Friday, 25 September 2020

Ruth Bader Ginsburg died on September 18th

Or so The Economist says. It includes She was stunned by the lack of caution in the Roe v Wade ruling of 1973 that legalised abortion; though she certainly approved of the outcome, reform should have come through state legislatures, where it was slowly starting to appear, of which I approve. Looking, I don't see I've written about this so I'll write it here: Roe vs Wade, however desireable it might be from a societal point of view as a reflection of changing times is - as I understand it - on very thin ice, constitutionally: founded on two weak links: a right-to-abortion derived from a right-to-privacy; and the right-to-privacy itself. And it is certainly a point of view - which I definitely sympathise with - that a lot of the bitterness in the abortion debate in the USA stems from it having been removed from the political process, where people's enthusiasm could have some outlet, to the judicial, where it cannot.

However, der Ekonmeister skips lightly over where Brian dares to tread: A cheer for Ginsburg, and a wish that she retired in 2013. At the moment she is a secular saint and cannot be criticised - well, not by anyone who expects their words to be read - but she is the very antithesis of nothing in his life Became him like the leaving it. In that she clung on to her power, thereby losing Obama the chance to replace her with someone else "on her side". And she did cling on; it was after all by then her life, and she could not bear to let it go, putting herself above her party at the very least, and above her country, if you like many believe that the USA has lost by allowing the Mango Mussolini to appoint a third judge.


Since this is now my Roe vs Wade page: there's a quasi-interesting article in the New Yorker from 2015 attempting to argue that repro-rights folk aka those in favour of abortion should have based their arguments on equality, not privacy. That's slightly strange as an argument, I think, though I'm open to correction on this point, because I think in RvW it was the court that made up the justification, not the litigants.

But that same article did teach me that is wasn't RvW that made up the right to privacy, that was done earlier in Griswold v. Connecticut, in the context of contraception; from which we get the language that the right was to be found in the "penumbras" and "emanations" of other constitutional protections.

Oh, and as Timmy points out (though I saw it first...), there's a great deal of drivel talked about RvS, for example What will they do if that 6-3 court overturns Roe v Wade and bans abortion across the entire country? But Reversing RvW wouldn't ban abortion, of itself: it would merely make alws doing so constitutional, in the states that wished to do so.

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