[downerending]

"made this up" is a bit pejorative. The also "made up" modern abortion rights and gay marriage. A law professor would probably say that they decided that prior interpretation was unjust/unconstitutional and made a change.

[rayiner]

The pejorative isn’t unwarranted. The equal protection clause justification for Obergefell is a fairly straightforward application of the text of the 14th amendment and longstanding Supreme Court precedent holding that the right to marry was fundamental even at the time of the founding. They didn’t conjure a right out of thin air, but found that there was no justification for denying the right to a particular group when the constitution guarantees “equal protection” to all groups.

Qualified immunity doesn’t rest on nearly as solid a ground.

[supercanuck]

You could teach a whole course on Roe alone. Let's not just generalize a monumentus court decision like that with a hand wave.

[rayiner]

Not to mention, two of the champions of Roe (O’Conner and Ginsberg) have thrown its reasoning under the bus.

[bhupy]

Do you have any resources on that? I find this genuinely interesting.

[selimthegrim]

RBG has always been a fan of abortion rights via incorporating the privileges and immunities clause of the 14th Amendment to the states, a path blocked after the 19th century Slaughterhouse cases. Reva Siegel at Yale Law School is good to read about this.

[selimthegrim]

*privileges or immunities clause, sorry (Not to confuse this with Article IV of the Constitution). And I guess RBG wants to use the equal protection clause directly.

[andrewflnr]

That's rather the point of GP, but applied to QI instead of Roe.