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Comment by rayiner | Hacker News Reader

France amending its 66-year old Constitution to include abortion is a “world first.” Few Europeans would assert that their constitutions already guaranteed such a right before those country’s regulated abortion under civil law. The ECHR has repeatedly declined invitations to find such a right in the EU Declaration of Human Rights. Meanwhile, many in America denounce the Supreme Court for observing that our 235 year old constitution isn’t any different from those (often much younger) European constitutions in that respect.

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Highly intelligent legal experts in the form of Supreme Court justices determined that states can’t ban abortions. Other equally intelligent legal experts in the form of Supreme Court justices determined otherwise. Both sets of people wrote cogent opinions in support of their position. What is one to make of these facts? The Constitution says what you want it to say and you can write a well written, well reasoned argument supporting what you want it to say.

Our Constitution, in reality, is much more than the words written in it. It’s morphed due to judicial precedent over the course of 200 or so years.

It's more fundamental than that even. The constitution is in fact powerless without people. That's it. If you don't have the people there's nothing the constitution can do about it.

Might is right, in that dead people don't get to decide anything. If the next generation growing up decided to not respect Congress, then in a generation the entire institution would cease.

The point of comparison to European constitutions is that their highly intelligent people are smarter about what they’re willing to make up out of thin air. European constitutions have way more meat on them out of which to read in a right of abortion than ours.

And people much more versed on the law than you and I (I know you are a lawyer) believe it wasn’t made “up out of thin air”. You didn’t understand the point I made. Your opinion and whether or not abortion in the U.S. is a constitutional right is not objectively the correct one. Well meaning experts with more expertise than you disagree with your characterization.

When Roe was decided, a liberal law professor stated that it is “bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

Hardly anyone defend’s Roe’s original reasoning anymore, because it makes no sense. That’s why over the decades the defense of Roe has largely been reduced to the assertion that it’s precedent. It’s the left’s Lochner.

Invoking “experts” is unavailing because those experts are not speaking within the scope of their expertise. Their assertions are in the realm of moral philosophy, not law. It’s a religious edict within the church of secular humanism.

Hardly anyone defend’s Roe’s original reasoning anymore, because it makes no sense.

The government doesn't have the right to force one person to risk their life for another. In this sense one can reasonably argue that one has a constitutional right to an abortion.

> The government doesn't have the right to force one person to risk their life for another.

I guess you haven't served in the military?

Serving in the military in time of war is not the same thing as "forcing someone to risk their life for another" as I meant it. I'll be more precise.

The government does not have a right to force me to directly use my body or parts of it to save your life. Thus is the essence that some lawyers have argued and reasoned.

> The government does not have a right to force me to directly use my body or parts of it to save your life. Thus is the essence that some lawyers have argued and reasoned.

According to whom? And even if you believe that, why does that mean the constitution bakes in that belief?

I'm pro-choice but arguing the government doesn't have the right to limit medical procedures doesn't seem obvious to me.

I didn’t claim this. My claim (later clarified) is that the government doesn’t have a right to force me to use my body to save another person’s life.

You're right it doesn't but they can regulate what operations a surgeon can perform and what drugs can be prescribed which is de-facto regulating whether or not an abortion can be performed.

It is ironic that you don’t understand the point made given what the topic is about. Your logic is badly flawed. You have not shown that no one with equal or more knowledge and expertise than you can give a well reasoned opinion contrary to what you have stated.

> You have not shown that no one with equal or more knowledge and expertise

https://en.wikipedia.org/wiki/Argument_from_authority

Your reasoning skills are quite lacking. Your response to my so called argument from authority is to...wait for it....appeal to an authority. That is quite ironic!

I did not argue form authority but because I was not advancing the idea that abortion is a constitutional right. I was advancing the idea that there are experts who think it is. And experts who think otherwise.

But it is not a logical fallacy to use the opinions of an expert in their area of expertise. You know virtually nothing about quantum mechanics and in a discussion about quantum mechanics it is valid to defer to what an expert says on that topic. Indeed, the court system understands the value of expert testimony for good reason. They know that using an expert in their area of expertise is valid and carries weight. Of course that does not mean experts are always right. Just means they know more than you.

None of this is germane to the point I made. I was not arguing from authority. I was talking about what I originally wrote versus what you replied with. Read what I originally wrote. Your point made no sense unless you can show that it is universally agreed by judges (or other experts in law) that there is no constitutional basis for a right to an abortion.

Friend, your ad hominem comments in this thread are really billboarding your naivete. There are many things that Rayiner and I disagree about, but he's a brilliant lawyer who clerked for a federal circuit-court judge (one of the most-prestigious positions there is for new lawyers) and who has impressive techie credentials from before that. It's painfully obvious that you have little or no idea how judges go about deciding hard cases under American law — what they're required to do; what they're prohibited from doing; what they're given leeway to do if they deem it appropriate.

Rayiner's argument:

> You have not shown that no one with equal or more knowledge and expertise

https://en.wikipedia.org/wiki/Argument_from_authority

Your response in suppoort of rayiner is to appeal to Rayiner's expertise.

Mentioning that he is a brilliant lawyer is, in Rayiner's opinion, a logical fallacy. You are engaging in what he thinks is bad reasoning in support of him.

I think it is a fact that courts do sometimes use expert testimony. If that is not the case then strike that portion from my response to rayiner. It isn't needed to make my point which is that relying on expert advice is not an argumentative fallacy.

It is strange that a brilliant lawyer and technologist would try to refute the citing of an expert's opinion by referencing a website. You can see the irony in that, right? You do realize that referring to an "authority" is not a valid way to advance the notion that referring to authorities is wrong, right?

Look, we can appreciate that you're trying to construct an argument, but you're out of your depth here, in roughly the way that someone who does a quick Google search about a disease takes it upon him/herself to proclaim that world-renowned expert researchers don't know what they're talking about. A dollop of epistemic humility would be in order.

A dollop of epistemic humility would be in order.

Likewise. Appealing to rayiner's expertise is extremely strange when it is done to support their belief that appealing to authority is logically invalid.

I turn over my king, sir. </sarcasm>

I think you don't understand the points I made. They could be wrong but not for the reasons anyone here has yet advanced.

This is what I wrote:

Our Constitution, in reality, is much more than the words written in it. It’s morphed due to judicial precedent over the course of 200 or so years.

I'm not advancing the notion that abortion is a right or that it isn't a right. I'm not making any legal arguments whatsoever except to say that legal experts disagree on matters of constitutional law. I'm not making an appeal to authority to advance my argument because I'm not saying that my conclusion:

Our Constitution, in reality, is much more than the words written in it. It’s morphed due to judicial precedent over the course of 200 or so years.

is supported by anyone with legal expertise. I'm just saying that there is no single objectively true way to decide what is or isn't a constitutional right as I see it. This is an opinion I have and I gave the reasons I have for this opinion. If someone want to refute this conclusion of mine they need to demonstrate that there is a single objectively true way to decide constitutional rights.

If I'm wrong please let me know what this single objectively true way is.

Referencing appeal to authority has nothing to do with my point. Referencing rayner's legal expertise is not germane to anything I wrote. His reasoning in response to what I wrote is quite bad.

It is a fact that referencing an "authority" to advance the notion that referencing authorities is a logical fallacy is bad reasoning.

> Our Constitution, in reality, is much more than the words written in it. It’s morphed due to judicial precedent over the course of 200 or so years. — is supported by anyone with legal expertise.

A majority of current, GOP-appointed Supreme Court justices disagree with you.

https://en.wikipedia.org/wiki/Originalism

Way to incorrectly quote me. My preface was:

… because I'm not saying that my conclusion:

And originalism is one way of interpreting the Constitution. There are other methods that other legal experts employ. Which is my only point. There is no single objectively correct way to interpret the Constitution. So it’s incorrect, for the most part, to say, “this is what the Constitution says/means”. One should say, “this is what i think it means.”

Your point about the expert testimony in court is an excellent example of my point. Jurors aren’t required to believe experts. Experts must get on the stand, and persuade the jury. Expert testimony is only as good as its ability to persuade a jury of ordinary people. So saying “experts agree” means nothing if you can’t point to a cogent explanation from an expert.

The SCOTUS found two different answers in the "text" of the constitution depending on who was appointed to it. Which is the risk of a pure legalistic approach; it's difficult for a right to survive against a majority that actively oppose it.

Roe vs. Wade was not about abortion, so much as it was about PRIVACY; Namely between you and your doctor.

“Privacy” isn’t in the constitution either. Griswold all but admits that, asserting that the privacy right can be found in “penumbras” (I.e. that it’s manufactured out of thin air).

4: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

5: No person shall […] be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

9: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

"Because you say so! …Is not good enough for me.

"Because you say so! …They take our liberty!

"Because you say so! …With guns to our heads!

"Because you say so! …They want patriots dead!"

-Right Arm of Wyoming https://m.youtube.com/watch?v=YQVyesTRLWU

Or in this case a minority with the will to actually fight over it.

To be clear, a majority of people in the USA support access to abortion, its the fact that a minority court was packed with gerrymandered districts and a political party dead set on ending democracy that we got here.

You can support access to abortion and disagree that there is a constitutional protection for such right. These are two different matters.

I figured it was because the Democrats never bothered to make it a law.

That narrative turns the facts upside down. Was the Supreme Court wrong to ignore public opinion in 1973, when the citizens of every state banned abortion through their duly elected legislatures? Or is it wrong to ignore public opinion now?

In reality, the Supreme Court in 1973 subverted democracy by striking down abortion laws every state had adopted through the democratic process. In 2022, the Supreme Court restored the issue to the democratic process.

> In reality, the Supreme Court in 1973 subverted democracy by striking down abortion laws every state had adopted through the democratic process. In 2022, the Supreme Court restored the issue to the democratic process.

This is basically true, and a really serious indictment of democracy in America. All sorts of important rights, such as racial equality and equality of marriage (not just gay marriage, but interracial marriage!) had to be secured through legal action against a tyrannical and indifferent majority.

If the majority doesn’t think something is a “right” then how can it be a right? Where does it come from?

It in no way turns facts upside down, it simply responds to the word majority and the current events, it's the facts to say that the supreme court did the opposite in the 1970s.

If you think “democracy” matters, then the Supreme Court got it wrong in 1973 (by overturning laws that states adopted through the democratic process) and got it right in 2022 (by returning the issue to the democratic process).

well... it's not the simple.

First of all, the Constitution can be changed, like it has been in this case.

Secondly, it says that “The law determines the conditions under which [..] (it) is exercised”

So it can be made hard enough to challenge the right to abortion, like it is now in Italy, where it is virtually fully granted, but practically impossible in some areas, due to a Constitutional reform (ironically) that transitioned the healthcare from a national system to a regional one. So it depends on who's in charge in the region.

Since 2001, a decisive transition is taking place, from decentralisation to true federalism, according to the principle of subsidiarity. As of 2001, the national health fund has been abolished and substituted by taxation yield directly attributed to Regions and autonomous Provinces

https://www.salute.gov.it/resources/static/primopiano/unione... (PDF, page 92)

The Tenth Amendment makes explicit two fundamental constitutional principles that are implicit in the document itself.

•The federal government is only authorized to exercise those powers delegated to it.

•The people of the several states retain the authority to exercise any power that is not delegated to the federal government as long as the Constitution doesn’t expressly prohibit it.

https://tenthamendmentcenter.com/the-10th-amendment/

People dennounce the SCOTUS for throwing out precedent, and allowing state laws threating access to family planning and directly threatening the life of women. The age of the, honestly, sub-par constitution of the USA has nothing to do with it.

> The ECHR has repeatedly declined invitations to find such a right in the EU Declaration of Human Rights.

Why can't the EU Declaration of Human Rights not just be amended to include it?

Why would it, though? It already guarantees body autonomy. So does my country's constitution.

No need to be more specific - actually that might be for the worse - states/lawmakers could start arguing it has to be explicit about every possible procedure like in the abortion case.

Some people who are against abortion do not consider a fetus as part of the mother's body.

As George Clooney so brilliantly pointed out in Three Kings: Necessity and Priorities. The EU has a lot stuff on their plate, from Ukraine to Gaza. One thing at a time.

And yes, it seems that for the time being, abortion is not really ubder threat in the EU at the moment, so they can focus on other things. I applaud France for doing this, and hope the EU, and more member nations, do follow suite in the future.

Well then they should understand that a mother might choose - or be forced - to stop supporting the fetus with her body. It's not like they're cutting the fetus open, they're cutting the mother open (or giving her drugs).

They might say - it killed the fetus. Yes. Sometimes people disconnect the life support.

That is surely something you can take up in discussion with people who are anti-abortion, but back to my original question: Why can't the EU Declaration of Human Rights not just be amended to include a right to abortion?

As I said, to prevent states, courts and lawmakers from claiming that all other body autonomy rights have to be explicitly listed. It's general language for a reason. The declaration is good as it is, IMHO your suggestion would lead to weakening it.

Some people who are against abortion do not consider a fetus as part of the mother's body, so this is not unambiguously an issue of bodily autonomy. Should the declaration not at least be amended to state that a fetus is part of a mother's body then?

I don't think it's necessary. Abortion is disconnecting the fetus from the mother - that's definitely related to the bodily autonomy of the mother, regardless of whether the fetus itself is considered part of it or not.

I myself am not sure if I consider the fetus a part of the mother or not. There definitely is a point when it is no longer a part of the mother and I don't think it's only at birth. But regardless of the exact transition point, the mother has the right to decide what is connected to her body.

What about the body autonomy to put what drugs I want in my own body?

Sure... In what EU country is it criminal to have drugs in your blood? I don't know about any. Somewhere you might get a fine if you're caught holding some, but it's not criminal anywhere I know of. The trend around here is full decriminalization of use and small holdings for personal usage.

You certainly could amend the EU Declaration of Human Rights to protect abortion. My point is that, in Europe, courts have deferred to the democratic process on “rights.” The EU Declaration of Human Rights even contains an explicit provision, Article 8, addressing the “right to respect for private and family life.” The EHCR could have read that to imply a right to abortion. But they knew that’s not what that provision meant.

The EHCR did the same thing with same-sex marriage. It declined to read Article 12, which guarantees a right to marriage, to confer a right to same-sex marriages.

I thought Ireland did this too?

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