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Notable that much gnashing was indeed had, but Kerry himself did not talk about it very often on the campaign trail, and "true winner" rhetoric was mostly confined to the fringes and/or typical media hyperbolizing. While "true winner" rhetoric is still mostly confined to GOP fringes today, (and hyperbolized in a different direction by the media) Trump himself is one of the most extreme proponents, despite the clear (and VERY inconsistent) logical gaps. That's worth mentioning.
I'm a compromise-first kind of guy, and when it comes to all the massive unknowns and ethical issues when it comes to fetuses and personhood, splitting the difference and saying "well too early is obviously more fine, and too late is obviously less fine, and in the middle these clash and it's super subjective, so let's just cover the basics and let the states do the fine details" is a fairly intuitive approach. It leaves people only mildly mad, and plenty distracted by the middle-fights, which means it only becomes partially an existential battle of core values/principles. Very practical, since personhood is hella NOT defined for us. Yes, in principle, it really should be a states thing because states get the non-specified situations most of the time in those cases. I merely point out that states already had a big say in the process, so to upend that and go "all right, we murdered the referee, go to town" seemed to me just a little... irresponsible.
ninja edit: minor wording changes in first paragraph
This should be the role of Congress however. To elevate this to the role of a Constitutional right, it needs some grounding in the text itself. It is not the job of the Constitution or the Supreme Court to mandate common-sense compromises across controversial policy decisions. That path only ends with the Court as a superlegislature and Congress relegated to the role of implementing their edicts.
Incorrect. It's not a specifically listed Constitutional right, but the Constitution also specifically says that other rights exist that they didn't mention. Please look into the ninth amendment, which was put in place to counter exactly the argument you are advancing. "Elevation" of a right, as you phrase it, the text says is explicitly not required in order for the right to be legitimate or exist as a right. Life is one of those things, where it's clearly a natural right (not to have people murder you), but abortion provides a tricky question in that you have a collision of two seemingly intuitive rights, when you have considerations about the mother as well in play.
And in fact a lot of these rights are specifically left to the states to sort out. Congress, eh, maybe? Personally I think no. The 10th has slightly different language, but seems to hint at this being the state's job specifically. A counterbalance, of course being equal protection stuff (14th), which traditionally is used instead because it's easier for a judge to talk about and more specific, and sometimes allows for federal action. There's further discussion on that issue, it's been a little while for me, but the general thrust of everything I've just said is well-grounded. So even though the ideal scenario, from a textual and legal perspective, is for the states to sort it out, it's also totally within the general realm of the Supreme Court's role to handle, and courts in general, though the last 100 years of history has been a bit uneven in that regard. Unenumerated rights are definitely a thing, so even if it's not totally clear who should be taking up the burden of reasoning through them, and I sympathize with your desire to leave it entirely to legislative efforts, it's also relatively okay for courts to do this, even if they are reluctant to.
Anyways, Dobbs does grapple with some of these issues. However, it did not necessarily need to. While Dobbs is a more correct, more firm foundation, I think on balance the practical and intuitive stability offered by Roe outweighed this. "Don't let perfect be the enemy of the good" type of reasoning.
Are there any examples of a court reading a right to exist from the ninth amendment? Not that I disagree in principle, but every time I've mentioned it in the past, people more knowledgeable than I have observed that it's never actually cited in practice. IMO this means that the Anti-Federalists were right: All the rights we didn't enumerate basically don't exist.
If I recall correctly, there’s a decent history of “baby ninths” that certain state constitutions will enumerate, and this occasionally bubbles up beyond state courts, but in practice it either stays on a state level, or when it reaches a federal level these types of questions are slightly better suited to the 14th amendment. It’s not that the 9th is irrelevant, it’s just often the more difficult path to legally argue and decide, so even when it’s relevant it’s rarely used directly. I’d say that we certainly have specified other rights over the years, but the worry about only enumerating some rights, putting them on a pedestal, definitely seems to have been born out.
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