The history of failure of legislating social norms is seen in the the 18th and 21st amendments to our Constitution. These are certainly not the only examples of legislating norms which our society as a whole reject. The courts and our various legislatures reflect the will of our society as a whole. What we must do is not establish artificial impediments that will be tossed aside like yesterday’s fish wrapper rather look to the root cause of the issue and address those concerns effectively.
I live near an abortion clinic that fronts on a very busy highway. Almost daily there is one or another group on the highway right of way protesting the clinic’s legal activities. Why don’t we see groups endeavoring to reach out proactively on a one on one basis to prevent these unwanted pregnancies? Certainly suicide prevention groups have had a huge impact why not groups that reach out to prevent many of the pregnancies?
I live near an abortion clinic that fronts on a very busy highway. Almost daily there is one or another group on the highway right of way protesting the clinic’s legal activities. Why don’t we see groups endeavoring to reach out proactively on a one on one basis to prevent these unwanted pregnancies? Certainly suicide prevention groups have had a huge impact why not groups that reach out to prevent many of the pregnancies?
Eric Posner's support of Justice Thomas's argument is simply more empty word games. If I ask you to provide evidence that elephants can walk on water, and you can't, maybe just maybe there's a reason for it. At some point it isn't just an absence of evidence. Most adults can recognize that point.
The justification offered by Texas for its law was farcical. No one believed it, especially not the legislators themselves. If the State of Texas had its way, the door would open to justifying ANY law by merely claiming that it has an important beneficial effect. Lewis Carroll would feel right at home, enacting six implausible laws before breakfast.
The justification offered by Texas for its law was farcical. No one believed it, especially not the legislators themselves. If the State of Texas had its way, the door would open to justifying ANY law by merely claiming that it has an important beneficial effect. Lewis Carroll would feel right at home, enacting six implausible laws before breakfast.
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To the young women who take such rights for granted and don't think it matters whether they support the Dem, GOP, Green, or Libertarian candidates, here's a defense of Hillary Clinton point by point https://www.linkedin.com/pulse/open-letter-sanders-supporters-scott-s-sm...
The decision is monumental precisely because "ts focus on women — their health, well-being and ability to access a constitutional right." Clearly having three women on the Court made a huge difference. There should be more.
It is said that the measure of a society is in how it treats its most vulnerable. It is even more in how it treats women. The two measures are not unrelated.
It is said that the measure of a society is in how it treats its most vulnerable. It is even more in how it treats women. The two measures are not unrelated.
Edited--
"Why are the speculative benefits ... for educational outcomes sufficient... to uphold... while the speculative benefits for women’s health are insufficient for upholding Texas’ law?"
Affirmative action--when justified--is not zero-sum--taking from Peters to pay Pauls. Rather, it corrects disadvantages Peters' had when competing against Pauls. E.g Unequally funded and staffed schools with different race demographics. It helps equalize equality of opportunity.
Without it, racists would cut funding to reap the outcome of segregated higher education, segregated professions, segregated upper middle class generally.
The absence of evidence that such action would be beneficial is irrelevant. It is not beneficial to racists. Humanists would disagree. But the issue is a fair trial, not a rigged outcome.
The alleged benefits of upping abortion clinic standards was not "speculation"; it was fraud.
The absence of evidence (for truth or existence) is not evidence of absence unless there was a careful attempt to find the evidence (such as searching for WMD) or unless the evidence would be clear and present (Santa tracks at the North Pole). Then the absence of evidence is proof of truth (No WMD, No Santa).
No such search for benefits was made and they were not obvious. Rather there was clear and present evidence of harm.
Regarding school admissions, outcome evidence is irrelevant. The issue is fair competition; not an equal or proportionate number of victories.
"Why are the speculative benefits ... for educational outcomes sufficient... to uphold... while the speculative benefits for women’s health are insufficient for upholding Texas’ law?"
Affirmative action--when justified--is not zero-sum--taking from Peters to pay Pauls. Rather, it corrects disadvantages Peters' had when competing against Pauls. E.g Unequally funded and staffed schools with different race demographics. It helps equalize equality of opportunity.
Without it, racists would cut funding to reap the outcome of segregated higher education, segregated professions, segregated upper middle class generally.
The absence of evidence that such action would be beneficial is irrelevant. It is not beneficial to racists. Humanists would disagree. But the issue is a fair trial, not a rigged outcome.
The alleged benefits of upping abortion clinic standards was not "speculation"; it was fraud.
The absence of evidence (for truth or existence) is not evidence of absence unless there was a careful attempt to find the evidence (such as searching for WMD) or unless the evidence would be clear and present (Santa tracks at the North Pole). Then the absence of evidence is proof of truth (No WMD, No Santa).
No such search for benefits was made and they were not obvious. Rather there was clear and present evidence of harm.
Regarding school admissions, outcome evidence is irrelevant. The issue is fair competition; not an equal or proportionate number of victories.
No procedure is safe in which one of the two patients dies and sometimes both do. The Texas law would have prevented that second death. Pretext? Yes, like Schindler's, trying to save some while recognizing the impossibility of saving all.
Thomas' argument, emphasized by Eric Posner, is that the Courts' recent abortion ruling was inconsistent with a past Court ruling on affirmative action. In both cases, the state was ostensibly protecting people from harm, but in the former the Court required demonstrative evidence of a looming harm, while in the latter it allowed states considerable latitude, and no strict standard of proof.
But that is not an inconsistency unless the recent ruling imposes a universal requirement that states can never use harm as a pretext unless it can demonstrate that such harm is imminent. Emphasis on 'never.'
The cases, however, are disanalogous. Texas's abortion restrictions are paternalistic, in that they replace an individual's right to judge the health and safety conditions under which another person can perform a bodily intrusion, and override that judgment with the state's. Affirmative action concerns fairness - whether an institution's or a state's goals of diversity justify using race or ethnicity as factors. There is no analogous right to determine oneself whether such factors can be applied to oneself. In determining rules of fairness and advantage, a state is determining an inherently social question.
Narrowly interpreted, the Texas decision, requiring evidence of harm, applies only to cases where a state wrests a self-regarding decision-making right from an individual. There is no inconsistency in allowing different standards when self-regarding rights are not at stake.
But that is not an inconsistency unless the recent ruling imposes a universal requirement that states can never use harm as a pretext unless it can demonstrate that such harm is imminent. Emphasis on 'never.'
The cases, however, are disanalogous. Texas's abortion restrictions are paternalistic, in that they replace an individual's right to judge the health and safety conditions under which another person can perform a bodily intrusion, and override that judgment with the state's. Affirmative action concerns fairness - whether an institution's or a state's goals of diversity justify using race or ethnicity as factors. There is no analogous right to determine oneself whether such factors can be applied to oneself. In determining rules of fairness and advantage, a state is determining an inherently social question.
Narrowly interpreted, the Texas decision, requiring evidence of harm, applies only to cases where a state wrests a self-regarding decision-making right from an individual. There is no inconsistency in allowing different standards when self-regarding rights are not at stake.
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Great conversation, all. Thanks for putting this together NYTimes.
In my opinion, these conversations are very important. I know we all have private political opinions about the important issues of the day. The upset we all deal with is the politicization of the court. That the abortion decision could only be decided because the Supreme Court was willing to look at the facts is a major concern. Are we concluding that there is little to no true "objective" readings of the courts? The 2nd amendment doesn't actually say what so many NRA members want it to sa. Are there no more honest conversations about that, because of political concerns?
I think there truly is something lost when everything ends up being about politics, instead of ideas. and courts are more interested in political advantage than "right" or justice..
In my opinion, these conversations are very important. I know we all have private political opinions about the important issues of the day. The upset we all deal with is the politicization of the court. That the abortion decision could only be decided because the Supreme Court was willing to look at the facts is a major concern. Are we concluding that there is little to no true "objective" readings of the courts? The 2nd amendment doesn't actually say what so many NRA members want it to sa. Are there no more honest conversations about that, because of political concerns?
I think there truly is something lost when everything ends up being about politics, instead of ideas. and courts are more interested in political advantage than "right" or justice..
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This decision is monumental and too long in coming. My faith in the court is somewhat renewed. Now the court should overturn all the voting rights laws that limit voter access.
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Here's a word that appears nowhere in the long article: democracy. Not only do the pro-aborts not use the word, they don't understand it. In one of today's photos a woman is holding up a sign saying "Feminists are the majority". If that was the case, why didn't they defeat the law in the legislature? Why did they need to use filibusters and court challenges to block the democratic process? If pro-aborts were in the majority they wouldn't need Roe vs Wade. They's simply vote their agenda into law.
Twenty years ago under Clinton there was a bill in Congress to legalize abortion, called the Freedom of Choice Act. Why doesn't the "feminist majority" vote it into law? Because they aren't the majority. Abortion opponents are.
Twenty years ago under Clinton there was a bill in Congress to legalize abortion, called the Freedom of Choice Act. Why doesn't the "feminist majority" vote it into law? Because they aren't the majority. Abortion opponents are.
@charlesbalpha: When I saw the term "pro-aborts," I stopped reading. By using it, you completely destroyed your credibility.
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This is not a democracy charles... . The U.S. is a representative government, to protect the minority from the tyranny of the majority.
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What a profound misunderstanding of democracy. Charles probably thinks majority white people should be able to vote black people back into slavery too...
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Rather than calling the rationale for the Texas Law a pretext, which it clearly is to anyone who has followed the history of the anti-abortion movement in even a superficial way, Breyer's opinion took that pretext apart piece by piece.
Professor Posner's view that there was only speculative benefits in this case as in the affirmative action case, neglects the clear evidence of a substantial burden on exercising the right to abortion caused by the Texas law in the absence of evidence of harm.
Professor Posner's view that there was only speculative benefits in this case as in the affirmative action case, neglects the clear evidence of a substantial burden on exercising the right to abortion caused by the Texas law in the absence of evidence of harm.
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@Marc: A pretext? Lie is a more accurate term for what Breyer took apart.
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So glad to read a response from someone who understands constitutional law. Thank you.
Maybe there is a point to proving benefit over burden in judging the constitutionality of a law. I'm also thinking about legislation against Sharia Law! Clearly such a law is no more than a tactic in the cultural wars.
Could weighing benefits versus burdens as the very first question for legislation be a fair standard? Does the standard already exist but just gets used selectively? Further, is a law that fulfills a religious imperative a benefit worth consideration in a secular society, where the benefit would not apply to all equally?
A clear template on rules evaluating benefits versus burdens - and a mandate to apply it - might change the landscape (as it already has on abortion) on legislation dealing with climate change, guns, drugs, immigration, gender/sexuality and voting