I totally reject and have rejected throughout my entire career the proposition that the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.
Justice Amy Coney Barrett
I totally reject and have rejected throughout my entire career
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Part of the challenge for appellate judges is that society changes. When that happens, sometimes the legislatures change and sometimes they don’t.
The Dred Scott Case is one example. Parts of society in the United States found slavery abhorrent and outside the bounds of human decency. Other parts of society had no problem with slavery and came up with lots of reasons why it was necessary, proper and not abhorrent.
The British Empire was schizophrenic about the topic during the same time period. Slavery Abolition Act, passed in 1833, abolished slavery in most British colonies.
However, slavery was first established by the French in New France, both in the St. Lawrence Valley and in Louisiana. Canadian merchants also brought black slaves back from their business trips to the south, in Louisiana or in the French Caribbean. In the eastern colonies of Lower Canada (what is now Québec), Nova Scotia, and New Brunswick, abolitionist attempts were unsuccessful for quite some time. In Canada, the majority of slaves were not of African, but rather of Aboriginal origin. The ethnic origin of Aboriginal slaves included Fox and Sioux tribes, Inuit from Labrador, Chickasaws from the Mississippi valley and Apaches from the American southeast. The Ottoman Empire captured lots of slaves, including many from Russia.
Across Europe, serfs were transferred as property in connection with land sales. Serfs were forced to serve via debt bondage and indentured servitude.
Indentured servitude appeared in Virginia by 1620. Initially a device used to transport European workers to the New World, over time servitude dwindled as black slavery grew in importance in the British colonies. Indentured servitude reappeared in the Americas in the mid-nineteenth century as a means of transporting Asians to the Caribbean sugar islands and South America following the abolition of slavery. Servitude then remained in legal use until its abolition in 1917.
Without defending the practice of slavery in any form, unfortunately, history is rife with various forms of it and few, if any nations can claim not to have permitted or profited from slavery in all its various forms at some times in their past.
It’s not defending a currently despised practice (that still exists, btw) to point out it used to be both prevalent and accepted.
https://www.gfa.org/special-report/21st-century-slavery-human-trafficking/
Time change, societies change.
And the present is not the end of that road.
Keeping an open mind now will prevent anger later.
As a follower of SF and 21st demographic trends, I can easily see a time when several societies evolve an entirely different morality re: pregnancy terminations. (France and Sweden have been paying people to have kids with an eye to preserving their ethnicity and culture.) Morality is neither universal nor eternal.
A society that thinks a pregnant 10 year old child should be forced to give birth is a repugnant society I want no part of. A society that thinks woman should be forced to risk dying of sepsis because a doctor is prevented from evacuating a dying fetus in her womb while a clump of cells that will never develop into a working heart has electrical activity is not a just society.
Sigh. Propagandists usually avoid this place, but I suppose with an election nearing…
1) That ten year old did not have to leave her home to have an abortion. It was perfectly legal where she was – but would have been far more likely to lead to an investigation, arrest, jail, and eventual deportation for her illegal alien rapist. (Fortunately, the propagandists could not resist using the case, which exposed the sordid mess anyway.)
2) There is NO active law that prohibits a dilation and curettage in the second case (that is what the ethical medical procedure is called). Unlikely that there ever will be.
I will note that you may certainly leave this society – assuming that you do not already live in a place that fits your dubious morality. Canada will most likely welcome you with open arms, actually; more so than they will want the insane Canadian citizen (also illegally in this country) that attacked the husband of your wonderful Speaker.
A quibble on point 1: The procedure would have been legal in her location with either the consent of both parents (and the law, being badly written, does not contemplate either single parents or unavailability of a parent, perhaps while incapacitated following an accident or deployed on military duty) or judicial approval, which ordinarily (according to a colleague in the jurisdiction) takes from three to six weeks.
Not being a doctor, nor knowing the entire family, I’m not in a position to comment on application to these particular facts; however, “perfectly legal” is somewhat an overstatement. “Not specifically prohibited” would be better. And, thus, the quibble.
Quibble accepted. The solution, though, is to fix any flaws in the law, not throw it out. (One thing should be to require expedited judicial review if the attending physician files an affidavit of immediate danger.)
In any case, see below response to the propagandist. The Ohio doctor should be up on malpractice – ten year olds, except for a tiny fraction of one percent, cannot carry a child to term (even to the premature survival stage).
Propagandist? This is the reality that one party has been itching to bring back for 50 years, and they’ve created a shitstorm of badly written laws that leave doctors at the mercy of hospital lawyers whose sole purpose is limiting the liability of the hospital. Procedures that you think are “perfectly legal” very clearly are not seen that way by hospital administrations around the country where women find themselves unable to access healthcare.
1) Here is the Ohio law https://codes.ohio.gov/ohio-revised-code/section-2919.195: A) of section 2919.192 of the Revised Code.
Whoever violates this division is guilty of performing or inducing an abortion after the detection of a fetal heartbeat, a felony of the fifth degree.
“(B) Division (A) of this section does not apply to a physician who performs a medical procedure that, in the physician’s reasonable medical judgment, is designed or intended to prevent the death of the pregnant woman or to prevent a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman.” It provides no exception for rape or incest. The girl was not in imminent risk of death. She *may* have been covered under the broader “irreversible impairment” clause. Find a doctor and hospital that will risk a felony if a prosecutor decides she would have been fine. Certainly, the Ohio doctor that refused to perform the abortion felt it was too (legally) risky.
2) In Texas, doctors did not think it was “perfectly legal” to abort a woman’s fetus at 18 weeks after her water broke, because her life was not in immediate danger. She was told to go home and wait until she got sick enough or miscarried on her own. She almost died of sepsis. Congratulations, this is what people like you want, I guess. How very moral. https://www.dallasnews.com/news/texas/2022/10/19/texas-woman-nearly-died-from-infection-because-doctors-could-not-perform-legal-abortion/
Ahh, yes, the old, “if you don’t like it, you can leave,” refrain of false patriots everywhere. No, I want my country to do better. And not return to the pre-Roe days of women dying of back-alley abortions. I am an independent, though the chances of ever voting for a Republican again in my lifetime is vanishingly small as I’m not fond of the idea of the election-denying traitorous insurrectionists gaining any more power.
You are going to have a very limited selection on Tuesday, aren’t you? Since you can’t possibly vote for any of the election-denying traitorous insurrectionist Democrats either.
Still showing your willful ignorance. The Ohio doctor should be up on malpractice charges, as a ten year old (or at least 99.9% of them) cannot carry a child to term. So should the Texas doctors – there is a well known protocol for early breach of the amniotic membranes (https://pubmed.ncbi.nlm.nih.gov/15301286/).
A bit of research will also provide you with a plethora of reports where an abortion “clinic” (that close wherever they are legally required to have a physician, with hospital admitting privileges) did not properly care for women with severe continuing bleeding, not to mention the deaths from chemical abortions with no medical supervision whatsoever.
Questions presented for review:
1. Whether the aphorism “Physician, heal thyself” applies to the judiciary, either collectively or individually; and
2. Whether, if the answer to question 1 is any form of the affirmative, only direct statements are relevant to determining the appropriate course of “healing”; and
3. Whether the judiciary undermines its credibility by continued insistance that a “question presented for review” begin with the word “whether,” which is not an accepted signal of a true interrogatory but a request only for a binary answer inconsistent with the concept of factual dependence.
Stare Decisis?
Show of hands?
Who thinks schools should be racially segregated in deference to stare decisis?
See comment above
Stare decisis be damned?
Judges are eeevile when tbeir process produces results that don’t align with somebody’s ideology but the same judge is okay when they do.
On the other hand, stare decisis be damned—I really like what this witch-hunter from the 17th century said.
Once upon a time Dred Scott and Separate but Equal were also “settled law”…
…until they weren’t.
Times change, societies evolve, courts rethink acceptable processes.
The tenth and fourteenth amendments still exist. They may yet be respected again.
Separation of powers? TBD.
If a mistake is made, it should be in the direction of greater liberty, not in taking away a person’s bodily autonomy. And throwing out a precedent that other important liberties were based on is a slippery slope toward a Christofascist nation that some seem to want everyone else to be enslaved to.
If a mistake is made, it should be corrected.
What does “fascist” mean?