Tag Archives: 9th amendment

Average Joe SCOTUS – Roe v. Wade [Classic]

We all know that Roe v. Wade made abortion legal across the United States, but the this shit is WAY more nuanced and complicated than most know. So let’s really dig into this bitch, because it’s interesting AF.

First, Jane Roe was a fictional name used to represent an anonymous woman. She chose to remain anonymous at the time, but was later identified as Norma McCorvey. She had gotten pregnant with her third child, and wanted an abortion. The first two she had given up for adoption, but this time, she didn’t want to go through all of that.

But there was a Texas law that said outside of rape and incest, unless your doctor orders an abortion to save your life, your doctor can’t perform a fucking abortion on you.

So Jane lied and said she had been raped. But when there was no police report to corroborate the rape, they suspected she was full of shit, and denied her an abortion, leaving her with no way in Texas to get a legal abortion.

Jane Roe wasn’t the only appellant, though. There was also an anonymous couple that had gotten pregnant, and a doctor Hallford who was under indictment for performing an abortion (Presumably not the lead singer for Judas Priest, Rob Halford, although that’d be pretty fucking awesome).

They sought justice in a Texas district court citing first amendment violations (presumably arguing it was a law based on religion). But she also argued Fourth, Fifth, Ninth, and Fourteenth Amendments.

The Texas district court gave her a victory on 9th amendment grounds, that just because the right to an abortion isn’t enumerated in the Constitution, doesn’t mean she doesn’t have a right to  do it. But also, it effectively argues a person has a right to privacy. They cited the 14th amendment as well, which guarantees rights to “all citizens born.” So if you aren’t born yet, you’ve got no rights, little fella.

But Texas only gave a declaratory relief (they clarified the law), not injuctive relief, which would have effectively intervened on Roe’s behalf so she could get her abortion.

Texas decided that despite this decision, it was going to continue prosecuting doctors for performing illegal abortions.

By the time it made it to SCOTUS, the appellant focused on the 9th amendment and 14th amendment arguments, since that’s how they won in Texas, when pleading their case to SCOTUS.

Also, the appellants argued that based on some of the situations that were unique to that time, made Roe a victim. She noted that some jobs make the woman quit, some schools make the woman drop out, and the woman can’t get unemployment or welfar if she were pregnant. She stated,

It disrupts her body. It disrupts her education. It disrupts her employment. And it often disrupts her entire family life.

And we feel that, because of the impact on the woman, this certainly and as far as there are any rights which are fundamental is a matter which is of such fundamental and basic concern to the woman involved that she should be allowed to make the choice as to whether to continue or to terminate her pregnancy.

Here’s where this shit starts to get interesting. The Texas law only forbade a doctor from doing the abortion. And it held a significantly lower penalty than murder, which appellant’s argued that showed they weren’t considering it murder. A woman could perform her own abortion, which is dangerous as hell, and there was no law against that shit at all. As a matter of fact, in the law, the pregnant female was considered the victim, and the doctor was the criminal.

Part of the blow dealt to Texas was that from the doctor’s perspective, the law was too vague or subjective. Meaning that a doctor could run afoul of the law, and not even know.

Imagine if the doctor performed the abortion because they said the mother’s life was in danger. But then another doctor comes in after the fact and argues that the mother wasn’t in danger, the doctor performing the abortion was a shit doctor, and thus it’s an illegal abortion. Who the hell wants to sort that shit out? And what doctor will ever perform an abortion, when they know they could be thrown in jail for it later?

So this shady motherfucker on the side of Wade, tried to argue the case moot, because it had been 21 months, and Roe had long since given birth and put the baby up for adoption. Basically, this dipshit was setting up a system where a woman could never get injuctive relief, because it would take too long to get it, and actually be able to perform the abortion. This case tool 21 months, but obviously, the abortion needs to happen within a few months. So the court called him on this, and the exchange was awkward at best.

Justice Byron R. White

How do you suggest, if you’re right, what procedure would you suggest for any pregnant female in the State of Texas ever to get any judicial consideration of this constitutional claim?

Jay Floyd – Wade advocate

Your Honor, let me answer your question with a statement, if I may. I do not believe it can be done. There are situations in which, of course as the Court knows, no remedy is provided.

Now I think she makes her choice prior to the time she becomes pregnant. That is the time of the choice. It’s like, more or less, the first three or four years of our life we don’t remember anything.

But, once a child is born, a woman no longer has a choice, and I think pregnancy may terminate that choice. That’s when

Justice Byron R. White

Maybe she makes her choice when she decides to live in Texas.

As arguments proceeded, the question was asked of the state by SCOTUS, what’s your interest here? To preserve the life of the fetus? So Wade’s attorney was all like, I don’t fucking know, sounds about right.

You’ll think I’m joking there, but he genuinely fucking said when asked what the state’s interest was,

“They recognized the humanness of the embryo, or the fetus, and they said, we have an interest in protecting fetal life.

Whether or not that was the original intent of the statute, I have no idea.”

Clearly, this motherfucker was prepared.

So then the justice was like, well then how the fuck is the woman the victim? Shouldn’t the woman and the doctor be the criminals, and the fetus be the victim?

It became clear that no compelling argument had been made, nor precedent set, to constitute a fetus being a life with equal protection under the law. As a matter of fact, this motherfucker when asked about not making the fetus the victim said,

That is correct, Your Honor. And the matter has been brought to my attention. Why not punish for murder, since you are destroying what you – or what has been said to be a human being?

I do not know, except that I will say this. As medical science progresses, maybe the law will progress along with it. Maybe at one time it could be possible, I suppose, statutes could be passed. Whether or not that would be constitutional or not, I don’t know.

I’ve eaten a bowl of alphabet soup and shit better arguments than that. No wonder that mother fucker lost. Seriously!

He was so bad, that when the case was re-argued at the suggestion of justice Harry Blackmun nearly a year later (due to the fact the court was two justices short from retirements prior to the case, and those seats having not yet been filled), Texas replaced his dumb ass as their advocate.

Anyway, back to Captain Anonymous, Jane Roe. Effectively, if the court accepted that the state’s interest was protecting a life other than the mother’s life, then the court was put into a quagmire, where they’re forced to choose the rights of one life over another.

So eventually SCOTUS decided 7-2 in favor of Roe. Based on the idea that they’re choosing one life over the other, they divide the pregnancy up into three trimesters, which is where the whole “trimester” term came to be.

They gave the mother sole discretion, with her doctor, to terminate in the first trimester (this is where the trimester concept started). They gave deference to the mother in the second trimester to terminate if her life was at risk, but the state could regulate outside of that. Then they gave deference to the state’s ability to protect the fetus in the third trimester, basically arguing, the state could legislate it to say, you’ve come this fucking far, just have the baby and put it up for adoption if you don’t want it. But if the state didn’t pass such a law, go ahead and have the abortion.

Justices Rehnquist and White dissented.

Read about the case, and hear both oral arguments here

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It’s A Free Country… Or Is It? The Powerful but Forgotten 9th Amendment

Gary Nolan (and THE Scrappy Doo)
Gary Nolan (and THE Scrappy Doo)

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. – US Constitution 9th Amendment

Imagine a family of ten children. Nine of them are very good-looking but not all that bright; however, the average looking one is the brainiac of the family with a 150 IQ. All the others will get attention for their beauty and elegance even though the ugly duckling, that is often ignored, should be the star of the show because they bring the most value to the table. This is how I feel about our Ninth Amendment.36508_490192697685638_337128855_n[1]

I always clarify that I have never used, nor have any desire to use, recreational drugs. But as a libertarian, I feel that many of them should be legal. I was debating this with someone and he asked me to make a case as to why they should be legal. There should never be a conservative among you that makes a constitutionally based argument against legalization because it is fundamentally wrong, based on the Ninth Amendment.

The generally accepted meaning behind the Ninth Amendment is extremely important. The framers wanted to ensure that the Constitution wasn’t a document that granted rights to the people, but instead a document that limited the powers of government over the people. We the people have the inalienable rights, and we the people decide how we wish to be governed. The Ninth Amendment is  saying, in essence, that one should assume they have the right to do something unless there are laws specifically forbidding it.

So, when asked by my friend to defend legalization, my response was that it was not my burden to make such a case in a free country. It was his burden to explain how and why a specific drug’s use by one person infringes upon the rights of another and thus should be illegal.

Marijuana Harvest
Marijuana Harvest

I’m not trying to make a case here for drug legalization specifically—he might have made a good case, so we’ll save that argument for another day. Instead, what I implore of every legislator is to employ the paradigm the framers of our Constitution did when they envisioned this great nation—the idea that all actions should be legal by default and should only be outlawed once a proper case has been made to do so.

Our Declaration of Independence indicated we all should have the right to life, liberty, and the pursuit of happiness. The Constitution replaced pursuit of happiness with property. So a proper argument for making something illegal should be restricted to actions which deny those rights accordingly.

For example, If I drink and get inebriated at home, it is not a crime since no one else is being harmed. If I drink and drive my car, however, I’m putting the lives of others at a scientifically demonstrable greater risk due to my impaired ability, which potentially infringes upon their right to life. Thus, it is rightfully illegal.drunk-driving2[1]

I think it’s easy to put any proposed law up to that light and realize that, if it is limiting someone’s right to life, liberty, happiness, and/or property, and it is not protecting one person from another person, then it has no place being a law and should be voted down no matter how well-meaning its intentions may be.

Morality is a relative term. For instance, I think facial cosmetic surgery is immoral for doctors to perform (accident victims excluded) and utterly stupid. One look at Mickey Rourke, Jerry Jones, Joan Rivers, and everyone else who has had it done that now looks like a side-show attraction should be a lesson to everyone to accept what nature gives you. If I had a loved one wanting to do it, I’d want to shake the stupid right out of them. Why would a doctor who has sworn first to do no harm, take a reasonably good-looking person and make them look like they’re skydiving horizontally 24/7?

Mickey Rourke
Mickey Rourke

However, proponents often feel there is improvement gained from these procedures and the victims, oops, I mean patients, are occasionally pleased with the results. So what I think is immoral, some think is perfectly fine and good. While I will vigorously encourage anyone I care about not to do it, do I think the government should make cosmetic surgery illegal? Of course not! I hope you wouldn’t either. Morality is best regulated through social and peer pressure, not government regulation.

So how are vices, which are almost always victimless crimes, any different? I’d sooner argue that one look at Mickey Rourke indicates he’s a victim before I’d argue that you or anyone else is a victim as a result of a pot smoker’s indulgence. I defy anyone to argue differently.

My argument was intended to be humorous, but the fact is that morality varies from person to person. Any time you try to legislate personal behavior for the sake of morality, you’re infringing on someone’s right to the pursuit of happiness. You’re saying that they have to be more like you BY LAW whether that makes them happy or not. It has little to do with public safety no matter how loud the left and some social conservatives say so.  Does that really sound like freedom and liberty to anyone?

One of America’s greatest attributes is its diversity. Victimless crimes curb that diversity by trying to get everyone to conform to the majority. We have a republic, not a democracy, because our Constitution protects the minority from the majority. A victimless crime, by definition, should be unconstitutional. So please stop trying to make people exactly like you and, instead, just enjoy the freak show. It’s not hurting anyone, and you might have a little fun!