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Roe v. Wade’s foundation might be shaky but that doesn’t mean it will fall

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By Danny Cevallos

Alabama Gov. Kay Ivey, a Republican, has signed into law a total abortion ban, containing exceptions only where there are serious health risks to the mother.

The law appears to conflict on its face with the 1973 Supreme Court holding of Roe v. Wade and its subsequent rulings. In the short term, a federal district court will most likely stop the law from going into effect. A federal appellate court will be constrained to agree with the lower court. After all, they are just following the precedent of Roe, as the lower courts are generally obligated to do.

If this challenge to the Alabama abortion ban makes it to the Supreme Court, however, it is possible that Roe v. Wade could be overturned.

Even though much of American society has come to rely on the principles of Roe v. Wade, the original case has always stood on a shaky legal foundation.

Even the high court conceded in Roe that the Constitution does not explicitly mention a right to privacy. Instead, the court looked at the history of judicial decisions recognizing personal privacy rights that emanated from other constitutional protections. The court concluded that this guarantee of personal privacy extended only to fundamental rights, which included areas such as procreation, contraception and childrearing.

The Roe opinion wonders aloud if this bundle of rights is inferred from the 14th Amendment’s concept of personal liberty, or the Ninth Amendment’s reservation of rights to the people. Uncertainty about the legal source of those rights didn’t stop the court from extending a new privacy right to a woman’s decision to terminate her pregnancy.

The anti-abortion argument that will appeal to the present-day originalist and right-leaning Supreme Court Justices is simple: Roe is premised upon rights that do not appear in the Constitution. Because these rights are imaginary, Roe can be overturned.

Another criticism of Roe is that when unelected judges infer new fundamental rights from the shadows of other rights, judges override the local democratic process, and silence the voices of the voters in states such as Alabama. These arguments will appeal to justices such as Neil Gorsuch and Clarence Thomas, for whom the original meaning of the text of a statute is its only meaning. Unpleasant outcomes do not justify changing the meaning of an enacted statute, or creating new rights to achieve what is perceived as a “fair” result.

Another argument against abortion is that even if there is a right to procreation, contraception and childrearing, it does not follow that abortion is a natural extension of these rights. To critics of Roe, the right to raise a child is not closely related to the right to kill a child. Of course, this argument presupposes that a fetus is a life — a hotly contested issue, which has evolved along with medical technology.

The Alabama statute has been criticized for omitting exceptions to the ban in cases of rape or incest. That omission was a strategic one: By removing these exceptions, the Alabama law is grounded in the principle that a fertilized egg is a life. For those against abortion, a rape/incest exception is a logical inconsistency: Life is life, whether or not the child’s father was a rapist. The exemption tees up the argument for the Supreme Court: Roe v. Wade should be re-examined, because the Alabama statute is consistent with a theory of life, equally valued, at conception.

For many abortion-rights advocates, Roe reached the right result, but the reasoning is admittedly susceptible to attack.

For them, the stronger argument is rooted in a principle called “stare decisis,” Latin for “to stand by things already decided.” Prior decisions on similar issues and facts are generally binding precedent on a court, but precedent can be overruled in certain situations. Only the Supreme Court has the luxury of departing from its own precedent. The lower courts must follow the Supreme Court’s precedent.

Stare decisis may be what ultimately shields Roe and its right to privacy. Whether right or wrong, Roe has been around so long that people rely upon its protections, which have become part of the fabric of society. Even originalist judges might disagree with Roe, but may ultimately uphold it as longstanding precedent and the law of the land.

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Elizabeth Warren ramps up battle with Facebook

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Sen. Elizabeth Warren, D-Mass., ramped up her criticism of Facebook this weekend, taking aim at the company’s policy on political advertising and for having “contributed” to media job losses.

One of the leading 2020 Democratic candidates, Warren’s weekend of prodding Facebook comes amid continued scrutiny of the tech giant, which she has called to be broken up.

On Saturday, Warren tweeted that her campaign “intentionally” published a Facebook ad with false claims to “see if it’d be approved.” The ad said Facebook CEO Mark Zuckerberg had endorsed President Donald Trump’s reelection campaign.

Warren posted the ad amid criticism the company has faced about its decision to allow politicians to run ads containing falsehoods.

“Facebook changed their ads policy to allow politicians to run ads with known lies — explicitly turning the platform into a disinformation-for-profit machine,” she tweeted. “This week, we decided to see just how far it goes.

“We intentionally made a Facebook ad with false claims and submitted it to Facebook’s ad platform to see if it’d be approved,” she continued. “It got approved quickly and the ad is now running on Facebook. Take a look:”

She added that Facebook “holds incredible power to affect elections and our national debate.”

“They’ve decided to let political figures lie to you — even about Facebook itself — while their executives and their investors get even richer off the ads containing these lies,” she continued. “Once again, we’re seeing Facebook throw its hands up to battling misinformation in the political discourse, because when profit comes up against protecting democracy, Facebook chooses profit.”

It’s Facebook’s policy not to subject politicians to third-part fact-checking that the company uses to root-out misinformation.

Warren’s ad came after the company was criticized for allowing Trump’s campaign to run an ad which made false claims about former Vice President Joe Biden. Other outlets have refused to air that ad, including NBCUniversal. The Biden campaign sought to have Facebook remove the ad, but Facebook refused.

Last month, Facebook’s vice president of global affairs and communications Nick Clegg said in a speech: “It is not our role to intervene when politicians speak.”

“The Trump campaign is currently spending $1 million a *week* on ads including ones containing known lies — ads that TV stations refuse to air because they’re false,” Warren tweeted. “Facebook just takes the cash, no questions asked.”

“Facebook already helped elect Donald Trump once through negligence,” she continued. “Now, they’ve changed their policy so they can profit from lies to the American people. It’s time to hold Mark Zuckerberg accountable.”

Facebook’s press team responded to Warren in a tweet, saying the Federal Communications Commission “doesn’t want broadcast companies censoring candidates’ speech.”

“We agree it’s better to let voters — not companies — decide,” Facebook continued.

Warren fired back, saying, “You’re making my point here.”

“It’s up to you whether you take money to promote lies,” she tweeted. “You can be in the disinformation-for-profit business, or you can hold yourself to some standards. In fact, those standards were in your policy. Why the change?”

Facebook did not immediately respond to a request for comment from NBC News.

On Sunday afternoon, Warren again offered criticism of Facebook, posting a link to a story about a $40 million proposed settlement for Facebook having allegedly inflated video metrics.

“Companies shifted their resources and strategies because of Facebook’s inflated metrics, costing them money and contributing to job losses,” she wrote. “We need to do a lot more to hold Facebook accountable.”

The weekend marked the second major clash between Warren and Facebook in recent weeks. Earlier, leaked audio of a Q&A Zuckerberg held with employees revealed that he said Facebook would “go to the mat” and fight if the senator were elected president, which he said would “suck” for Facebook.

Warren hit back, saying: “”What would really ‘suck’ is if we don’t fix a corrupt system that lets giant companies like Facebook engage in illegal anticompetitive practices, stomp on consumer privacy rights, and repeatedly fumble their responsibility to protect our democracy.”

Warren has pledged to break up a series of major tech giants. Warren has said Facebook should relinquish its ownership of WhatsApp and Instagram.



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Hillary Clinton attacks 'authoritarian leader' Boris before saying she ‘fears' for Brits

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HILLARY CLINTON blasted Boris Johnson as an “authoritarian leader” in a shocking attack as she claimed she “fears” for the UK.

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‘Of course’ Trump was wrong to ask China to probe Bidens

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Sen. Ted Cruz said Sunday that it was wrong for President Donald Trump to call on China to probe former Vice President Joe Biden and his son in the Texas Republican’s most direct rebuke of the president yet.

Asked on CBS’s “Face the Nation” whether Trump’s comments were “appropriate,” Cruz said “of course not.”

“Elections in the U.S. should be decided by Americans and it’s not the business of foreign countries, any foreign countries, to be interfering in our elections,” he said.

“Face the Nation” host Margaret Brennan then asked if it was improper for Trump to ask Ukraine to probe the Bidens, as he did in a July 25 call with Ukrainian President Volodymyr Zelenskiy — a call that is now at the center of an impeachment inquiry.

“Listen, foreign countries should stay out of American elections,” Cruz said. “That’s true for Russia. That’s true for Ukraine. That’s true for China. That’s true for all of them. It should be the American people deciding elections. I don’t know what [Trump’s personal attorney Rudy Giuliani has] been saying. I do know though that we should decide our elections. It should be the American people making those decisions.”

But Cruz added that it would make “sense” for Giuliani, who is at the center of the president’s campaign to have Ukraine investigate the Bidens, testify before the Senate Judiciary Committee. Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., has already invited Giuliani to do so.

“I’d like to see Rudy testify,” Cruz said. “Yes.”

Cruz’s comments come as Republicans have struggled to align on their responses to Trump’s requests to have Chinese and Ukrainian officials investigate the former vice president and his son. Some Republicans defended Trump’s China remarks by saying the president wasn’t “serious” despite Trump never having indicated he was joking.

Asked Thursday about whether he was serious about calling on China to investigate the Bidens, Trump said, “China has to do whatever they want.”

“If they want to look into something, they can look into it,” the president continued. “If they don’t want to look into it, they don’t have to. Frankly, are far as I’m concerned, if China wants to look into something, I think that’s great. And if they don’t want to, I think that’s great too. That’s up to China.”

Treasury Secretary Steven Mnuchin said he “can’t comment” on whether Trump was serious in his ask to have China investigate the Biden family.

“I can’t comment on whether he was serious or not,” Mnuchin said, adding that the topic had not been brought up in trade negotiations between the two countries. “And in the Oval Office, when the president was asked about this in front of the Vice Premier, the president made very clear, they can do what they want. So, again, people who are trying to imply that the president is asking for things or quid pro quos, I think this is ridiculous.”

The president began ramping up his push to have China probe Hunter’s business dealings this month in the face of House Democrats’ rapidly escalating impeachment probe.

“China should start an investigation into the Bidens because what happened in China is just about as bad as what happened with Ukraine,” Trump told reporters outside the White House earlier this month.

The president has repeatedly accused the former vice president’s son of using a 2013 trip on Air Force Two with his father to procure $1.5 billion from China for a private equity fund he had started. There has been no evidence of corruption on behalf of either Biden. The Washington Post found Trump’s claims false. And a spokesman for Hunter Biden said he did not acquire an equity interest in the fund until 2017, after his father had left office. Meanwhile, Hunter’s total capitalization from the fund at the time amounted to about $4.2 million, not the $1.5 billion Trump alleged.

On Sunday, Hunter announced through his attorney that he would step down from the Chinese-backed firm by the end of the month. Hunter’s attorney, George Mesires, wrote that the former vice president’s son “never anticipated the barrage of false charges against both him and his father by the president of the United States.”



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