Wednesday, May 04, 2022


The Right To Privacy Update below: 

As reported in the Media starting Monday night, the Supreme Court (Motto: precedent matters, except when it doesn't) has decided to overturn Roe v. Wade. In the leaked draft opinion by Justice Alito, there is the phrase "The constitution is silent on abortion."

In another post we will speak about our personal views on abortion. They may surprise you. For now we wish to discuss the judicial reasoning about the Constitution being silent on abortion. By overruling Roe, the States will now have the final say on whether a woman can have an abortion. Women in Texas, Alabama, Mississippi, Oklahoma and the like must be feeling well protected and secure. 

Here are some of the other things the Constitution is silent on, which means states may outlaw them. 

Dinner. Appendectomies. Dental care. Cars. Aeorplanes, Donuts. Starbucks. Baseball. The NFL Draft. Sirius Satellite Radio and the Morning Men show on MadDog radio. Concerts. Apple iPhones.  Pizza. Voir Dire.  The Sentencing Guidelines. Pineapple on Pizza (we agree in outlawing this). Lox and Bagels.  Crypto (Thank you Eth). Kittens. Zoos. Crayons.  Garden rakes. Meditation. HIIT Peloton classes and our fav teachers Hanna Frankson and Jen Sherman on the bike and Daniel McKenna for strength. Cafe Con Leche and Cuban Toast. Psychotherapy. Disney World. Surfing. Skiing. Boxing. The designated hitter (ditto on no problem outlawing this). Fireworks. Mini-skirts. Cardiac catheterization  when having a heart attack. 

Our point is, if they can deny federal protection and allow a state to outlaw one medical procedure, then every medical procedure is in jeopardy. 

If the yardstick is whatever is not mentioned in the constitution is fair game for a state to outlaw, then all sorts of activities from sports to exercise to foods can be banned. 

If a state decides coffee is dangerous, then the supreme court will not strike down that law. If a state decides football games on Sundays violates the Lord's day of rest, then there goes your Atlanta Falcons/Texans/Colts parlay. And if the state has a Jewish bent, then Saturday is the day of rest and no movie dates. If a state decides sex between people under 30 should be illegal, then so be it because as near as we can tell, the Constitution is silent on sex. 

Every Supreme Court case striking down sodomy laws are also now in jeopardy. Gay Marriage? Move to Canada. 

Someone explain to us why a State that adopts a belief that surgery, medicine, and medical treatments are bad (because the Governor and legislators have done their own research and decided that antibiotics are bad [sound familiar?] or that the polio vaccine is dangerous) cannot outlaw surgery and modern medicine techniques. Back to leeches. Prayer will save you, erythromycin will not, although swigging some bleach could help. 

This country is loudly and proudly returning to the dark ages. 

Update: We neglected to mention that the decision in this case opens the door for the court to reverse the decision in Griswold v. Connecticut, a decision we have roundly criticized for decades.  The decision in Griswold found a right to privacy in the penumbra of the constitution. For those of you who are robed readers, a penumbra is an aura or shadow. It is most often used in astronomy contexts, in discussing the penumbra cast when the moon moves before the sun. A right to privacy is most certainly not mentioned in the Constitution.  Therefore, the decision in Griswold, its holding on privacy and the ability to purchase contraception, should now be considered in doubt. 

Again, for our readers who wear robes at work, the reason why the decision in Griswold concerns us, is, who is reading this penumbra? What standard is at use for ferreting out those rights hiding in the shadows cast by the Constitution? And if the Griswold court could find privacy in the penumbra, could not the Barrett Court find Jesus in the penumbra? Could not the Alito court find a mandate to not work on Sundays in the penumbra? 

Here is the problem: when you praise the decision in Griswold because you like the right to privacy, but ignore how they reached that decision- a personal opinion by a judge that a right was hiding in the shadows of the Constitution, then you open the door for Justice Barrett, Justice Altio and Justice Kavanaugh to find what they want to find in the same shadows. And trust us, they are not finding the right to privacy, the right for homosexuals to marry, and the right to be free from enhanced electronic surveillance in those shadows. 


Anonymous said...

So no restrictions on abortion at all? Or is there some room for regulations by the state? My body my choice came back real quick once the COVID mania wanted.

Anonymous said...

This opinion is a state's rights opinion. The problem with nearly every state's rights opinion in the last 150ish years is that they attempt, by fiat of 5, to erase the consequences of the bloodiest war in US history and ignore the 14th amendment.

The Civil War was about states rights. Full stop. The rights of the states to classify some people as property was just the state's right most at issue. The state's rights side lost.

From the 14th Amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

There are two basic outcomes in the abortion debate: 1) the right of a woman to regulate her own reproduction is a right relating to "life, liberty, or property"; or 2) the right of the unborn child is a right relating to "life, liberty, or property." In either event, the 14th Amendment strips the states' rights to "make or enforce any law" related to abortion. And in the absence of federal law outlawing abortion, abortion should as a purely constitutional question, still be legal across the United States.

If you prefer it to be a state's issue, let's talk about amending the Constitution - which is what it should take, from an intellectually honest perspective, to make abortion a states' issue.

Roe was a crap written opinion. So have been most of its progeny. But the underlying theme that abortion is not a question to be left to the states is plain. The draft opinion being circulated is the work of (to use a term loved by some) an "activist judiciary" who wishes the Constitution were something that it is not.

Anonymous said...

What is being aborted, Rumpole?

Certainly views vary. Perhaps you take the view that only tissue is being removed. Yesterday the President said it was a child.

But any discussion of this issue that simply ignores this question, as your post did, is at best, incomplete and, at worst, disingenuous.


Rowe is based on a crap idea; the notion that a woman has a right to consult with a doctor, in private, about a medical condition known only to her. Everybody knows that women aren't really full humans, like men are. Because they are, by nature, inferior, women can't be given the full amount of rights citizens are. No woman should be allowed to consult with a doctor in private.

The trimester idea is important, because in the first trimester, only the lady knows she may be pregnant. She is the only one who knows her periods have stopped. She's the only one who knows her body is changing.

Let's say a lady has sex. Shortly after sex she feels funny, and her periods stop. Who should she consult about this? The answer is, of course, the government. The womb is only incidentally the lady's, in reality it belongs to society. If we allow a woman to consult with a doctor, in private, the doctor is going to tell her to scrape the cells from her uterus and move on with her life. This we cannot allow. If women are allowed to make private decisions in consultation with a doctor about their reproductive system, they will make decisions men don't approve of. Thus, Roe v. Wade must go.

Rumpole said...

12:06 PM- a careful reader would note that we wrote that we were not revealing our position on abortion. But since you asked...

We are not in favor of abortion as birth control. We believe a life is a life and all life is precious. So if asked, we would take the position of Justice Barrett- that birth and adoption is eminently more preferable then ending a life through abortion.

Now, that being said, there is the response about a woman's body and her rights. It is this issue that we have candidly not thought through enough to give an intelligent response that we can defend. Our inclination, as difficult as this sounds, is that a woman's right to her body does not trump ( unfortunate word these days) a baby's right to life. Certainly many children are better off not being raised by their birth mother.

Now before people swamp me with rape and incest issues, I am not talking about those. I am talking about a garden variety issue where passion overcomes intelligence and a mistake is made. I choose life and giving life a chance, over what I recognize are exceptionally difficult emotional and physical issues for the woman. It is not fair. But then, life is not fair.

You asked for my position, and I have given it. it is not popular, it is difficult, and perhaps surprising considering my criticism of the pending decision. I am against the pending decision because I believe it is fully political, and that these judges are bringing their personal views to the bench. If I was on the supreme court, despite my views against abortion, I would not vote to overrule Roe. I would seek to support charities that support women who are pregnant who choose to give birth.


Rumpole said...

Ummm...Mr. Justice Kavanaugh, you uhh spelled the name of the case wrong. It's Roe.

Tylman Tua Sanchez et al said...

I support womenz rightz. I support replublicans. I support Cubanz and I am are a cuban and anglo women and I can be your judge and represents all peoples in my decisions you will feel very happy with me.


Dont forgets Vote TTSGSSSW in August 2020!!!!

Anonymous said...

No one uses abortion as birth control, that is somewhere between laughable and offensive. No one makes that decision lightly either. But it is a medical decision to be made in consultation with a doctor, not a politician who doesn't even understand basic biology. And let's not ignore the fact that plenty of those medical decisions are unfathomable, but medically necessary and most states will now make that medical decision even more unfathomable and life-threatening.

Anonymous said...

We submit nearly everything to racial evaluations in this country. I see no reason not to do so with the practice of aborting pregnancies. In New York, more than 60% of black pregnancies are terminated by abortion.

This is not insignificant. When anyone is talking about abortion, it is helpful to recall that we are talking disproportionately about African Americans.

The tolerance people have for these pregnancies never producing infants ought to be understood in light of this.

Anonymous said...

When I was a kid in Connecticut before Roe, if you needed an abortion, you drove to NYC. Here we go again.

You watch, there will be lots of abortion clinics in Freeport.

Anonymous said...

No child should come into this increasingly difficult world unless there are parents(s) ready, willing and able to adequately care for the child. It’s neither a moralistic nor esoteric issue…it’s a pragmatic one.

Anonymous said...

you make list of a bunch of random things like pizza and crayons. you say the idea that the Constitution is silent on abortion, and thus states can ban abortion, is silly because the constitution doesnt mention pizza and crayons, and apparently it would be crazy to allow a ban on pizza and crayons.

your point is totally ridiculous. you are making alito's point for him, not refuting it. OF COURSE states can ban pizza and there is no constitutional right to pizza. OF COURSE states can ban crayons and there is no constitutional right to crayons.

the Constitution only does what it says. it is not a free standing entitlement to correct laws on any subject (abortion, pizza or whatever) just because the law is stupid.

you are suggesting that if a state DID ban pizza, the law should be struck down as unconstitutional.... this is a totally absurd position.

did you think your point through??

Anonymous said...

Everything can be explained by anti-Black racism. Everything.

Anonymous said...

Please stop the euphemisms. Abortion is no more of a "medical procedure" than execution by lethal injection is. It is the killing of a human being perpetrated from a premeditated design to effect the death of the person killed.

Anonymous said...

Roe was a poorly-reasoned political decision not based on the constitution. The issue that the court must confront is whether to follow the science that says that life begins at fertilization and protect that life or ignore science and impose arbitrary cut-off dates as when life is worthy of legal protection.

Anonymous said...

1:37 pm, basic biology says that life begins at the point when the female ovum is fertilized by the male sperm and the 23 chromosomes each gamete carries unite turning the ovum into a zygote, that is, the first cell of a new human being distinct from each parent.

Anonymous said...

Roe v. Wade and its progeny refuse to recognize the unborn child as a full person/citizen worthy of legal protection just like Dred Scott v. Sanford did with blacks. Those who cried "stare decisis!" after the draft opinion in Dobbs v. Jackson Women's Health Organization overruling Roe was leaked, likely uttered the same cry after Brown v. Board of Education overruled Plessy v. Ferguson.

Anonymous said...

Who are you to second guess the desires of what all those women wanted to do with their own bodies ? Women shouldn’t be treated like commodities with you speculating on what they should or should not do with their own bodies

Anonymous said...

Wouldn't it be funny if Rumpole were a woman?

the trialmaster said...

Another gaffe by Biden called an fetus a "child". Clearly no one is in favor of aborting a viable child able to live outside the womb on its own. I know what he meant but I hope he does not run again and the Dems get a great candidate. Maybe Manchin.

Anonymous said...

On an unrelated note, why do attorneys suck up to the judge and ask "may I be excused" after their case has been called and dealt with? Really annoys me for some reason. Thoughts?

Anonymous said...

Also the whole "may it please the court.." garbage. Time to let it go away.....

Anonymous said...

Mmmmmmaaah my penumbras!

Anonymous said...

Rumpole, with respect, as a man, you are not entitled to express any opinion on abortion, for or against or to any degree or under any and all circumstances. That is a decision solely to be reached by the affected woman, who we hope will have wise guidance and support from family, doctor(s), etc., but is literally the only one who can or should make this decision.
The foregoing was written before I read Rumpole's "rationale." All the comments were obviously written by men.
And btw 9.28, the Court has never found that women are covered by the 14th Amendment. Why do you think we all worked so hard to get the ERA passed?

Anonymous said...

I remember Griswold very well: it held that married couples could buy and use contraception w/o government interference:

Griswold v. Connecticut, 381 U.S. 479, was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects the liberty of married couples to buy and use contraceptives without government restriction. Wikipedia
Date decided: 1965
Majority: Douglas, joined by Warren, Clark, Brennan, Goldberg
Ruling court: Supreme Court of the United States
Argument: Oral argument
Citations: 381 U.S. 479 (more)85 S. Ct. 1678; 14 L. Ed. 2d 510; 1965 U.S. LEXIS 2282

Anonymous said...

8:04, the unborn child is not part of the mother's body. He or she is inside the mother's body for purposes of gestation but it is a separate human being with DNA different from the mother's and the father.

Anonymous said...

Abortion doesn't save. It kills.

Anonymous said...

T Rowe price

Anonymous said...

If the fetus is a separate life, is it a parasite getting all its nutrition and protection from the outside world from the woman’s body?

Anonymous said...

It amazes me that you champions of democracy are so offended by having the abortion issue determined on a state by state basis and when it cones to not engircing laws, how about the law that makes it a federal crime to attempt to influence a judge"s actions by pocketing the courthouse or home of a judge?

Anonymous said...

Why don’t we have only the women vote on this issue and live with the results?

Anonymous said...


Who even is a "woman" now?

Anonymous said...

Source your claims please. MORE THAN 60% of ALL African American pregnancies in NY end in an abortion?!? I’m calling bullshite. Unless you are adding in miscarriages (which are medically known as a “spontaneous abortion”) there is no way that % is real or true. And if miscarriages have been added in, then you claim is bullshite anyway. So cite your source, or apologize for publishing a load of BS on this blog.