Comment by throwawaymaths | Hacker News Reader

Comment by throwawaymaths | Hacker News Reader

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The legal basis for the roe decision is "a general right to privacy" which was argued on the basis that the 10th amendment reserves unenumerated rights(0) to be regulated by the states, then preserved for the individual. Since the constitution makes no mention of privacy, if you believe it's a right, it would fall into the category of "unenumerated". IIRC prior to roe, there are no supreme court decisions about the right to privacy, so it's considered the foundational legal precedent for privacy. Depending on how the arguments in the most recent case are written (I have not read them) it could be interpreted as no roe, no privacy, unless it's explicitly carved out by other decisions subsequent to roe (1)

(0) Technically the amendment makes a statement about powers, so you have to consider "rights" to be the inverse of "government power" for this argument to make sense.

(1) technically the constitution does not give the supreme court the power of judicial review - it was carved out of whole cloth by the courts itself, which is exactly the situation that the constitution is supposed to prevent Congress from doing (not surprisingly it's largely failed at that too) so the American system currently has gaping hole(s) in its legitimacy that you must look aside to accept all of these premises.

^ This. Roe vs. Wade wasn't about abortion, it was about privacy. That's why they're already talking about voiding gay and interracial marriage bans, they were based on that precedent.

Here's a consequence that should speak to tech-types: there are two arguments against mandatory NSA backdoors into encryption used by tech companies, 1) a fundamental right to privacy, and 2) these backdoors are intrinsically hackable.

The argument against #2 is "nuh-uh" and enough of our lawmakers are technically illiterate enough to believe that. #1 was based on judicial precedent that just went down the toilet.

The interracial marriage ban precedes Roe v. Wade by over 6 years:

https://en.wikipedia.org/wiki/Loving_v._Virginia

My mistake, thank you for the correction.

> Roe vs. Wade wasn't about abortion, it was about privacy. That's why they're already talking about voiding gay and interracial marriage bans, they were based on that precedent.

This is factually untrue in the case of interracial marriage and deceptive in the case of gay marriage.

Loving v. Virginia, (which predates Roe) prohibiting bans on interracial marriage, was based on marriage as a fundamental right and the Equal Protection Clause of the 14th Amendment, not privacy and substantive due process like Roe. A Roe-like substantive due process argument was raised in Loving but not resolved by the Court because the EPC argument was sufficient.

Obergefell v. Hodges, prohibiting same-sex marriage bans, had two independent bases, an EPC basis resting on Loving and a substantive due process bases resting on Roe and related cases. (In Obergefell the Court didn't choose not to resolve the substantive due process argument despite the EPC being sufficient, unlike Loving.)

In strictly reasoning-of-the-case terms, Roe (or even, as Justice Thomas has suggested, the line of substantive due process cases on which Roe relies) being struck down has no impact on Loving and no decisive impact on Obergefell.

The real reasons these and other cases are talked about as targets isn't legal reasoning, it is power politics: both the left and right see an activist Court that has proven multiple times recently that it is willing to ignore settled precedent to write right-wing preferences into law, and one side is afraid of that and one side wants to maximize the benefit they can extract from that situation while it lasts.

I'm assuming the right to privacy is now gone. It wasn't explicitly in the constitution, so this court is not going to honor it any more.

The problem I have with this is that the court clearly never intended there to be an actual right to privacy, or else things like recreational drugs and prostitution would be legal, and mass data collection and tracking by the government would not. So really it seems like the right to "privacy" was contrived as a way to conjure a constitutional right to abortion, but never actually applied in all the ways we actually think of as privacy.

Interracial marriage bans are clearly ruled out by equal protection, so that really isn't a concern.

> Interracial marriage bans are clearly ruled out by equal protection, so that really isn't a concern.

It actually is, though indirectly; a key point of the logic underlying those bans is finding an unenumerated right to marriage as a fundamental right which cannot be unequally treated under the EPC, just as Roe relies on the unenumerated fundamental right to privacy which cannot be deprived without due process under the Due Process Clause.

(And it is even moreso when you stop pretending that a particular Supreme Court actually strictly applies the rules it articulates rather than acting politically, in the face of ample evidence to the contrary.)

> So really it seems like the right to "privacy" was contrived as a way to conjure a constitutional right to abortion,

This works, if you have no knowledge of the Supreme Court’s privacy cases going back ~80 years before any application to abortion. One might argue that the Roe was politically motivated, of course, but you can't credibly argue that the authors of all the cases pre-Roe on privacy were doing it just as part of a conspiracy focussed on abortion.

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