Florida Constitution has Explicit Right to Privacy; Judge rules state abortion law unconstitutional

[Ana the Ist]

You mean in the scenario that the Supreme Court decides to overturn Obergefell and then some states go back to not legally recognizing same-sex marriage? No, they'd just not be recognizing the same-sex ones.

And how do you propose to get around the Equal Protection Clause? Or civil rights amendment....

 

[rjs330]

Pretty easy to find out the rules regarding the death of a child.



It has already happened. Ducey ALREADY signed it into law.



Obviously not. The rich white women will be just fine. It's not like anyone actually believes this is about caring for children.

A California woman was jailed on suspicion of causing her stillbirth. Her attorney says prosecution for miscarriages will 'only get worse' under US abortion crackdowns.

And that was California. But sure, these new laws are bound to "leave miscarriages alone"

It was stillbirth and not a miscarriage. Those kind of things happen when a baby is born and there is suspicion the mother may have caused it to be still born.

 

[JSRG]

And how do you propose to get around the Equal Protection Clause?

Huh? I was talking about a situation in which the Supreme Court overturning Obergefell and a state decides to go back to no longer recognizing same-sex marriage. Someone doesn't need to "get around" it if the Supreme Court overturns it; it's already been "got around."

Or civil rights amendment....

I'm not sure what this is referring to.

 

[Ana the Ist]

Huh? I was talking about a situation in which the Supreme Court overturning Obergefell and a state decides to go back to no longer recognizing same-sex marriage. Someone doesn't need to "get around" it if the Supreme Court overturns it; it's already been "got around."

Well sure....but the SCOTUS can't simply issue a reversal for no reason. If they overturn it, they need a reason why. The grounds on which that decision was based are fundamental to the Constitution.

 

[Arcangl86]

Well sure....but the SCOTUS can't simply issue a reversal for no reason. If they overturn it, they need a reason why. The grounds on which that decision was based are fundamental to the Constitution.

The problem is, from what i remember of the Obergefell opinion, is that it is rooted as much in procedural due process as it is equal protection. Essentially, since there is a fundamental right to being able to marry due to the Due Process clause, the Equal Protection clause means that certain groups cannot be denied that right. SCOTUS can simply argue that there is no due process right to marriage and if it's not a fundamental right, then it's fine for the states to restrict it.

 

[Pommer]

The problem is, from what i remember of the Obergefell opinion, is that it is rooted as much in procedural due process as it is equal protection. Essentially, since there is a fundamental right to being able to marry due to the Due Process clause, the Equal Protection clause means that certain groups cannot be denied that right. SCOTUS can simply argue that there is no due process right to marriage and if it's not a fundamental right, then it's fine for the states to restrict it.

Loving v Virginia held marriage to be a fundamental right, they’d have to overturn that decision too, to nix marriage as fundamental.

 

[SimplyMe]

Actually, he doesn't say anything about enforcing the law, though the implication is he would. They're talking about defending a law in court. Basically, he's asked, if Texas decides to pass some new law criminalizing sodomy, whether he'd defend the law in court. And he says that an attorney general is supposed to defend the law, so he would.

That's it. He's not offering support for such a law, he isn't even saying he'd enforce it (presumably he would, but he doesn't say that). In fact, he's asked about whether he supports the law ("Would you support the legislature bringing that test?") And he says:

"You know what, I don't know, I'd have to take a look at it. Like I said, this is all new territory for us. So I'd have to see how the legislation was laid out and if we thought we could defend it. That's ultimately... if it's constitutional, look, we're going to go defend it."

So when asked point blank if he'd support it, he says "I don't know" and then changes the subject back to the question of defending it. But all of that is contingent on Texas actually passing such a law.

Which brings me back to my original point. Is there any evidence there is any actual political movement or desire to try do to that? A few random Republicans don't matter; what matters is if there's enough of them who want to do it to pass such a law. So far, I haven't seen any evidence for that. If the best evidence that they do is someone not in the legislature who says "I don't know" in response to the question of whether he'd support such a law, it would seem to confirm my position.

It seems an odd stretch of logic to imply he'd only fight this law in front of the Supreme Court and not enforce it against Texas citizens -- particularly since it is likely the prosecution of a Texas citizen which would be how the bill would get to the Supreme Court.

 

[JSRG]

It seems an odd stretch of logic to imply he'd only fight this law in front of the Supreme Court and not enforce it against Texas citizens -- particularly since it is likely the prosecution of a Texas citizen which would be how the bill would get to the Supreme Court.

He probably would indeed enforce it. My point was that he didn't actually say that.

But I feel that's focusing too much on what was a more minor point of my post. The main point was that he was asked essentially two questions:
1) If the Texas legislature were to pass an anti-sodomy law, would you defend it? His answer was a slightly qualified "yes" (qualified insofar as he did talk about how it might depend what was in the law)
2) Should the Texas legislature pass such a law? In this case he said "I don't know".

So as I noted, he didn't give any support for passing such a law, nor is he in the legislature and thus he has no role in passing such a law. Which again brings me back to my original point: What we have here is a guy who didn't express support over passing a law criminalizing sodomy and isn't a member of a legislature that could actually pass such a law. If this is the best evidence someone can offer that there's enough Republican support to pass such a law, it only goes to show how little support there actually is.

 

[JSRG]

Well sure....but the SCOTUS can't simply issue a reversal for no reason. If they overturn it, they need a reason why. The grounds on which that decision was based are fundamental to the Constitution.

None of which has any relevance to the point. The whole question was to discuss a scenario in which the Supreme Court overturned Obergefell. Questions about how they'd do it is irrelevant if the question begins with an "if."

That said, if someone is curious about the potential arguments for overturning the decision--whether they agree with them or not--there are dissents in that case.

 

[Ana the Ist]

The problem is, from what i remember of the Obergefell opinion, is that it is rooted as much in procedural due process as it is equal protection. Essentially, since there is a fundamental right to being able to marry due to the Due Process clause, the Equal Protection clause means that certain groups cannot be denied that right. SCOTUS can simply argue that there is no due process right to marriage and if it's not a fundamental right, then it's fine for the states to restrict it.

Equal Protection under the law is a fundamental right. This just doesn't stand on the shaky ground that Roe did. If there's is a compelling reason for why it could be discriminated against, it would need to be demonstrated.

 

[Ana the Ist]

None of which has any relevance to the point. The whole question was to discuss a scenario in which the Supreme Court overturned Obergefell. Questions about how they'd do it is irrelevant if the question begins with an "if."

Fair enough.

That said, if someone is curious about the potential arguments for overturning the decision--whether they agree with them or not--there are dissents in that case.

Right and as we've allowed it for some time now, I'm curious if they could hold up.

Edit-after rereading the dissenting opinions, I think Thomas had the strongest one. He's basing it upon the idea that equal protection only relates to freedom from laws restricting individual rights....not entitlement to certain privileges. I find it hard to believe he really thinks that....or we could go right back to redlining. Also he rejects the notion of the government bestowing dignity, which I agree with, and rejects the notion that dignity can be taken....which I disagree with.

The others presuppose certain things that I doubt were ever codified into law. They certainly didn't list their codification anywhere.

 

[Arcangl86]

Equal Protection under the law is a fundamental right. This just doesn't stand on the shaky ground that Roe did. If there's is a compelling reason for why it could be discriminated against, it would need to be demonstrated.

Equal protection analysis doesn't exist in a vacuum though. The level of scrutiny applied depends on two things. If the thing being infringed is a fundamental right in itself or if the infringement is based on a "suspect classification." If one of those things are true, then strict scrutiny applies, and in practice almost no laws pass strict scrutiny. But sexual orientation isn't a "suspect classification", and if there isn't a due process right to marriage, then rational basis review applies. And almost any law can pass rational basis review.

 

[Arcangl86]

Loving v Virginia held marriage to be a fundamental right, they’d have to overturn that decision too, to nix marriage as fundamental.

Loving can stand even if the right to marriage isn't a fundamental right because Loving involved racial discrimination, which automatically triggers strict scrutiny.

 

[Belk]

He probably would indeed enforce it. My point was that he didn't actually say that.

But I feel that's focusing too much on what was a more minor point of my post. The main point was that he was asked essentially two questions:
1) If the Texas legislature were to pass an anti-sodomy law, would you defend it? His answer was a slightly qualified "yes" (qualified insofar as he did talk about how it might depend what was in the law)
2) Should the Texas legislature pass such a law? In this case he said "I don't know".

So as I noted, he didn't give any support for passing such a law, nor is he in the legislature and thus he has no role in passing such a law. Which again brings me back to my original point: What we have here is a guy who didn't express support over passing a law criminalizing sodomy and isn't a member of a legislature that could actually pass such a law. If this is the best evidence someone can offer that there's enough Republican support to pass such a law, it only goes to show how little support there actually is.

Did they repeal the law that was struck down by the supreme court? If not it seems less a hypothetical if a new law is passed and more a hypothetical if the SCOTUS removes the previous protection.

 

[Arcangl86]

Did they repeal the law that was struck down by the supreme court? If not it seems less a hypothetical if a new law is passed and more a hypothetical if the SCOTUS removes the previous protection.

The law is still on the books.

 

[FireDragon76]

It seems an odd stretch of logic to imply he'd only fight this law in front of the Supreme Court and not enforce it against Texas citizens -- particularly since it is likely the prosecution of a Texas citizen which would be how the bill would get to the Supreme Court.

Southern states passing those draconian bills all along was about geting something in front of the Supreme Court. For people who are all full of rhetoric about human dignity, they treat their citizens like a means to an end.

 

[variant]

No. Alito did not dismiss unenumerated rights, in fact he does the opposite. He asserts, however, that unenumerated right should be constrained to those with clear historical background. So, for example, the right of free travel between states is a clear unenumerated right in American history--so clear that it seems they didn't even think it needed to be mentioned in the Constitution. A general "right to privacy" has much less basis, and a right to abortion even less.

Right, so, whatever the court feels is an unenumerated right is or isn't based upon their opinion of what's a "clear historical background". Which means that the court can do whatever it wants.

Of course this simply weakens ALL established precedents for those rights and puts them at the whims of the court no matter how many times other courts have said otherwise. If you have 5 justices agree or disagree they can strip rights at their whim and will do so using the current reasoning as precedent. Alito can not control this as he can not control the future prejudices of the court.

Essentially Alito has shown precedent to be meaningless with regard to unenumerated rights.

 

[JSRG]

Right, so, whatever the court feels is an unenumerated right is or isn't based upon their opinion of what's a "clear historical background". Which means that the court can do whatever it wants.

Of course this simply weakens ALL established precedents for those rights and puts them at the whims of the court no matter how many times other courts have said otherwise. If you have 5 justices agree or disagree they can strip rights at their whim and will do so using the current reasoning as precedent. Alito can not control this as he can not control the future prejudices of the court.

Well, no, because you can determine which ones have a clear historical background. Now, there are some cases where one could make a plausible argument in different directions, but abortion isn't one of them.

Additionally, if we were to not evaluate unenumerated rights based on historical background, what exactly should we evaluate it on? There seems very little else to evaluate it on. I suppose judges could explicitly rule based on what they think should be rights, but in doing so they just become lawmakers (except unelected ones) and we end up in the exact situation you claim a historical analysis performs, "the court can do whatever it wants."

Essentially Alito has shown precedent to be meaningless with regard to unenumerated rights.

In what way is precedent made meaningless any more than other overturning of previous decisions are? It is specifically the fact that unenumerated rights are involved?

Because if so, the Supreme Court already threw out decades worth of precedent in regards to them back in the 1930's. For a period of about 40 years (roughly 1897 through 1937) called the Lochner era, the Supreme Court held there was an unenumerated "freedom of contract" in the Constitution that the government could not interfere with. Thus all kinds of workplace regulation were struck down for violating that, such as minimum wage laws, maximum work hour laws (the eponymous Lochner v. New York was a case where a law prohibiting bakers from working more than 60 hours a week was struck down as unconstitutional), child labor laws, and so on, were struck down as unconstitutional. Again, this was the Supreme Court's position for multiple decades, that this unenumerated right existed, and it was affirmed over and over again, even by courts that had completely different members. Then starting in 1937 it (correctly) reversed course on it, negating the previous decades of precedent in regards to this unenumerated right.

Was the Supreme Court was wrong to overturn all of that precedent regarding this unenumerated right? Should we return to the Lochner era and have the Supreme Court strike down all those workplace regulation laws under freedom of contract again?

 

[TLK Valentine]

Well, currently everybody on the Supreme Court except Thomas accepts the implied right to privacy. Even Alito has specifically said that other privacy rulings such as Griswold and Obergefell should not be affected by throwing out Roe v. Wade.

Nevertheless, Thomas has opened the door for states to write all sorts of antiprivacy laws to overturn Griswold, Obergefell, and others in the hopes that they'll make it to a friendly SCOTUS... and then we get to see if Alito's word is worth anything.

Spoiler

It's probably not

 

[FireDragon76]

Nevertheless, Thomas has opened the door for states to write all sorts of antiprivacy laws to overturn Griswold, Obergefell, and others in the hopes that they'll make it to a friendly SCOTUS... and then we get to see if Alito's word is worth anything.

Spoiler

It's probably not

These are the same cadre of folks that get up in front of Congress and say that Roe is settled law with a straight face, then go on to overturn it. They cannot be trusted.