November 15, 2021

Hugh Hewitt writes "'Roe' will be overturned. The federal courts will go back to normal" in The Washington Post.

Okay, I'll bite. Let's read it. I'm reacting in real time ("live-blogging" my reading):
One of [the weight-bearing walls of constitutionalism] is a federal judiciary confined to its proper role, which is most definitely not that of reviewing state statutes having to do with the regulation of abortion.

I'll just have to guess that he's positing this because he thinks abortion isn't a constitutional right, but he might be saying he doesn't think courts should protect individual rights from the choices of the majority or because he thinks only state courts should protect individuals from rights-invading choices made by state and local government authorities. 

The high court has been doing it steadily since Roe v. Wade was handed down in 1973, but with its consideration next month of Dobbs v. Jackson Women’s Health Organization, the pattern is likely ending.

Is that "likely"? I'd place my bet on the side of preserving the longstanding precedent, but we shall see. 

“Out, out damn spot” is the perfect summary of the thinking of serious conservatives toward Roe, as well as Planned Parenthood v. Casey, the 1992 case that narrowed Roe.

Out, out damn spot?!! That's what Lady Macbeth says — it's "damned" though, not "damn" — when she hallucinates blood on her hands after committing murder. How going insane perfectly summarizes the thinking of "serious" conservatives I don't know.

And spare me the claim that your people's thinking is "serious." My son John recently asked on Facebook "What word do you think is overused?" and I said: "I have 3: serious, deeply, and garner." Watch out for it and you'll see the idiotic effectiveness attributed to the word "serious." If you're serious, demonstrate seriousness. Don't just tell me you're serious. And don't use "serious" in the "true Scotsman" sense, which is what Hewitt is doing with "serious conservatives." The serious conservatives are the ones who see Roe as a bloodstain that's driving them crazy (or whatever HH thinks "Out, out damn spot" perfectly summarizes). 

Roe’s Waterloo is, finally, at hand.... The subject of “reproductive rights” will return to the control of a self-governing people....

But what about stare decisis, ask my friends in both punditry and the legal academy. What about precedent, indeed? I’d no more be locked into bad constitutional law on Roe or Casey than I would be on Dred Scott v. Sandford, Plessy v. Ferguson or Korematsu v. United States — the notorious trio of worst Supreme Court decisions....

All 3 of those decisions cut against the individual's right. To overturn Roe would be to take away an individual right that Americans have possessed for a long time — a half century. 

Whenever the court rules, I think the chief justice will be in the majority. Many conservatives [worry about John Roberts because of] the Obamacare decision... That remains a moment of judicial restraint of the sort conservatives should applaud: When a statute can be, it ought to be upheld....

Hewitt has been talking about confining judges to their "proper role," and here we see him framing that role in terms of reinforcing majoritarian choice. The implication — which he doesn't openly applaud — is that he and his "serious conservatives" reject the role of the courts in protecting individual rights. 

Roe and Casey should be discarded because they are bad decisions that perverted the Constitution and took us all into the deep polarization we find ourselves in now.

There are many causes of our polarization, and there's no changing the past. Would overturning Roe and Casey, after all these years, help us out of polarization? It would be a radical change. Want to take a flying leap at radical change? Is that what the "serious conservatives" want?

When our courts decree, our politics decay....

That's a cute aphorism, but it's patently untrue. Courts take some things out of majoritarian choice. We all have our preferences about which things we'd like courts to leave to politics and which things belong to the decisionmaking of private individuals. Throw everything into politics — religion, speech, racial privileges, the treatment of the criminally accused— and you're going to get some crazy action. I'm not so much picturing "decay." I'm picturing growth —  ravenous, malignant growth. 

Left-wing observers think this will be the ruin of the GOP when [the overruling of Roe and Casey] comes to pass. In reality, it will not hurt the party....

I certainly think it will. Look how Roe empowered conservatives. What will you do without that? And look how your opponents will exploit the overruling. Putting "In reality" in front of a bare assertion doesn't make it true.

... and will instead be the triumph of peaceful politics over raw power.

Hewitt's side's politics is "peaceful" and the other side's politics is "raw"? No, I think he means that the "triumph" is over the Court — in its activist role, protecting rights. The Court will return to judicial restraint, rubber-stamping whatever rights-limiting choices come out of the democratic political process.

It will remind everyone that states matter, that legislatures matter, that citizens matter.

And kick them in the head if they thought rights matter.

You will read much about Dobbs in the next few months, as the remaining tall towers of elite opinion — the watch fires of the overclass — are being pre-lit ahead of the oral argument. But the writing is on the wall.

The elite are in towers and the writing is on the wall. There are "watch fires." Dramatic, metaphorical... but that all just means people are paying attention to this upcoming case. 

The anti-Roe constitutionalists have been right that Roe has been doomed for the last 48 years — nearly as long as the 58 years it took Plessy to be tossed out by the Warren Court in Brown v. Board of Education.

That's just saying I'm right. But obviously the other side also thinks it is right. It remains — and nothing in Hewitt's column refutes this — a question of who decides what happens within a person's own body, the person whose body it is or the larger group acting through legislatures. I would leave the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain. 

I'm not as arrogant as Hewitt, so I don't declare that I'm right. Maybe I'm wrong. But someone has to decide, and pregnancy is an occurrence within one individual's body, so it seems to me there's insufficient reason to relocate the decisionmaking power and give it to the group. Stare decisis. Let the decision stand.

108 comments:

Andrew said...

"Out, out, damn spot" is equivalent to "walk the cat back."

Dave Begley said...

I agree with the learned constitutional law professor emerita Ann Althouse.

Stare decisis. The precedent is too big to overturn.

Vote? 7-2. Thomas and Alito dissenting.

Drago said...

Perhaps I missed it, but I don't believe Althouse spent anytime in her lengthy post addressing the core belief of the pro-life movement, backed up quite conclusively by "the science", that "individual rights" should extend to the distinct human person, the unborn baby.

Which is the entire crux of the matter from the pro-life point of view.

Ficta said...

Overturning Roe would, indeed, be protecting individual rights. There's an individual, all of whose rights, in fact, are being trampled by Roe vs Wade.

tim maguire said...

"Serious" is like smart. Smart people rarely talk about how smart they are. They just are. I don't see how a serious thinker could think it likely that the court will overturn Roe without overwhelming public support. The mangling and misapplication up of the well-known quote is surprising.

mezzrow said...

*reaches for the "that's bait" meme generator...

Hewitt even left an obvious Shakespeare error buried in there to hype up the flavor profile to pull in folks with college educations in the arts and humanities. Trolls gonna troll. He's a seasoned pro. He'll come into port with a boatload of outrage.

gahrie said...

I would leave the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain.

Creature?

When does this human "creature" become a person with rights of their own?

Can Of Cheese for Hunter said...

Conservative evangelical men often display no moral ambiguity on their definition of abortion. It is the end of a human life. Period. and ending Roe v. Wade is the logical conclusion.

There are two sides.
The side of the mother and her body and choices.
The side of the unborn child.

It's not easy to pick, is it? Well, it is easy for the left to pick.
The rest of us struggle.

Wilbur said...

My take for nearly 50 years has been that the Court did itself and the nation a disservice when it invented the constitutional right to abortion. The hubris displayed - "We'll settle this troublesome matter for good with our decision" - should be a lesson in unintended consequences to courts in general.

It is a political issue which should be decided in the state legislatures. Were I in a state legislature, I would vote to permit abortions under reasonable restrictions.

Joe T. said...

I wondered if Hewitt was biting off too much in that column. I don't know Constitutional law, but my gut tells me Ms. Althouse is right and that precedent will be the key factor. I come from two generations of bastardy, and one of my great heroes, Nat Hentoff, was pro-life because he felt it was a Constitutional right. But 50 years of women explaining their position on this issue--that it's their bodies, and their decision--has given me some pause. As much as I dislike Bill Clinton, his position that abortion should be safe, rare and legal, is one that the majority of Americans support.

TreeJoe said...

Ann, why is the phrasing of abortion as a "constitutional right" rather than interpreted part of personal privacy right embodied within the constitutions enumerated rights.

In my understanding, Abortion itself isn't a constitutional right. That's a false phrasing. For example, if the court decided that the unborn were in fact persons in their own right prior to birth then the interpretation of abortion would change. The court could go in a vast number of other directions.

Achilles said...

There is no role for the federal government in Abortion.

None.

Zero.

9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.


This is plain letter black and white. Words that any of you are capable of reading.

All of the cultists on both sides of this issue need to have your fights in the state legislatures where this belongs.

gilbar said...

To overturn Roe would be to take away an individual right that Americans have possessed for a long time

the right for a tenant to be evicted from their home (by a vacuum cleaner) & thrown in the garbage
JUST BECAUSE their landlord made the Choice to have them evicted?

That individual right? That one? The right for a landlord to choose to KILL their tenant

Because, i thought;
what with covid and all; that you COULDN'T Evict tenants just 'cause you chose to???

Mark said...

How about we just address the legal and constitutional arguments? Huh? How about read the briefs and address the issues presented, rather than another inane fixation on some word and then projecting one's own irrationality upon others?

Of course, it would help if one was not so enslaved to the irrational ravings of the NYT and Washington Post.

Even Ruth Bader Ginsberg admitted the complete legal corruptness of Roe. Justice White was right in calling it an exercise in raw judicial power.

Instead of an emotional rant, try to justify Roe on the merits. It can't be. It can only be upheld -- like it was in Casey -- by that same raw judicial power.

Charlie Currie said...

"If Roe is overturned Democrats will be empowered" - I paraphrase - as they should be, in blue states to have their "state" legislatures legalize abortion in their state. As Republicans should also be empowered to have their "state" legislatures ban abortions.

Majority rule is what makes the death penalty legal in some states and banned in others. How is this different from the question of abortion? Or, should nine politically appointed judges weigh in and decide if the death penalty should apply to all, or to none?

As far as HH goes, he's great on making predictions that favor the conservative view, but his track record is abysmal. That's why I quit listening to him after the 2012 election. However, he is one of the best author interviewers, along with Brian Lamb, there is.

Mark said...

I would leave the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain.

If you are arguing a right to kill, then have the honesty and integrity to come out and say it.

Michael K said...

Abortion was legal in California in 1969 when I did a few. The Supreme Court set off a 50 year hysteria with the Roe decision. It was a bad decision but I see small chance of reversing it.

Robert Marshall said...

There are competing moral claims at issue in the abortion controversy.

One is the pregnant woman's claim of autonomy over her own body.

The other is the baby's claim to a life.

If you look at those claims over the span of the gestation period, the woman's claim starts out strong, but as you approach birth, the baby's claim becomes ever stronger. At some point, the baby's claim certainly predominates, or else partial-birth abortion would be legal. But when does that happen?

So it seems to be a line-drawing question: when does the baby's claim become stronger than the woman's?

This is precisely the sort of decision which generates strong feelings. Whatever is decided, some will be unhappy with where the line is drawn. Doesn't that make it the sort of issue for which people should be heard by their elected political representatives, whose decision won't satisfy everyone, but at least everyone will have had a chance to be heard? And if some states decide to allow partial-birth abortion, and others outlaw abortions at some much earlier point, well, that's why we have states, isn't it? If your outrage-meter gets pegged by whatever state you currently live in, you still have your "moving-van rights." Get a U-Haul!

tim maguire said...

gahrie said...When does this human "creature" become a person with rights of their own?

That is, of course, the core question that abortion rights people dodge and weave around. Because there is only one answer that withstands close examination. Especially if the examiner is determined to see that there is no collateral damage--that no one who fits the definition of human is murdered in an abortion procedure.

MikeR said...

"Look how Roe empowered conservatives. What will you do without that?" I think that ship has sailed. Evangelical Christians and the like vote for Republicans now out of fear, because Democrats want to destroy them. Populism is the short-term future of the Republican Party.

Joe Smith said...

Roe was a horrible decision to start with, which is why it was inevitable that it would forever be on shaky grounds.

Want to legalize abortion? Pass a 'damned' law in congress.

The courts act as a super-legislative branch these days...that is not their role.

Sebastian said...

"It remains — and nothing in Hewitt's column refutes this — a question of who decides what happens within a person's own body"

It remains a questions whether the Constitution says anything about any woman deciding for herself and by herself and for the creature within what should happen to that creature.

"I would leave the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain."

Fine. Make your case in the political arena, and get the law to reflect your preference. Of course, we don't leave the individual to "reign over her own body" in many ways, and haven't done so across history, so the basic stance is absurdly radical. Even Casey doesn't legitimate the exclusive reigning bit.

"But someone has to decide, and pregnancy is an occurrence within one individual's body, so it seems to me there's insufficient reason to relocate the decisionmaking power and give it to the group."

Well, but the question is who decides who gets to decide. I agree we should not give it to "the group"--i.e., the group of Supreme Court justices. Don't give it to the group, give it to the people, unless the Constitution unequivocally says otherwise. The Constitution says nothing about pregnancy or anything related to it. Such matters were always handled by the states, according to state law, as decided by elected legislatures.

"Stare decisis. Let the decision stand."

That's the most disingenuous defense of the Roe-ish regime. First drastically change precedent, then claim it should not be change, because reasons. Riiight.

But the problem for the Hewitts is not just that overturning Roe will hurt the GOP, but that it will return the issue to the states, many of which will interpret a woman's right to choose very liberally, to include the killing of the creature within up to the moment of birth.

effinayright said...

One would think that a constitutional law professor would be interested in the soundness of the legal reasoning that "found" a Constitutional "right" to abortion.

Roe v. Wade has long been notorious for its woozy citing of "emanations" and "penumbras"
that somehow magically conveyed upon women an inherent right to kill their unborn children--once universally considered a shameful, desperate and heinous act---by the tens of millions.

The Professor surely knows that as an example of constitutional construction, Roe stinks to high heaven. Does she really think the Framers intended to protect such a practice?

Given the ubiquity of cheap and effective means of birth control today, no healthy woman has any reason to ** allow herself** to become pregnant---cases of rape, incest and un-discovered but real physical health issues aside.

"Think of a man, and take away reason and accountability."

That pretty much sums up the attitude at play here.

Freder Frederson said...

Really, Ann!? You really think this Supreme Court is not going to overturn Roe? Do you think Trump was lying/kidding when he said he would appoint Justices that would overturn Roe?

The only question is how far they are willing to go. Worst case (and I don't think this is going to happen) is that "babies" are entitled to 14th amendment protections from the point of conception (apparently their are amicus briefs out there arguing that extreme position). But it would not surprise me if they threw out Griswold too and say there is no right to privacy.

Lem said...

“To overturn Roe would be to take away an individual right that Americans have possessed for a long time — a half century.“

the right of Americans to own guns have been around since the founding of the country. That’s not stopping Democrats from seriously attempting to take it away.

gahrie said...

Stare decisis. The precedent is too big to overturn.

Bullshit. Plessey was as big and was overturned after 58 years. Roe is only 48 years old.

Lem said...

Most Americans are pro-choice because is fashionable to say so in polite company. Not because they’ve given any serious thought to the carnage. Once it’s overruled and legislatures have to run on it we’ll see if the choice side is able to make that cat walk backwards.

n.n said...

And slavery and diversity (e.g. racism, sexism) before that...

There is no right to homicide (other than self-defense) or to discriminate by color, sex (i.e. male, female), gender (i.e. masculine, feminine), or stature (e.g. size, shape), and even age is limited to the first six months in some jurisdictions, 9 months and more in others, and a dozen or so years at the tail end (i.e. planned parent/hood) in the most liberal (i.e. divergent) enclaves.

There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion, and still six weeks (i.e. heart beat). There is no open ended right to elective abortion in even the least civilized jurisdictions. People... persons need to lose their Pro-Choice ("ethical") religion.

"When does this human "creature" become a person with rights of their own?"

Indeed. With the progress of diversity [dogma] (i.e. color judgment), the advent of the planned parent/hood protocol, when, and by whose choice, does a human life acquire and retain her or his right to life? The People and our Posterity are both fungible concepts.

The Pro-Choice religion denies women and men's dignity and agency, and reduces human life to a negotiable asset. #HateLovesAbortion

Ann Althouse said...

"Perhaps I missed it, but I don't believe Althouse spent anytime in her lengthy post addressing the core belief of the pro-life movement, backed up quite conclusively by "the science", that "individual rights" should extend to the distinct human person, the unborn baby."

That's not a legal argument in the case. You're positing a legal right that the unborn has as against the private citizens? Cite any brief raising that issue.

Ann Althouse said...

Notice that Hewitt says if Roe is overturned abortion will remain legal in states that haven't outlawed, such as New York. That would not be true if the unborn has a legal right not to be aborted.

You're just deluded about what the legal issues are.

Ann Althouse said...

There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision.

Joe Smith said...

'...but that is a matter for the pregnant person to figure out in making her decision.'

Nice trolling : )

stlcdr said...

With regards to the 'spot' quote:

"Always check your quotes, even if you know what they are." Mahatma Gandhi

Yancey Ward said...

I don't think Roe will be overturned even though it should be. Roberts is definitely not going to do so, and I doubt Kavanaugh or Barrett will either.

Václav Patrik Šulik said...

I haven't read the HH piece - I don't have WP access, but your points seem mostly "spot on." (couldn't resist.)

Nevertheless, I disagree with your overall conclusion. I think Roe/Casey should be overturned. On stare decisis, I'm reminded of this by Robert Jackson: "Under these circumstances, except for any personal humiliation involved in admitting that I do not always understand the opinions of this Court, I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday." Massachusetts v. United States, 333 U.S. 611, 639-40 (1948) (dissenting).

I have read Roe - unedited, as well as the ConLaw version - Casey, and most of the other cases. I still have not seen a constitutional basis for the decision/result. In this respect, it reminds me or Meyers v. Neb or Pierce v. Society of Sisters. But Pierce can find grounding in the First Amendment and it's not unreasonable to think that Meyers can as well. But having taught the subject, I know you are familiar with this and there's so much I'm skipping over. Wages of Crying Wolf, etc.

What I want to know is where is the constitutional right to abortion found?

I believe that it doesn't exist, therefore the Roe/Casey "right" should be overturned.

Regarding your point about the other three cases - Korematsu et al - you say that "All 3 of those decisions cut against the individual's right. To overturn Roe would be to take away an individual right that Americans have possessed for a long time — a half century." But you neglect to mention that Roe/Casey clearly deprive another person of the right to life. I think those of us on the pro-life side need to acknowledge that this limiting (or eliminating) abortion rights is a severe infringement on a woman's personal liberty. Yet, the abortion rights crowd also needs to acknowledge that its position deprives a human being of their life. It can't do this because the balancing that we do recognizes that liberty must yield to life.

It's interesting because all the pro-Roe crowd exalts personal autonomy in this case yet, when it comes to vaccinating, aborts the "my body, my choice" rhetoric. I just don't understand the mental gymnastics that people can do.

Yancey Ward said...

"There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision."

There is a moral argument for the invalid being cared for at home, but that is a matter for the caretaker in making her decision.

Mark said...

Conservative evangelical men often display no moral ambiguity on their definition of abortion. It is the end of a human life.

Most of the women who comment here will tell you the same thing.

And most of the people insisting on abortion, including driving women to the facility and demanding that they abort, are MEN.

n.n said...

I don't see how a serious thinker could think it likely that the court will overturn Roe without overwhelming public support.

That's the problem. Elective abortion was legalized (i.e. Twilight Amendment) under a real or perceived socially mandate, and normalized under the Pro-Choice religion.

Can they abort the baby for social progress, cannibalize her profitable parts for medical progress, and sequester her carbon pollutants for climate mitigation, and have her, too? That is the question.

Demos-cracy is aborted in darkness.

wildswan said...

Of Masks and Men 1

"a question of who decides what happens within a person's own body, the person whose body it is or the larger group acting through legislatures. I would leave the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain."

"I would leave the individual alone to reign over her own body..." But would you allow schools to require vaccinations? It was agreed that the state had power to require individuals to be vaccinated. That was Jacobsen. Then this vaccination power was extended to sterilization in Buck v. Bell. Justice Holmes cited the bodily compulsion found in the draft law and in vaccination as a justification for sterilization, saying this:
"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough."
The various sterilization statutes in different US states are now held as a matter of historical fact to have been an example to Hitler and the Nazis. As a result of the horror inspired by Nazi atrocities in the service of anti-Semitism and racism forcible sterilization by state fell out of favor.
But a deft manoever by the eugenicists preserved Buck v. Bell. The eugenicists said: "The principle now is that the state should not interfere in the reproductive life of its citizens. Very well. Then the state should not be banning abortions." And so was launched the successful "Choice" campaign culminating in Roe v. Wade.
However Roe v. Wade did not overturn Buck v. Bell.

wildswan said...

Of Masks and Men 2

It was pointed out in Roe v. Wade that the privacy right on which abortion rights depend was not an absolute right and Jacobsen and Buck v. ​Bell were cited in support of that.
"The privacy right involved, therefore, 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)."
From this point two parallel lines diverged. On the one hand it came to be held that as national law, women had an absolute right to control their bodies and ask for an abortion at any time up to the moment when the child took a breath. On the other hand, states continued a specialized sterilization regime associated with abortions that mainly affected blacks and Indians. "Consent" was obtained by means I will not characterize except to say that they closely resemble the "consent" obtained by the late Jeffrey Epstein in his sex business. I do not say "uninformed consent" is the best set of words.
These were abuses.
But obviously the states have had a right to regulate both vaccination and abortion reserved to them. And now the states are trying to regulate abortion and vaccination but in an opposite direction to recent past practices. Less vaccination (and associated with less vaccination, less masking). Less abortion (and associated with less abortion less damage to the reproductive systems of minority women). Informed consent.

wildswan said...

Of Masks and Men 3

But above all, "the tiny human being", can a single state regulate on its behalf? Is this human being, uborn, already in the state of a slave in 1860 in the state of Texas with no rights? Can she be killed and sold for parts? Or is he, right now, like Frederick Douglas in 1858 - a freeman in Pennsylvania but an escaped slave with no rights in Maryland? Can the residents of one state see the tiny human as a human person with rights if another state sees the matter differently? Have we all really thought this thing through?
And can a state regulate on behalf of young men to protect their bodily autonomy from a vaccination regime that other states wish to impose nation-wide? Could Massachusetts require vaccination when other states didn't? Could Texas allow regulated abortions when other states didn't? Does this mean that Florida can ban masks when other states require them? And can Texas change its abortion regulations? Why not?

Mark said...

If you look at those claims over the span of the gestation period, the woman's claim starts out strong, but as you approach birth, the baby's claim becomes ever stronger. At some point, the baby's claim certainly predominates, or else partial-birth abortion would be legal.

So some human beings are less than equal. Some human beings are disposable, with impunity. Only the strong, only the fit, have rights. The vulnerable, the dependent, are beyond the protection of the law. Second and third and fourth class humanity.

That's your position.

Richard Dolan said...

I suspect AA is correct that Roe/Casey will not be overruled, but instead that the Court will write an opinion narrowing the abortion right -- starting on the road to death of the doctrine by a thousand cuts, which will continue until a different majority takes over with a different agenda. My guess is that a majority of the justices -- perhaps all except Thomas and Alito -- will view it that way. It's also probably true that at least six of them view Roe/Casey as a bad mistake, as they also probably view Grutter, while those of a different persuasion probably view Heller and Citizens United in the same way. Both sides want to narrow the cases/doctrines they find unprincipled, but also know that history and the passage of time imposes limits to what they can do now.

"There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision." Not just a moral argument, and if it were exclusively "a matter for the pregnant person to figure out in making her decision," abortion would always have been an easy issue -- there would never have been any basis for state laws regulating the subject. The cases all begin with the recognition that the state has the power to regulate abortion, in part because the states have the power to regulate the medical profession generally, but also in part because states are free to recognize the unborn child as deserving of protection. Certainly, there is no federal constitutional ground to say the states lack either power. It's just a matter of whether the federal constitution imposes limits on the exercise of the states' admitted powers.

Mark said...

"Perhaps I missed it, but I don't believe Althouse spent anytime in her lengthy post addressing the core belief of the pro-life movement, backed up quite conclusively by "the science", that "individual rights" should extend to the distinct human person, the unborn baby."

That's not a legal argument in the case. You're positing a legal right that the unborn has as against the private citizens? Cite any brief raising that issue.

Of course, anyone who has bothered to look will see that it's implied in the Mississippi Petitioner's briefs, as well as both implied and stated expressly in most of the amicus briefs in support thereof. It is also implicated in the Question Presented: "Whether all pre-viability prohibitions on elective abortions are unconstitutional."

Meanwhile, not one of the briefs against the Mississippi protection-of-life law dispute the scientific fact that a distinct human life begins at conception. They too all scream about stare decisis.

But the fact is that the question presented will not allow the justices to avoid the matter at the heart of Roe. They can't simply shrug their shoulders and say "what is truth?" about human life and wash their hands of the matter. They have to directly address the central falsehood in Roe. (Another falsehood of Roe is that this is a "moral" issue. It is no more a moral issue that slavery was or any other case where a human being is deemed to be nothing more than a thing, an untermenschen.)

TheDopeFromHope said...

The professor says overruling of Roe and Casey will hurt the Republican Party. If that were the case, wouldn't Democrats be all in favor of the SCOTUS doing what Hewitt predicts? Democrats could couch it in terms of "we've come to the conclusion that Roe and Casey were wrongly decided and let's go fight it out in the state legislatures." But they don't, because they see abortion as a religious rite, a sacrament, and don't want it returned to the states where the country could have a rip-roaring debate. With the SCOTUS taking this issue from our elected representatives, debate is certainly robust, but also somewhat artificial because the debate bears little on the availability of abortion.

If Roe/Casey go bye-bye, there will be plenty of states where abortion will continue to flourish. And I, for one, want the left to continue killing its babies. Does society really want AOC, Kamala Harris, Chelsea Handler, Lena Dunham, Angela Merkel, et al. to have children? Of course not. Any reason for the anti-natalist left to remain childless--"climate change," money and time involved, having an abortion to fight the patriarchy, etc.--is good by me.

BTW, if "what happens within a person's own body" concerns only one body, that's one thing. But if it concerns two bodies, that's something entirely different.

Mark said...

Notice that Hewitt says if Roe is overturned abortion will remain legal in states that haven't outlawed, such as New York. That would not be true if the unborn has a legal right not to be aborted.

You're just deluded about what the legal issues are.


Ask "poor Joshua" about that.

Since you apparently are not deluded about the legal issues, you'll not need me to give you the citation for that reference and what it means.

mikemtgy said...

Basically the argument is that Roe was incorrectly decided. One might still believe that abortion is a protected Right and think that Roe was wrongly decided. Legal scholars on both the left and right have said so. I remember the times when this decision came down. There were states that made abortion legal (e.g., NYS) and states that made it illegal and other states that regulated it. It was possible to get an abortion in the US. All HH is saying is that we may go back to that status; or the SC may find a stronger legal basis for abortion as a Right. So far that argument has not been made.

mikemtgy said...

Addressing what you say above: I think what most conservatives would want is for the SC to butt out of the issue altogether. I don’t want my moral thoughts forced on everyone any more than I want theirs thrust on me. This is a case for subsidiarity and people influencing how their state handles the matter. It is quite likely that abortion will end up legal but regulated in most states (attitudes have changed quite a bit from the 1970’s).

Mark said...

What the Dobbs case does is that it puts the Court to a choice -- either the law can protect prenatal life or ALL abortions throughout pregnancy must be allowed. There can be no middle ground. To say that there is a dividing line anywhere between (1) the moment that there is a new and distinct human life or (2) the moment that such human life is independent of the mother's body, is arbitrary.

Mark said...

Meanwhile, what happened to the notion that abortion is a WOMAN'S choice???

"that is a matter for the pregnant person to figure out in making her decision."

You know, if you are going to promote the inane transgender ideology, you should not screw up the pronouns. If you're going to say "pregnant person," rather than "pregnant woman," you need to go all in with "they" or some other neutral pronoun.

n.n said...

Everyone has a faith. Everyone has a religion. Morality in a universal frame, ethics in a relative frame, and law in a politically congruent frame... by force, choice, or at the twilight fringe ("penumbras and emanations", darkness).

CJinPA said...

Hewitt is a 20th Century Conservative: "Cut taxes & overturn Roe" is their holy scripture.

It's tone deaf to what average Americans want and need in the 21st century. It appeals as much as Jeb! did in 2016.

Critter said...

Legal analyses aside, the most likely outcome is to rule that reasonable restrictions can be placed on abortion. An easy example is to require two medical opinions to permit a late term abortion. The Court could follow that logic in the cases under consideration and outlaw abortions after a beating heart or viability. This is considered a reasonable position to much of the world. I believe it is the most common approach in EU countries. For those who oppose such restrictions, why is abortion, which is not in law or the Bill of Rights, the only right that cannot have reasonable restrictions? Freedom of speech and religious expression don’t enjoy unrestricted use. Neither does the right to bear arms.

jim5301 said...

Serious analysis from a serious guy. Roe should be overturned because it's "bad." I want to take his law school class.

Still waiting for him to defend the insurrection memo of his serious colleague, John Eastman.

Rabel said...

Validating the Mississippi law, which sets the lower limit at 15 weeks with exceptions, would be a reasonable compromise, but the absolutists on the left will not accept it and the Court, especially Roberts, is not going to take on the responsibility.

Also, isn't leaving the individual alone to reign over her own body, even if there is another tiny human creature within her bodily domain, an anti-Roe position that allows for third trimester and even day-of-birth abortions?

That's seriously extreme.

Also, fuck Hugh Hewitt.

Lewis said...

I personally believe that abortion is terribly wrong. I reached this conclusion because of my youngest daughter and her daughter. My wife was on the table ready for the procedure but she changed her mind. Because of that fateful decision, I have watched my daughter grow into a wonderful person and now I also have a wonderful granddaughter to enjoy. Choosing life over abortion can change your life in a very positive way if you choose to accept the challenge. I hate to think about all I would have missed if my wife chose (what appeared to be) the easy way out.

I don't care about the law all that much. People need to want to choose life. I don't think it can work any other way.

Mark said...

That's not a legal argument in the case. You're positing a legal right that the unborn has as against the private citizens? Cite any brief raising that issue.

Petitioner's Reply Brief:
The weight of this Court’s substantive-due-process caselaw is thus solidly against Roe and Casey. And that point is fortified by another that shows how dramatically those cases departed from precedent: this Court has never endorsed another privacy or liberty interest that involves purposefully ending a human life. Pet.Br.16-17. This point defeats respondents’ reliance on contraception cases. Resp.Br.19; see Carey v. Population Services International, 431 U.S. 678, 690 (1977) (“Nor is the interest in protecting potential life implicated in state regulation of contraceptives.”). And it dooms the United States’ suggestion that overruling Roe and Casey would “threaten” certain liberty and privacy rights. U.S.Br.25-26. None of the rights cited by the United States involves ending a human life — and all find grounding in text or history. Pet.Br.13, 15-17. If “personal autonomy” does not establish a fundamental right to purposefully end one’s own life, Glucksberg, 521 U.S. at 727-28, it does not establish a fundamental right to purposefully end another’s life....

In Roe, the appellants told this Court that in early pregnancy, “embryonic development has scarcely begun,” Appellants Br.20, 1971 WL 128054, and this Court in turn concluded that “the fetus, at most, represents only the potentiality of life,” Roe v. Wade, 410 U.S. 113, 162 (1973). This Court has since recognized that “a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Gonzales v. Carhart, 550 U.S. 124, 147 (2007). The people should be able to account for decades of advancements in knowledge.

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19-1392.html

Jamie said...

Notice that Hewitt says if Roe is overturned abortion will remain legal in states that haven't outlawed, such as New York. That would not be true if the unborn has a legal right not to be aborted.

You're just deluded about what the legal issues are.


Can you expand on this for the non-lawyers, professor? It's been my understanding all my adult life that the overturn of Roe would send the question of the legality of abortion back to the states and nothing more. Does it simply depend on the reasoning for the overturn?

Krumhorn said...

You're positing a legal right that the unborn has as against the private citizens? Cite any brief raising that issue.

Wouldn't the very pivot point of viability establish such a right for the unborn?

From Roe:

With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Perhaps, the real question is whether or not the unviable fetus has a legal right against the actions of the private citizens. For many folks, viability should not the legal issue at all.

However, I agree that it is very unlikely that Roe will be overturned at this point.

- Krumhorn

Conrad said...

"There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision."

Says you. Where in the Constitution does it say that a state cannot legislate against activities that the citizens of that state find abhorrent? For example, there are all kinds of laws against animal cruelty. Do you think that the moral argument for protecting animals from wanton cruelty "is a matter for the [animal owner] to figure out in making her decision"?

Jim at said...

"Roe" won't be overturned for the simple reason both sides use it to whip up fervent support and truckloads of cash. No other issue comes close.

Mark said...

To overturn Roe would be to take away an individual right that Americans have possessed for a long time — a half century.

Petitioner's Reply Brief:
Respondents suggest that a right to abortion has “become embedded” in our “national culture” and that Roe and Casey’s “antiquity” supports retaining them. Resp.Br.36. But becoming “embedded” in our national culture at least means becoming “wide[ly] accept[ed],” Dickerson v. United States, 530 U.S. 428, 443 (2000)—something that Roe and Casey have never achieved, Pet.Br.23-24. Abortion — as both a jurisprudential and policy matter — is as divisive and unsettled as ever. Pet.Br.23-24, 31-33. Here the passage of time (“antiquity”) shows the impossibility of a judicially managed right to abortion. See Pet.Br.22, 32.
Respondents also claim that it “is even truer today” (Resp.Br.37) that people have organized their lives “in reliance on the availability of abortion...respondents claim that women have advanced only “incremental[ly]” under Roe, yet insist that a constitutional right to abortion is “critical” to women’s advancement and that its absence would “shatter[ ]” women. Resp.Br.40-41. What a demeaning view of women. It is false, but not new. Roe’s author claimed that overruling Roe would “cast[ ] into darkness the hopes and visions” of “millions of women.” Webster v. Reproductive Health Services, 492 U.S. 490, 557 (1989) (Blackmun, J., concurring in part and dissenting in part). That claim, picked up by respondents, boils down to the view that millions of women have a meaningful life only because 50 years ago seven men in Roe saved them from despair — and that women’s success comes at the cost of ending innumerable human lives. That is the debased view that Roe and Casey have produced. It is time to get rid of them....
As precedent, Roe and Casey may have “fiat value” — force because of the “high authority” that issued them. Robert H. Jackson, Decisional Law and Stare Decisis, 30 A.B.A.J. 334, 334 (1944). But they have no “intrinsic value based on individual quality.” Ibid. That is why respondents’ defense of a constitutional right to abortion must rely not on what the Constitution means but on what Casey said.

Mark said...

More Petitioners' Reply Brief:
Respondents proclaim that there “are no half-measures here.” Resp.Br.50. It is true that the Judiciary cannot provide a workable half measure — it cannot produce an enduring compromise. But the people can. When this Court returns this issue to the people, the people can debate, adapt, and find workable solutions. It will be hard for the people too, but under the Constitution the task is theirs — and the Court should return it to them now.
CONCLUSION
This Court should overrule Roe and Casey, uphold the Act, and reverse the judgment below.

doctrev said...

I wasn't going to comment, but no one's taken the tack I wanted! So I too shall bite. You may declare the law is settled all you like, Professor, but the right to have slaves had considerably more tenure and popularity in its heyday than the right to have abortions ever did. Giving all the decision making power to the slaveholder is even less justified: after all, a slave has the ability to rebel in ways that the unborn do not. In fact, the historical record shows considerably more restrictions on killing slaves than many states enjoin upon abortions.

This is fun! I could do it all day. However, I don't think you have to worry: Hewitt's a weak writer and you were right to mock him, while the Ivy League justices are not going to abolish Roe because they are generally cowards. There is no legal "ratchet," just societies too weak to give Marbury vs. Madison the pushback it deserved- but the times are a-changing back.

Quaestor said...

"You're just deluded about what the legal issues are."

Issues, plural.

Althouse acknowledges only one. But there are others. One is the constitutionality of reasonable restrictions.

No reasonable person believes the trip from the womb to the light of day is magical, that what was a non-person instantly acquires what I will call a soul for lack of a more succinct term with all the benefits and protections appurtenant thereto just by being born. The extreme pro-choice camp would extend abortion to include acts of destruction that most reasonable people would deem infanticide. On the other hand, there is the extreme pro-life position that rejects abortion categorically throughout the entire gestation.

"There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision."

Would Althouse agree that a mother who choices to destroy her child when its natural, full-term birth is imminent is acting morally?

There are morals and there are laws. What is moral and what is lawful often agree, but not always. In most states, a poor man's only home can be seized and auctioned for a few thousand dollars of delinquent property taxes, leaving him destitute and homeless at a stroke. That's lawful but hardly moral in my estimation. If and when Roe v. Wade is revisited morality won't be an issue. The question of reason boundaries will be.

Every individual right guaranteed by the Consitution has reasonable limits, what those limits are ought to be and is a matter of public policy to be weighed and enacted through the established political process and not private conscience. The First Amendment includes the right to free speech and expression, but there are boundaries to free speech and expression reasonable people find agreeable. The Second Amendment guarantees (or ought to) that citizens may own and carry semi-automatic military-style rifles. However, legislation has set a boundary: The right to keep and bear arms does not extend to weapons of mass destruction, though the actual language makes so such distinction.

Roe v. Wade is based on the implicit right to privacy. However, privacy is a bounded right just like the explicit enumerated rights. Your right to privacy can be abrogated at a stroke of a judicial pen. (Ask James O'Keefe about the right to privacy.) Why cannot a judge order a pregnant woman to refrain from killing her unborn offspring, thus violating her privacy, when that same judge can order her phone to be tapped or her private papers and computer file to be seized and impounded?

Earnest Prole said...

I'm going out on a limb to say it's unlikely the Althouse comments board is where the abortion issue will finally be resolved.

Bruce Hayden said...

“There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision”.

Why? I can see this argument pre-viability. But at 9 months, when the baby is perfectly capable of surviving outside the womb? Why shouldn’t they have the same rights as the rest of us to Life, Liberty, and the Pursuit of Happiness? Your position seems to be full maternal power of arbitrary life or death over their baby, regardless of gestational development. Post viability, and esp in the last trimester, Inside the mother, the baby has no right of survival, whereas inches away, and several minutes of emergency C Section surgery, the baby has full right of survival. What’s so magical about those couple inches of flesh and emergency C Section?

I think that the compromise that a majority could live with is giving the mother full rights to abortion before viability, and restrict it after that, on the grounds that the state has to protect the most vulnerable.

Greg The Class Traitor said...

Ok, let's dump "serious". Let's just go for "honest" instead.

There is not Constitutional right to Abortion. There's no Constitutional right to control your own body. If there was, the FDA wouldn't exist, and there's be no such thing as "prescription drugs", because you wouldn't need someone else's permission to put whatever you want into your body.

For that matter, teh DEA wouldn't exist, and there'd be no "war on drugs".

Finally, suicide would be legal, because there's no way the State could override your exercise of the right to control your body to kill yourself.

So, everyone who claims that Roe / Casey have any legitimacy is a liar, and those of us who disagree are honest.

Does that work better for you?

Greg The Class Traitor said...

To overturn Roe would be to take away an individual right that Americans have possessed for a long time — a half century

The right to kill your baby because his or her existence is inconvenient to you is more honestly seen as taking away people's right to protect the innocent and defenseless, and taking away the innocent and defenseless's right to life, and to protection from murderous thugs.

When all is said and done, you're just creating the "principle"; that the courts forcing States to allow people to do what you want is good, and the courts forcing States to allow people to do what you do not want is bad.

Either we have written Constitution, that applies equally to everyone, or we have a "judicial" dictatorship.

The dictatorship is evil. Roe is not in any legitimate way part of the US Constitution, and must go

Pookie Number 2 said...

There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision.

Isn’t that begging the question? (I’m asking this about the law.)

tim in vermont said...

"That would not be true if the unborn has a legal right not to be aborted."

So basically it's a practical argument based on the relative political power of the parties, plural intended, involved. I like this argument much better than the ridiculous ones that pretend that the decision is based on some kind of logic that could be generalized. It's more pretzel logic, where one throws in whatever arguments one thinks might stick, always keeping an eye on the listener to see if the listener is buying it.

tim in vermont said...

"There is a moral argument for the unborn"

There is a moral argument for the laws against murder, too.

0_0 said...

Hewitt is a clown.
Just because he is published does not mean he speaks for anyone.

Michelle Dulak Thomson said...

Joe Smith,

Roe was a horrible decision to start with, which is why it was inevitable that it would forever be on shaky grounds.

Ah, but the fact that the grounds are shaky is just another reason to exalt them! I'm not sure whether it was Dworkin or Tribe who said it, but there's an argument that the very fact that you can "find" a right to abortion everywhere in the "it's alive!" Constitution is proof that it has to be there. Who cares whether it's the First or the Fifth or the Ninth and Tenth or the Thirteenth or the Fourteenth? The very fact that there are so many options proves it must be right.

Ann, think of Judith Jarvis Thomson (sux that she shares my surname, but can't help that). Her "thought experiment" tilted every conceivable factor in favor of abortion. The violinist was (a) male; (b) talented; (c) presumably rich, to have his followers carry out this elaborate operation; (d) presumably cynically cruel, to deliberately subject a stranger to nine months of total immobility. The actual equivalent to the violinist is a helpless creature not yet an infant, whose desires are to eat, grow, live, love, and who bears no ill will toward anyone.

Suppose the person attached to the protagonist is a small girl from Guatemala with an incurable blood disorder that will kill her without constant infusion from the protagonist, a person with a rare blood type. Suppose the treatment requires the protagonist's attention, but not incessantly; mostly, she's an inconvenience no more than (say) a swelling in the belly. Suppose she's been put there by a charitable society that recognizes the protagonist's pain and is willing to compensate her for it. Suppose that after the nine months are up, she will never darken the protagonist's door again.

That is how I see Roe. A decision that throws absolutely everything out (I am striving mightily against saying "the baby with the bathwater," and not quite making it) for the sake of, let's be clear about this, the right of women to chop unborn infants into separate limbs, to be drawn out of the uterus bit by bit. And for PP personnel to say, blithely, oh, we can choose to crush here, or crush there -- which organs were you interested in, again? Over the brunch.

Sorry, that is sick, and it doesn't need Project Veritas to tell me so.

Michelle Dulak Thomson said...

Ann, surely you aren't saying "pregnant person" now, too? A grand total of one alleged dude turned up at a hospital, and it was determined that his stomach pains were, in fact, labor. Therefore any man who has stomach pains might also, potentially, be in labor. One swallow does not make a summer, but one pregnant man sure as f means that every man is potentially pregnant. Sheesh.

Mark said...

Roe could have been grounded on a "justifiable homicide" basis. But no. It could have admitted the obvious, that the entity in the womb is a living human being, but that he or she could be ejected based on some bodily autonomy basis. But Roe did not go that route.

Harry Blackmun instead insisted on denying and obfuscating the main question -- the living humanity of the entity to be aborted -- arguing that "when life begins" was some great unknown and unknowable concept.

Blackmun went that route after saying that if human life does not spring into existence from inanimate matter as if by magic, but exists from the first moment of conception, then no "right to abortion" could be found.

Of course, even then that argument that no one can ever know when human life begins - that the growing and developing prenatal human being is only "potential life" - was patently absurd. Now, the pro-abortion crowd is stuck with that albatross around their necks. Dobbs confronts the question in a way that no case before did. It is now too late for the pro-abortion people to say, "OK, yes, it is a living human being after all, but it's still a 'pregnant person's' choice."

Precisely BECAUSE OF ROE, because FOLLOWING Roe, if the Court confronts that question of human life -- which it must in considering the validity of a viability rule, whatever the hell "viability" means (as if people with degraded lung function are no longer living humans) -- then it must necessarily abandon Roe's absurdity. And according to Roe itself, if the entity is a living human being, then the State may enact laws to protect that life.

Roe itself demands that Roe be overruled. Roe made this bed, now sleep in it.

Mike said...

Hugh Hewitt is a fine broadcaster and interviewer, but his record as a political prognosticator is abysmal. If he predicts something, I'd bet money that it won't happen.

Dave said...

Many conservatives see Hewitt as an establishment Republican. From that perspective, this is waving a false flag is a move to win back suburban women.

I would prefer to not be talking about the issue. Restoring my voting rights is more important to me.

Mal said...

Ann Althouse said...

That's not a legal argument in the case. You're positing a legal right that the unborn has as against the private citizens? Cite any brief raising that issue.

-

Ann, I would commend to you the Petitioner's brief which can be read in full at

https://www.supremecourt.gov/DocketPDF/19/19-1392/184703/20210722161332385_19-1392BriefForPetitioners.pdf

Specifically, you'll find a section starting on page 28 titled "Legal And Factual Progress Have
Overtaken This Court’s Abortion Precedents." Page 30 begins the discussion about the fetus, pain, and the question of life.

If you go to the paragraph of that section (which starts with "Third, advances in medicine and science have eroded the assumptions of 30—and 50—years ago.") you'll see what the commenter above above may be alluding to.

Granted this is just a blog and people have said far worse about each other here over the years, but I think it is disingenuous to call someone "deluded about what the legal issues are," when the Petitioner's brief specifically addresses the scientifically evolving view of a fetus.

It may not be a winning argument. But the argument has been raised by a party to the lawsuit. And that's without even going into the cacophony of amici.

Marc said...

I was interested to see in the NYT last week or so two different opinion pieces by feminists-- people of the pro-so-called 'abortion rights' party, in any case (I believe)-- declaring or arguing that this Supreme Court will reverse Roe v Wade etc and explaining 'what should happen thereafter'. I didn't read them because I have absolutely no desire to entertain yet again their sophistry, however artful.

There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision. I think that this is an example of the rhetorical fallacy petitio principii.

effinayright said...

Ann Althouse said...
There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision.
**********

Now THERE's a finely honed legal argument!

I guess the father has no say in the matter, right?

But I forgot---- he just used the mother as a "sexual spittoon", as the Andrea Dworkins of the world used to claim.

gilbar said...

Ann Althouse said...

There is a moral argument for the murder victim , but that is a matter for the murderer to figure out in making her decision.


Really?

rcocean said...

Hugh Hewitt is a conservative inc. grifter. A complete fraud. Called everyone who wanted a border wall or was against amnesty a "racist" for over 20 years. Opposed Prop 187 and called anyone who wanted to stop Illegal immigration a racist. Including Pete Wilson. Supported Bush's secretary Harriet Miers being on the SCOTUS. Went to the NYT and trashed all the Conservatives who stopped Miers.

Hewitt opposed Trump in 2015-2016 and was a never trumper. Then once Trump got nominated tepidly supported him until Oct 2016, when demanded Trump drop out because of Pussy gate. Since then he's flip flopped from supporting Trump to trashing him. On Jan 6th he joined the hysteria and demanded blood on the streets. Shoot those Trump supporters down like dogs! Insurrection!!11

So when he says Roberts will vote to overturn Roe, that's just bullshit. When he calls Roberts a "Conservative" thats just bullshit. The idea that a liberal like Roberts would EVER overturn Roe is laughable. The idea that the 3 goofs put on the bench by Trump would ever have the guts to overturn Roe is even more laughable. Kavanaugh can't vote for one solid conservative position, without writing some goofy concurring opinion showing he's a special little snowflake, not like those other Rightwingers.

Honestly, why would anyone take this seriously. It brings up the question: Why is a Republican Hack like Hugh Hewitt floating this? Is it supposed to give Republican voters hope?

hombre said...

Abortion is not a constitutional right. It is a Blackmun, et al., manufactured right..

Having said that, I doubt the Court will overturn it.

Michael McNeil said...

When does this human “creature” become a person with rights of their own?

My answer would be after the human fetus develops to at least a rudimentary degree that vehicle which is the host for all the characteristics that we consider to be fundamentally and essentially human — though some qualities are also shared with the advanced animals.

What are some of these qualities and characteristics? Emotions of all kinds, including love — together with rational (and irrational!) thoughts that one might have — along with logical (even subconscious!) reasoning: a list might include many such qualities — but all are fundamentally rooted in the processes and functioning of the human brain. Not the heart — the heart in the chest is merely a blood pump. No, the emotional plane of human existence (not just the intellect) is also based in the brain (a quite different level).

It happens that not the shadowiest trace of a brain — nor even the existence and presence of the first neuron cells: vehicle of the fundamental wiring of the human biocomputer called the brain — comes into existence in the developing fetus before around the start of the second month after conception.

Of course, even after the human fetal brain begins its long development, for a long time the brain is rudimentary and primitive — far short of the brain of even a child — but at least it's there! Prior to that stage the fetus is wholly animal — capable of hosting no important human qualities.

One might note, however, that abortions occurring during the second month of gestation, or soon thereafter, are not the problem. Very late-term abortions — including the so-called “partial-birth” abortions (concerning which, our host Althouse estimated at one point that there are probably several thousand of these performed every year in the U.S.) — occurring as they do during the third trimester, do essentially murder a viable baby — in full possession of a baby-ready-for-birth's brain and (hence) mind. It's not okay to murder these people!

Bender said...

I don't see how a serious thinker could think it likely that the court will overturn Roe without overwhelming public support.

It's been said before that the Dobbs case is the dog that didn't bark. The fact is that there is NO outrage, except by the rabid pro-aborts, at the prospect that Roe might be overruled. Those who call themselves "pro-choice" are mostly meh about the prospect.

Terry McAuliffe ran a campaign telling people that Roe was going to be overturned as if it were an established fact. That is to say -- people have already accepted it. They have accepted that we are about to enter into a post-Roe age . . . and they are OK with that.

The real fact is that for the last 50 years, most of the people saying that they were "pro-choice" were actually "just leave me alone" types. They really didn't and don't care all that much.

When Amy Coney Barrett releases the opinion tossing Roe and Casey on the ash-heap of history, sure you will have the usual suspect rioters looting and burning, just as they do on a typical day ending in "y." But most of the country will be fine with it. That's because deep in their hearts they know that abortion kills an innocent human being and that it should not be illegal to protect that human life.

Maynard said...

If Roe is overturned, it will not be on the basis of the "rights" of the unborn. It will be on the dubious constitutionality of the right to an abortion i.e., Blackmun's folly).

That said, the decisions about abortion law will go to the states. This could be of benefit to the left if red states are too restrictive in their laws.

However, consider the prevalence of the day after pill and future such medications. Abortion may not be as big a deal as it was in the past. It may go the way of civil rights as a call to political action.

I say this as a generally pro-choice individual who believes that your choices becomeincreasinlgy limited when the fetus reaches its second trimester.

Bender said...

A majority of the Court will NOT vote to affirm Roe.

And a majority, in upholding the Mississippi law, will not want to do this piecemeal. They will not want to invite states to bring case after case after case to the Court to chip away some more at Roe.

They will see that it is past time for the Court to get out of the abortion umpiring business. They will leave it to the states.

The states/federalism resolution is an imperfect one, but federalism by its nature is imperfect. That imperfection is also better than a one-size-fits-all approach that would impose injustice everywhere. Leaving it to the states will result in innocent human life still being at risk of being killed with impunity in some places, but at least some human lives can be protected and saved.

Being able to protect and save some human lives is better than 70 million innocents being butchered.

Bender said...

Now, we've seen more than a few specious pro-Roe canards tossed out.

How long before we get the accusation that anti-choicers just want to "punish" women?

How long before we get the snide question, "So, you want to throw women in prison? You have to thrown them in prison if you make abortion illegal."

How many times must we go around and around with the same nonsensical attempts to uphold a scheme of legalized human slaughter?

Doug said...

... abortion should be safe, rare and legal ....
If abortion is legal, why should it be rare?

Bender said...

Amy Coney Barrett does NOT want to go down in history as the woman who upheld the killing of innocent children when she could have done something about it.

She is not going to stand in front of God at the end of time and say, "My hands were tied. Stare decisis, you know. The evil is not on me."

When push comes to shove, neither is Kavanaugh.

Bender said...

In April 2013, Barrett gave a small hour-long seminar "for students on changes to law and life for women after Roe v. Wade" entitled "Being a Woman After Roe."

Greg The Class Traitor said...

Ann Althouse said...
There is a moral argument for the unborn, but that is a matter for the pregnant person to figure out in making her decision.

I'm sorry, but this is completely wrong.

If the unborn is a human being, then we, all of us, have a moral duty and moral right to protect that human being from someone who wants to kill her. Even if it's her mother.

If the unborn isn't a human being, is just morally equal to a puppy for instance, then killing that being is no more of a "moral issue" than someone humanely killing a puppy.

There is no functional difference between saying "it's a moral issue to be decided by the pregnant person" and saying "it's no more of a moral issue than a wart removal, so fuck off."

Ann Althouse said...

@mal

None of that is about a legal right that the unborn has as against the private citizen.

Big Mike said...

I don’t think Roe will be overturned, nor do I think that it should be. But that said, I think that there will eventually come to be common sense regulations on the right to abortion, just as we have regulations limiting the right to bear arms. For instance, beyond a certain point — currently around 23 weeks — the baby does not really need the mother’s womb to survive if it receives adequate care in a hospital setting. At that point the mother’s convenience is outweighed by a viable child’s right to life.

Gahrie said...

None of that is about a legal right that the unborn has as against the private citizen.

Life, liberty and the pursuit of happiness.

How many more lives must we sacrifice to the modern cult of Baal that is feminism? It's so pathetic now, you can't even bring yourself to use the word mother.

Readering said...

Conservative legal types, in and out of FedSoc, have spent decades trying to make sure there are no more
O'Connors, Kennedys, Souters. They stopped Miers, a perfectly adequate nominee. They now have 6 vetted GOP nominees on the Court. If Roe/Casey eludes their grasp in the next few years there will convulsions that make sleepwalking Lady Macbeth seem like Sleeping Beauty.

What's emanating from your penumbra said...

Roe is a signpost on the path leading to the implosion of a society. Pull something out of your ass and call it a constitutional right... pretty soon everybody is lying about everything. Have some honor. It's not all about forcing your preferences on others in any way possible. That way of operating will ruin us.

cyrus83 said...

If the logic of Covid mandates by government is valid and legal, Roe is logically indefensible. The whole concept of such mandates is that the individual does not have the right not to take an action because their inaction might hypothetically harm someone else.

If an inaction that hypothetically results in harm can be proscribed, it's hard to see how an action that results in definite harm cannot similarly be proscribed. It doesn't even have to rely on whether the unborn is a person or not since we proscribe harm against non-persons in animal cruelty laws. And since the mandates presume the government can force medical interventions on you against your will, by what logic can it not similarly prohibit medical interventions against your will? Bodily autonomy and liberty are incompatible with mandates.

Note - the above logic doesn't just apply to abortions, it could in theory encompass any possible medical procedure, treatment, test, or drug.

Gahrie said...

None of that is about a legal right that the unborn has as against the private citizen.

Surely your response would be that the creature has no standing?

Because if it has standing, it has rights that must be protected, including the right to life.

tim in vermont said...

"Isn’t that begging the question? (I’m asking this about the law.)"

Yes! An actual example spotted in the wild.

farmgirl said...

https://www.prnewswire.com/news-releases/the-fourth-trimester--a-new-addition-to-the-merriam-webster-dictionary-301423281.html

I (seriously)wonder when any slide downward on the moral slippery slope will be too far for the Leftists. I mean, how low CAN you go- what will it take to admit degradation of human life is gone over the red line?

What I see in this definition, panties twisted sideways and in a bunch- is greater opportunity to declare someone nonhuman and let this vulnerable life just die, already. Yay, Roe. How f/king admirable.

Safe, legal &rare

farmgirl said...


Right is right, even if everyone is against it; and wrong is wrong, even if everyone is for it. — William Penn.

Achilles said...

This Person said...

Roe is a signpost on the path leading to the implosion of a society. Pull something out of your ass and call it a constitutional right... pretty soon everybody is lying about everything. Have some honor. It's not all about forcing your preferences on others in any way possible. That way of operating will ruin us.

Now do gay marriage.

Just warning you. This is a trick question for conservatives who seem to think the federal government is their tool for telling people what to do.

Drago said...

Readering: "They stopped Miers, a perfectly adequate nominee."

Said absolutely no one other than GW Bush.

This nomination collapsed so fast from every side that it makes readerings rewrite of history one for the books.

Bruce Hayden said...

I think that the answer is to leave Roe in place. It ushered in the three trimester structure of abortion law. First trimester, the woman’s rights are supreme. Third trimester, the baby’s are, unless his life would lose his mother hers. And the middle trimester sits somewhere in between. This fits decently well with viability, which happens sometime during the second trimester. So, the way to go is to declare that Roe was right, with its three trimester structure, and later decisions lost track of its wisdom. And, in one fell swoop, we will be at a place where the Supreme Court reflects public sentiment - that is what the bulk of our population wants: wide open first trimester abortion, and severely restricted third trimester abortion, all perfectly compatible with Roe.

As a reminder, this is how the Supreme Court prefers to operate - rarely explicitly reversing itself, but changing direction (called “distinguishing”), even reversing itself through clarifications.

As for Ann and her absolutist women’s right beliefs - no other right is really absolute. Think of it as latches-you snooze, you lose. If a woman acts promptly, she can do whatever she wants with the embryo growing within her. But when it begins dreaming it’s own dreams, and thinking it’s own thoughts, when it becomes capable of independent existence, outside the womb, it now has a reliance interest in its own continued existence. At that point, the woman snoozed, and lost (her full control over the continued existence of the child in her womb).

Gahrie said...

Just warning you. This is a trick question for conservatives who seem to think the federal government is their tool for telling people what to do.

If the primary purpose of government is not to protect innocent life, then what is the point? If that's a step too far then I'm with the anarchists.

jg said...

i think the crux is not inside-body-boundary but rather one of physical dependency.

topologically, as soon as the amniotic sac is broken, the infant is no longer inside the mom's body (just as we're topologically a donut with regard to our digestive tract). one increasingly medically possible compromise is an offer to remove with effort to save and implant elsewhere if needed.

should heavy people be allowed to smother babies in their fat folds because the baby is similarly 'inside'?