Roe V. Wade to be Overturned - Page 38 - Politics Forum.org | PoFo

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#15229070
Drlee wrote:Nope. That was not your claim. You said he ignored modern sources. He did not. Now post the evidence that he ignored modern sources as was your claim.

You may think it is cute to post the opinion but it is not. You are not as clever as you think you are. Post your source for your claim.


No, thank you.

If you ask politely, I may clarify my actual argument for you, since you seem confused.

Now, please explain why your top court is looking at Mr. Rapewife (who made stuff up) as a legal source rather than other industrialized countries with lower maternal mortality rates.

And to answer your question about personhood: it should not matter at all if a fetus is considered a person or not.

—————-

@wat0n

So you actually have no idea if Hale was just making up stuff about abortion or not, like he did with the marital rape law.

Why would Alito choose to quote this guy and not a good source?
Last edited by Pants-of-dog on 23 May 2022 14:55, edited 1 time in total.
#15229072
There would also be a clear right under the Constitution for states to ban abortion if they wished.


The SCOTUS just established that right. This ruling did that. So nothing would change.

And this assumes a special statute to ban abortion would be necessary. I could also imagine courts deciding to effectively ban abortion by using the regular homicide/murder laws and treat it on those grounds if no laws specifically banning abortion were passed.


In some states that is exactly what they are doing. No need for your argument. They did it. Already in many if not most states, harming a pregnant woman causing an abortion is murder.


So you guys can continue your back and forth but you are both fiddling while Rome burns.

@Pants-of-dog

You got caught in your own trap. As long as we understand that you were simply engaging in hyperbole and not in the truth I am content.
#15229073
@Drlee

Let me know when you have an explanation for Alito’s weird choices in terms of sources.

Unless you agree that basing reproductive rights on the ideas of misogynistic witch burners is not a good idea.
#15229077
@Pants-of-dog so will you back your claims up? Hale was an influential jurist of his time, after all he wrote the first major history of common law, it's not strange then that he would be quoted by a justice under the common law system and even more so in a context having nothing to do with marital rape. He also wasn't the only jurist Alito cited, anyway.

@Drlee if we all agreed fetuses are persons, states wouldn't even need to pass laws saying abortion is murder. We don't have special laws saying stabbing someone to death is murder, we just apply the regular statute and that's it, same would apply for abortion if there was no law about it. Abortion to save the mother's life or from serious harm would probably still be legal as I'd imagine self-defense statute would apply here.

As for the SCOTUS, that's Alito's draft opinion and it's unlikely it will be an unanimous decision. Honestly, we wouldn't even be discussing this topic if we all believed fetuses are people.

If we're having this debate, and it's as controversial as it is, it's precisely because there's no clear way on how to label a fetus. That's what is actually interesting about it, the part of it that isn't straightforward at all.
#15229080
@Pants-of-dog
Let me know when you have an explanation for Alito’s weird choices in terms of sources.

Unless you agree that basing reproductive rights on the ideas of misogynistic witch burners is not a good idea.


The entire constitution of the United States was written by slave owners. What is your point? English common law was written by slave traders/owners and governed people who were little more than slaves to the crown themselves.

As for your idiotic going on about witch burning, or whatever. Two answers. First. Irrelevant. Second. The USA never burned or hung a witch. That was England that did. Do try to read a little history. If you do you will not be so surprised that people 400 years ago were misogynist. They still are all over the world.

Now. Why did you say that Alito ignored modern sources?
#15229083
@wat0n

At this point, it seems obvious that Alito did not choose this lawyer for his acumen. After all, he did just make stuff up and could easily have done so with abortion.

And again, there are many lawyers and thinkers in the common law tradition that are not openly misogynist, yet Alito ignored them.

And again, neither you nor @Drlee can explain why he made this choice. Are we to assume that lying misogynist witch burners are just as good as any other legal source?

——————-

Drlee wrote:The entire constitution of the United States was written by slave owners. What is your point? English common law was written by slave traders/owners and governed people who were little more than slaves to the crown themselves.


Yes, exactly, and this is why the constitution has no mention of bodily autonomy and should not be used as a basis for these types of rights.

I made this point many pages ago and I am glad that you agree.

As for your idiotic going on about witch burning, or whatever. Two answers. First. Irrelevant.


No. Alito made him relevant. I would like to know why he should be relevant and other, better legal minds are not.

Second. The USA never burned or hung a witch. That was England that did. Do try to read a little history. If you do you will not be so surprised that people 400 years ago were misogynist. They still are all over the world.


Strawman.

Now. Why did you say that Alito ignored modern sources?


:|
#15229084
No. Alito made him relevant. I would like to know why he should be relevant and other, better legal minds are not.


Strawman.
#15229085
@Pants-of-dog so will you show up Hale made the marital rape part up? Which laws banned marital rape in the 17th century? And why isn't Hale relevant for discussion about 17th century English law?

Also, what's your opinion about the fact that both Alito and Canada's Supreme Court in R v Mogentaler cited some of the same sources, such as Blackstone's Commentary?
#15229086
Drlee wrote:Strawman.


I have no idea if you made a claim about Hale or not, and I never said you did.

Instead, I pointed out that Alito quoted him and thereby made him relevant.

It is a true fact that many pregnant people in the USA are going to lose reproductive rights because Alito made an argument involving Hale.

Therefore, Alito made Hale relevant.

——————

@wat0n

I will answer your questions once you answer mine:

Why did Alito choose this guy? What makes him a better choice than others?
#15229089
Pants-of-dog wrote:@wat0n

I will answer your questions once you answer mine:

Why did Alito choose this guy? What makes him a better choice than others?


He's an influential jurist of his time, given he wrote the first history of English common law of his time.

Your turn now. What's your opinion about Alito and Canada's Supreme Court citing some of the same sources? Do you want me to quote some interesting stuff from Blackstone's Commentary?
#15229091
Drlee wrote:England

In 1944, Victoria Helen McCrae Duncan, a Scottish medium, was imprisoned for not being a witch. After a trial by jury, she was convicted and sentenced to 9 months under section 4 of the Witchcraft Act 1735, which made falsely claiming to procure spirits a crime.


:lol:
#15229092
wat0n wrote:He's an influential jurist of his time, given he wrote the first history of English common law of his time.


So?

This is not a good reason at all. Hale did not even know where babies came from, since he died before Europeans discovered sperm.

At this point, I think we can agree that Alito had no good reason to quote Hale, except that Hale agreed with Alito’s preconceived notions.

Your turn now. What's your opinion about Alito and Canada's Supreme Court citing some of the same sources? Do you want me to quote some interesting stuff from Blackstone's Commentary?


I do not care, since this is a whataboutism.

Feel free to quote the parts that Alito quoted,
#15229108
Pants-of-dog wrote:So?

This is not a good reason at all. Hale did not even know where babies came from, since he died before Europeans discovered sperm.

At this point, I think we can agree that Alito had no good reason to quote Hale, except that Hale agreed with Alito’s preconceived notions.


Why isn't an influential jurist from the 17th century a good source to cite when discussing 17th century common law?

Pants-of-dog wrote:I do not care, since this is a whataboutism.


So you don't think the Canadian Supreme Court ruled well in R v Mogentaler?

I mean, you complain about Hale's writings in unrelated topics but how about Blackstone's?

Sir William Blackstone wrote:The husband also (by the old law) might give his wife moderate correction[h]. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds[i]; and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet[k]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemesnors, flagellis et fustibus acriter verberare uxorem; for others, only modicam castigationem adhibere[l].-433- But, with us, in the politer reign of Charles the second, this power of correction began to be doubted[m]: and a wife may now have security of the peace against her husband[n]; or, in return, a husband against his wife[o]. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour[p].


Certainly this would undermine not just Alito's but also the Canadian Supreme Court's work if you think citing Hale is wrong because of the above interpretations of English common law.

In reality of course this is nonsense and anyone should understand that the law was different in the 17th and 18th centuries.

Pants-of-dog wrote:Feel free to quote the parts that Alito quoted,


I already did.
#15229111
wat0n wrote:Why isn't an influential jurist from the 17th century a good source to cite when discussing 17th century common law?


No one is discussing 17th century law.

Why should the USA have laws from the 17th century?

So you don't think the Canadian Supreme Court ruled well in R v Mogentaler?


Strawman.

I mean, you complain about Hale's writings in unrelated topics but how about Blackstone's?


Since you have not quoted anything from Alito's opinion, there is nothing to address.

Certainly this would undermine not just Alito's but also the Canadian Supreme Court's work if you think citing Hale is wrong because of the above interpretations of English common law.

In reality of course this is nonsense and anyone should understand that the law was different in the 17th and 18th centuries.


None of this seems relevant.

I already did.


Prove it. Post a link to where you quoted Alito.
#15229112
Pants-of-dog wrote:No one is discussing 17th century law.

Why should the USA have laws from the 17th century?


Alito was discussing the common law status of abortion, just like the Canadian Supreme Court did in R v Mogentaler.

It's relevant to assess the legislative history of abortion and to have an idea of whether there's an implicit right to it or not.

Pants-of-dog wrote:Strawman


You were mentioning R v Mogentaler as an example of a good ruling regarding abortion despite the fact that it also has a section dealing with the common law regulation of abortion, and citing Blackstone (exactly the same book that has the quote I wrote above).

Surely, then, you'll have no complaints if Alito or someone else does the same.

Pants-of-dog wrote:None of this seems relevant.


You mean like the irrelevance of Hale's writings on matters unrelated to abortion?

Pants-of-dog wrote:Prove it. Post a link to where you quoted Alito.


viewtopic.php?p=15229007#p15229007
#15229130
wat0n wrote:Alito was discussing the common law status of abortion, just like the Canadian Supreme Court did in R v Mogentaler.

It's relevant to assess the legislative history of abortion and to have an idea of whether there's an implicit right to it or not.


Then why quite Hale?

Why not quote the actual laws at the time?

In fact why quote anyone from that time at all? A time when abortion meant something different?

Since Hale did not have any real understanding of the biology, his idea if what abortion was is not applicable to our current understanding.

Alito is pulling a bait and switch.

You were mentioning R v Mogentaler as an example of a good ruling regarding abortion despite the fact that it also has a section dealing with the common law regulation of abortion, and citing Blackstone (exactly the same book that has the quote I wrote above).

Surely, then, you'll have no complaints if Alito or someone else does the same.


Feel free to quote where I criticise Alito for quoting Blackstone.

You mean like the irrelevance of Hale's writings on matters unrelated to abortion?


Which of these are irrelevant:

Hake was a misogynist.
Hale lied about the laws at the time.
Hale killed women.

Thanks.

viewtopic.php?p=15229007#p15229007


And?
#15229132
Pants-of-dog wrote:Then why quite Hale?

Why not quote the actual laws at the time?

In fact why quote anyone from that time at all? A time when abortion meant something different?

Since Hale did not have any real understanding of the biology, his idea if what abortion was is not applicable to our current understanding.

Alito is pulling a bait and switch.


No one had any real understanding of the biology of pregnancy, not that it would have served the pro-choice argument at all given their views about fetuses anyway. As for the "actual law", since common law was recognized as a form of law (unlike the civil law system) it makes sense to see how had abortion come to be regulated at the time.

I would think you'd actually appreciate the fact that they didn't even consider the fetus to be alive before quickening (16th week). Using this common law standard would automatically legalize 93+% of abortions performed in the US, regardless of the reason.

Pants-of-dog wrote:Feel free to quote where I criticise Alito for quoting Blackstone.


Your issue with Hale was that he claimed marital rape was legal under common law in the 17th century. Blackstone claimed in his 18th century manual a husband had a common law right to beat his wife for misbehaving.

Why is one bad and not the other?

Pants-of-dog wrote:Which of these are irrelevant:

Hake was a misogynist.
Hale lied about the laws at the time.
Hale killed women.

Thanks.


1) and 3) are clearly irrelevant. You have to prove 2).

Pants-of-dog wrote:And?


I don't see anything about marital rape there. So why would you bring it up?
#15229143
wat0n wrote:No one had any real understanding of the biology of pregnancy, not that it would have served the pro-choice argument at all given their views about fetuses anyway.


So you agree that it makes no sense to use laws from that time since they were based on a completely different set of ideas about reproduction.

And yet Alito is doing just that.

As for the "actual law", since common law was recognized as a form of law (unlike the civil law system) it makes sense to see how had abortion come to be regulated at the time.


Right.

Then why did Alito quote Hale instead of looking at the history?

I would think you'd actually appreciate the fact that they didn't even consider the fetus to be alive before quickening (16th week). Using this common law standard would automatically legalize 93+% of abortions performed in the US, regardless of the reason.


And yet Alito is using laws that look at abortion after quickening and using them to apply for pregnancy at any point.

This is the bait and switch to which I referred earlier.

Your issue with Hale was that he claimed marital rape was legal under common law in the 17th century. Blackstone claimed in his 18th century manual a husband had a common law right to beat his wife for misbehaving.

Why is one bad and not the other?


Hey, if you want to also defend marital rape, we have a thread for that. It would be consistent with your position on women having less bodily autonomy than other people.

1) and 3) are clearly irrelevant. You have to prove 2).


How are they irrelevant?

I don't see anything about marital rape there. So why would you bring it up?


I did not bring it up. You did.

And as far as I can tell, you seem to have no reason for doing so.
#15229156
Pants-of-dog wrote:So you agree that it makes no sense to use laws from that time since they were based on a completely different set of ideas about reproduction.

And yet Alito is doing just that.


It makes sense if you want to assess whether women had the right to seek an abortion (not necessarily funded by the government, of course) and to understand the evolution of the law.

Pants-of-dog wrote:Right.

Then why did Alito quote Hale instead of looking at the history?


I guess because Hale wrote about the history of common law, so he's a valid source on the matter.

Pants-of-dog wrote:And yet Alito is using laws that look at abortion after quickening and using them to apply for pregnancy at any point.

This is the bait and switch to which I referred earlier.


It's even worse than that. Alito claims abortion was not legal before quickening but that's clearly not what Blackstone says, plainly, in his book.

He uses some examples of cases where a type of felony-murder crime would justify charging a doctor who performed an abortion of a "child" who killed the woman for murder, but that's only because neither Hale nor Blackstone mention anything about quickening. Yet, both also said life begins only when the fetus is quick, so one could then wonder if their understanding of "child" includes non-quick fetuses or not. I think the most reasonable way to interpret their position is that it did not.

Then, regarding Roe v Wade's analysis of laws banning abortion passed by the states during the 19th century, Alito states:

Alito wrote:Roe featured a lengthy survey of history, but much of its discussion was irrelevant, and the Court made no effort to explain why it was included. For example, multiple paragraphs were devoted to an account of the views and practices of ancient civilizations where infanticide was widely accepted See Roe, 410 U.S., at 130–132(discussing ancient Greek and Roman practices).[48] When it came to the most important historical fact—how the States regulated abortion when the Fourteenth Amendment was adopted—the Court said almost nothing. It allowed that States had tightened their abortion laws "in the middle and late 19th century," id., at 139, but it implied that these laws might have been enacted, not to protect fetal life, but to further "a Victorian social concern" about "illicit sexual conduct," id., at 148.


But Roe v Wade did not actually imply that. From a fragment I quoted earlier:

Roe v Wade wrote:69
Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

70
It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously.42 The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers.

71
A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman.43 This was particularly true prior to the development of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister, Pasteur, and others first announced in 1867, but were not generally accepted and employed until about the turn of the century. Abortion mortality was high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage were not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

72
Modern medical techniques have altered this situation. Appellants and various amici refer to medical data indicating that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.44 Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the areas of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. This interest obviously extends at least to the performing physician and his staff, to the facilities involved, to the availability of after-care, and to adequate provision for any complication or emergency that might arise. The prevalence of high mortality rates at illegal 'abortion mills' strengthens, rather than weakens, the State's interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. Thus, the State retains a definite interest in protecting the woman's own health and safety when an abortion is proposed at a late stage of pregnancy,

73
The third reason is the State's interest-some phrase it in terms of duty-in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception.45 The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to life birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

74
Parties challenging state abortion laws have sharply disputed in some courts the contention that a purpose of these laws, when enacted, was to protect prenatal life.46 Pointing to the absence of legislative history to support the contention, they claim that most state laws were designed solely to protect the woman. Because medical advances have lessened this concern, at least with respect to abortion in early pregnancy, they argue that with respect to such abortions the laws can no longer be justified by any state interest. There is some scholarly support for this view of original purpose.47 The few state courts called upon to interpret their laws in the late 19th and early 20th centuries did focus on the State's interest in protecting the woman's health rather than in preserving the embryo and fetus.48 Proponents of this view point out that in many States, including Texas,49 by statute or judicial interpretation, the pregnant woman herself could not be prosecuted for self-abortion or for cooperating in an abortion performed upon her by another.50 They claim that adoption of the 'quickening' distinction through received common law and state statutes tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.

75
It is with these interests, and the weight to be attached to them, that this case is concerned.


Clearly, Roe v Wade did not claim or even hint abortion was banned by the states because of Victorian customs. In fact, what it does imply is that states banned abortion to protect the mother's life.

Pants-of-dog wrote:Hey, if you want to also defend marital rape, we have a thread for that. It would be consistent with your position on women having less bodily autonomy than other people.


No, that's not my position at all. I never said that suddenly men should suddenly have more bodily autonomy if doing so would kill or seriously harm others. If you disagree go ahead and quote me on it.

I hope you will not now say "only women can get pregnant".

Pants-of-dog wrote:How are they irrelevant?


They have nothing to do with abortion or Hale's accuracy in describing 17th century English common law.

Point 2) does, but you haven't backed it up.

Pants-of-dog wrote:I did not bring it up. You did.

And as far as I can tell, you seem to have no reason for doing so.


You are the one who's claiming Hale was a misogynist, as if it had anything to do with abortion.
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