用法学习: 1. Fourteenth Amendment: No state shall make or enforce any law which shall abridge ( abridge [əˈbrɪdʒd] 剥夺权利, 削弱 (=deprive) an abridged book, play, etc 删减过的, 删节的. has been made shorter than the original but contains the same basic story. An abridged version of the novel appeared in a magazine.
a. to reduce the length of (a written work) by condensing or rewriting.
b. to curtail; diminish. c. to deprive of (privileges, rights, etc). )
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. Common Law: If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), and legislative statutes are either silent 没提到, 没涉及 or ambiguous 模棱两可 on the question, judges have the authority and duty to resolve the issue
(one party or the other has to win, and on disagreements of law, judges
make that decision). The court states an opinion that gives reasons for
the decision, and those reasons agglomerate ( agglomerate [əˈɡlɒməˌreɪt] to form or be formed into a mass or cluster; collect. agglomeration [əˌɡlɑməˈreɪʃ(ə)n] a large group of different things. conglomerate [kənˈɡlɑmərət] I. business
a large business organization formed when several different businesses
join together. II. something made by combining things of different
types. ) with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing 等同于, 同等重要, 同等地位, 同一级别 with( on an equal footing (with one) With or having no difference in position or advantage. I find couple's therapy to be helpful because it gives each partner a chance to air their frustrations in an environment where they are on an equal footing. Phil's the boss—you're never going to be on an equal footing with him.) statutes 法令 which are adopted through the legislative process, and regulations 法规 which are promulgated ( promulgate [ˈprɑməlˌɡeɪt] 颁发, 颁布
I. to make an idea or belief known to as many people as possible. II.
to make an official announcement introducing a law or rule. If people
promulgate a new law or a new idea, they make it widely known. The shipping industry promulgated a voluntary code. III. If a new law is promulgated by a government or national leader, it is publicly approved or made official. A new constitution was promulgated last month. ...the promulgation of the constitution. ) by the executive branch. abrogate [ˈæbrəˌɡeɪt] 废黜, 废除 verb. If someone in a position of authority abrogates something such as a law, agreement, or practice, they put an end to it. to officially get rid of a law or political arrangement, often without the agreement of the other people, groups, etc. involved The next prime minister could abrogate the treaty. ...a dereliction of duty and an abrogation of responsibility. Subsequently, Schultz had trouble writing "good" verses to carry the hook he wrote, which made the songwriting process so difficult that the project was completely abrogated until four years later. In January 2015, when it came time to work on a new record, the defunct "Ophelia" was resurrected.
What would it mean to codify 立法, 写入法律 Roe into law – and is there any chance of that happening? 关于Roe VS Wade: Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protects a pregnant woman's liberty to choose to have an abortion without excessive government restriction. The decision struck down many U.S. federal and state abortion laws. Roe fueled an ongoing abortion debate in the United States about whether or to what extent abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. It also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. The decision involved the case of Norma McCorvey—known by the legal pseudonym "Jane Roe"—who in 1969 became pregnant with her third child. McCorvey wanted an abortion but lived in Texas, where abortion was illegal except when necessary to save the mother's life. Her attorneys, Sarah Weddington and Linda Coffee, filed a lawsuit on her behalf in U.S. federal court against her local district attorney, Henry Wade, alleging that Texas's abortion laws were unconstitutional. A three-judge panel of the U.S. District Court for the Northern District of Texas heard the case and ruled in her favor. Texas then appealed directly to the U.S. Supreme Court. In January 1973, the Supreme Court issued a 7–2 decision in McCorvey's favor ruling that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a "right to privacy" that protects a pregnant woman's right to choose whether to have an abortion. It also ruled that this right is not absolute and must be balanced against governments' interests in protecting women's health and prenatal life. The Court resolved this balancing test by tying state regulation of abortion to the three trimesters 三阶段 of pregnancy: during the first trimester, governments could not prohibit abortions at all; during the second trimester, governments could require reasonable health regulations; during the third trimester, abortions could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother. The Court classified the right to choose to have an abortion as "fundamental", which required courts to evaluate challenged abortion laws under the "strict scrutiny" standard, the highest level of judicial review in the United States. On May 2, 2022, Politico obtained a leaked initial draft majority opinion penned by Justice Samuel Alito suggesting that the Supreme Court is prepared to overturn Roe and Casey in a pending final decision on Dobbs v. Jackson Women's Health Organization, expected to be held by June 2022. Abortion rights advocates are looking for alternative ways to protect a woman's right to the procedure following the publication of a leaked draft opinion from Justice Samuel Alito indicating that the Supreme Court intends to overturn Roe v. Wade.
"Congress must pass legislation that codifies 写进法律, 立法 Roe v. Wade as the law of the land in this country NOW," tweeted Sen. Bernie Sanders as news broke on May 2, 2022. His plea was echoed a day later by Democrats, including Sen. Elizabeth Warren and President Joe Biden.
But is enshrining 立法保护, 法律保护 ( If something such as an idea or a right is enshrined in something such as a constitution or law, it is protected by it. o officially record something such as an idea or principle in a document so that it cannot be ignored These fundamental freedoms are enshrined in the Universal Declaration of Human Rights. The essentials of the deal will be enshrined in a document. The apartheid system which enshrined racism in law still existed.) abortion rights in legislation feasible? And why has it not been done before? The Conversation put these questions and others to Linda C. McClain, an expert on civil rights law and feminist legal theory at Boston University School of Law.
What does it mean to 'codify' Roe v. Wade?
In simple terms, to codify something means to enshrine a right or a rule into a formal systematic code. It could be done through an act of Congress in the form of a federal law. Similarly, state legislatures can codify rights by enacting laws. To codify Roe for all Americans, Congress would need to pass a law that would provide the same protections that Roe did – so a law that states that women have a right to abortion without excessive government restrictions. It would be binding for all states.
But here's the twist: Despite some politicians saying that they want to "codify Roe," Congress isn't looking to enshrine Roe in law. That's because Roe v. Wade hasn't been in place since 1992. The Supreme Court's Planned Parenthood. v. Casey ruling affirmed it, but also modified it in significant ways.
In Casey, the court upheld Roe's holding that a woman has the right to choose to terminate a pregnancy up to the point of fetal viability and that states could restrict abortion after that point, subject to exceptions to protect the life or health of the pregnant woman. But the Casey court concluded that Roe too severely limited state regulation prior to fetal viability and held that states could impose restrictions on abortion throughout pregnancy to protect potential life as well as to protect maternal health – including during the first trimester.
Casey also introduced the "undue burden" 不必要的负担 test, which prevented states from imposing restrictions that had the purpose or effect of placing unnecessary barriers on women seeking to end a pregnancy prior to viability of the fetus. Current efforts to pass federal legislation protecting the right to abortion center on the proposed Women's Health Protection Act, introduced in Congress by Congresswoman Judy Chu and sponsored by Senator Richard Blumenthal in 2021. It was passed in the House, but is blocked in the Senate. The legislation would build on the undue burden principle in Casey by seeking to prevent states from imposing unfair restrictions on abortion providers, such as insisting a clinic's doorway is wide enough for surgical gurneys to pass through, or that abortion practitioners need to have admitting privileges at nearby hospitals. The Women's Health Protection Act uses the language of the Casey ruling in saying that these so-called TRAP (Targeted Regulation of Abortion Providers) laws place an "undue burden" on people seeking an abortion. It also appeals to Casey's recognition that "the ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives." You have to remember that Roe was very controversial from the outset. At the time of the ruling in 1973, most states had restrictive abortion laws. Up to the late 1960s, a majority of Americans opposed abortion. A poll at the time of Roe found the public evenly split over legalization. To pass legislation you have to go through the democratic process. But if the democratic process is hostile to what you are hoping to push through, you are going to run into difficulties. Under the U.S. system, certain liberties are seen as so fundamental that protecting them should not be left to the whims of changing democratic majorities. Consider something like interracial marriage. Before the Supreme Court ruled in Loving v. Virginia State that banning interracial marriages was unconstitutional, a number of states still banned such unions. Why couldn't they pass a law in Congress protecting the right to marry? It would have been difficult because at the time, the majority of people were against the idea of interracial marriage. When you don't have sufficient public support for something – particularly if it is unpopular or affects a non-majority group – appealing to the Constitution seems to be the better way to protect a right. That doesn't mean you can't also protect that right through a statute, just that it is harder. Also, there is no guarantee that legislation passed by any one Congress isn't then repealed by lawmakers later on. The Supreme Court has the final word on what is and isn't protected by the Constitution. In the past, it has been seen as sufficient to protect a constitutional right to get a ruling from the justices recognizing that right. But this leaked opinion also points out that one limit of that protection is that the Supreme Court may overrule its own precedents. Historically, it is unusual for the Supreme Court to take a right away. Yes, they said the Plessy v. Ferguson ruling – which set up the legal basis for separate-but-equal – was wrong, and overruled it in Brown v. Board of Education. But Brown recognized rights; it didn't take rights away. If Alito's draft ruling is to be the final word, the Supreme Court will be taking away a right that has been in place since 1973. For what I believe is the first time, the Supreme Court would be overriding precedent to take away a constitutional right from Americans. Moreover, the leaked opinion is dismissive of the idea that women have to rely on constitutional protection. "Women are not without electoral or political power," Alito writes, adding: "The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so." But this ignores the fact that women rarely make up close to half of the members of most state legislative bodies. So are the promises to get Congress to protect abortion rights realistic? Republicans in the Senate successfully blocked the proposed Women's Health Protection Act. And unless things change dramatically in Congress, there isn't much chance of the bill becoming law. There has been talk of trying to end the filibuster rule, which requires 60 votes in the Senate to pass legislation. But even then, the 50 votes that would be needed might not be there. What we don't know is how this Supreme Court leak will affect the calculus. Maybe some Republican senators will see that the writing is on the wall and vote with Democrats. Republican senators Susan Collins and Lisa Murkowski introduced legislation earlier this year that would codify Roe in law, but isn't as expansive as the Women's Health Protection Act. And then we have the midterm elections in November, which might shake up who's in Congress. If the Democrats lose the House or fail to pick up seats in the Senate, the chances of pushing through any legislation protecting abortion rights would appear very slim. Democrats will be hoping that the Supreme Court ruling will mobilize pro-abortion rights voters. What is going on at a state level? Liberal states like Massachusetts have passed laws that codify Roe v. Wade. Now that the Supreme Court's apparent intentions are known, expect similar moves elsewhere. Other states are looking to go a step further by protecting residents who help out-of-state women seeking abortion. Such laws would seemingly counter moves by states like Missouri, which is seeking to push through legislation that would criminalize helping women who go out of state for abortions. Wouldn't any federal law just be challenged at the Supreme Court? Should Congress be able to pass a law enshrining the right to abortion for all Americans, then surely some conservative states will seek to overturn the law, saying that the federal government is exceeding its authority 越权, 超出权限. If it were to go up to the Supreme Court, then conservative justices would presumably look unfavorably on any attempt to limit individual states' rights when it comes to abortion. Similarly, any attempt to put in place a federal law that would restrict abortion for all would seemingly conflict with the Supreme Court's position that it should be left to the states to decide.
Gay marriage, other rights at risk after U.S. Supreme Court abortion move: U.S. Supreme Court Justice Samuel Alito's draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts. The draft ruling, disclosed in a leak that prompted Chief Justice John Roberts on Tuesday to launch an investigation, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v. Wade ruling that legalized the procedure nationwide. The draft's legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights that Americans take for granted in their personal lives, according to University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion. "The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognized by the Supreme Court," Sepper said. The court's 6-3 conservative majority, including Alito, has become increasingly assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary 开始阶段的, 初级阶段的 ( adj. Preliminary activities or discussions take place at the beginning of an event, often as a form of preparation. Preliminary results show the Republican party with 11 percent of the vote. ...preliminary talks on the future of the bases. noun. I. A preliminary is something that you do at the beginning of an activity, often as a form of preparation. It had taken about ten minutes to cover the preliminaries. A background check is normally a preliminary to a presidential appointment. II. A preliminary is the first part of a competition to see who will go on to the main competition. The winner of each preliminary goes through to the final. ). The Roe decision, one of the court's most important and contentious rulings of the 20th century, recognized that the right to personal privacy under the U.S. Constitution protects a woman's ability to terminate her pregnancy. "Roe was egregiously wrong 大错特错 from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences," Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only "deepened division" in society. According to Alito, the right to abortion recognized in Roe must be overturned because it is not valid under the Constitution's 14th Amendment right to due process (Due process (due process = procedure due process 是保证公民享受到司法公正, 程序公正的的权利. 包括辩护, 作证, 上诉等等权利. substantive due process 是用于界定什么权利属于政府可以通过立法或法规干涉的权利, 而什么是政府无权干涉的权利. 政府无权干涉的权利(叫做"substantive" due process liberties)包括宪法规定的权利以及宪法没有明文规定, 但仍认定属于此范畴的权利包括: contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015 ) is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law. Due process has also been frequently interpreted as limiting laws and legal proceedings so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. Analogous [əˈnæləɡəs] to 类同的 the concepts of natural justice and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. substantive [ˌsʌbst(ə)ntɪv] I. important or serious, or referring to the most important or serious issues. The family appeared at the press conference but made no substantive comments. II. large in amount, degree, or strength. substantive changes. a substantive report. adjective law [ˈædʒəktɪv] the rules of procedure and practice that are used by courts. In contrast to adjective law that deals with procedures, substantive law defines the rights in all fields of law. substantive law [ˌsʌbst(ə)ntɪv ˈlɔ] the area of law that defines and regulates rights, duties and responsibilities rather than procedures. substantive due process: In United States constitutional law, substantive due process is a principle allowing courts to protect certain fundamental rights 基本权利 from government interference, even if procedural protections 程序保护 are present or the rights are unenumerated 没有明文规定的 未列出来的 (i.e., not specifically mentioned) elsewhere in the US Constitution. Courts have identified the basis for such protection from the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law 正当法律程序". Substantive due process demarcates ( demarcate [ˈdimɑrˌkeɪt] 界定, 勘界, 划定界限 to decide the limits of something, especially the borders of an area. If you demarcate something, you establish its boundaries or limits. A special U.N. commission was formed to demarcate the border. ) the line between the acts that courts hold to be subject to government regulation or legislation and the acts that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly 学者们的, 学界的 as well as judicial discussion and dissent. Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law". Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice on why a party is required to appear before a court or other administrative body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings. In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, regardless of whether the processes of enactment and enforcement were actually fair.). Abortion is among a number of fundamental rights that the court over many decades recognized at least in part as what are called "substantive" due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015. Though these rights are not explicitly mentioned 明文规定, 明确提及 in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators. Alito reasoned in the draft that substantive due process rights must be "deeply rooted" in U.S. history and tradition and essential to the nation's "scheme of ordered liberty." Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons. Like abortion, other personal rights including contraception and same-sex marriage may be found by conservative justices to fall outside this framework involving rights "deeply rooted" in American history, scholars noted. "This was considered social progress - we were changing as a society and different things became important and became part of what one cherished," said Carol Sanger, an expert in reproductive rights at Columbia Law School. In the draft, Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called "potential life." "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," Alito wrote. Sepper said that Alito is "not particularly convincing because he doesn't do the work to distinguish those cases in a meaningful way." She added: "It's a really sweeping ( I. A sweeping curve is a long wide curve. ...the long sweeping curve of Rio's Guanabara Bay. II. [disapproval] If someone makes a sweeping statement or generalization, they make a statement which applies to all things of a particular kind, although they have not considered all the relevant facts carefully. It is far too early to make sweeping statements about gene therapy. III. Sweeping changes 全面的变化, 全面的改革 are large and very important or significant. The new government has started to make sweeping changes in the economy. The armed forces would be given sweeping new powers. ...sweeping economic reforms. ) opinion. It doesn't pull any punches 没有说服力 when it comes to the abortion right." Alito's opinion resembles his dissent in the court's same-sex marriage ruling in which he said the 14th Amendment's due process promise protects only rights deeply rooted in America's history and tradition. "And it is beyond dispute that the right to same-sex marriage is not among those rights," Alito wrote in his 2015 dissent. Some conservative commentators have suggested that Alito has provided a road map for future attempts to eliminate other guaranteed liberties. Other legal scholars doubt that there is either a willingness on the court or in legislatures to eliminate other rights. "On interracial marriage, contraception and same-sex marriage, for one reason or another there is no likelihood the court is going to revisit those decisions," Northwestern University law professor John McGinnis said. The fact that Americans have relied on the same-sex marriage decision to plan and invest in their lives and relationships makes it unlikely that the justices will overturn it, McGinnis said. McGinnis added, "No state legislature is going to get rid of contraception. That's fanciful ( I. [disapproval] If you describe an idea as fanciful, you disapprove of it because you think it comes from someone's imagination, and is therefore unrealistic or unlikely to be true. ...fanciful ideas about Martian life. Designing silicon chips to mimic human organs sounds fanciful. II. If you describe the appearance of something as fanciful, you mean that it is unusual and elaborate rather than plain and simple. The economic gloom of the early 1980s was relieved by fanciful architecture. ). And no state legislature is going to get rid of interracial marriage." George Mason University constitutional law professor Ilya Somin said Alito's ruling could make it unlikely the court would recognize due process protections in new areas such as transgender rights. "But on the whole its effect on due process rights is likely to be minor," Somin said.
