As you said:
Laws created by legislatures are fixed unless specifically overturned or amended. Common law (the body of law decided by courts through precedent) is a “living tree” that changes constantly. Referencing something from 1857 would almost always be stupid, even if it wasn’t this awful case. It would make as much sense as asking an engineer from 1857 to fix your contemporary car.
Been twenty years since I read it straight through, but most of the text of Dred Scott has nothing to do with slavery (that stuff is packed into the very end) and everything to do with jurisdiction (i.e., did a free black man have the right to sue in federal court?). In fact, I remember the first time I read it thinking, wow, I must have misunderstood something because he’s going to get awa… wait, what the fuck? What the fucking fuck? Taney’s “genius” was that he wrote an opinion that should have supported Dred Scott suing in federal court in Missouri, but at the end he’s all “yeah, all that would be true except you were a slave so screw you”
I’m not sure Dred Scott has ever been reversed as such because it has nothing to do with the messy broader issues of segregation “separate but equal” (Plessy v Fergeson which said that was fine and then Brown v. Board of Education which said that it was not), but rather the 13th and 14th Amendment made this odd cul-de-sac (“a slave can’t sue in federal court”) a non-thing.
FTFY – I’ve known the Finkbines since I was five years old.
I confess that I’m truly impressed by the argument that the Equal Protection Clause of the 14th is an insubstantial aspiration with no binding legal force.
Of course, applying that particular theory to the Equal Protection Clause would reverse Santa Clara County v. Southern Pacific Railroad Company with rather far-reaching consequences. Many of which, I confess, would be beneficial. For instance, Citizens United would go out the window. However, on balance I think ditching the Clause would be a Bad Idea.
Yeah, people opened up the constitution and amended it, but they were just shooting the shit, not writing down laws.
You gotta have some guts to walk into a court with that one.
what tekk said, use pro choice lobby money to take people where they can make the choice they feel is right.
Yeah, but then there’s what @JamesBean said. They can just pass new laws, put the charities helping women go to other states out of business. Arrest people for transporting people across state lines to procure an abortion. There will always be a fight in the courts.
True but charities don’t have to be in the state and there’s the whole freedom of movement thing. A secure conversation between a woman and a family planning charity should be enough to co-ordinate and not get caught, as long as no one post the status on FB. The whole thing is sad as we have to use technology to get around rights being trampled on. Lets not forget that this ONLY applies to poor women; rich or middle class women have these options without help from the outside.
But there isn’t, right? You don’t have freedom of movement for the purpose of criminal activity. There are laws against “Transportation With Intent to Engage in Criminal Sexual Activity” there can be laws against “Transportation With Intent to Procure an Abortion.”
The fact that people could communicate about it in secret so as not to get caught hardly helps. People commit murder in secret, but I think we still agree its illegal.
I think your idea of a charity that helps women who need help get to places where they can get abortions (whether in other states or just in other localities within their state) is a good one. I googled and found that some do exist, like Fund Texas Choice (obviously for people living in Texas). I don’t think the legal fight can be avoided.
With modern interpretations of the Commerce Clause, there’s also “performing an abortion of a type that is illegal in any state, and that someone, somewhere, may have crossed a state line to have performed.” If there’s no constitutional power to outlaw it outright, let the most conservative state outlaw it and declare it to be an arti’cle of interstate commerce.
It’s less of a stretch than Wickard v Filburn.
You gonna pay for them to do so? Because if they can’t afford to pay for lobbying, how do you expect for them to pay for plane tickets and time off?
[ETA] At what point do I get to be a fully realized human being in my own state, instead of a less realized political actor because of my gender? Should I and other women just “suck it up” where we are?
Not to mention the extra time that will add to the schedule*, making it more likely that those in need of abortions will have time run out and pass the point of no-more-elective-abortions.
* Are these charities going to be paying top dollar for next-day flights? I don’t think their budgets will last.
In this country, at least. There’s several in the mid east that can find their roots there.
I see your point but going from one place where abortions are all but illegal (still legal) to a place where they are easily accessible hardly qualifies as “movement for the purpose of criminal activity”. In neither place is it illegal only incredibly hard to get.
The point is about legal creep. If people give up on challenging the laws in court then it will become illegal in the future. Sure, the law might be presently unconstitutional, but that only matters if it gets challenged.
A woman was sentenced to 20 years for aborting her fetus in the Vice President elect’s state (it was overturned but they found a way to send her to prison anyway). The people passing these laws aren’t saying, “Not in my back yard” they are doing everything they can to shut down access to abortion and to punish women for having them. It needs to be fought tooth and nail on every front.
All this!
Additionally, @LordInsidious, abortion providers like Planned Parenthood often offer a range of other services for women related to their reproductive health - cancer screenings, birth control, pap smears, etc. These are often the only way that low income women can afford these. I’ve had to pay out of pocket for mammograms and they are not cheap. I can imagine women foregoing it, because they can pay for it and not catching cancer earlier enough.
For example, if the state in question passes a law making it illegal to transport an offspring across state lines without both parents’ signatures, and defines offspring to include embryos and fetuses, then going out of state for an abortion is illegal even though abortion is still technically legal.
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