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Comment by rayiner | Hacker News Reader

> For example, in the case at hand, it's just silly to pretend that after 50 years we have finally arrived at a great legal argument against abortions

You’ve got it backwards. States have a general “police power” and have the right to pass laws to regulate the public health unless it infringes on a federal constitutional right. In 50 years there has never been a “great legal argument” where the right to have medical providers perform abortion appears in the Constitution. You’re welcome to look in there yourself and report back.

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Many things don't appear in the Constitution. I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality. What happened there, and is happening with abortions, is that different ideological groups control the nomination to the Court and enshrine their ideology in law by proxy.

How do you account for the fact that the Court has not revised Roe v Wade in the last 50 years if it all rests on a correct interpretation of the Constitution, which has obviously not changed?

(different person)

The way time passes so long is that:

A) the court declines to hear cases over and over again unless it is forced to have “original jurisdiction” or decides not to decline to hear a case.

B) then when it decides to hear a case, we hope it rests on a solid constitutional ground because thats our only framework. there have only been a couple wild surprises from that court, and people amended the constitution in response just because the judges’ understanding was so wildly different than everyone’s, but the logic they pointed out was so clear that everyone agreed to overrule them by changing the constitution. Here, obviously people don't agree that much because, like you, they believe the means justify the end no matter how shaky the logic is. But for those willing to look, theyll see that court hadnt been doing its job as they didnt use the constitutional at all.

so its easy for us to see that the passage of time cannot be weighted as heavily as you are relying on. the marriage equality ones have very sound logic and have just as clear of a chronology as to why it wasnt ruled on before. your right in that it wasnt magic, but your wrong if you think it was ideological randomness.

> I'm sure they didn't magically find a hidden paragraph in 2015 regulating marriage equality.

Obergefell is a good contrast to Roe. Everyone acknowledges that the "rights" protected by the Constitution includes the rights inherited from the English tradition. (Liberals believe it encompasses an evolving set of rights based on changing moral standards, but they agree it includes at least those recognized in England in 1789.)

Marriage was one of those ancient rights. Even the Magna Carta includes rights relating to marriage. The question therefore wasn't whether there was a right to marriage, but whether same-sex relationships fell within the scope of the concept of "marriage."

On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.

If anything, "the science" has worked against Roe. The first real-time fetal ultrasound was conducted in 1971, just a couple of years before Roe was decided. Since then, ultrasounds have become routine, and 3D ultrasound technology allows us to see that a 15-week fetus isn't a "bundle of cells" but has a human face: https://youtu.be/sBmXNOG4s4A

The problem with this approach is that it is very malleable. Technology also changed immensely from when the Founders mentioned "arms", but I would think Conservatives would have a hard time accepting this particular "evolution". The examples you mention are also cherry-picked. We already knew fetuses had heartbeats and human faces many decades before ultrasounds existed. And a vast majority of scientists would agree that abortion is valid within some restrictions, so I don't believe that ascribing this change to the evolution of science does you any favors.

> On that question, the science changed dramatically in the period leading up to 2015. Science proved in the late 1990s that same-sex conduct was not a choice to reject conformity, but was rooted in biology. And in the early 2000s there was the first research showing that same-sex couples were living in committed relationships, raising children, etc. You'll notice that Kennedy spends a lot of time talking about these facts in his opinion--because those facts are critical to showing that same-sex relationships can be called "marriage" as historically understood.

Homosexual "marriages" have existed since Antiquity. And marriages do not necessarily have to lead to children, otherwise old people would be restricted from marrying. I think it is obvious that this decision is a result of the fast change in the zeitgeist rather than a careful evaluation of evidence, no matter what the Justices or their clerks deemed fit to write in their decisions.

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