Therein lies the rub. Our constitutional republic wasn't set up so that a court could create law from thin air. Quite the opposite.
If you read through the Declaration of Independence, most of the text are complaints the founders had against the British government. And a lot of that text had to do with courts violating laws from Parliament and creating laws from thin air to suit the crown's goals in the colonies.
When we treat stare decisis (otherwise known as "case precedent" or "case law") as equal to Constitutional law we lose our soul as a nation. Exhibit A are the 60 million babies aborted because Roe v Wade and Planned Parenthood v Casey said it's cool.
“Roe v Wade was an extremely dishonest decision that now passes for “settled law” because it’s 500 years old. And it passed as “negative law”. Essentially, Roe was court-ordered de-regulation of state-licensed medical doctors, putting abortionists above the law, with license to kill innocent life,arguably. Normally, medical doctors are NOT above the law. Licensing is a form of regulation. Doctors may be forced to carry insurance,, may be sued for medical malpractice, lose their license, or even be charged & convicted of crimes. A better law would be to focus on taking away medical license…..(interesting how governors banned HCQ in the Covid19 pandemic, thereby interfering with the patient-doctor “right to privacy” even though CDC reports from 10 yrs ago claimed that HCQ was effective on coronaviruses)……but the fact that medical doctors may be sued might be. Big reason why doctors lobbies want abortion rights meant to terminate troubling pregnancies, where medical doctor may be sued for performing a C section or not performing one, or if the baby or mother is harmed i pregnancy results in a difficult birth.
..and if states want to highlight the abortion rights scam and ignore the fact that a female needs a state licensed medical doctor to get an abortion……therefore Roe really was POSITIVE LAW that granted females the right to be provided by the states with state licensed medical doctors (Democrats will build federal clinics to circumvent state law, by the way.))—-if ther states want to highlight the absurdity of Roe claims, they could pass a law granted EQUAL right to privacy/reproductive rights to males. After all, if no law says life begins at conception…..and the law does not hold females responsible for getting pregnant —because they may choose adoption or to abort their pregnancy—-…conception is when a female’s egg is fertilized by a man’s sperm in her body…….which then feeds & incubates HER fertilized egg. The female’s body does not treat a fertilized egg like a parasite, it changes to protect and nurture it……although not all pregnancies result in birth. Why is it legally ok to blame the male and hold males responsible of conception , but females are not held responsible for getting pregnant??? Equal protection of the law.
The same sex marriage decision was a rogue court decision that didn’t even pretend to be small government”negative law”. Licensing is a form of regulation & marriage is a form of discrimination….ie forming an exclusive couple. The reason for licensing marriage is to institutionalize heterosexual monogamy while discouraging promiscuity and homosexuality. Government saw a public purpose in this……polygamous societies are violent and unstable….and males and females BOTH need to be relatively certain who the fathers of babies are….ie the husbands of the wives. Part of the argument about same sex marriage was calling it a private matter…which government licensing is NOT. Another part was absurdly claiming that because marriage already was so degraded by no fault divorce and serial marriage that it could not be degraded any more by a liberal coup de grace that makes marriage everything and nothing. Equal protection does not apply to tax policy or regulatory policy, eg treating BIG business differently than SMALL business, arbitrarily defined.
Anyway…..the Obamacare decision undermined the negative law/small government rationale behind Roe v. Wade……moreover——-the 1990s Ruth Badger Ginsburg authored decision about “doctor assisted suicide” made the difference between positive and negative law well defined (meanwhile the Supreme Court doesn’t even have a real definition of speech versus press! But that’s another blog)
Ginsburg said Roe versus Wade was about what the State cannot do to a woman in inhibiting her freedom (ignored the fact that state licensed medical doctors abort pregnancies)) She said that with doctor assisted suicide (Ginsburg was an idiot as a judge, by the way) was about demanding the State to do something FOR you. ..which was not in the Constitution. But the fact is, Ginsburg’s doctor assisted suicide decision, ie there’s no “right to die”……interfere’s with privacy between a patient and doctor and says that !)) state licensed medical doctors do NOT have license to kill their patients and 2) patients do not have any right to be killed by their state licensed medical doctor…so of course this precedent my be used as a basis to overturn Roe v Wade , which was a political and not legal decision that rightly infuriated any rational and right thinking person.
But politically…..is it wise for states to really take on abortion if females have been taught for years that this is a fundamental right that GOP babies want to take away? Once you go after Roe, then you green light Democrats trying to ban guns by ignoring and overturning all court decisions supporting gun rights. Just saying. Is this the battle to pick right now? I say no”——-a friend’s blog