Roe's overturn is tech's privacy apocalypse

https://www.axios.com/2022/07/05/tech-privacy-roe-battle

by samizdis • 4 years ago

62 194 4 years ago

axios.com

bearjaws• 4 years ago

"Tech industry tries to make up for regressive politics"

Hate to say it, but there may not be a technical solution to the failings of the USA.

micromacrofoot3• 4 years ago

I'd go a little further and say that tech has exacerbated the failings of the USA.

fny3• 4 years ago

I'd be a little more accurate and say extreme neoliberalism has exacerbated the failings of the USA.

ironmagma• 4 years ago

Exacerbated, or just exposed?

hahaitsfunny7• 4 years ago

I'd go even further and say that tech is fundamental in the destruction of the fabric of American society.

testbjjl• 4 years ago

Not all tech. There are specific actors and business models.

zaptheimpaler• 4 years ago

Yeah its getting tiring watching the increasingly convoluted mental gymnastics to make companies and individuals responsible for completely failed lawmaking and rabid dog enforcement agencies.

Literally in the article:

“Be smart: Congress won't save us, or these companies, from this battle.

…

But long efforts by legislators to pass a national privacy law — an effort many companies support — remain stalemated this summer, as they have been for years.”

No, your fucking government is unable or unwilling to act in the interests of its people. What is a government that is unaccountable to its citizens (whether due to gridlock or malice) called?

National privacy laws would apply to all companies, present and future and to all cases of overreach. Instead, we are all supposed to fight the current big tech cos and fiddle with Google settings to delete location data and buy pinephones and gmail alternatives and drop facebook and use Signal and don’t buy a smart TV and don’t use Github and on and on? Maybe we need to invest more energy into fixing a dead government instead of tech.

tablespoon6• 4 years ago

We can only hope it this will drive some general improvements in privacy protection/data collection. However, I think it's far more likely that we get some hyper-specific protections tailored to avoid a general improvement (e.g. like we have for video tape rental information).

GRBLDeveloped• 4 years ago

Wonder if Google deleting this information is technically tampering with evidence

aceazzameen• 4 years ago

Don't give politicians any ideas.

A4ET8a8uTh02• 4 years ago

Eh, this is the one thing I hoped would push non-tech people like my wife into a more active stance. I showed her one of the related articles discussing apps tracking menstrual cycles and poor HIPAA protections in today's world, but the result was sadly the opposite to what I hoped for. In that particular case, addiction to her favorite games clearly outweighed espoused concern of Roe vs Wade impact.

It is odd. I was sure it would make more of an impact. Maybe habits are stronger than proclaimed views.

haswell2• 4 years ago

addiction to her favorite games clearly outweighed espoused concern of Roe vs Wade impact

I’m curious, how are the two related?

A4ET8a8uTh02• 4 years ago

Ahh, sorry, I assumed the connection is clear. Addiction to a set of casual games is preventing her from even considering dropping Facebook or, should we went that route, downgrading to a feature phone. Separately, she is unwilling to log into FB from PC, where there would be more control over what is done that machine. In this case, games are holding her hostage from adopting healthier privacy habits.

Now, privacy habits are related to Roe vs Wade in a more nuanced way. Some of the recent articles indicated that some data that could be used to identify women one way or another and puts tech sector in its sights as a result.

Hope it makes is a little more clear. I am a little sick so odds are my thoughts are not clearly expressed.

verisimi• 4 years ago

Driving the news: Google announced Friday a new program to automatically delete the location data of users who visit "particularly personal" locations like "counseling centers, domestic violence shelters, abortion clinics, fertility centers, addiction treatment facilities, weight loss clinics, cosmetic surgery clinics, and others."

Yay google! Giving a touch of privacy back to those causes it deems acceptable!!

fallingknife2• 4 years ago

As much as I don't like laws against abortion, I like tech companies picking and choosing which laws they help the government enforce even less. What we really need is a blanket ban on law enforcement access to private mass collected databases in general.

adamc3• 4 years ago

That won't happen. There are too many cases where it helps law enforcement in reasonable ways.

I'm OK with tech companies choosing data retention practices that make them unable to answer certain kinds of questions, and, in fact, suspect this will be mandated in some locales. Until there is some law that prevents it, anyway.

a2800276• 4 years ago

Or laws against private mass collected databases in general?

core-utility6• 4 years ago

Is this anything more than just fear-mongering? I don't see how this is related to the Roe reversal at all. Not a single state has given any inkling of ruling/law aimed at prosecuting the receiver of the abortion, only doctors/person who performs them.

Privacy is good and these issues should be evaluated, but to talk about them in the context of the recent Supreme Court decision is dishonest.

defterGoose2• 4 years ago

You've got the de facto situation in Texas though. Anyone being allowed to sue you for getting an abortion effectively means that the "state" can come after you. Make no mistake, these laws aim to harm anyone involved. The entire context of this discussion stems from the decision. You're wrong, and frankly, a little churlish.

core-utility6• 4 years ago

Texas' situation is specifically worded for the state not to come after you. It's a citizen's matter. "this statute does not limit who can bring suit, so long as it is a private citizen"

Additionally, in the Texas case you can't sue the mother, only those who aid in performing the abortion.

itsoktocry• 4 years ago

but to talk about them in the context of the recent Supreme Court decision is dishonest

I disagree, this is an example of why data collection can be scary.

Data that was perfectly inane yesterday can be used against people tomorrow. How much data do the powers-that-be have access to that can be used similarly in the future? The dystopian view is that they'll be able to paint any narrative if you fall in their crosshairs. Of course who "they" are is subject to change.

adamc3• 4 years ago

Living in Texas, I strongly agree with you.

core-utility6• 4 years ago

But that's always been true, data can always be used against you regardless of what the laws are.

arolihas5• 4 years ago

Women have been prosecuted for miscarriages before, it's not baseless.

https://www.npr.org/2022/07/03/1109015302/abortion-prosecuti...

vorpalhex5• 4 years ago

One of California's senior legal officials has shown his support for a young mother charged with murder after her stillborn baby boy was found to have toxic levels of meth in his system, reports Daily Mail.

https://meaww.com/who-is-chelsea-becker-jailed-for-killing-u...

hahaitsfunny7• 4 years ago

NPR is funded by the federal government. They rely on the same fact checking services (the IFCC, PolitiFact / Poynter) that are funded by Soros, the Gates, the Clintons, the Koch foundation, etc...

They're probably the most anti-American media outlet in existence and I wouldn't trust the words they print further than I can ball them up and throw them.

throwawaymaths• 4 years ago

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.

Eric_WVGG2• 4 years ago

^ 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.

swearwolf4• 4 years ago

Purvi Patel was sentenced to 20 years in prison in Indiana for inducing a miscarriage through abortion drugs. Indiana also charged Bei Bei Shuei with murder and attempted feticide after her baby died following her suicide attempt.

Not every state seems intent on charging women, but I think it’s hopelessly naive to believe that none will.

core-utility6• 4 years ago

In both cases, intentional harm or neglect was caused by a person resulting in the death of the baby. I see no difference between this and someone being charged for double homicide in killing a pregnant mother. Still doesn't prove the point of any state aiming to prosecute a mother seeking legal options in another state.

vorpalhex5• 4 years ago

Purvi Patel was sentenced for wrapping a live, viable baby in a plastic bag and then throwing it in a dumpster.

falcolas11• 4 years ago

Have you looked at Tennessee's law? Not being the target of a specific law doesn't mean you aren't culpable. For example, if you drive someone to and from a bank robbery, you're still culpable for the bank robbery.

But others (read lawyers) say it better.

"Tennessee law does not criminalize women who have abortions, but that does not mean they can't be prosecuted. In fact, the women could be charged with conspiracy or solicitation for seeking an abortion. And [Constitutional attorney David] Raybin said that with abortion being illegal, the father of a child could now sue a doctor or mother for performing the procedure."

And frankly, does it matter if the recipient of an abortion won't be prosecuted, if they can't legally be a recipient? See the case of the 10 year old who was recently evacuated from Ohio to get an abortion.

kxyvr• 4 years ago

Yes, I believe women have been prosecuted for self-inducing abortions using an abortifacient even prior to the current court ruling. For example:

https://newrepublic.com/article/111368/the-rise-diy-abortion...

https://www.latimes.com/nation/la-na-abortion-murder-2015061...

https://www.nytimes.com/2014/09/22/magazine/a-mother-in-jail...

There are more examples. The point is that those who received an abortion have been prosecuted even prior to Roe being overturned. It stands to reason that they will be prosecuted now.

cato_the_elder9• 4 years ago

Google clearly thinks it is above the law.

maxerickson7• 4 years ago

Which law in this case?

Be specific, what law requires them to not treat particular healthcare facilities differently with regards to data collection?

cato_the_elder9• 4 years ago

Not tampering with evidence? [1]

[1] https://en.wikipedia.org/wiki/Tampering_with_evidence

chris11• 4 years ago

And if abortion is going to be decided by the states, what state law is Google violating? CA isn't going to make not sharing this data illegal.

johndhi• 4 years ago

Everybody acts like tech companies get tremendous value from analyzing PII. Almost all of tech (perhaps excluding fb) mostly just collects pii because it's easier to do so than not, and because everybody else is. If it were banned in a clear sensible way worldwide I don't think the tech would suffer much.

titzer2• 4 years ago

The revenue difference I have heard, ballpark, for targeted advertising (based on tracking) on the web, en masse is 2x. So the gajillion dollar online ad industry would only be set back by 4 or 5 years. So, 2018? Not bad. I say, do it. Ban targeted advertising on the web.

cwp• 4 years ago

It's not the ad industry that would suffer, but small businesses that buy ads. Targeted advertising is how new products and services can bootstrap themselves into existence. As scale increases, targeting accuracy declines, so larger companies don't benefit as much. But if you want to put your product in front of 1000 people who will be highly likely to try it, targeted advertising is superb. If that goes away, it's the startup ecosystem that will be hardest hit.

toss1• 4 years ago

Yup - and we can go even further - the tech companies (& all companies) should by their own volition treat personalized data at what it is - highly toxic waste.

While it is mildly interesting, I've never read any articles, studies,or other info that the highly touted promise of PII to increase sales, effectiveness of advert spending, or ad relevancy for consumers is anything but a complete flop. Decades of effort by the top tech firms and investors, and contextual ads are still more relevant -just show ads quasi-related to what I'm reading/viewing right now.

Highly likely that Google could this afternoon vaporize every byte of PII they hold and be just fine. FB might suffer, but more because surveillance tech is their core worldview then that they couldn't survive.

If they are smart ,they'll vaporize it this week, without any legislation. But I'm not counting on it.

kesava• 4 years ago

Isn't Roe‘s sense of privacy different from tech‘s sense of privacy?

karaterobot• 4 years ago

A sudden gap in location data could itself be used as evidence in court.

Google should drop visits to particularly personal locations, but they should also just ignore everything except the 10-15 places you visit the most. I have to believe they care much more about the fact that I go to the same Trader Joe's every week than that I went to a plumbing supply warehouse one time last year. This would provide a good screen for those sudden gaps in location data, and wouldn't noticeably affect the marketing applications of their precious, precious user profiles.

yummypaint• 4 years ago

How would you implement this in a way that doesn't require google to retain your full location history?

human_person• 4 years ago

Store a hash of the location and a counter. On the xth visit save the location info unhashed? Decrement the counter once a month then delete the saved info and switch back to a hash if the counter drops below x

notinfuriated• 4 years ago

I still don't understand how the Roe = privacy take has been legitimate when the US has completely ignored the privacy of its citizens in many other contexts, including decades of the NSA and other alphabet agencies spying on us.

Granted, I would love there to be an explicitly stated right to privacy from government (up to some limitations determined by the courts, e.g. when government needs to investigate, say, an actual murder (and not one of a fetus, just my opinion)). But obviously there is no such right when looking at the actual actions of the government which are de facto 'legal' as nothing is being done about it, no one is being punished.

XorNot2• 4 years ago

The constitutional right to privacy is, specifically, a right to government non-interference in matters considered to be private.

That the surveillance apparatus might know you visited a doctor, and what you discussed, does not grant the government the ability to prosecute you based on that information - because it is considered to be a matter of the private activities of a citizen.

i.e. who or how you have sex is between you and your partner(s) provided everyone consents - the matter remains private, even if in the course of doing so someone tapes it or something.

adolph3• 4 years ago

That the surveillance apparatus might know you visited a doctor, and what you discussed, does not grant the government the ability to prosecute you based on that information - because it is considered to be a matter of the private activities of a citizen.

I'd be swayed by this except that post-Snowden we know that the surveillance apparatus can be used for "parallel construction" where the evidence to charge/try/convict a person may be based on evidence that hides the fact of illegal surveillance.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

https://web.archive.org/web/20151204025156/http://www.reuter...

See also:

'I've Got Nothing to Hide' and Other Misunderstandings of Privacy https://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565

Ham Sandwich Nation: Due Process When Everything is a Crime https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2203713

dragonwriter4• 4 years ago

the US has completely ignored the privacy of its citizens in many other contexts, including decades of the NSA and other alphabet agencies spying on us.

You mean the spying that was struck down as illegal by the Court once the barriers to identifying it sufficient for a legal action and thus challenging it were broken through?

mvdwoord4• 4 years ago

Plenty of uproar after Roe v Wade overturning, even here in the EU but.. The real shame is leaving lawmaking to the courts due to political opportunism.

I am fully in favor of legalized abortion, but why was it never codified in law?

Not a priority according to democratic politicians. Not a priority. So, you reap what you sow if you ask me.

I learned that many countries, including my own, made, and make that mistake as well. On many topics.

Toxygene3• 4 years ago

[...] why was it never codified in law?

The findings of the SCOTUS in Roe v. Wade was:

The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right to privacy" that protects a pregnant woman's liberty to abort her fetus. [1]

In other words, *the SCOTUS finding said* abortion was codified in law -- the U.S. Constitution.

Edit: clarified the summary to attribute the finding to the SCOTUS and not to my opinion

[1] https://en.wikipedia.org/wiki/Roe_v._Wade

hef198983• 4 years ago

Except it was not as the SCOTUS just ruled.

Teknoman1172• 4 years ago

that protects a pregnant woman's liberty to abort her fetus.

Unfortunately the 14th amendment does not explicitly say that. Therefore we've been operating off of the court's previous interpretation of the 14th amendment, which has now changed.

So unless Congress can pass legislation legalizing it federally without any ambiguity, it's going to be left up to the states.

hef198983• 4 years ago

Also Europe based, I see that as big over sight. I am absolutely sure, so, that the republicans will use there judicative power to fullest extent together with a majority in the House should they get said majority. And they will throw out the filibuster in the senate with the blink of an eye if it serves them.

The democrats on the other hand are way to tame.

treis• 4 years ago

the republicans will use there judicative power to fullest extent

Sure, but it's still better to make them do it rather than establishing that the Federal government can regulate abortion.

jdcarr• 4 years ago

I think there’s more preventing the passage of a law protecting an individuals right to abortion than whether it was a matter of political priority.

To pass such a law would require 60 votes in the senate AIUI. Given that this has been a massive part of the republican platform there’s no way ten senators would flip in the current senate.

It could have been passed in the Obama years but I wonder if the public would have had the appetite for it with the assumption that Roe vs Wade would have remained. Let sleeping dogs lie and all that

What this shows to me is the intentional inability for the senate to pass anything but the least offensive bipartisan bills and force other institutions such as the courts to intervene. However as we’ve seen the courts have their own agenda too

odessacubbage2• 4 years ago

the legislature as an institution is not really designed or intended to pass 'offensive' bills, it is supposed to reflect the consensus of the states which should hopefully reflect the will of the public at least to some degree. it should also be considered the same gridlock barring federal abortion rights also prevents a federal abortion ban so those who blame all political failures on the filibuster should really keep that in mind. if the people of tennessee, mississippi arkansas etc decide that legal abortion is a defining issue then their representatives would in kind be expected to reflect those values on the floor. while that precludes short-term solutions (once again, as intended) i do not believe that it is a political impossibility as is so often claimed. however, for the first time in a long while, democrats will be required to actually 'do politics'

origin_path• 4 years ago

Isn't that a contradiction? If it could have passed in the Obama years but was ignored, then it simply wasn't a priority to do so, which was the original point made. Obama years were pretty recent.

Does the court have an agenda here, or is this the removal of a previous agenda? I don't understand these claims that the court is simply doing the same as before but right wing instead of left. They haven't changed things to make abortion illegal at the federal level. They've just removed a ruling based on shaky legal reasoning and kicked the decision back to where it was meant to be all along, which would seem to be lack of an agenda.

nequo• 4 years ago

but why was it never codified in law?

IANAL but in common law, precedent should guide the interpretation of the law. And the precedent was Roe v. Wade.

Of course there's other precedent that we do effectively ignore, like Plessy v. Ferguson. So you're right, it should have been codified in law. But any such law would be erased by Congress too next year when everything turns red.

turndown• 4 years ago

Not a priority according to democratic politicians. Not a priority.

In the US, a ruling like this(ironic to say right now) is so much more ironclad than a law is in general, if people are going to come after it. Legal challenge after legal challenge slowly boils laws away until you have so many exceptions about portions of a law specifically struck down that the whole thing doesn't even make sense anymore. And of course, any time Republicans controlled the House/Senate they'd probably do something with it, just like every time a Republican is elected President they stop giving monetary support to organizations GMOs that provide abortion services in foreign countries. You can't really have laws about "controversial" things for very long.

mvdwoord4• 4 years ago

This was overturned no? So is this now also more ironclad? And the whole point of elections and politics and lawmaking is to keep up with changing culture and norms?

I see your point in practicality, but are they mutually exclusive?

PathOfEclipse• 4 years ago

https://www.dailywire.com/news/jessica-biel-takes-shot-at-am...

This article is illustrative of the ignorance, malice, and hypocrisy of America's social elite. Jessica Biel implies France has women's rights while the U.S. does not. And yet:

* Neither France, nor any other nation I am aware of, provides a constitutional right to abortion.

* The law upheld by the Dobbs decision is less restrictive on abortion than France's current abortion laws!

Speaking of hypocrisy, We see rage from so many people who frequently bemoan the state of "our democracy" and at the same time could care less about democracy. They only care about winning. If they can win through democratic vote, fine. If they can win through a supreme court ruling, fine. If they can win via executive fiat, fine. All that matters is winning.

From https://www.dailywire.com/news/wanda-sykes-mocks-middle-amer....

Wanda Sykes is basically asking for a wealth-based oligarchy to rule the U.S. All the folks in middle states need to "shut up" because the wealthy elites on the coasts are making all the money, so they should make all the decisions!

mvdwoord4• 4 years ago

Good reads, thanks...

I remember as a kid being baffled by our so called progressive country sending the abortion boat "women on waves" to Ireland to provide Irish women with abortions in international waters. Also activists shooting anti conception over the border with Poland.

But isn't all of this antithetical to ever growing government structures?

I get a feeling the world is heading towards a new fundamental discussion on this topic, and others, but I am afraid it will not be friendly discussions.

sofixa• 4 years ago

Neither France, nor any other nation I am aware of, provides a constitutional right to abortion.

I don't see why it has to be a constitutional right (constitutions aren't the only things that codify rights), but for what it's worth there's an ongoing proposal which will probably pass, overwhelmingly, to add abortion as a constitutional right in France.

coffeeblack• 4 years ago

Depends how you define adoration. Until heart beat? Third month? Sixth month? Until right before birth?

I think most were fine with third month.

MonkeyMalarky• 4 years ago

The thing where politicians hold any sort of progressive legislation hostage with extortionate demands over unrelated issues is a common theme across countries.

Like government funded Catholic schools in Canada. Something that shouldn't exist anymore but whoops it's in the constitution so it's going to be there forever now because no one would ever agree to just one change.

halostatue2• 4 years ago

It can be changed. Quebec used to have to fund Protestant (probably Anglican) schools. At some point in the last few decades, their part of the Constitution was updated so that they have to fund English-language schools. Ontario currently doesn’t have the political will to change this, but it isn’t entirely immutable. (Interestingly, there are a few Protestant schools funded in some places in Ontario, where the majority of the population were French Catholic.)

Quebec is in the process of making it difficult for anyone to attend English-language schools, but I see Quebec bills 21 and 96 potentially causing major pushback against the notwithstanding clause (hopefully it will kill the damned thing) and causing another round of people and companies to leave Quebec as they did because of René Lévesque and the PQ.

cogman105• 4 years ago

I am fully in favor of legalized abortion, but why was it never codified in law?

The US constitution made leeway for rights to be unenumerated, or not explicitly spelled out (9th amendment [1])

Up until this current supreme court, a right has never been removed. That was not standard jurisprudence.

Now, however, we have radicals on the court who take the view that "if it's not in the text, it isn't protected" completely ignoring the 9th amendment and often only applying it when they favor the text ideologically (see: gun laws. Plenty of historical documents show that the 2nd amendment was about states being able to form militias and not arming individuals. It literally wasn't until about the 1990s that lobbying from the NRA successfully reinterpreted the amendment to mean "everyone gets a gun").

The next problem is that in order to pass new laws, you need to have a super-majority in the senate, a majority in the house, and the presidency to go along with the law. Pretty difficult when the republican party has decided they want absolutely no new laws and certainly no expansion of rights. (See: how hard they are fighting against the HR-1 the voter rights act [2])

But, of course, while abortion rights are wildly popular (~80% of the population supports them in some circumstances. ~50% in all circumstances [3]), we don't run the country as a democracy, but rather a representative republic. And that's the problem. While the people want this, the representatives do not. A combination of gerrymandering and voter suppression has angled them into a position where the population that elected them doesn't track with the general population.

This is exactly the same issue with climate change. 60% of the population view it as a dangerous problem and 40% of the population view it as overblown. [4] That 40% ends up with a larger portion of power in the senate because any action to realistically curtail climate change ends up being filibustered.

The issue america has is we have 1 party with the motto that "The scariest phrase is I'm from the government and I'm here to help" as such, they block any and all regulations and government actions they can feasibly stop. The setup of our government favors that strategy. Their voters don't CARE that they aren't passing laws, they prefer it that way. This kills the ability to compromise.

[1] https://www.law.cornell.edu/constitution/ninth_amendment

[2] https://cha.house.gov/hr-1-people-act

[3] https://news.gallup.com/poll/1576/abortion.aspx

[4] https://news.gallup.com/poll/1615/environment.aspx

heartbeats9• 4 years ago

The next problem is that in order to pass new laws, you need to have a super-majority in the senate, a majority in the house, and the presidency to go along with the law. Pretty difficult when the republican party has decided they want absolutely no new laws and certainly no expansion of rights. (See: how hard they are fighting against the HR-1 the voter rights act [2])

Why isn't this abolished, then? Does a majority of the U.S. electorate actually want to abolish the filibuster and so on? If not, then it seems like a logical series of propositions:

1. A majority of the U.S. population want >60% majorities to pass laws.

2. A majority, but less than 60%, support nationally permitting abortion.

3. Therefore, while a majority of the U.S. support abortion, they don't support any system that would actually allow it to become law.

"The federal government is hopelessly useless" and "the states shouldn't get to decide anything" seem to me like two contrary positions. Either:

1. The current federal system is fine, and there is no need to change anything.

2. The current federal system is not fine, but it can be changed. Therefore, it should simply be reformed.

3. The current federal system is not fine, but it can't be changed. Therefore, the states should have the power instead.

What am I missing, here? Genuinely curious.

pseudalopex• 4 years ago

Up until this current supreme court, a right has never been removed.

Dred Scott v. Sandford removed citizenship.[1]

[1] https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

adolph3• 4 years ago

Also leaving old laws in when they are ruled null by a court. As a result, many states' laws changed immediately after Dobbs was ... (issued? enrolled? made in force?).

It's like leaving data in memory such that a new pointer gets the old value. Pure crust.

cato_the_elder9• 4 years ago

why was it never codified in law

Because a large part of the country is against late-stage abortions, and there is a need to keep a semblance of democracy?

Buttons8402• 4 years ago

Roe v Wade said nothing about late-stage abortions.

heartbeats9• 4 years ago

But in that case, what's the problem? If you can't get the legislation through because it isn't popular enough, that seems like a pretty solid case of "Won't fix: working as intended".

Congress still has the ability to pass those laws, should they want to.

klyrs• 4 years ago

It's a federation, not a democracy. States themselves are federations of legislative districts, the borders of which are drawn by the same legislature (without, thanks to today's supreme court, the checks and balances of judicial oversight). In a democracy, sensible legislation that appeases a large majority is possible.

matthewdgreen2• 4 years ago

The US's constitutional system doesn't work well in a polarized environment. There are too many veto points, two conflicting branches that can each claim to be "legitimately elected", and even the elected branches don't represent the popular will due to compromises made in the pre-modern era.

We've papered over the effects of this paralysis by delegating power to the executive agencies and the Courts, but this era is now coming to an end. Some folks believe that as we remove those options our legislative system will be "forced" to work properly. But there's no evidence to support this: most Presidential democracies have collapsed into autocracy, and our own system has previously collapsed into secession and civil war.

SllX6• 4 years ago

The most law that affects the most people day to day has always been State law. I wouldn’t expect any kind of legislation coming out of Congress on this (but many attempts both ways regardless), and I think if there were any that passed that would not actually help our politics. Not everything need be an Act of Congress. Every State has an elected legislature.

s1artibartfast5• 4 years ago

The US's constitutional system doesn't work well in a polarized environment

It was also designed as an inherently change resistant system to support an alliance of states. This is why super majority vote thresholds are common opposed to simple majority votes. Change in many areas was intended to require more than 51% popular support. You see this in the Senate, to a lesser degree in the house, and the way the president is elected.

Some see this as minority rule, but it was intended to be rule of the status quo unless there was broad support for change. This is what is out of line with modern expectations

StewardMcOy9• 4 years ago

American here. I think it's important to not characterize judicial review in the Row case as lawmaking. Although lots of anti-abortion advocates criticized Roe as legislating from the bench, the court was actually doing was checking the power of various state governments to take away individual rights. Judicial review has certainly been misused by the court in other cases to legislate, and the concept is anti-democratic to a problematic degree, but it is an important check on governments taking away individual liberties in the US constitutional system, at least in theory.

In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.

It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]

In cases where a majority doesn't have strong opinions, the US government doesn't really need to pay attention to the will of the voters. Politicians are rarely if ever punished for it. A similar dynamic played out with net neutrality during the last administration. Despite the public, including Republicans, being overwhelmingly for it, it was an issue they hardly cared about, and so the FCC was basically free to do whatever they wanted.

The other reason is that voters who are anti-abortion are not equally distributed amongst the population. Some, mostly smaller states are vehemently anti-abortion. As such, the senate would never muster the 60 votes needed to pass legislation protecting the right. Without Roe, for the last 50 years, we'd basically have been in the situation we're in now: legal in some states, illegal in others, with states fighting each other over whether or not residents can cross state lines to get an abortion.

1: https://news.gallup.com/poll/1576/abortion.aspx

mvdwoord4• 4 years ago

Thanks for this...

I should read a bit more on this, but also wonder, what would be the problem with people deciding it is illegal in some states, and illegal in others?

Although I find it should be legal, within certain limits, what's holding people back from voting, or moving to another state which more closely matches their politician views?

Similar to the EU it is low friction to move state, right? When plenty of people apparently oppose abortion, why not let them..

SllX6• 4 years ago

In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.

Correct, it did not pass a law, it made a ruling that read like legislation that struck down the laws of States passed by people’s elected representatives, i.e. the people selected to pass laws.

The Court does not exist to “check” the States except where the laws of States conflict with the laws of the United States, in which case either party may be “checked”.

heartbeats9• 4 years ago

In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.

I don't get it - this seems like sophistry. Isn't the end result the same, i.e. nationally permitting abortion?

It's also worth remembering that there was never a realistic chance of a nationwide right to abortion being passed through congress. There are a few reasons for it. Only about 15% of the country is against abortions in all circumstances, but they're a loud minority. Similarly, 20-30% of American are pro-choice under any circumstance. But the majority of Americans support abortion only in certain circumstances, and they tend not to care as much about it. [1]

Isn't this how the system is designed to work? And if that's not desired, why not change the system instead? "The SCOTUS gets to make the rules" only works about half of the time, and it seems mostly like a matter of dumb luck as for when it does and doesn't.

Using the courts to enforce uncodified abortion rights is like using a shoe to beat a nail in; it's pointlessly brutal, and makes a mockery of the rule of law. I get that it may be expedient for a specific purpose, but why do people celebrate it as a good system in the abstract?

smitty1e• 4 years ago

In Roe, the court didn't write a law saying abortion was legal. It struck down laws stating that it was illegal. That's an important difference.

That's a good distinction, but that distinction was not well-founded as a matter of jurisprudence, if my understanding of Alito's opinion in Dobbs is correct.

Roe had SCOTUS getting far over its interpretive skis, into societal matters that had a corrosive effect on the court, as witnessed by Sen. Ted Kennedy's character assassination of Robert Bork on the Senate floor some 15yrs after Roe.

notacoward• 4 years ago

Not a priority according to democratic politicians.

Hindsight (or the view from the sidelines) is always 20/20, isn't it? It wasn't codified into law because it didn't seem necessary while Roe v. Wade was still in place and there were so many other issues that also needed addressing. You know - wars, pandemics, economic downturns, that kind of thing. Which of these other issues would you have let slide so you could pass a highly contentious law with no immediate practical effect in an environment of razor-thin vote margins and staunch opposition? The Democrats would have gotten plenty of "friendly fire" for that too. Sure, in retrospect it seems like a giant missed opportunity, but we shouldn't pretend there weren't reasons at the time.

falcolas11• 4 years ago

Especially since, in the words of many a Supreme Court candidate, "Roe is settled law."

It's hard to build support when there doesn't appear to be an opposition (which, again with the hindsight, was wrong).

upupandup• 4 years ago

First I believe in equality and all humans should have a shot at a good life based on merit.

However, I also see that the road to hell is paved with good intentions and we are on this trajectory.

We decided that men and women are equal (which they are to a large degree) on all aspects. We believe in this part of the world that women should have just the same say and power as the most powerful men (usually white) do.

Yet all we've done is concentrate power at the most attractive, most white , most affluent group of men and women while taking it away from other groups.

We told ourselves that we achieved a better society with this skewed distribution of power because finally, women and men are able to compete for the same jobs AND same sexual powers that we've traditionally never dealt with.

Contraception is THE main enablers of this new paradigm shift. However, what society deems women who are unattractive or "not it" do not benefit. Similarly, men who society deems unattractive or "not it" do not benefit. These groups are further pushed away into the fringes while the "it" crowd receives all the benefits. Contraception technology increases women's sexual capital because they no longer have to worry about pregnancy. This creates losers on both side of the gender and they both engage in toxic competition. Social media further magnifies and increases the impact on people's mental health. The same groups are also aligned with this political scaffolding because they benefit by not having to discriminate by genders or race, and able to hire people based largely on merit.

Outside this bubble, there is a growing sense of anger, especially in regions where they've largely witnessed the loss of the old power structure and economic powerhouses that once provided the social stability.

Coupled with the fact that there is the greatest amount of highly educated young, marginally employed demographic, who are online all the time, you get a recipe for unstability.

I absolutely believe that an individual should have agency over their own body and mind. However, I also recognize that we've confused individual liberty and freedom with apathy. Apathy is in demand because people think that's what enables their freedom, it only pushes people away into isolation, extremism. The freedom to think, say, act whatever is the power they believe must champion all else and because of this attachment that an individual forms with his own thoughts and ideas, it is unable to reconcile the differences in reality vs expectations which is filled with ideals and half baked ideas.

So with all these things in mind, is it not a natural progression that this society creates angry, self-loathing, self-obsessed, individuals looking for an escape? The ideal avatar they create online vs the real one they need to live as, this cognitive dissonance when paired with apathy from society and the individual creates extreme stress.

This is my take on America. Take it or live it but I will leave this bit:

    The perfect slave engages in a self-dialogue that convinces himself they are free and that they belong to an apathetic, materialistic, shallow, vapid society we've built today. All started with nothing but good intentions.

TrackerFF• 4 years ago

The current SCOTUS steamrolling isn't just about abortion, it's part of a long fought right-wing battle to give more power to the states, and less to the federal government.

And with that said, I think people must simply prepare for some states having absolutely abysmal and regressive laws / protections when it comes to privacy, gender / sex, etc., while the rest will continue to live in the present day.

I'm not a fan of slippery slope arguments, but do you really think people that will fight this hard for essentially making abortion illegal (in certain states) will be content with just that? Or are fundamentally the type of people to only control one aspect of life?

Absolutely not. The SCOTUS is signaling that anything that's not an originalist black-or-white interpretation of the constitution, is going to be fair game at the state level in the future.

ck2• 4 years ago

Tip of iceberg. Everyone knows they are going after marriage equality next.

Imagine having to end partner medical, etc. benefits for millions of people previously legally married across the country.

And why would they stop there?

Roe's overturn is tech's privacy apocalypse

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