Hacker News Reader

Comment by lanstin | Hacker News Reader

Pence just asked for federal legislation banning all abortions. So I think you are wrong to say the Republicans are trying to return it to the states, thy are trying to ban it.

Note that a man is not required to donate blood to save an adult human, even if there is no risk to him. The equal protection clause extends that right to your own body to women, and that is fairly sound constitutional reasoning.

The constitution doesn’t mention a million specific things, but it protects our freedoms anyways.

A democracy is a place to gradually expand equal protection of the laws to all people. Each change seems radical to the people accustomed to undemocractic flaws, but the outcome has been very successful these last few hundred years.

View on HN

> Note that a man is not required to donate blood to save an adult human, even if there is no risk to him. The equal protection clause extends that right to your own body to women, and that is fairly sound constitutional reasoning.

Why did Roe v Wade rely on an unwritten right to privacy rather than the equal protection clause then?

I will defer to the explanation in chapter sixteen of https://www.amazon.com/Allow-Me-Retort-Black-Constitution-eb...

Something to do with some bad uses of substantive due process stuff in early 1900s.

Just one comment away from implying that this case is straightforward, and you're bringing up esoteric case law from 100 years ago. I don't point this out to denigrate you, but to highlight just how complicated law can be, particularly when it comes to landmark SCOTUS decisions. I thought I heard on the news that the majority opinion was 90 pages long, but I can't find a reference. However detailed it was, for the next month, literally millions of people will be on Twitter making 280-character-limited reductio ad absurdum comments about it.

UPDATE: The decision is 231 pages. https://www.politico.com/news/2022/06/24/read-supreme-court-...

The US government can compel a man to sacrifice their entire body ( and blood ) for the greater good of other citizens should they wish. [0]

[0] https://www.sss.gov/

This is has been brought up a few times, but is largely a non-sequitur. First, if WWIII broke out, I doubt women would be exempt from a draft (e.g. see Israel where service is mandatory for women). Second, this is comparing exceptional circumstances where there is, presumably, an existential threat to the state vs. a situation that can reasonably be expected to occur in a person's lifetime (pregnancy).

The draft is also a temporary measure. As with other wartime restrictions of civil liberties, like curfews or rationing, it would not be tolerated if continued outside the context of a war.

Why would you believe women wouldn’t be exempt from the draft?

Do you have a historical example of that in the roughly 300 year history of the US? Do you anticipate on recent Supreme Court rulings that they will expand the idea of equality and not reinforce traditional Christian gender roles?

Let me guess, you're in a group that is not normally outcast for existing?

Gradual expansion of equal protection only makes sense if:

1. you are already protected

2. you benefit from unequal protection.

3. You want to appear "nice"

I was arguing for expansion in opposition to restricting equal protection. It would be much better if the US protected equal protection for all people immediately in 1790 but it didn’t. I would like to argue that the Republicans are a threat to the progress made in the latter half of the twentieth century without defending the previous systems as being good, but merely good enough to enable improvements via the Civil Right movement, gay power, womens lib, labor unions, etc.

If you have a plan for full equality, sign me up. I have seen some calls for a general strike on Twitter today, but I am unpersuaded that will happen this week.

Here on ycombinator even getting people to understand that the value of their labor is being taken and their orgs are racist and sexist is not an easy sell.

I am neither Republican or Democrat. I am Brazilian and moderate. But I would not go as far as saying any party is a threat. In society, all changes that were made too fast resulted in unexpected consequences. We might be in times of extreme polarization, but in general, having opposing views in politics forcing changes to be slower than the Democrats would want and faster than what Republicas would, benefit us all in the end.

I would argue that the US is suffering from an inability to legislate due to the polarization. The two parties do not share the same idea of what problems we have, and they are not arguing over how to fix them. You have one side saying we should do something about global warming and the cost of education and gun deaths and the other side saying women should submit to their husbands and gays are causing social breakdown in the country and the Democrats are drinking the blood of children to live longer.

The Senate allows a minority to stop the majority from tweaking the laws in an iterative process, and holds the society back from doing things that require laws, like carbon tax or cap n trade, or even fixing clear bugs in ACA. We don’t have much internet relevant laws passed in the last twenty years, yet the internet and its conflicts have changed quite a lot since Napster. We can’t change the law to let people rebuild flood destroyed buildings on higher ground. All we do is tweak the budget numbers and appoint judges. It makes prospective solutions extremely tilted compared to even a good compromise of a law.

This is the problem with politics today in America. Republicans win by saying No to everything, while everyone collectively loses because of our inability to get anything done. And then Democrats get blamed for it anyway, whether it was their legislation or not.

When you believe God is on your side, you can justify almost any behavior to accomplish your goals, functional democracy be damned.

Gott mit uns (God is with us), as the Nazis put it

We are just stalled as a society. Brazil is quite similar. All the legislators are having a lot of problem moving forward in either direction. This is not a problem with the system and it is not one party to take the blame alone.

Until people find the middle ground or convince the other side, being stalled is not the worst solution. Dictatorship, civil war, and most other alternatives are worst than stalling legislation.

Take carbon tax as an example. I myself believe human action is destroying the environment and I want to reverse it. But I do not think carbon tax is the way, and I know many moderates on the same position as I am. How about removing all incentives first before imposing punishment? How about triple the nuclear plants, that are safer than never with newer tech, and make it impossible financially to justify carbon based electricity generation? There are dozens of ways to take the first steps without punishing people and getting more money in the government hands. Carbon tax is just shifting money from one hand to the other, and other bad actors will do something bad with it. I prefer to fix this with less money and less power to governments. And there you go. Better stalled than move forward in the wrong direction.

That is claim with zero backing. The center between any two arguments is not some superior choice because it’s between the two sides.

If two wolves and a sheep are deciding on lunch would the sheep consider only having two legs eaten a better deal for everyone?

It is more a wolf against wolf situations than wolf versus sheep situation. We are all humans and we can all reason and have conversations. In a democracy with two opposing parties we are way better off than in Russia. There you have a wolves versus sheep situation, with all the sheep with leadership mindset already eaten over generations.

> but merely good enough to enable improvements via the Civil Right movement, gay power, womens lib, labor unions, etc

The rulings underpinning several of these are called out as "up next" by Thomas' concurring opinion.

> Pence just asked for federal legislation banning all abortions. So I think you are wrong to say the Republicans are trying to return it to the states, thy are trying to ban it.

It’s worth mentioning that the constitutionality of such a law seems highly questionable based on the current leanings of SCOTUS. States’ rights work both ways, and (not a lawyer) I would assume an incredibly broad interpretation of interstate commerce would be needed to hold up a federal ban on abortions.

Why would you assume any precedent for behavior matters from a court that’s issued a majority opinion overturning a case where multiple of the co-signing justices had declared it settled case law?

They just overruled the NYC gun ban. They will pick and choose whatever they want

The US Federal constitution contains a right to bear arms, which supersedes the NYC law which stated ordinary citizens could not "bear arms" in public without justifying an exceptional need.

There is no analogous constitutional right for abortion. Roe v. Wade inferred it from a "right to privacy", which also does not exist in the text.

The US Federal Constitution contains the 9th amendment which guarantees that the enumeration of specific rights in the Constitution cannot be construed to deny any other right not enumerated in there, but that doesn't matter for these courts.

They have become openly partisan and will pick and choose whatever suits their political leanings. Once they got a majority on the court they no longer need to play ball with the other side

The basis of the decision wasn't ultimately in states' rights, but instead the view of a lack of constitutional protection against abortion bans.

The legal theory almost explicitly allows for a federal ban in addition to the state bans that tieggered today.

I believe that’s my point. From what I understand, an incredibly broad interpretation of something like the interstate commerce clause or another enumerated power would seem necessary for such a federal ban to supersede state laws permitting abortions.

Not quite. The ruling is specifically setup to allow a federal ban against it's challenges. The wording allows several avenues, my bet is on expanding the existing federal murder charge that has plenty of case law supporting it to fetuses at the moment of conception.

In 2007 a conservative SCOTUS majority upheld a federal ban on partial-birth abortion [0]. Thomas wrote a concurring opinion where he explicitly glossed over whether congress actually had that authority under the commerce clause. Normally he jumps at any chance to say congress has exceeded their authority under that clause. I wouldn't find it hard to believe if this court upholds a more general federal abortion ban

[0] https://en.wikipedia.org/wiki/Gonzales_v._Carhart#Concurrenc...

> The equal protection clause extends that right to your own body to women

No it doesn't

Here's the clause:

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

Where is a guaranteed right to abortion in this? You said Roe "is fairly sound constitutional reasoning", but I don't see you reading a Roe from this without some serious mental gymnastics

Also:

Donating blood != killing a fetus

If you consider equating the two "fairly sound constitutional reasoning" then that speaks for itself

> Donating blood != killing a fetus

I don't think that's the argument the earlier post is making. They are arguing that you cannot be compelled to do something to save some else's life even if it won't harm you, and doubly so without due process.

However, I think viewing someone's body as their own property is a better way to frame this. If you decide a fetus is trespassing in your body, where should the state intervene? The state couldn't force you to harbor someone in your home during a winter storm, even if you left your door unlocked and kicking them out would surely result in them freezing to death. If you believe that a fetus has adverse rights against the body it's growing inside of, then you need to make that case.

> I don't think that's the argument the earlier post is making. They are arguing that you cannot be compelled to do something to save some else's life even if it won't harm you, and doubly so without due process.

Choosing not to kill a fetus != saving someone else's life

Using the two interchangeably is like building a house on top of sand

Following the viewpoint of the parent commenter, you are not choosing to kill the fetus. You are choosing to stop letting the fetus have residence inside your body (your property) and choosing to stop providing it with free nourishment. It's the lack of the fetus's ability to fend for itself that causes it to perish.

This is in line with my argument, but I actually mean something more direct than that. I mean you have the right to kill someone living inside of you, because you have property rights over your body and rights to the security of your person. Before viability, the only means of evicting a fetus, or in other words securing your person, is to kill the fetus. I think that is a fundamental right.

Just as you have the right to defend your home with lethal force, you also have the right to evict by lethal force a fetus.

I don't think it does us any good to shy aways from the uncomfortable aspects of t he free exercise of these rights.

That's precisely why I think an argument from property rights and self-ownership is more morally, legally, and philosophically sound, as I said. Your body is the most intimate and important property you have, to be secure in your person is one of the most fundamental rights. Being forced to host another life within your body and an infliction of suffering by the state, and in my view a violation of the right to security in one's person. I think that is a right that supersedes the rights any fetus may have, as unfortunate as we may feel the outcome to be.

Moreover, there are a lot of places where we morally and legally permit people to kill, that doesn't mean that we like killing or condone it in general.

As an aside, I appreciate that you’re engaging in good faith. I’m sure you arrive at your position through conviction, even though I strongly disagree.

> If you decide a fetus is trespassing in your body,

I think I remember the UN Charter on the Rights of the Child stating that (1) children are not the property of their parents and (2) parents have a responsibility for its well-being.

I’m not arguing that children are property, but rather your own body is. When a born child leaves your body, then they can no longer infringe upon your right of self ownership. I don’t see a conflict here.

I think you mean this document:

https://treaties.un.org/doc/Treaties/1990/09/19900902%2003-1...

A couple of comments on this:

1. The Convention document doesn't expressly address it, but instructs in several places that the rights enumerated exist for children 'from birth', implying they do not apply to a potential child before it's born.

2. The United States is a signatory, but did not ratify this, and is not subject to it.

I would add that rights don’t flow from documents but rather need to be built up from philosophical argument. Perhaps they’re natural, discovered, or achieved but in any case I think we have to reason towards expansive and philosophically sound rights.

The argument is that a state is denying the woman's liberty and/or denying them the privileges due to citizens on behalf of a party that is neither person nor citizen.

(Obviously the conferring the status of personhood on the unborn is a subject of debate).

Reply on news.ycombinator.com