RATE this legal reasoning.

It’s not true that Roe isn’t rooted in well-established constitutional principles

Roe is “a poorly reasoned mess,” asserted McArdle, adding that “it’s all ‘emanations and penumbras’ and similarly float-y language.” This line of argument has been echoed by other nominally pro-choice and anti-Roe pundits. “Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion,” according to Wittes.

Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.

But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of the right to free speech and to petition the government would mean little without the right to form political associations.

Earlier this term, the Supreme Court struck down the Professional and Amateur Sports Protection Act, which prevented most states from making their own rules about sports gambling, based on the doctrine of “anticommandeering.” That means the the US could not conscript state officials to enforce its own regulatory schemes. Now, the concept of “anticommandeering” is not found explicitly in the Constitution, but according to the Rehnquist Court it is implicit in the general federalist structure of the Constitution. In short, mocking the phrase “emanations and penumbras” isn’t much of an argument.

But it’s even more problematic when applied to Roe because the holding in that case does not rely on Douglas’s argument that the right to privacy is implicit in the “specific guarantees in the Bill of Rights” (that is, the penumbras). The right to privacy, according to Justice Harry Blackmun’s opinion for the Court in Roe, should be located in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” This doctrine, generally called “substantive due process,” is that some rights are so fundamental that abrogating them is by definition a violation of the “due process of law.”

New Dealers like Douglas distrusted the doctrine because it had been used by pre-New Deal Courts to strike down economic regulations, seemingly because that’s what the justices preferred politically. But the moderate Republicans who controlled the Court in 1973 were more comfortable with the concept.

Rooting the right to privacy in the 14th Amendment is particularly significant. Justice Douglas is one of the most liberal justices in the history of the Court — an easy target for Roe’s critics. But Blackmun was largely drawing on a theory (privacy is rooted in substantive due process) laid out in a concurrence by Justice John Marshall Harlan, in Griswold. Harlan was the Warren Court’s house conservative; the fact that he and Douglas agreed that a right to privacy exists, if for different reasons, suggests a belief in such a right need not be narrowly partisan. (And it’s worth remembering that Blackmun, the author of the Roe opinion, was a Nixon appointee, and he was joined by two of the three other Nixon appointees.

While the opinions in Griswold may seem a little thin, that’s partly because both Douglas and Harlan had stated their views in much more detail four years earlier in their dissents in Poe v. Ullman. In that case, a majority of the court refused to hear a challenge to the Connecticut law it later struck down in Griswold, and Douglas and Harlan explained both why the Court should have taken the case — which prevented any birth control clinics from operating in the state — and should have ruled the law unconstitutional. Both dissents in Poe are worth reading and provide further evidence that the right to privacy has deep roots in the American constitutional tradition. And if Griswold is right, Roe is at least plausible.

As Justice John Paul Stevens put it in a 1986 case, “There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before.”

To be clear, as is true for virtually all constitutional questions of any interest, reasonable people can disagree with the outcome of Roe. One can argue that there are no privacy protections implicit in the Constitution, and that a statute making the use of contraceptives illegal and empowering police to search bedrooms for evidence of them raises no constitutional problems. Or one can argue that the privacy doctrine is sound but not applicable to Roe because fetal life presents a unique problem.

But Roe hardly invented the idea that the Constitution created a zone of privacy for families where the state may not intrude; in that sense, at least, it is well grounded in established doctrine.

(http://www.autoadmit.com/thread.php?thread_id=4022681&forum_id=2#36401960)

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Stops reading.

(http://www.autoadmit.com/thread.php?thread_id=4022681&forum_id=2#36413470)

According to their reading of the constitution, the government should be able to criminalize airing a political documentary and ban gun ownership, notwithstanding the clear language of the 1st/2nd amendment, but because there's a protection from unreasonable searches therefore unregulated abortions on demand for all. I doubt even they REALLY believe this, they just like the policy results.

(http://www.autoadmit.com/thread.php?thread_id=4022681&forum_id=2#36413489)

If Roe went away, and abortion is as popular as libs say it is, they could just, you know, enact fucking laws.

(http://www.autoadmit.com/thread.php?thread_id=4022681&forum_id=2#36416776)