After listening to the oral argument yesterday — before reading any commentary — I wrote "I predict stare decisis will prevail." This morning I'm reading the commentary, and everyone seems to be saying they know the Court will overrule Roe Casey, so I thought I'd link to a few things and then speculate about why, politically, that's what you'd want to say.
So, first, the NYT, Adam Liptak: "Supreme Court Appears Open to Upholding Mississippi Abortion Restriction/After two hours of sometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy." Liptak is vote counting, and he sees Roberts as looking for a middle way — drawing the line somewhere other than viability. Roberts needs another vote, and "the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach." This middle way would resemble Casey, keeping the essence while changing the doctrine.
Next, here's Noah Feldman at Bloomberg: "The Supreme Court Seems Poised to Overturn Roe v. Wade/The chief justice suggested a way to restrict abortion without going that far, but the swing voters didn’t engage his potential compromise." That sounds just like Liptak's position, but Feldman goes further characterizing the mindset of Justices Brett Kavanaugh and Amy Coney Barrett: they "seemed pretty set on making history by overturning Roe."
Third, here's Amy Howe at SCOTUSblog: "Majority of court appears poised to roll back abortion rights." Howe counts Kavanaugh among the Justices who seem ready to "overrule Roe and Casey outright." She sees Gorsuch and Barrett as the ones who might join Roberts in this imagined middle position.
Just one more — Dahlia Lithwick at Slate: "SCOTUS Will Gaslight Us Until the End/Oral arguments today made clear that this court will overturn Roe—and that they’ll insist on their own reasonableness the whole time." This piece is different from the other 3. It's much more of a rant, but overruling Roe Casey, if that's what the Court is really up to, deserves a rant. Lithwick doesn't believe the "precious" talk of the seemingly more moderate conservatives: It's a 6-3 Court and that's that.
I'm going to look at the transcript closely soon, and I'll explain why I think the middle position didn't get much traction and why, consequently, I'm going to stick with my position that the pro-abortion-rights position will win. But just to repeat what I already said: For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws.
But I see the value of predicting the overruling of Roe (that is, Casey). Activate people now. Get the political movement started early, because it will be immensely powerful if the Court overrules Casey ("Roe"). And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent.
पोस्ट्स
८० टिप्पण्या:
Democrats would also like something to run on in November midterms. Abortion would be a big one. A loss becomes a motivation. Conversely, the court doing nothing will motivate the right to get more votes on the court.
but overruling Roe Casey, if that's what the Court is really up to, deserves a rant
Okay, i'll bite... WHY?
because you think it is good law? or, just because it IS law?
How about Plessy v. Ferguson? Or Dred Scott? Those were law
Your conclusions seem reasonable.
In stark terms, one could make a case that the best electoral hope the Dems have at present is a repeal of Casey to energize the base and refocus the media. I expect the media to make this case to beltway GOPers until the dime drops on the decision. The demise of Casey will provide one more compelling reason for next summer's inevitable riots.
Like the last ones, these will be mostly peaceful. As always, events may overwhelm these political calculations.
How much more powerful can Democrat politics get? Biden got 81 MILLION votes, a record for any President. What's the next Rat getting? 90 million? 100 million? More?
We all know it's fake, and people who don't rely on the Liptaks and Feldmans for news know that support for abortion is much softer than the media is ever willing to admit. Roberts is gamely trying to bully the Trump judges into backing his plan, but they're freezing him out. I wouldn't be surprised if Thomas writes the real opinion, even to the point of openly dismissing the Chief.
I once worked for the state government for a couple of years. I remember walking into an elevator in my office building, and there was a woman who got in alongside me. She had a large button on her lapel that said,"Happy Birthday, Roe!" Below that was a birthday cake with candles. I looked at her briefly. She had the face of a ghoul, and a plastic, Pelosi smile.
I almost said something, but didn't. As a government employee, in a government building, it's appropriate to exercise restraint and discretion. But what I wanted to say was, "Yes, Happy Birthday, to 50 million plus dead children." Maybe she would have stopped smiling. Maybe not.
"For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis."
Here is a better place to draw the line: the constitution does not outline a right to abortion, it is not a federal issue, and should be handled, politically, by the states.
It's usually safe to bet against the court being courageous. So I am also sticking with my position that the pro-abortion position will win.
gilbar said...Okay, i'll bite... WHY?
because you think it is good law? or, just because it IS law?
I have never come across a constitutional scholar who thinks Roe was rightly decided. That includes people who strongly support abortion rights. After the fact, Blackmun essentially admitted that he started with a conclusion and worked backwards to a justification.
And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent.
ACA showed us there’s certainly precedent for that. It also showed us an example of binning stare decisis in favor of The Supremes divining law by sticking their tits in the air and reading the political wind…but no matter. The fuckup created will be something for the remains of society to unravel in the future…
Plus, The Supremes will need examples of law created by living breathing document doctrine in order to ignore the second amendment later in the docket. Handy.
I'll answer for gilbar: to many Boomer women it will always be 1972. They can't conceive of a world where Plan B exists, where IUDs are pushed on every woman who shows up at a OBGYN, and where the birthrate is below replacement.
My take: Women are smart enough to not get pregnant if they don't want to or live somewhere that aligns with their values.
For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws.
This strips the facade of SCOTUS rulings being directed by the Constitution. Casey just found a way to hide the pea.
All of this analysis, and nobody is breaking down Roe or Casey on a Constitutional basis. Nobody is defending the horrendous legal logic used to support the decision. Nobody is quoting long passages of the decision and explaining exactly how the decision adheres to the tenets of the Constitution.
In Europe most countries restrict abortion to before 12-15 weeks. And as far as I know they don't have debates about whether or not to let a baby that managed to not get killed during a late term abortion to die or get it hospital care. Does Casey say anything about killing babies right before they are born? Is that in the constitution?
I care much less about overturning Roe/Casey than I do about turning the Democrats out of office. It isn't that I think the court should bend to political considerations, but the timing of this couldn't be worse. Democrats desperately need something to motivate their demoralized voters, and this ruling could potentially give it to them.
According to the WSJ editorial page, the Wise Latina destroyed some precedents on her own yesterday and leaned in to the discrediting the legitimacy of her own institution by engaging in personal attacks on other justices from the bench for being "political"--before anyone had done anything.
Garbage in, garbage out, as we used to say in the business world. I am shocked to discover that people engage in politics on the Supreme Court.
A wiser and wilier Justice Breyer when asked by a reporter if he had an opinion about the incautious comments of his colleague Ruth Ginsburg said, "If I did, I wouldn't tell you."
And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent.
Oh, yes, give the Dems what they want or they get so angry and powerful that they'll win elections and then get what they want?
The argument never goes the other way: "give Republicans what they want so they don't win elections on the issue" is never the advice for some strange reason.
" And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent. "
Isn't that a form of extortion? Lovely court you got there. Would be a shame if something happened to it.
They could always resort to what Democrats tend to resort to: Threatening riots, looting, and non-stop destruction. Call everyone who disagrees with them, Fascists. And show up at the homes of whomever comes out in favor of a ruling that changes the current precedent.
And this is what will happen. There will be large gatherings. Bring out the pussy hats! Protests. This is the one, single riveting issue that Democrats need to bring out voters to keep the current slugs in office. I just don't think it'll be enough.
That said, all of this prognosticating about the Court is like sports talk people projecting the college football rankings before the season begins. It's meaningless. There will be months of back and forth between the justices. Discussions, arguments, and a possible swaying one way or the other. Maybe a Roberts type approach is not out of the question. A paring back of current Federal laws. Or maybe it should go back to the states, where I believe it should have always been. That is our system. 50 working laboratories to figure out what works best, and to allow for choice in that larger manner.
And what is the problem with a compromise that pares back the viability date. I've read somewhere (and I'd have to dig it up) that there are only 7 other nations that allow abortions as late as we do here in the US. I'm not sure that's a list you want to strive to be in the Top 5.
Anyway- all is huffing and puffing until then. I'm not sure if the Democrats threats of destroying more cities is a good approach. I think people- women included- are sick and tired of it. And Dalia Lithwick does tend to rant. That's what she does. She would do well here in the Althouse commenter world.
"because you think it is good law? or, just because it IS law?
How about Plessy v. Ferguson? Or Dred Scott? Those were law"
Yeah, well, I think we can all agree that the Supreme Court messed up when they jumped into the abortion debate and pre-empted the political process ongoing in fifty states. It was a terrible decision (that has been a gold mine for both political parties). If the Supreme Court undoes Casey, abortion will still be legal in IL, NY, CT, MA, MN, CA, NV, WA, OR, VA, VT, NJ, and some others. SCOTUS will see its wings clipped one way or another.
It will be a gold mine for both parties. Some things stay the same no matter what happens.
Progs have all the cards here. If the Supremes overturn Roe/Casey, their base will be super angry. Huge opportunity to raise votes and dollars —and act out their righteous fury. The Justices and their families, including pets and distant cousins, will be terrorized endlessly.
If instead the Supremes uphold Roe/Casey, the “right wing” —including IMHO the vast middle of the country— will be demoralized. Like most of the West, our birth rate is below replacement. The new blood is from immigration and that is culturally disruptive in ways that a baby boom is not. So the strain on traditional family institutions is high and rising. To see the Dispos-A-Baby movement gain additional legitimacy will strain it even further.
It’s unclear whether “I predict stare decisis will prevail” equals “I predict the Mississippi law will be struck down.” But here’s another prediction: Regardless of the outcome of the case or the court’s stated reasoning, it will be widely reported that Roe v. Wade is “gutted” if not “dead.” The required story is the story we will get.
Viability is a moving target and not a good place to use for a law. Are we talking about all babies born at that point in fetal development could survive? 75% 50% Or just one has managed to live? There are only two points in the development of a fetus that are rigid. The day it's conceived and the day it's born. If you want to regulate abortion, pick one. If a mother is going to execute her child in her womb, what difference does it make to the child? It ends up dead either way. Viability is just a choice to assuage guilt. "The child wasn't able to live on its own, and I didn't want it there."
Gilbar in for the first round first punch TKO.
I agree with your approach of looking first at the political motives of the writers when reading anything reported in the media. It's like reading Pravda used to be, the truth is in there somewhere, it just is never what they say it is. Of course, the Party's use of a robust disinformation capability can make it all but impossible to get the truth out of publications like Pravda or the New York Times, try as we might.
Note: From now on I am going to refer to the Democratic Part as simply the Party.
Viability is an attempt to maintain a sharp distinction between abortion and infanticide. There is some support for this distinction in Locke, the political philosopher who perhaps is the greatest inspiration for institutions and laws in the U.S. He says adults have a right to expose a helpless child. He emphasizes that the first person to face such a choice is the mother, and it may always remain a bit unclear who the father is. Any authority of a father over a child will depend on contracts. Only a biological mother has what we might call authority over a child by nature. On the other hand, Locke favours incorporating the Commandment, "Thou Shalt Not Kill," in the laws, as long as this is done in a reasonable way. So if a child is abandoned, it should be abandoned in a safe place where some adult is at least likely to consider feeding it before passing it along again. Amy Barrett pointed out yesterday that all 50 states now have "safe haven" laws, protecting women from any criminal liability for abandoning their children, as long as they do so in a way that is safe. Somewhat shockingly, this Lockean law may have started in Texas as recently as 1999. I think it is still true that there is tremendous demand to adopt healthy newborns.
It is true for pregnant women, and probably only for pregnant women, that the only way to expose a child "right away" is to kill it. What takes priority, their right to expose or the duty, which they share with everyone, not to kill? Judith Jarvis Thomson made a famous argument in favour of a right to end a pregnancy, but she made it clear this was not a right to kill a fetus; it is simply that you can't do one without the other, and the right takes priority.
Viability is at least more clear than when pro-choicers appeal to Thomas Aquinas, of all people, and talk about "quickening." Ronald Dworkin I believe went on for hundreds of pages about brain activity beginning at 10 or 12 weeks' gestation; I'm pretty sure Dworkin is an ordinary pro-choicer, favoring abortion up to viability, brain activity or no brain activity.
Pain that might be experienced by a fetus came up yesterday. Pro-choicers seem to want a female-dominated version of the 50s. We are OK with cruelty being inflicted behind closed doors, as long as we correctly identify the individual or individuals who has a right to inflict the cruelty. In the 50s this might be the husband/father; for pro-choicers it is the pregnant woman.
I think there is a lot to be said for pointing out that the Constitution neither requires nor forbids any specific legislation on abortion. Penumbras of the right to privacy can extend to contraception and gay marriage without harming any identifiable individual. Abortion is different.
“the middle position didn't get much traction”
Chief Justice Roberts seems to be pitching a narrow ruling, that the Mississippi law should be upheld on the basis that 15 weeks is not an undue burden. He needs one Republican to join him on the ruling to uphold being limited to the facts of the case. If the Court rules that 15 weeks is enough but not necessarily required, then it shifts to the prochoice side to find a rationale for 15 weeks, or some lesser number of weeks, to be the minimum.
A narrow ruling now followed by a broader ruling after Republicans have regained the House or Senate might offer a better chance of the Court not being expanded by Democrats to save or reinstate Roe and Casey. That’s the institutional consideration for a narrow ruling that won’t be discussed by the Court publicly but has to be on their minds. The Republican majority on the Court will want to hold onto their current power, but may judge that a Court expansion won’t pass the current Senate.
The libs don't want to jinx it? Or how about the libs want to stimulate their violent activists to harass and intimidate the Supremes and their families to force the conservative Catholic justices to use stare decisions as an excuse to keep the status quo and prevent another summer of libtard riots.
Conversely, the court doing nothing will motivate the right to get more votes on the court.
Doing nothing in this case only happens if at least one of the three Trump appointees goes along with it. If that happens, right-to-lifers may conclude that Republican politicians, including Trump, have just been stringing them along. If enough of them stay home, the Republicans won't do as well in 2022 and 2024 as they expect to.
Althouse saud...
"I write 'Roe' for simplicity, but Roe was replaced long ago by Casey."
Supreme Court Appears Open to Upholding Mississippi Abortion Restriction/After two hours of sometimes tense exchanges... the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy.
What am I missing? Isn't 15 weeks after the first 13-week trimester? Does the Court even have to reach the issue of Roe and its "progeny"?
In other words, does the Court have to abort Roe's progeny to uphold the Mississippi statue?
Isn't that the "we never reach the issue" path Roberts would pursue?
I have no desire to return to the bad old days of pre-Roe, but the current situation seems extreme the other way. I'd be satisfied if we'd adopt laws similar to some liberal European democracies. What about Sweden or Norway?
Oh, wait, they ban abortion with the usual exceptions at 15 weeks? Like the Georgia law the Court is reviewing? Surely whatever Georgia adopts is totally unreasonable, right?
Shame there's no place for a middle ground on this issue.
If Waukeshaw was a crash, Gosnell can be a saint.
A court ruling based on viability concerns me. While it's good that it can shift based on medical advancements, the thought of a "viability standard" opens some dangerous doors on the euthanasia side. Who gets to determine who is viable and when does a "right to die" become an "obligation to die"?
I’m sorry, Althouse, but I don’t see what’s wrong with viability. To what do you object?
It's much more of a rant, but overruling Roe Casey, if that's what the Court is really up to, deserves a rant.
Do it. Rant.
Then read it and weap:
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.
After your done with your stompy footy whining get your irrational self down to the Madison legislature and tell them to pass a law that you like.
Many have predicted that if Thomas, Alito, Gorsuch, Kavanaugh and Coney Barrett are ready to overturn Roe and Casey Chief Justice Roberts will make it 6-3 so that he, rather than Thomas, can write the opinion and limit its reach. But what if the other five won't go along with that? Suppose the five headed by Thomas insist on a stronger opinion written by Thomas? What are the mechanics of how that plays out?
In a sense there's a kind of ambiguity about whether the line of when abortion is allowed by the state power is "viability" or "woman's right to choose" and this is embedded, I think, in "Roe" which made the line "viability" v. Casey which made the line "woman's right to choose." But now history has happened. Woman's right to choose (Casey) has effectively made "abortion on demand up to the first breath after birth" the law supported by the state power in the US. So if the issue were returned to the states (the pre-1973 rule) and the line was returned to viability (Roe) that would be a middle way. It's quite confused as Althouse points out - (getting rid of Casey by getting rid of Roe) and it's hard to say how votes would go in elections. And the unborn can't vote - seemingly the only group in America or out of it of which this is true. All the same getting rid of abortion on demand up to birth is in line with what the majority of Americans want abortion law to be and standing up for the rights of the unborn is one of the known principles of several Justices. So viability and back to the states is a middle way.
Yes, Gilbar. I, too, would be more interested in Ann Althouse's legal, rather than political, reasoning to support abortion continuing to exist as a constitutional right. If abortion was available because the legislature has passed actual laws to allow it, it's legal legitimacy would be unquestioned. In fact, I'd like to hear her go back to Griswold and give her opinion of whether or not we should shape our legal regime based on "penumbras formed by emanations". And how am I, as a citizen, able to conform my behavior to the law if I don't see the same shadows that 9 (or maybe only 5) current Supreme Court justices can see. On the other hand, it's her blog and she writes what engages her, which is why I'm here every day.
The decision may focus on whether women have adequate time to terminate the pregnancy, not viability. Certainly fifteen weeks is enough.
The joy that the vile, anti-natalist left expresses over abortion is just sick, but I agree with them that abortion is essential. And it'll still be available is several states if Roe/Casey is struck down, which the Court should do.
Society does not want AOC, Lena Dunham, Chelsea Handler, Kamala Harris, Angela Merkel, et al. to reproduce, that is beyond dispute. And, just the other day, I went traipsing through the emanations of the penumbra of the Constitution (or do the penumbra have emanations?) and discovered that there is constitutional prohibition against the left reproducing!, which should be codified into law. Amazing what you can find if you just look hard enough.
But even short of that, the left will continue to keep the abortion mills of Planned Parenthood (a/k/a "the Killing Fields") spinning. And to that, I say "Amen"!
Certainly there are better places to draw the line than 'viability' which is an ever changing target. What is viable today was not viable twenty years ago. What is viable twenty years from now will be quite different again.
In increasing order of gruesomeness here are five other places to 'draw the line' that are more coherent than the mess that is Roe/Casey 'viability.'
1. Conception. We know that a new organism with unique DNA has been created at the point of conception.
2. Brain activity. Brainwaves can be measured. We often define death as the cessation of brain activity. We could define life as the beginning of brain activity.
3. Heartbeat. We can measure when a fetal heartbeat begins. We often define death as absence of heartbeat. We could define life as the presence of heartbeat.
4. 28 days from conception. Why twenty-eight days? Because if you are sexually active and haven't had a period in four weeks you have good reason to suspect you might be pregnant. You should then immediate endeavor to find out, and if it is concluded that you will not carry the pregnancy to term right now is the time to do something about it. In another words, this is nature's message that you have to make a decision.
5. First trimester. A lot of pregnancies are lost in the first trimester and it could be argued (weakly, IMO) that the fetus is still a fetus and not a baby at this point. This is somewhat arbitrary, but less ridiculous than the Roe standard.
6. Birth. Yes, there are people who think it should be okay to kill an inconvenient baby right up to the point of delivery. (Some ghouls think it should go beyond that point, but we'll leave that aside.)
Roe was bad law, bad medicine, bad politics, bad social policy, bad everything. It would be nearly impossible to do worse.
Incidentally, I think the odds that Roe is overturned are better than 75%. Nobody can defend it other than by arguments to expediency. I don't think there are 5 votes on the current court to rule in favor of expediency.
I don't know why there is such LUST for killing millions of innocent babies by Progressives. They are so exuberant about it, there were women taking abortion pills in glee in front of the Supreme Court yesterday. Probably the same women who love to shout their abortions.....
I was one voice that said (granted, in a less than accurate way), that the courts would not overturn Row (now Casey). I agree with the first two observers you cite that Roberts will look for a compromise, but he will lean toward maintaining the status quo. I don't speculate how that will look. I see BK and, less so, ACB wanting to limit radical change. Not sure about Gorsuch. I am no SCOTUS expert so I am just spit-balling my prediction. Mississippi Law will not be upheld and it quite possibly will be some technicality, or a very narrow ruling. Roberts does not want his name in bold in the history books. He wants a legacy of steadiness and decorum.
And my final observation is that whether it's four weeks or fifteen weeks or heartbeat or brainwaves or the phases of the moon, the line should be drawn by elected representatives, preferably at the state level. We're essentially talking about whether a particular action constitutes murder or manslaughter or a routine medical treatment. The rules defining those things are historically written by state legislatures. Roe short-circuited the normal process of law-making.
I agree that no matter how strongly one believes that Roe was wrongly decided, the demon has escaped and cannot be recaptured. Perhaps it can be corralled a bit. Isn’t that really what the MS statute does? Corral it? If a woman cannot decide to end a pregnancy before the end of 15 weeks, isn’t it too easy to argue ‘baby killing’? I would corral the demon closer to 8 weeks.
The all-or-nothing abortion fanatics fail to grasp that this issue isn’t going away until it is resolved politically rather than by fiat. Ann is hoping that the conservative justices will do the work for the lefties by being afraid of what the lefties will do politically if they overturn. I say, bring it.
- Krumhorn
"For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws."
As a matter of constitutional interpretation, the line is as arbitrary as anything else in the abortion "precedents." It is pure invention.The place to draw the line is in the legislatures of the several states.
Barring severe biological abnormalities, every human life is "viable" from the moment of conception, IF given the proper care, first inside the womb, then outside.
I question whether the slant of the articles is written to show the actual facts, or to sell newspapers, generate clicks, or be linked.
The challenge of viability as a metric is that it's becoming ever shorter. What was viable in Roe Days, or Casey Days, is not what is viable now.
The Democrats' "Kinetic Arm," namely Antifa and Black Lives Matter, are already starting with threats to Barrett's children and other well known tactics of the left. Why do you think Democrats pretend Antifa is a "Myth?" They want the club available to bash opponents who look likely to win.
Suppose the five headed by Thomas insist on a stronger opinion written by Thomas? What are the mechanics of how that plays out?
They refuse to sign on to the opinion and write a dissent instead.
Pointguard said...
The decision may focus on whether women have adequate time to terminate the pregnancy, not viability. Certainly fifteen weeks is enough.
I believe this is how it will go and would go rationally decided. But as you can see the Religion of Roe is not rational and never really has been.
The root problem with the Roe Vs. Wade decision is that it created a right without creating a concurrent responsibility.
The "decision" was just a brutal failure of logic and jurisprudence.
What DarkHelmet said. And said well.
"I'm going to stick with my position" of stomping my feet.
Roberts initially assigning the opinion of the Court to himself seems likely. It is also likely that less than a majority will join his opinion.
He can TRY to "assign" the Court's opinion to himself, but if he doesn't get four others to sign on, then his opinion is NOT the opinion of the Court. Rather, ACB will write an opinion, and HER opinion will get the votes of the other four.
Barrett's opinion overruling Roe will be the majority opinion of the Court.
After "viability," there is a living human being, Roe/Casey recognize.
Before "viability," there is a living human being. The fact that the prenatal baby's lungs lack full capacity does not deprive her of her full humanity any more than I have diminished humanity right now because I have a cold and am a bit congested and have made use of assistance to breathe properly.
There is no such thing as one being subhuman. Not in any civilized society.
DarkHelmet @0939
✅
Commenters have shown us the lay of the land. All honest legal scholars believe that Roe was wrongly decided and, out of respect for the law, should be overturned. The right was invented, not found. But that is a political landmine so the rest of the debate is essentially political, not legal. Abortion supporters have advanced a large number of reasons why Roe should be left intact, but none of these reasons pass legal muster.
This is yet another case where the Left has a massive temper tantrum if they don't get their way. Actually threatening 1st and 2nd Amendment rights that are enshrined in the Bill of Rights if they don't get their way. WOW!
If the Left would grow up and address abortion with some maturity, they would realize that dealing with abortion through the state legislatures would result in a very similar set of laws as has resulted from Roe, with the exception of the extra-Constitutional radical judges who impose their view that abortion should be allowed up to and through full term, which is barbaric and not supported by any reasonable human being anywhere except China. We are not dealing with a right so much as the killing of babies, which certainly should be proscribed.
the middle position didn't get much traction
The middle position doesn't need much traction. In a 4-1-4 split (4 votes to uphold the MS statute and overrule Roe/Casey, 1 vote (say, Roberts) to uphold the statute while adhering to Roe/Casey or altering it only slightly, and 4 votes to strike down the statute under Roe/Casey), doesn't the middle position become the law?
DarkHelmet: "Incidentally, I think the odds that Roe is overturned are better than 75%. Nobody can defend it other than by arguments to expediency. I don't think there are 5 votes on the current court to rule in favor of expediency."
There is a non-zero possibility that John Roberts declares Roe a "tax", rewrites some portions of Roe on the fly, and keeps the rest of the law intact.
For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis.
Sorry, but that's just complete and utter horseshit.
Brain activity is the standard for human life in all 50 states. That's not only the "real world," it's also unanimous.
Viability is a "standard" based on the Plato/Aristotle rule of abandoning newborns to die. It's a fascist rule, and an ugly rule, and if we applied that rule to any other human being you would be opposed to it, professor.
That's the most evil part of Roe, the attempt to quarantine a group of human beings and define them as sub-human property. To think that Christians and other lovers of human rights would not jump up and down about this logic chain that leads to both slavery and the Holocaust is crazy.
The beauty of equal protection is that we apply our laws to all people. To say that Blackmun's halfass and arbitrary rule -- based on writings from the BC era -- is the best possible point for protecting a baby's life is a ridiculous assertion.
Would you like a "viability doctrine" applied to your loved ones? The question answers itself.
Viability is an attempt to maintain a sharp distinction between abortion and infanticide.
Yeah, that's horseshit. Viability is survivability, not a finding of life-or-not. The viability doctrine was invented by the ancient Greeks as a justification for abandoning newborns to die.
Didn't work with Kermit Gosnell. He killed newborns, and pro-choice people were horrified. So it's not a particularly strong argument to say "these babies cannot survive on their own." No baby can survive on their own! And, obviously, the vast majority of aborted babies would have survived if the parents hadn't paid a doctor to stab or poison them.
And never forget that Blackmun's secret memo acknowledges that his "standard" is fucking arbitrary. The Court should overrule the opinion on that basis alone.
I would think that every woman who wants an abortion has had at least one by now. It's time to move on.
If all Roe did was offend our originalist, textualist, strict constructionist sensibilities, then there might be a case for AFFIRMING it. If that's all that this is about, then sorry folks, but that train left the station long ago.
But Roe is about more than a twisted and strained construction of some words on a piece of paper.
It is about HUMAN BEINGS. Just like Dred Scott was. Just like Plessy was. Just like Buck v. Bell was.
Brain activity is the standard for human life in all 50 states.
The mechanical inability to measure brain activity MIGHT be the standard for "dead brain" people, but no where is it a standard for the beginning of a unique human life.
That is based on basic biology and genetics.
Well, for all its weaknesses viability is all you've got? That's it? You want what you want is all you really have. You want your sexual self-determination and you will kill to get it. That's the real-world factual stuff right there.
Drago said...
There is a non-zero possibility that John Roberts declares Roe a "tax", rewrites some portions of Roe on the fly, and keeps the rest of the law intact.
12/2/21, 1:19 PM
True, BUT that attempt won't be enough without at least one other Justice joining him. I doubt Thomas or Alito will, but if a Trump judge betrays the Republican base on this the consequences will be tremendous. I really don't think high-level lawyers like Althouse can appreciate exactly how much the average American hates the total decay of the American legal system, and the specific way in which the urban centers are under threat of racial terrorism sponsored by the elite corporations. For Republicans to be told "just kidding, we're never touching Roe even with six supposed conservatives on the bench" will sound the death knell for the entire conservative counter-march on the judiciary. The populist conversation will cease to be about MOAR JUDGES and become about bringing the Supreme Court firmly to heel. In most countries, this process involves laying siege to the court building, as Jair Bolsonaro could tell you about. 2017 Trump would never have had the support for this from his base, but you'd better believe 2025 Trump is going to be pondering it.
'I'm going to stick with my position that the pro-abortion-rights position will win.'
Very few people want abortion banned.
Most just believe it's a state issue.
And if a woman wants an abortion, don't take so goddamn long to decide...
Maybe I'm totally missing it (wouldn't be unusual), but there seems to be some idea that overruling Roe/Casey would somehow make abortion illegal everywhere. That struck me most recently in the statement by, I think, Susan Collins that the Supreme Court shouldn't "outlaw" (think I got the word right) Roe/Casey. WTF does that mean? How do you outlaw a legal decision? Plus the rhetoric about "forced" births.
If Roe is overturned, the issue goes back to the states. And there wouldn't be any real threat to abortions in California, New York, Illinois, Massachusetts, and a host of other states. Or for "women" (people with uteri who are the only ones who can bear children or have an abortion) who could manage to get to those states to get an abortion.
Just makes me more cynical about, well, everything.
--gpm
The mechanical inability to measure brain activity MIGHT be the standard for "dead brain" people, but no where is it a standard for the beginning of a unique human life.
I think you're right as far as it goes. But the idea of prosecuting a doctor for murder for aborting a baby who had no brain activity is just not going to fly. This is why we don't prosecute doctors for murder for doing heart transplants. The brain activity standard is the life-or-death rule in all 50 states. People who don't realize this haven't really thought about it.
I'm opposed to all abortions, but homicide allegations have to be proven in a court of law. I think there are multiple reasons for outlawing early abortions. But if you're talking about the first few weeks of the pregnancy, a murder prosecution isn't going to fly.
And the reason I'm talking about "murder prosecutions" is because that should be the crime charged if we are, in fact, killing a baby. I disagree that unborn children should be treated as a special non-human class. I think that's what got us into this mess.
I found this kind of infuriating...
“scrupulously neutral on the question of abortion — neither pro-choice nor pro-life.”
I'm not sure if Kavanaugh is a dummy or just deluded. What's "neutral" about classifying an unborn child as a non-person, as sub-human, as property?
It's like saying you're "neutral" on slavery as long as people have the right to choose whether to buy slaves or not.
It's not neutral, fuckwit. You and your institution have classified these babies as non-human beings and outside the law.
So weird to me that the pro-choice people on the Court are perfectly happy to acknowledge they are pro-choice.
While the pro-life people on the Court -- if there are any -- feel obligated to deny their pro-life beliefs.
They think they are on the high road. And yet they stink of dishonesty and hypocrisy. God help them if they ever get an actual pro-lifer on their Court. Or, for that matter, a pro-lifer arguing before them.
The fucking politeness and ass-kissing that the attorneys have to do. The dishonesty on the conservative side drives me up the wall. How fucked up is it that not one Justice on the Supreme Court has ever said that an unborn baby is a person with a right to life? Why is that a forbidden argument?
A lot of people are saying that if RvW is overturned, the cons. may have won the battle but the libs won the war. I think that once the abortion issue is out of the courts, the cons. may actually win the war.
I noticed that once gay marriage was legal, a lot of LGBT people began to come out of the closet and confess they were conservative. In most cases, they were hated more than they were by others for being LGBT. Add the hardcore ridiculousness of the left plus Trump's pragmatism, more people left. If they were not conservative, they did leave the plantation and became independent.
Once abortion becomes legal through Congress rather than the courts, I believe the same thing will happen: Republicans develop an "if you can't beat 'em..." and more pro-choice folk will become independent.
What's also disturbing is that abortion clinics seem to be less "pro-woman" than one thinks. through the years, I found that a lot of clinics never get checked compared to other outpatient care offices and a lot of them have MAJOR issues.
Some, including some PP offices, are no worse than true back-alley abortions - untrained staff, unsterile equipment, expired meds, doctors with removed licenses in other states, etc.
Now, this is based on anecdotes, but there is a website dedicated to helping abortion workers leave those jobs. Even if half of this stuff former employees say is true, then the abortion rally is no worse than Operation "Rescue". Former employees say that the workers treat women horribly openly saying that "they should have kept their legs closed" and threatening the workers that if the worker leaves, they will accuse them of theft.
I'm pro-choice. I believe that women should have access to abortion because they will get one anyway, and I'd rather pray for one loss than a pair. BUT it seems that many clinics are more like the mob
If you know any differently, please let me know. I would like to hear from anyone if their experience was different, or if these accusations are false.
Here is the website: https://abortionworker.com/
Mark said:
"He can TRY to "assign" the Court's opinion to himself, but if he doesn't get four others to sign on, then his opinion is NOT the opinion of the Court. Rather, ACB will write an opinion, and HER opinion will get the votes of the other four."
I agree with this reasoning, although I suppose there's a chance that Thomas, as senior justice in the majority, might assign it to himself. But the optics are better if ACB does it.
For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws
Conception or implantation are the actual "real-world factual basis", anything else is hand waving.
Which is to say: SCOTUS needs to but out.
If SCOTUS repeals Roe / Casey, then all the fighting moves to the State level, and SCOTUS never has to hear another case on the subject. If they don't overturn, they're going to keep on getting cases until they do overturn, because States will keep on pushing at whatever line they draw.
I expect that Roberts is going to pull his head out of his ass, realize that having SCOTUS in the middle of the abortion fight will always be a drain on the Court, and vote to nuke it all
Conversely, the court doing nothing will motivate the right to get more votes on the court.
No, doing nothing will tell the Right that it doesn't matter how many elections we win, it doesn't matter how many people we put on the Supreme Court, the Left will never allow us to get our entirely legitimate way through the political process.
Which is to say, teh Right will understand that either we have a new civil war, and kill enough people and destroy enough institutions so that teh Left can no longer control things, or we roll over and accept permanent serfdom.
You really don't want to put the Right in that situation. 500 million + small arms in private hands in America,
It's probably 30% in the hands of people who will give up on the political process, 50% in the hands of people who aren't going to put their lives on the line to protect CRT or Roe, and 20% in the hands of members of the Left, most of whom can't shoot for sh!t.
And if you think that an Army that's only up to date on its gender sensitivity training will protect you from the 30%, you're dreaming
I do think we've all been missing the elephant in the living room:
Texas
In Texas right now it is effectively illegal to do an abortion past 6 weeks. And there's been a significant drop off in abortions in Texas. Whole Woman’s Health v. Jackson, and U.S. v. Texas were both heard over a month ago, on 11/1.
SCOTUS had a conference today. No order has been released stopping Texas's anti-abortion law, despite the fact that the cases were heard under the "rocket docket".
It might be that they were waiting to rule on those cases until they heard the Mississippi case.
It might be that we will get an opinion Monday on Whole Woman’s Health v. Jackson, and U.S. v. Texas. But if we don't, I think that's pretty conclusive proof that Roe and Casey are toast.
I have a lot of problems with John Roberts, but I don't think he's a total idiot. Total weasel, but not a total idiot.
He knows that the only way that SCOTUS can stop being in the center of the abortion battle, and battle that stains SCOTUS with the stench of politics every time it happens, is to overturn Roe and Casey, on a 6-3 vote. Because it takes 4 votes to hear a case.
Allow the MS law stoping abortions at 15 weeks, but don't toss Roe? Then some other State will ban then at 14 weeks, and they'll have to go through everything again.
Uphold Roe, and strike down the MS law? Then some State will pass one at 16 weeks.
Pro-lifers aren't going to go away, and I'm pretty sure there will always be 4 votes to hear a case where an appeals court has struck down an anti-abortion law.
So if Roberts wants it off the docket, he has to vote to nuke Roe and Casey.
Because if Roe is gone, the pro-abortion people will get States to legalize abortion at various points, and outlaw it at others (or none, depending on the State), teh pro-life people will get their States to ban it or otherwise restrict it, and SCOTUS will refuse to hear any cases, other than slapping the hands of any appeals courts that try to get involved.
I doubt Roberts is going to nuke Roe or Casey. Race and abortion are 2 issues that can lead to mob violence. They are getting threats and I can guarantee the judges will not get any protection from Biden. I think they will pull a Casey 2.0 then refuse to deal with it. OR one of the judges will have an emergency and leave before the decision ala Texas Dems.
Greg said...
In Texas right now it is effectively illegal to do an abortion past 6 weeks. And there's been a significant drop-off in abortions in Texas. Whole Woman’s Health v. Jackson and U.S. v. Texas were both heard over a month ago, on 11/1.
How is Texas dealing with it? Has there been any incidences of deaths due to illegal abortion attempts?
And why did the public not know about Texas until Sep 1? SB 8 was approved by the Texas congress at the beginning of the year with Abbott signing it in May. Where was the press?
OK, the ship has sailed, but it was Jeanne Shaheen who warned about "outlawing" Roe.
--gpm
Sabinal said...
I doubt Roberts is going to nuke Roe or Casey. Race and abortion are 2 issues that can lead to mob violence.
Now who is going to actually get violent over Roe being tossed?
Compare to the people who will get violent if 6 "conservative" "Justices" still isn't enough to get abortion returned to the States.
Not even close
Blogger Sabinal said...
How is Texas dealing with it? Has there been any incidences of deaths due to illegal abortion attempts?
Since you can just go to another State and get one, I doubt it
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