Also, this seems like a good opportunity to repost this. If you like crossword puzzles and want to get some great ones for a good cause, check out These Puzzles Fund Abortion.
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Unfortunately, I see this as potentially giving ammunition to the Christian Nationalists to allow their right to have their children be educated in bigotry rather than being a stronger foundation for reproductive rights:
https://www.politico.com/news/magazine/2024/03/27/1923-supreme-court-decision-ivf-abortion-00149194
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That article is missing something really important. The basic premise is that IVF and abortion rights could both be protected as a result of substantive due process:
The answer could lie with Meyer , which considered the ability to raise a family a fundamental constitutional right as a matter of substantive due process.
The problem is that abortion rights as protected in Roe v. Wade were based in substantive due process. The Court in Dobbs just said that substantive due process didn’t apply to abortion because there was no deeply rooted right to abortion in our nation’s history. I guess the article is trying to argue that it should be based in the right to raise a family rather than the right to privacy, but I cannot imagine a single reason why anyone with any familiarity with the current Court would think they would go for that. The Court didn’t say that there wasn’t a right to privacy. It went at abortion directly. They’re just going to say the same thing if you bring this argument and say that the right to make decisions about raising your family is just rephrasing the right to privacy, and then they’ll say they already addressed this issue in Dobbs.
But the bigger problem with the arguments in that Politico article is that Justice Thomas wanted the Court to go further and get rid of substantive due process completely. In his concurring opinion, he argued just that:
As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.”
So taking another case to SCOTUS and arguing that abortion should be protected as a result of substantive due process is (a) not going to work because this Court already ruled that this principle doesn’t apply to abortion, and (b) gives Thomas another shot at convincing Alito, Gorsuch, Barrett, and Kavanaugh that they should throw substantive due process in the garbage, which would threaten Griswold, Lawrence, Obergefell, and maybe even Loving. I don’t understand how the law professor who wrote that article doesn’t see this. A first year law school student can see this.
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Funny how “textualists” skip right over:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
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Well…that’s where the “deeply rooted” part comes in. Their argument is that the unenumerated rights that are protected are only ones that are deeply rooted in our nation’s, our culture’s, or in human history. Of course, abortion has a very long history in human culture, but when you decide to base your analysis on the ravings of a 17th or 16th century (I can’t remember which century and it’s not important) jurist who believed witches were real, this is what you get.
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So you have no right to own a condominium or a tv.
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That falls under property rights.
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That’s just interpretation. I don’t see tv’s in the history or traditions at the time of the founders. Or automatic weapons.
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Correct. And that’s always been true with the Court. And this current Court is never going to interpret the Constitution in a way that will protect abortion rights. I don’t care how logical or sensible anyone’s arguments are, the majority is going to interpret the Constitution the way they see it. This is why voting for Biden and every Democrat on every ballot in November is so important. It’s our only way out of this.
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Under their logic I’m going to argue for the property rights of pregnant people for fetuses.
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That would be great. If you were a Supreme Court Justice. Legally, the only opinions that matter are those of the majority of the Court, and I don’t think they’re going to agree with you.
A supermajority in Congress might also get us out of this. They could enact a federal law protecting abortion rights and add a couple of Justices to the Court to make sure they don’t declare that law Unconstitutional. Also, we really need to resurrect the ERA. That’s a separate, but related, issue, but we really need it.
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They are already treating children as “property” after they are birthed. Embryos are people, but post-birth children are property. I have stopped trying to make this logical. It’s basically “whatever will piss off the libs” treated as legal theory.
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Of course, a few well placed strokes could help.
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What’s deeply rooted in most sects of Christianity is the idea that abortion is a no-biggie until at least pretty far along in the pregnancy, if not actual birth (or, a week afterward!). The current understanding is based on a major shift in the late 1970s. Kind of like how “under God” didn’t exist in our Pledge of Allegiance until the 1950s when the fear of Communism caused panic.
It’s all a new fad, not deeply rooted at all.
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And let the ‘originalists’ argue that only white men are allowed property rights? Yikes!
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I’m confuze.
It was considered okay to abort even a week after birth? And, isn’t that infanticide, instead of abortion?
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I’d have to go back and. get the details back in my brain again, but we’re talking Biblical times, not recent.
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Ah okay. I do remember King Solomon’s willingness to halve a baby. 
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