Could you expand on "our fundamental rights extend to the modern era" and how that connects to the legality of abortion being based on the right to privacy?
The "right to privacy" includes the right to medical privacy and privacy over your body. It's not the government's concern to dictate what and how you can treat your own body. The natural extension being that it violates the 14th Amendment for the government to surveil intimate medical decisions.
The "modern era" part comes from the majority opinion of Roe, which notes that abortion was viewed in a much better light when the constitution was written. Anti-abortion sentiment is a fairly modern phenomenon.
“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”
The "right to privacy" includes the right to medical privacy and privacy over your body. It's not the government's concern to dictate what and how you can treat your own body. The natural extension being that it violates the 14th Amendment for the government to surveil intimate medical decisions.
This puts the cart before the horse. This assumes abortion is already a fine thing to do. Think about the other applications of privacy. Here is a pretty extreme hypo (we could get into a more subtle one maybe but this is the first thing that came to my mind). You are entitled to privacy in your home. In your home you can abuse your spouse and you can drink orange juice. Abusing your spouse is obviously wrong so we would never say privacy covers it. Drinking orange juice is obviously fine so we would say you are entitled to privacy from others to know if you drank orange juice or not. In both cases the police may never know you did either but that has no bearing on their legality. It seems to be the real central question and where a right would need to be grounded is if it is your body or the child's body. A lot of people disagree on this. If you don't think it is your body than the privacy argument makes no sense.
In terms of the history I have not dug into it but there seems to be conflicting arguments based on your priors. It doesn't seem cut and dry enough to just say it was a right then so it is now, if it was why not just do that instead of the whole privacy deal?
From Dobbs majority opinion: "English cases dating all the way back to the 13th century corroborate the treaties' statements that abortion was a crime."
I am also skeptical of origionalism. I don't know how much bearing 13-18th century common law should have on modern day law, especially when there was assuredly a diverse set of opinions on abortion just like today. Why shouldn't the 20th century have the same amount of weight as the 18th?
To me it seems that even if you believe abortion is morally right Roe was legislating from the bench. These things should come from congress not the supreme court.
consteval|1 year ago
The "modern era" part comes from the majority opinion of Roe, which notes that abortion was viewed in a much better light when the constitution was written. Anti-abortion sentiment is a fairly modern phenomenon.
“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”
minkzilla|1 year ago
In terms of the history I have not dug into it but there seems to be conflicting arguments based on your priors. It doesn't seem cut and dry enough to just say it was a right then so it is now, if it was why not just do that instead of the whole privacy deal?
From Dobbs majority opinion: "English cases dating all the way back to the 13th century corroborate the treaties' statements that abortion was a crime."
I am also skeptical of origionalism. I don't know how much bearing 13-18th century common law should have on modern day law, especially when there was assuredly a diverse set of opinions on abortion just like today. Why shouldn't the 20th century have the same amount of weight as the 18th?
To me it seems that even if you believe abortion is morally right Roe was legislating from the bench. These things should come from congress not the supreme court.