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this post was submitted on 23 Jan 2024
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A lot of the craziest shit in the lawbooks were things some whacko proposed "that has no chance of passing".
Current SCOTUS precedent is that the First Amendment does not protect porn if it contains "obscenity". Specifically, any porn can be banned if it:
It's called the Miller Test
Notice the wording used in the proposed law. It's already been pre-considered to have a solid chance of surviving a SCOTUS appeal. And the current SCOTUS wouldn't dream of overriding Conservative jurisprudence.
Unfortunately, this is the type of anti-reactionary discussion that led to us being genuinely surprised when Roe v Wade got overturned. Clarence Thomas used the opportunity to signal that he would like to overturn Obergefell and Griswold as well. And he 100% has Barrett on his side and almost certainly has Kavanaugh. That means all he has to do is elbow Gorsuch and suck off Roberts and porn (and sex toys) could be illegal in some states, working towards a federal ban.
Speak for yourself. I was not surprised when roe v wade was overturned, in fact I'm surprised it lasted as long as it did. The court invented a right that they wanted to be there and declared it had been there all along. That is not the judicial branch's job. Roe v wade should have been replaced with a law, drafted by legislators, by like 1976. 50 years of Democrats dropped the ball on this and now innocent women are paying the price.
...here we go again. I feel like people bring this up without understanding it all the time. The Fundamental Right to Privacy used in Roe comes from Griswold, and is (and was) an absolutely defensible interpretation of the Constitution. Much of our jurisprudence comes from Common Law and Reading Between the Lines (which is different from inventing a right from scratch). If you have a right to do A and a right to do B, there is absolutely an argument that you have a right to do A#.
More importantly, DOBBS AGREED. They just said "There is a right to privacy, but fetuses are special. Bubye Roe".
...which SCOTUS could easily decide is Federal overreach. A lot of people have argued with me (convincingly) that the best foundations of such a law are still not unassailable. The argument that the Constitution allows the federal government to protect abortion is just weaker than the argument that the Constitution inherently protects abortion.
Roe was decided by a largely pro-life conservative Judiciary, and the Right to Privacy was the weaker of two protections behind a clear 14th Amendment protection. Passing a law protecting abortion in 1976 is like passing a law protecting the right to Pray in your own home, or a law that forbids prosecutors from executing suspects during the arraignment. This is one of those things we really cannot justify blaming the Democrats for.
Well I don't agree with you, but damned if you didn't make a solid argument.
Sorry I started with "here we go again". In retrospect, it's not fair to treat a person who makes an argument like they are the argument itself.
It's very common that I hear the "invented a right" complaint for Roe. There are a lot of valid criticisms for how jurisprudence works in America, but none of those valid criticisms started with Roe. Arguably they didn't even fully start with Griswold, but the specific one in Roe did. People also often bring up Justice Ginsburg's distaste for Roe. What they don't understand (or conveniently forget) is that she was overridden in her 14th Amendment assertions by Justices that could be described as "Pro-life", who came up with perhaps the most anti-choice interpretation of the Constitution as it was seen at that time. The "shaky ground" people talk about wasn't Roe, but that Roe intentionally left a ton of room for states to add so-called "reasonable restrictions" on abortion, the kinds of restrictions the federal government would really struggle to justify limiting. If Oklahoma has a 3rd Trimester ban, get the abortion earlier or drive to a state without said ban. So long as they didn't ban leaving the state to get an abortion, there's not much for the federal government to write a law on.