Texas abortion law and our Supreme Courts “undue burden” tyranny test


#1

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See: Supreme Court voids Texas abortion regulations as “undue burden” on abortion providers (Updated)

”The current test for evaluating the constitutionality of state-level abortion restrictions is the so-called “undue burden” test from the Court’s 1992 decision in Casey v. Planned Parenthood.”

In striking down a Texas regulatory law governing abortion clinics by saying the law creates an “undue burden”, our Supreme Court has actually refused to preform it’s assigned duty to establish if the law is within the reserved powers of the State of Texas protected by the Tenth Amendment, or if the law violates the text of our written federal Constitution and its documented legislative intent which gives context to its text.

The “undue burden” test is nothing but another “test” invented by our tyrannical court to circumvent both the text and legislative intent of our written constitution and impose its personal sense of justice, fairness or reasonableness as the Supreme Law of the Land while second guessing the wisdom of a state’s legislative function.

But this kind of test crap is nothing new. Keep in mind the Court has invented a number of tests unknown to those who framed and ratified our Constitution. These “tests” began to appear and gain a foothold during the Warren Court of the l960’s. One such test was the “rationality” test under which a law being challenged had to withstand the court’s scrutiny that the law in question was “rationally based” or “reasonable” to survive the court‘s approval. Of course, this “test” is merely designed to allow a majority on the court to switch the subject from what is and what is not constitutional, to a subjective question having nothing to do with a law’s constitutionality.

Whether rational or not, a legislative act which violates the Constitution cannot be justified as being constitutional if it is rationally based! Likewise, if a law is not rationally based it is not the Court’s job to second guess the wisdom of the legislature! In fact, to do so is to usurp legislative authority and ignore the separation of powers in our system of government.

In the instant case we are told by a majority on the Court that the Texas Law creates an “undue Burden” on those it seeks to regulate, and therefore, the law is struck down. But where is the court delegated a power to second guess the wisdom of legislation and that it imposes an undue burden? It is nowhere to be found in our Constitution.

In fact, the Court’s only job in this case is to determine if the power to regulate abortion is one delegated to the United States, or is a power reserved by the states. Additionally, if it is a reserved power of the states, a legitimate question to be answered is, has it been exercised by the state of Texas in a manner which is specifically prohibited by the wording of our federal Constitution?

In answer to the first question Federalist No 45 confirms the power to regulate abortions is not a power delegated to the federal government.

Federalist Paper No. 45 tells us:

***“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.

The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”***

Keep in mind the 10th Amendment specifically protects the reserved powers of the States!

And with respect to the second question there is no wording in the federal constitution which can be pointed to which prohibits the regulation of abortions as written by the Texas Legislature.

The bottom line is, our SC is acting in rebellion to our written Constitution and the documented intentions and beliefs under which it was adopted, and is acting as a despotic sitting Constitutional Convention imposing its personal sense of justice, fairness and reasonableness as the supreme law of the land.

JWK


“The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.” – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968



#2

Let me try to explain this.

The Supreme Court and every aspect of the United States Judiciary has decided that the Constitution is a worthless document that need not be considered when ruling on legal matters, the electorate has decided that they should accept this state of affairs and work to elect bullies that will ignore the Constitution in ways that they like.

Arguing with the Judiciary from the premise that there is a strong legal case which condemns their decision is like arguing the moral reasons for sharing with a big dog who won’t let a smaller dog eat until he is done; the bigger dog does not know, respect or care about morals.


#3

America’s most important LEGISLATIVE body, the SCOTUS, has spoken. It will speak even louder when Hillary is given the opportunity to appoint more Progressive “legislators” to the 9 member body.

As a nation, we are getting precisely the government we deserve.

As a side note - There is a move afoot in California, Oregon, West Virginia and Vermont to automatically register voters as part of the DMV drivers license process. Since illegals are about to be allowed driver licenses and a driver license is ones “ticket” to the voting booth - well, you figure it out. It will soon be virtually IMPOSSIBLE to elect a Republican to public office in many jurisdictions and literally impossible to do so nationally - elect a conservative? Forget IT!!

As a preview of things to come - Hispanic children now make up more than 53% of the K-12 students in California.

Our open borders policy has and is changing the demographics in this country - not just in numbers, but in culture - and is NOTHING MORE than a massive voter registration drive on the part of the Democrat Party.

If Clinton is elected, what will become the Democrat’s personal legislative body - the Supreme Court - will ring in the end of the road for a viable Republican/Conservative opposition in this country. IMHO


#4

So … thousands of out-patient surgery centers - including many abortuaries - comply with these and identical standards, but these regs burden women’s rights? This ruling is absurd on its face! Once other states with similar regs comply with this ruling, it’s a matter of weeks or months before the USSC has the blood of several women a year on its hands, due to the filth, improper/inadequate equipment and training, and impeded emergency response the USSC enabled (I wonder whether some of Kermit Filth Boy Gosnell’s convictions will be overturned by this ruling!). It won’t be wholesale slaughter, as for unborn babies, but the USSC does recognize as human beings the women who will die as a consequence of this reprehensible ruling.


#5

JHawk - in this decision we have the bogus “undue burden” test/slight of hand, as you appropriately point out.

Last week, in the U of Texas admissions case decision, the made up “compelling interest” test was applied to uphold affirmative action. That is, the government has a “compelling interest” in diversity and that makes it OK to use race as a factor in admissions.

The Supreme Court, now our most important “legislative” body, often doesn’t even pretend to attach decisions to the constitution. Instead, many decisions are rendered and explained with catch words/phrases designed to camouflage the decision in fair-sounding caca spoon fed to the ever increasing population of brain dead.


#6

At one time the sole jurisdiction of SCOTUS was to make the call: Within the Constitution or not in compliance with the Constitution.

Today they act more like the local small town Judge who makes calls as he FEELS and whether or not its in compliance with the law. A good lawyer with a wink and sly smile can get a ruling like: Yes, he committed suicide, its clear he shot himself in the back twice with a rifle that did not belong to him.

Later you hear where Judge MakesD Call has retired to Palm Springs or Boca Raton and built himself a $3 Million home and has a garage full of Ferraris…

Seems like our SCOTUS all but 2 are worth multi millions $$$$$.


#7

Actually, our court has even confirmed that it has intentionally made the constitution mean what it feels it should mean! Case in point is the Kelo opinion.

Justice Stevens in delivering the opinion of the Court writes:


while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer (e.g., what proportion of the public need have access to the property? at what price?),7 but it proved to be impractical given the diverse and always evolving needs of society.8 Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as "public purpose.***

The irrefutable fact is, the people did not erode the meaning of “public use” via an appropriate constitutional amendment process which is the only lawful way to change the meaning of words in a Constitution. The Court took it upon itself to do for the people what they did not willingly and knowingly do for themselves with a constitutional amendment as required by our Constitution, and, the Court brazenly appealed to the “evolving needs of society” to justify its own “broader and more natural interpretation” of “public use”. And this amounts to judicial tyranny!

On the other hand, Justice Thomas, in his dissenting opinion, observes the rules of constitutional law and carefully documents the meaning of the words “public use” as they were understood during the time the constitution was adopted. He then concludes:


The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8-12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court.”

And what is the fundamental rule regarding the meaning of words and phrases in our Constitution?

***“Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption… ***(my emphasis), see: 16 Am Jur 2d Constitutional law, Meaning of Language

So, as it turns out, we do have members on our Supreme Court who do in fact ignore what our Constitution means as stated by those who framed it and the people who adopted it, and use their office of public trust to impose their personal sense of justice, fairness and reasonableness as the supreme law of the land. And that, in fact, is judicial tyranny!

JWK


“The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.” – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968



#8

Why anyone continues to listen to the USSC is beyond me?

They render an opinion and until Obamacare, they didn’t write law!
(That, Obamacare, School busing, Roe vs Wade are prime examples of why we should ignore these opinions!)

There is nowhere written that says our nation is to be ruled by Black Robbed Tyrants!


#9

Trump will appoint more justices like Ginsberg.


#10

They have indeed “spoken” but their “Importance” is directly related to our willingness to accept what they say.

The moment we stop pretending that their opinions matter will be the moment Justice is awakened in the United States, all we need to do is ignore them.

Once again the Democrats are going to show us how this works in action, the “justice dept” is currently “looking at” the decision that torpedoed Obama’s immigration plan; they will find an excuse to ignore the Supreme Court decision and continue on as if it never occurred.

When the Just become as bold and courageous as the evil, the Just will win back their Country.


#11

Hillary will appoint more justices like Obama…


#12

It does little good to pretend the USSC only has impact in people’s lives if the people allow it. Tell that to the next student who isn’t allowed into UT because his/her racial profile doesn’t meet the utterly bogus “compelling need” argument established by progressives and now part of the judicial deliberative process for the court.


#13

You do understand that the purpose of the abortion regulations were meant for the ‘safety’ of the women getting the abortion. One of the rules were that abortion clinic must have admitting privileges at near by hospitals. Out patient clinics don’t normally get that…and if that was a law… then clinics could not legally preform abortions.

You’re allow to put regulations on abortion clinics… only if it serves some form of benefit for the women heath. All those regulations did not really provide safety to the women… it was just to close down those clinics.


#14

Which benefits the health of the unborn.


#15

JE, I’ll respond to your post in two ways.

Here is a report concerning quality and regulatory compliance of outpatient surgery centers in CA. Page 23 has a table titled, “Table 11. Top Deficiencies Issued, All Surveys”, i.e. government actions based on government inspections. About the middle of the table is a category of deficiency called “Membership and Clinical Privileges”. So, contrary to your claim above, clinical privileges are required of outpatient surgery centers, in CA at least.

Second, on the level of common sense, abortion is intrusive surgery. [url=http://emedicine.medscape.com/article/795001-clinical]One of the common complications of abortion[/url is hemorrhage due to “cervical laceration” and “uterine perforation”. Some cases of hemorrhage are, literally, life threatening, with speed of hospital treatment being critical. Admitting privileges is one of several requirements in laws like those of Texas whose intent is to prevent delay of life-saving treatment. That is simple common sense! Any surgery center - abortuaries among them - whose facility is not fairly close to a hospital, whose doors and hallways impede access by emergency personnel, and whose doctors do not have admitting privileges should be closed down. They endanger their patients’ lives.


#16

The USSC has chosen to ignore the fact that babies don’t magically become human at the moment of birth.


#17

So… needless regulation in order to help the unborn is okay… instead of making the initial issue illegal.

That seems to be very hypocritical from a party that believes in less regulation.


#18

CA… doesn’t have those abortion regulations… So that’s not a right comparison.

But you want to talk about the common complications of abortion… lets’ compare that to the common complication of child birth. In Texas you’re allow to give birth in your own home… not in the case of an emergency, but simply refuse to go to a hospital. That is legal, and yet more people die during child birth than abortions. You’re allow to give birth anywhere you choose, but if your clinic can’t fit these particular regulations, that’s against the rules.

There haven’t been an alarming amount of women dying during abortion… these rules seems to only be made to close down clinics… which has been happening for ‘years’. And you already know what happened, they brought it to court and those rules were deem an undue burden on clinics

It’s obviously a regulation trick to ban abortion… which is why hypocritical pro life right wingers supported them


#19

CA… doesn’t have those abortion regulations… So that’s not a right comparison.

But you want to talk about the common complications of abortion… lets’ compare that to the common complication of child birth. In Texas you’re allow to give birth in your own home… not in the case of an emergency, but simply refuse to go to a hospital.

Abortuaries are ambulatory surgery centers doing invasive surgeries, just as the surgery center a mile from my home that does surgeries on knees and shoulders (etc.) is an ambulatory surgery center (and it is less than a mile from a hospital, has easy ambulance access, and wide hallways and doors). So my analogy is entirely accurate and appropriate, and CA not regulating abortuaries the same way it regulates other ambulatory surgery centers is an agenda-based political decision, not a rational medical decision. OTOH, your comparison of abortuaries to home births is a ridiculous apples-zucchinis comparison.

There haven’t been an alarming amount of women dying during abortion…

OK, you blundered into this and earned it … how many “women dying during abortion” would you regard as “an alarming amount of women dying during abortion”? 10 per year? 100 per year? 1000 per year? How many “women dying during abortion” do you regard as “alarming”, and how many “women dying during abortion” do you consider not a big deal? And why did you limit you comment to “women dying during abortion”? Are women maimed - e.g. emergency hysterectomy - insignificant to you? Are women who suffer weeks of pain due to emergency surgery or infection insignificant to you?

Complying with regs such as those of TX is not cheap or easy, but as I pointed out above thousands of ambulatory surgery centers across the US do so, including some abortuaries. Regs such as those of TX are common sense medical safety, not burdens on women’s rights.


#20

I do not see how the inserting of the vacuum into the uterus for the express purpose of the removal of the enclosed child benefits the child. Such a removal is harmful to the child and in most cases causes death. I certainly do not see the benefits of beheading the child. Facilities practicing such bad-faith childcare should be shut down immediately.