April 6, 2021

"Why Is the Supreme Court Hesitating on Abortion?"

Asks Ed Kilgre at Intelligencer. 

Mississippi petitioned for SCOTUS review [in Dobbs v. Jackson Women’s Health Organization] last June, of course; the whole point of the state’s provocative law [banning abortion after 15 weeks] was to invite the Court to [overrule] or significantly modify Roe v. Wade and Planned Parenthood v. Casey, the landmark decisions establishing and affirming a constitutional right to abortion.

The Dobbs case has repeatedly been on the list for discussion at the Court’s conferences.... It takes just four justices to agree to review a case. Quite possibly, there are five or six prepared to begin unraveling the Court’s abortion precedents but no consensus of four on where to start or how quickly to proceed.... The most likely path for an anti-abortion majority is a gradual erosion of Roe and Casey, rather than an abrupt reversal....  So maybe Roberts and Kavanaugh are waiting for the “right” case, and the other four conservative justices don’t want to take up a case unless an anti-abortion majority is certain.

More immediately, it’s possible that a majority has decided to decline a review of the Mississippi case but that a negative order is being delayed while justices who are eager to approve the Mississippi law write long, passionate dissents....

[T]he anti-abortion movement is itself divided: There is sudden activist enthusiasm for the long-standing but previously marginal “personhood” crusade, which, instead of reversing Roe, would stand it on its head by establishing federal constitutional protections for fetal rights regardless of what state governments choose to do. There’s not much evidence of judicial support for that radical notion.

IN THE EMAIL: Wild Swan writes: 

Abortion and vaccination are entangled in the Supreme Court decisions and this may be making the Court slow to take up an abortion case. It's often forgotten that the basis for government intervention in the case of Buck v. Bell was the right of the state to require vaccinations. And the decision in Buck v. Bell was the basis in Roe v. Wade for the right of the government to intervene in abortion when abortion is regarded as a medical issue.

Roe v. Wade made the point that under certain circumstances a woman could choose to have an abortion and the government could not intervene while under other circumstances the government could.

"... the Due Process Clause of the Fourteenth Amendment, ... protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a 'compelling' point at various stages of the woman's approach to term. ...

The privacy right involved, ... cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905) (vaccination); Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).

My point is that at no point has either Jacobson or Buck v. Bell been actually overruled. "The Court has refused to recognize an unlimited right" to privacy and that refusal in relation to vaccination, sterilization and abortion still stands. However the right of privacy in these areas has become the default position. The burden is on the government to show cause and this is very clear in relation to abortion whereas it has been a non-issue in relation to vaccination.

But now we have covid. So now I wonder whether vaccination law must be considered in relation to the various decisions made about abortion which were based on the decision made about vaccination. Does the effect work backwards? In other words, has the fact that the government cannot intervene in the abortion decision made it law that the government cannot intervene in the vaccination decision?


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