end up being either contradictory or completely ineffective.

      Imagine, as a hypothetical example, twin cities that are immediately adjacent but which have separate local governments. There are many real-world examples of this (Boston & Brookline, Minneapolis & Saint Paul, Portland [OR] & Vancouver [WA]), but for the sake of argument, let’s call them Linksville and Rechtsburg. Linksville passes a city ordinance that makes obtaining an abortion completely legal within the city limits, and the city government will even provide free transportation to and from the clinic. At the same time, the council of Rechtsburg passes an absolute ban on any resident seeking, providing, or obtaining an abortion. What happens when a woman living in Rechtsburg walks across the town line into Linksville to get an abortion? What if a shuttle owned by the Linksville Transit Authority drives into Rechtsburg to pick up the patient? Can a Linksville doctor who performs abortions get picked up by the Rechtsburg PD? Conversely, can the Rechtsburg police officer making the arrest be charged in Linksville?

      This is a hypothetical example, but if you look at states with trigger laws that adjoin states with abortion protections (Utah and Nevada, for instance), you can already start to see these contradictions play out on a state level, even before the decision enabling them gets handed down. How would a system with even more fragmentation between jurisdictions be better?

  4. Thanks for your insights, prof. I found this one particularly frightening: the draft opinion “treats precedent generally as a paper barrier to a narrow reading of constitutional text and tradition—something that can be swept aside whenever five justices believe that a past decision is wrongly decided.”

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