May 3, 2022

What the Court's opinion draft said about the reliance factor as it analyzed whether to adhere to precedent.

As someone who has taught Planned Parenthood v. Casey many times, I turned first to the part of the draft that analyzed reliance on the right to abortion. 

The Casey Court, looking at precedent, said reliance is one of 4 factors taken into account when deciding whether to overrule a case. But then it conceptualized reliance in a new way. I've spent many hours forcing students to see this problem in Casey and to look for a way to deal with it, so it's striking to read the Court's proposed opinion forthrightly pointing at the problem (boldface added):

Traditional reliance interests arise “when advance planning of great precision is most obviously a necessity.” Casey, 505 U. S., at 856 (plurality opinion); see also Payne, 501 U.S, at 828. In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” 505 U.S. at 856. For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here. 

Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society] in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Ibid. But this Court is ill-equipped to assess “generalized assertions about the national psyche.” Id., at 957 (Rehnquist, C. J., concurring in part and dissenting in part). Casey's notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.” Payne, 501 U. S., at 820. 

When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women. The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women. [Citations to briefs omitted.] The contending sides also make conflicting arguments about the status of the fetus. This Court has neither the authority nor the expertise to adjudicate those disputes, and the Casey plurality’s speculations and weighing of the relative importance of the fetus and mother represent a departure from the “original constitutional proposition” that “courts do not substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson v. Shrupa, 372 U.S. 726, 729-739 (1963). 

Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do s0.% In the last election in November 2020, women, who make up around 51.5% of the population of Mississippi, constituted 55.5% of the voters who cast ballots. [Footnote omitted.]

Casey did innovate a new form of reliance that was not like the reliance involved in structuring property transactions and forming contracts. Even if you assume that decisions about whether to devote your body to pregnancy and childbirth are more profound and important than economic transactions, there is less reliance on a stable set of legal rules. But Casey created a reliance on this new idea of reliance, that women could look forward on the path of life and believe that they will be, if they choose, free from unwanted pregnancy, that their body could only be subjected to this ordeal if they consent. 

There was a way to think about your life that was enshrined as a constitutional right, and, if this opinion goes through, that will be gone. The self-image of entitlement to sovereignty over your body — if you are one of the human beings with the capacity to become pregnant — is suddenly ripped away and replaced by access to political fighting — "influencing public opinion, lobbying legislators, voting, and running for office." Get into the arena and fight for what you want, even if all you want is control over your own body.

I know it is not just the woman's body that the woman choosing an abortion controls. It is also the tiny, vulnerable body of the the unborn child. That child is innocent of everything, but possessed of an interest in using another person's body because that body is its only path of entry into the world. Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function. Somebody has to decide, and the Roe/Casey answer was to reserve the decision to the individual. Women relied on that idea of their autonomy in life. 

Now, the Court congratulates itself for its staunch restraint as it plucks that idea of personal autonomy away from women and tosses it to legislatures: Courts are not "equipped" to handle this "novel and intangible form of reliance." But it answered the reliance question 30 years ago in Casey, which decided that the 20-year reliance on Roe was a factor counting against overruling it. It's been 50 years of reliance, including 30 years of relying on that once novel concept of reliance.

104 comments:

Mike Sylwester said...

The state legislatures should consider this "reliance" issue when they make the abortion laws.

David Begley said...

I agree with Professor Althouse. I also think that on this issue, we need a unified policy; not 50 laws.

What's emanating from your penumbra said...

It must suck to have to twist yourself into a pretzel to act like you're making sense.

Tom said...

The logic of the reliance test was faulty. Even if women “relied” on Roe and Casey to provide a right to abortion, they had to know that half of the country and a majority of states were constantly taking legal and legislative action to overturn those decisions. This was never settled law because a large number of Americans, including many women, never allowed it to become settled law.

I do think there is a line of attack, however, on Alito’s reasoning. He spends much of the decision establishing that abortion was never considered a right and it was, in fact, criminalized in the majority of states. What he doesn’t mentioned is that women had no right to influence those laws. Only men made those laws.

Btw, I read the entire opinion and, while I do think the final draft will differ from the first, this looks to be a very real first draft.

What's emanating from your penumbra said...

Nope. This is just upholding the reliance on the Supreme Court to correct incorrect decisions.

Am I doing this right?

M Jordan said...

“Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function. Somebody has to decide, and the Roe/Caseyanswer was to reserve the decision to the individual.”

I agree, Ann, with your view that women become the judge, jury, and hangman over the fate of the innocent child in each abortion. I submit that every woman who chooses to have an abortion be required to issue a written decision to the innocent one concerning why she came to this decision.

Judges need to be on record regarding life and death verdicts.

Mike Sylwester said...

The original precedent was that a majority of the US Supreme Court justices personally believed that abortion should be legal, and so they abused their positions to concoct some legal sophistry to make abortion legal.

That was the real reasoning for the legal precedent. Let's keep that in mind when we discuss the precedence issue.

mccullough said...

Don’t rely on the government

Iconochasm said...

"Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function. "

That's some passive voice there. Do women bear no responsibility, fully in general, for getting pregnant? I've always thought it was absurd to try to square that position with holding the men responsible for child support.

But women *do* still have a path to *reliably* set a future free of the possibility of unwanted pregnancy. I'm not even talking about abstinence, but having their tubes tied.

"The self-image of entitlement to sovereignty over your body"

I find this one hypocritical as well. If you have a sovereign right to your body, the FDA and minimum wage laws ought to be beyond the scope of legislation as well. My body, and if I want to take experimental untested drugs and sell the use of my body digging ditches for $3 an hour, that's my choice.

Lem Ozuna from the Braves said...

There was a way to think about your life that was enshrined as a constitutional right, and, if this opinion goes through, that will be gone.

Sounds like a victory for the Fauci, vaccinate or else, wing of the democrat party.

Humperdink said...

"Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society] in reliance on the availability of abortion in the event that contraception should fail”

People make ill-advised choices then rely a societal fallback position. Everyone wants a bailout! Is this a great country or what?

Michael said...

Who supports abortion the most?.... women with university degrees. It seems that returning the issue to the individual states would be a powerful economic tool for enticing the educated to relocate to those states with abortion access.

California, Texas and Florida are hoovering up the best minds in America. This could be an opening for any of the other 47 states to compete for talent.

lamech said...

Someone leaked a draft blog post of Ann’s!

It seems Ann is struck by calamity, as she posts unusual typos:
“I've spent many hours forcing students see this problem in Casey and to looks for a way to deal with it, so it's striking to read the Court's proposed opinion forthrightly pointing at the problem (boldface added):” [forcing students TO see this?]

“Casey did innovate a new form of reliance that was not like kind the reliance involved in structuring property transactions and forming contracts.” [not like THE kind OF reliance?]


The following made me think of the draft, especially if you are one of the human beings with the capacity to be drafted, and in the case of a Congressionally declared war influenced by public opinion (representative democracy):
“The self-image of entitlement to sovereignty over your body — if you are one of the human beings with the capacity to become pregnant — is suddenly ripped away and replaced by access to political fighting — "influencing public opinion, lobbying legislators, voting, and running for office." Get into the arena and fight for what you want, even if all you want is control over your own body.”
Imagine the idea the of personal autonomy being plucked away from men and tossed to legislatures. Then recall being compelled to register for selective service.


Mere “fate”:
“Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function.”

Sebastian said...

"Casey did innovate a new form of reliance"

How could they attribute a form of reliance to women that did not exist before SCOTUS itself "innovated," i.e., fabricated, it?

"There was a way to think about your life that was enshrined as a constitutional right"

Exactly in what section or amendment was this "way to think" enshrined?

Andrew said...

Do you know who the Left is blaming for the overturning of Roe?

Ruth Bader Ginsburg. For not retiring earlier and letting Obama fill her seat.

The Left really does eat its own. They'll build up an idol, but then tear it down mercilessly.

I'm enjoying their agony more than I probably should. It's been a while since they suffered an egregious defeat.

Jake said...

The right to abortion arises from estoppel?

Spiros said...

Access to abortion has fertility effects that are absolutely enormous for teens and women of color. Low-income and financially vulnerable women will be less likely to access safe abortions by traveling to other states or by obtaining clandestine abortions from trusted doctors. These women are going to suffer the brunt of this decision.



Milo Minderbinder said...

It’s been fifty years of SCOTUS usurping legislative power. At some point as medical technology has evolved over those fifty years, the view that “our body, our decision,” must be expanded to include that unconscious, very viable being incapable of standing on the steps of SCOTUS and demonstrating. How that balance is resolved (and I contend there are solutions that go beyond terminating a viable fetus that address the interests of all concerned yet get thrown to the curb in the chants about whose body is more at risk) is a quest for the elected, not unelected.

State legislative activity during the past year only reinforced the principle that elected representatives should decide this question. My state of Colorado enacted a very broad abortion statute as other states like Mississippi took a different route. Other legislators like Oregon, controlled by the left for decades, have preferred to keep the issue alive and fund-raise and incite. They will now have to take a position. Good.

For years Roe and Casey have been taught as Exhibit A of pathetic, desperate legal reasoning. I often wondered what J Blackmon did to get handed the draftsman’s role in Roe. Now perhaps he can rest while those who should be responsible take up the very responsibilities they’ve avoided for so long. Legislators have relied on Roe and Casey to avoid responsibility. No longer.

Roger Sweeny said...

Assuming a woman is not raped, she has control of her body in deciding whether to have sex and whether it will be "safe sex" or not. If, as a result of that decision, she gets pregnant, anti-abortion laws say she does indeed lose part of the right to control her body for the next nine months.

Is that fair? I don't know, but I find it hard to see that the Constitution forces a decision one way or another.

Wince said...

But Casey created a reliance on this new idea of reliance, that women could look forward on the path of life and believe that they will be, if they choose, free from unwanted pregnancy, that their body could only subjected to this ordeal if they consent.

Isn't reliance in the law based on a specific promise that induced a specific detrimental reliance in exchange?

Within contract law, promissory estoppel refers to the doctrine that a party may recover on the basis of a promise made when the party's reliance on that promise was reasonable, and the party attempting to recover detrimentally relied on the promise.

Now, think about all the people who've come to rely on Social Security in ordering their future lives, who detrimentally relied by making "contributions" based on the actual naked promises of the politicians in Congress who enacted it.

So, what did the Court say about that reliance on Social Security?

Many people believe that Social Security is an “earned right.” That is, they think that because they have paid Social Security taxes, they are entitled to receive Social Security benefits. The government encourages that belief by referring to Social Security taxes as “contributions,” as in the Federal Insurance Contribution Act. However, in the 1960 case of Fleming v. Nestor, the U.S. Supreme Court ruled that workers have no legally binding contractual rights to their Social Security benefits, and that those benefits can be cut or even eliminated at any time.

Meanwhile, pensions for federal workers, including members of congress and the Supreme Court, are deemed enshrined in a contractual right, of course.

Well, you know the line.

Jason said...

The Southern Democrat plantation owners had reliance upon the continued legal status of slavery, too.

Christopher B said...

Tom said...
What he doesn’t mentioned is that women had no right to influence those laws. Only men made those laws.


Men, by and large, were overturning laws prohibiting abortion in the 1970s. New York permitted abortion up to the 24th week of pregnancy in 1970, three years before Roe.

It's really amazing the number of people who seem to think that men had no interest in either protecting their potential offspring, or relieving themselves of the burden of financial support of an unwanted child.

Robert Marshall said...

"Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function."

Some thoughts:

1. It wasn't "fate" if consensual sex was involved. It was the result of a choice. (Fate is "the development of events beyond a person's control, regarded as determined by a supernatural power," according to the Oxford folks.) A pregnant woman has not been cheated by fate.

2. The child's interests (the desire to live, not conscious but inherent in every cell) are left in the hands of someone who has a conflict of interests, since the abortion-seeking woman does not want her life burdened by the unwanted child.

3. That conflict of interests is one reason people (some, not all) seek for society to have a say in the decision about the child's living or dying. It likely won't be an all-or-nothing rule, like it is now, but rather a political mediating of interests on behalf of both parties involved, pregnant woman and child. Other countries have accomplished this difficult mediation; the US is exceptional in leaving it wholly up to the pregnant woman.

Mike of Snoqualmie said...

Now, the Court congratulates itself for its staunch restraint as it plucks that idea of personal autonomy away from women and tosses it to legislatures

"Personal autonomy"? Then the woman shouldn't have been having sex with the father. She knows what could happen, doesn't she? Some personal autonomy.

Abortion involves three people: the mother, the father and the baby. That puts it into the realm of politics. Roe put the decision into the hands of the mother while telling the father and the baby to pound sand.

Abortion is one of those subjects reserved for the states, there's nothing in the U.S. Constitution that give the SC jurisdiction to legalize abortion. Roe decision was pure B.S., an outcome in search of a rational reason. Except, there was no rational reason, just a bunch of hand waving.

rehajm said...

Imagine the idea the of personal autonomy being plucked away from men and tossed to legislatures.

Vaccines. Lived it...

Dave Begley said...

What did the leaker gain by the leak? I can't see it.

rhhardin said...

The crisis arises because the 50 state legislatures are run by men determined to deny women abortions.

Ann Althouse said...

"The logic of the reliance test was faulty. Even if women “relied” on Roe and Casey to provide a right to abortion, they had to know that half of the country and a majority of states were constantly taking legal and legislative action to overturn those decisions. This was never settled law because a large number of Americans, including many women, never allowed it to become settled law."

Yes, that was always the problem, but Casey addressed the problem and created a precedent that this reliance counted and was real, and we proceeded to rely on it for 30 more years.

The message now is your rights can always be lost. As the saying goes: "'Eternal vigilance is the price of liberty." Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants.

TheDopeFromHope said...

There are two known cases in the last four years of people lighting themselves on fire to protest what they saw as insufficient action fighting "climate change." One was just ten days ago and took place in front of the Supreme Court. Both self-immolators were men.

It's now time for a few birthing persons to do the same to protest the overturning of Roe and Casey. Maybe a nice, large group. They can wear those bright red Handmaid's Tale costumes. I hear those go up real nice.

Mike Sylwester said...

If a person strongly believes that only the US Supreme Court -- not the electorate or the state legislatures -- should have any say about abortion laws, then that person should make a really big deal about this reliance issue.

Brian said...

Women relied on that idea of their autonomy in life.

Is the baby only the woman's? Is it only her DNA?

Jason said...

"The message now is your rights can always be lost."

You don't have a right to kill someone who has a right to life.

What's emanating from your penumbra said...

The message now is your rights can always be lost.

Alternative message: don't build your house on sand.

Amend the constitution. Pass laws. Understand the system of government we have. Or don't, at your own peril.

Christopher B said...

The message now is your rights can always be lost. As the saying goes: "'Eternal vigilance is the price of liberty." Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants.

When has this ever not been true? Good lord, we've just all witnessed a multi-year effort to curtail freedom of speech and expression culminating in the announcement of the creation of a 'Ministry of Truth' by the Biden junta.

Jason said...

Access to abortion has fertility effects that are absolutely enormous for teens and women of color. Low-income and financially vulnerable women will be less likely to access safe abortions by traveling to other states or by obtaining clandestine abortions from trusted doctors. These women are going to suffer the brunt of this decision.

Know who's been suffering the brunt of the Roe v. Wade decision? The children of women of color, low-income and financially vulnerable women. Children who have been murdered by the millions.

The willful failure of the pro-abort ghouls to perceive the obvious ethical problems with hacking a baby's limbs off with a knife is disgusting.

Mike (MJB Wolf) said...

It appears that within all the issues and definitions under consideration the question of how to define the word “woman,” and Althouse is using it without any explanation. Interesting.

Brian said...

The message now is your rights can always be lost.

Now you know how 2A folks feel. Luckily there is a remedy. It's in the Constitution, article V.

Propose a constitutional amendment to codify abortion. Otherwise we let it up to the states to decide. California can give them away for free, and Mississippi can ban them.

gilbar said...

"reliance"

seems like little babies have a "reliance" on their mom's Not vacuuming them out and throwing them away

Babies don't have rights
Fathers don't have rights
But those Mothers! They have a "reliance" on Their property rights!!

Brian said...

I wonder if going forward "stare decisis" is going to be such a buzzword in future SCOTUS nominations.

Sebastian said...

"even if all you want is control over your own body"

You have it. Exercise it. If you are a fertile woman, don't have unprotected sex if you don't want to get pregnant. Radical idea, I know.

"Freedom is never a solid ground to stand on"

At least not "freedom" that consists of arbitrary fabrications by judicial overlords. But the national freedom to abort would have more solid ground in the form of an actual constitutional amendment. As will happen in many states.

Achilles said...

The message now is your rights can always be lost.

Splooge stooges and babies lost their rights to a bullshit completely nonsense decision by a court.

Women like Althouse are now angry that the considerations of other lives and peoples will be considered in a legislative format.

Ann cannot see how her petulant selfishness and complete dismissal of the concerns of other people affected by a decision has been corrosive to society.

I hope all of you white upper class women go out and rend your garments and humiliate yourselves. Put your selfishness on display for everyone to see.

Sebastian said...

"even if all you want is control over your own body"

You have it. Exercise it. If you are a fertile woman, don't have unprotected sex if you don't want to get pregnant. Radical idea, I know.

"Freedom is never a solid ground to stand on"

At least not "freedom" that consists of arbitrary fabrications by judicial overlords. But the national freedom to abort would have more solid ground in the form of an actual constitutional amendment. As will happen in many states.

gilbar said...

Mike (MJB Wolf) said...
It appears that within all the issues and definitions under consideration the question of how to define the word “woman,” and Althouse is using it without any explanation. Interesting.


Interesting indeed! If a Woman impregnates a Man; who gets to decide whether to abort?

Mike (MJB Wolf) said...

Low-income and financially vulnerable women will be less likely to access safe abortions by traveling to other states or by obtaining clandestine abortions from trusted doctors.

You might be surprised where Planned Parenthood locates their “services” before fretting too much about minority access.

Birches said...

Alternative message: don't build your house on sand.

Amend the constitution. Pass laws. Understand the system of government we have. Or don't, at your own peril.


Yep.

Birches said...

Alternative message: don't build your house on sand.

Amend the constitution. Pass laws. Understand the system of government we have. Or don't, at your own peril.


Yep.

Women will begin to exercise their bodily autonomy earlier in the process. Plan B. Literally.

What's emanating from your penumbra said...

Blogger Mike (MJB Wolf) said...

It appears that within all the issues and definitions under consideration the question of how to define the word “woman,” and Althouse is using it without any explanation. Interesting.

Shut up! (That's inconvenient to bring up at this time.)

Brian said...

Know who's been suffering the brunt of the Roe v. Wade decision?

It's not just those that have gotten abortions that are affected. Even those that carry babies to term are impacted by abortion. Roe (and Casey) took the responsibility of pregnancy away from men. It was a woman's decision. The man might need to financially support the child, but that only worked if you had financial resources. The poor have nothing to take, so it doesn't matter to them.

It wasn't his choice to have the baby so why should he have to step up and be a father? He has no agency in the process. Along with state funded welfare, it has led to the destruction of the family and fatherless children. Which leads directly to crime and a destruction of the social fabric.

Roe has been a cancer on American society.

Maynard said...

Since I am not a lawyer, I will not pretzel myself with legal logic to support my position on Roe v. Wade. Simply put, I cannot subscribe to a constitutional right to abortion.

However, I have always supported a limited right to abortion (i.e., first trimester or so). That will be up to the states to decide if Roe is actually overturned.

The consequences will be interesting. Some states will allow unlimited abortion and some will severely limit the procedure. I suspect that PP will continue to provide abortions in almost every state and defy their states laws. This rebellion will be justified by the fact that three of the SCOTUS Justices were nominated by Trump. We are already hearing these marching orders for Schumer and his cohorts.

It will be interesting when the abortion battle goes to the states where I believe it belongs. Do not be surprised if Republicans are hurt politically in some of the states.

Milo Minderbinder said...

The Roe/Casey reliance argument seems convenient in an era where liberties may be restricted by CDC administrative order, and private companies may censor speech as “hate speech” at the urging, and with the support, of government. This liberty thing, this argument that one’s body is free from state oversight, well if so then let’s take it to all limits, shall we?

Milo Minderbinder said...

Massachusetts and Colorado, as but two examples, did not hesitate to legislate on top of Roe/Casey. If something is wrong in Wisconsin, what’s wrong with Wisconsinites?

Lyle said...

It's not something new that rights can be lost. We had a civil war over slavery because folks wanted to take precedented rights away and others wanted to hold on to their precedented rights.

An amendment to the Constitution can settle this forever if you really want it. Might have to fight another civil war and win it though.

Mike (MJB Wolf) said...

Althouse wrote, “The message now is your rights can always be lost.”

Not if they are clearly written in the constitution, like free speech, but there can be “time, place and manner” restrictions. And during wartime all kinds of rights are trampled in the name of national security and men can be plucked from their safe lives and sent to fight and die. Alleged “rights” found in the shadow of the alleged “right to privacy” but not clearly spelled out in the Constitution should rightly be considered “temporary” unless codified by actual law. Opinion only carries the force of law when it conforms to the word and spirit of existing laws. Citizens United had the first amendment right to make and show a movie about Hillary or any other subject. The Court had no choice but to uphold their rights, yet it was disputed and Democrats have been vowing to overturn it and the first amendment ever since. So I don’t buy all the false piety and pretension of “respect” for stare decisis and I just hear it as prog-talk that means nothing. Power is their god. So they violate another institution to affect another unconstitutional way to exert influence on CJ Roberts.

AlbertAnonymous said...

The Professor said: “Yes, that was always the problem, but Casey addressed the problem and created a precedent that this reliance counted and was real, and we proceeded to rely on it for 30 more years.”

Sorry, this is the weakest of weak.

In Roe, the court made up a constitutional right that doesn’t exist. Concocting out of thin air a right to abortion based on a legal framework of “trimesters” and “viability” that appeared nowhere in the constitution. Ok for a legislature, absurd for a court.

Then, 20 years later in Casey, the Court, in the name of “standing on precedent” used this flimsiest of “reliance” arguments to rewrite Roe (rather than letting it stand at all) and replace the initial made-up framework of trimesters and viability with a new made-up framework of “undue burdens” which was even more legislative, less judicial, and impossible to understand enough for anyone to “rely on”.

Now, after another 30 years of “unsettled” judge made garbage, we’re supposed to let that 2nd made up decision “stand” because “Reliance!” Just like the left always screams “Science!” How can anyone rely on that which they cannot understand? And it’s been unsettled for all those 50 years. Case after case after case after case.

But yes, by all means Professor, use a weak sauce “made up” reliance argument to let that made up case stand. Self fulfilling prophesy? I make up a case. Time passes. Oh, can’t change it now because “Reliance”. But they DID change it. In Casey. And that was no better in settling things. But now, after time passes, can’t change Casey because “reliance reliance!”

Roe/Casey is old yeller…. It needs to be put down.

hombre said...

As for "reliance" in this context, the fundamental question is whether women should rely on birth control or on homicide, isn't it.

Gahrie said...

But Casey created a reliance on this new idea of reliance, that women could look forward on the path of life and believe that they will be, if they choose, free from unwanted pregnancy, that their body could only be subjected to this ordeal if they consent.

They still have this reliance. It's just now the choice takes place when they consent to sex, just as it does for splooge stooges. Banning abortion, which this decision does not do, merely restores the balance of power in reproduction, making men and women equal.

Gahrie said...

I find the continuing unwillingness of Althouse to explicitly condemn the leak disturbing.

JAORE said...

A reliance on the "right" to an abortion? So pro-choice supporters knew, just knew abortions would always and forever be available?

Then why all the wailing and predictions of doom for Roe every time a new Justice appears, every time a new case appears, every time a new state law is proposed?

Xmas said...

Considering that what we saw was a first draft, without any feedback through concurrences or rebuttals, what are the odds that the decision stays the way it is.

I'm not a lawyer, but what I'm seeing in that draft and the Mississippi law being challenged is this:

1) A discussion of when a fetus becomes a life.
2) An exception for the health of the mother and the viability of the fetus
3) A historical look at anti abortion laws and when they came into being.

Alito also directly addresses other SCOTUS decisions that Roe and Casey relied upon (such as birth control, marriage and medical privacy decisions) and why those decisions differ from Roe or Casey.

I'm hoping for a Solomon-esque decision where the SCOTUS says that Roe and Casey are crap, but abortion up to a certain point is birth control, that exceptions have to exist for the health of the mother or viability of the fetus, and those points and exceptions should be decided by the state legislators.

Temujin said...

Persuasive, Ann. Both you and my wife. Honestly, I've never come to a comfortable conclusion on this topic. All I know is that it is wrong to kill millions of unborn babies. What kind of people do that? And it is wrong to deny an individual the right to come to grips with this situation for themselves. Each situation is different and there has to be an accommodation of some sort for the mother facing a horrible situation (of which there are many).

I don't know that there is a fully palatable solution for the mass population, which is why I think that sending it back to the states is the best way to get it more 'local'. To allow for a closer democratic remedy. A remedy which, in the future, could change again, as the political demographics change. And they will. They always do. But even as I write that, I know that's wrong. The point of this cannot be majority rule. This has to be a decision based on what's best for the individual. The question remains, which individual? The baby or the mother? Who wins and who loses? Does life override any other consideration? And if so, a mother in danger of death during childbirth or pregnancy has to be given priority. But outside of that? Or is convenience the main consideration? Or the potential life the child will face? And that's a very real issue, as we see the millions of single parent kids in bad situations. We know how that story ends.

I can continue to talk myself into either side- as has been the situation for years. But in the end we're dealing with life and death. I look at the stats for abortions in this country. The millions over the years. I cannot rationalize those numbers in the numbing slogan of 'a woman's right to choose'. Have we gone beyond the right to choose when it's millions of dead? At what point do we look at the numbers and admit, "Well...maybe we're not making good choices here, you know?" Are we, in this 21st century, still not capable of figuring out how to 'protect' ourselves? Might we be more careful about things if abortion for convenience were not so readily available? Or are we somehow still unable to think of the baby in the womb as a real human life because to consider that, and to consider the millions killed would be too much for even the most hardened person to accept. We are, after all, a charitable people, right? We save the planet, send money to Ukraine, fight poverty and hunger all over the world. How could we accept...?

As for the 'right' being taken away. That government which has the power to grant rights, has the power to remove those rights. Our rights as humans are natural rights, coming from God or from nature itself. Anything else is government decreed and as such, subject to the whims and currents of the day. Any day. Like today.

jim5301 said...

Not a good year for women around the world. In Afghanistan girls who had some semblance of freedom actually thought they had some right to go to school and get an education. Silly girls.

There is always a risk that your world will be turned upside down and you will find yourself living in a real life Handmaiden's Tale. Reliance is for suckers.

papper said...

I am not sure how there could be reliance for anyone not currently pregnant given the availability of birth control.

papper said...

I don't see how there could be a reliance concern for someone not currently pregnant given the easy availability of birth control.

Leland said...

The legislative argument seems the goto for Roberts. It is the argument he gave upholding PPACA. I suspect that is his precedent. When polled earlier in the year, I thought this could be an outcome and it would hurt the GOP. It will be interesting now if this is more important than all the other bad stuff by Biden and Democrats over the last year.

Real American said...

Reliance on reliance? Now, that's a bank shot!

What about reliance on the reliance on the reliance on the reliance on the reliance.....

Yancey Ward said...

The message has always been your rights can always be lost.

FTFY.

JK Brown said...

Obviously, the state would have to take the baby, but really a woman drafted to carry a baby to term is not that much different than a man drafted to risk life and limb for political whim. And the man, can be tried and his fellow enslaved Americans forced to kill him in the field. Of course, if the "brithing-person" is freed from post birth obligation to the child, so should the sperm donor.

MayBee said...

Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants.

Two things:

I think this argument was stronger before we decided a man's wages could be demanded from him for the next 18 years if a woman decides to have a baby that is his. So his freedom is diminished by her choice.

Also, after these past 2 pandemic years, we see our freedoms can be substantially limited if someone tells us its an emergency. Your freedom to leave your home, operate your business, buy seeds at the store, visit dying loved ones. All curtailed with little discussion. So we are on quicksand and not because of this case.

MikeR said...

I am not following this argument. I think that "reliance" should mean, decisions made in the past where I had a right to depend on something that is now being taken away. That doesn't seem to apply here. For all practical purposes this affects decisions in the future. She wouldn't have become a __ ten years ago if she couldn't rely on being able to do this if she needed to, ten years from then? Sounds really thin.
I'd be more comfortable saying, say, You can't take away the mortgage tax credit because people will be stuck with thirty year mortgages that they now can't afford.
Anyhow, we do that all the time, so I don't care.

holdfast said...

The Court can stay the implementation its ruling for 9 months

Reliance issue solved.

You’re welcome.

n.n said...

A baby and granny are viable under the same circumstances, albeit with different limits, barring Her Choice, the former represents the beginning of human life, and the latter the end. Planned parent/hood represents a progressive path and grade.

There was never a right in civilized societies to elect abortion of a human life for social, redistributive, clinical, and fair weather causes. The Pro-Choice "ethical" religion established, not from The Constitution, but from a Twilight faith denies women and men's dignity and agency, and reduces human life to a negotiable commodity. Planned parent/hood is a wicked solution to a purportedly hard problem. Deja vu.

There is no mystery in sex and conception, a woman and man have four choices, and a right to commit homicide a.k.a. self-defense through reconciliation.

Bruce Hayden said...

Roe was bad case law from Day 1. It had scant Constitutional grounding, and it’s reasoning was ridiculed even by leftists like Tribe. So, Casey comes around two decades later, and says: Sure, Roe is nonsense, but you are stuck with it because of Precedent and Reliance. We don’t need anything else.

I have never found the Reliance argument very compelling when it comes to abortion. At best, there may be a couple months where women end up having to carry to term, instead of getting an abortion, because they didn’t practice birth control, assuming that an abortion was easier, etc. and who cant afford to travel to a state like CA, CO, NY, etc, where abortions would still be legal, and can’t find anyone to fund their trip either. How many women are we talking here? Two digits? Three? Finding funding should be easy for their plane flights - last I knew, the budget for Planned Parenthood was over a hundred million dollars. Money for plane tickets for that few women is comparatively negligible. And after that, women of childbearing years will be on constructive notice that there is no longer a federal right to an abortion. And with constructive knowledge, reliance is no longer a defense.

As noted in the draft opinion, Casey and it’s proponents knew this from the start. That is why they essentially waved their hands and kinda invented a new type of reliance interest, that isn’t a real reliance interest, but is close enough, maybe, for government work. But if you go back to basic principles, the type of reliance issue here would not qualify as such elsewhere in the law, because you can’t have a reliance interest in something if you have knowledge of, actual or constructive, to the contrary. Except apparently, abortion.
They

wendybar said...

Jason said...
"The message now is your rights can always be lost."

You don't have a right to kill someone who has a right to life.


5/3/22, 8:53 AM

THIS^^^^

Mark said...

The Casey opinion garnered only THREE votes. That's it. Six of the justices rejected the Kennedy-O'Connor-Souter approach. A couple of them even laughed at it. Rightly so.

Not merely is the "mystery of life" and "jurisprudence of doubt" notions silly on their face, but the idea that women who are pregnant or newly-given birth have no ability "to participate equally in the economic and social life of the Nation," is grossly wrong and offensive. Long before the transgender agenda began erasing women, it was Roe that cancelled women and proclaimed that a woman's unique womanhood is inherently inferior.

Let's not forget too that Roe was NOT really about a "woman's right." It was about a DOCTOR'S right to do abortions. And practically every case since then -- including Dobbs -- has been brought not by an individual woman, but by abortion providers imposing their views upon women and mansplaining to women that they needed to be able to destroy their fertility in order to be equal to a man. Even to the extent of abortion facilities being immune from basic health and safety standards.

What's emanating from your penumbra said...

a woman drafted to carry a baby to term is not that much different than a man drafted to risk life and limb for political whim

Yep. Especially with these birth rates.

The Court can stay the implementation its ruling for 9 months

Reliance issue solved.


Easy peasy. (But, really, can go into effect immediately but exempt current pregnancies for a short period of time.)

Michael McNeil said...

Folks might note in this discussion that the scary situation (some) women (and men!) experience the next day (or days) after having had unprotected sex is readily resolvable via the (not perfect but pretty [75%] effective) “morning-after pill” (a.k.a. “emergency contraception”) — which has been available for more than 50 years from pharmacists and is today dispensed without a doctor's prescription in some states.

While some pro-lifers regard such “emergency contraception” as completely equivalent to abortion, its use must occur so nearly (days) after intercourse and conception that the resulting “blastula” (not even an embryo yet, much less a fetus) really is just a “clump of [totally undifferentiated — though human] cells” — which moreover hasn't even implanted in the uterine wall yet. Most people find merely preventing implantation at that point to be much less morally problematic than chopping up and flushing away even a one (much less six! or nine!) month along 4fetus.

James K said...

The Court can stay the implementation its ruling for 9 months

Reliance issue solved.

You’re welcome.


I think the argument, absurd as it is, is that people have entered into relationships, marital or otherwise, based on the assumption that abortion is available as a backstop. Those must be some great relationships! "Sorry, I'd love to marry/shack up with you, but you're not worth the risk that our contraceptive(s) will fail." And for that we have to keep Roe v Wade?

Jupiter said...

"Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants."

Ah, yes. The lives of your descendants.

n.n said...

The precedent is: life, evolution, human rights. The reliance is: there is no mystery in sex and conception, a woman, and man, have four choices, and self-defense through reconciliation. No one has a right to elect abortion of another human life for social, redistributive, clinical, and fair weather causes, or if they can get away with it. In fact, there is no open right to abort your child (granny, etc.) in any jurisdiction, or at least not outside of a veil of privacy (e.g. planned parent/hood, misinformation, disinformation, partisan "heroes"). Demos-cracy is aborted at The Twilight Fringe ("emanations from penumbras", conflation of logical domains, an "ethical" religion).

n.n said...

Do you know who the Left is blaming for the overturning of Roe?

Ruth Bader Ginsburg. For not retiring earlier and letting Obama fill her seat.


Perhaps she had an epiphany about life, the universe, everything, and wicked solutions.

Tom said...

Casey was a 5-4 decision. It may have reaffirmed Roe and it may have purported to create create another layer of a reliance test. But that has always been shaky ground. Any person bright enough to “rely” on Casey had also know that there was a reasonable likelihood of Casey being overturned.

Meanwhile, abortion supporters did very little to ratify the right to abortion by amending the constitution.

So long as our “hack” to the tough process of amending the constitution is to use the Supreme Court, our rights remain on incredibly shaky ground.

So now we will likely have abortion highly restricted or banned in a majority of states and abortion still legal for most of the population either in their state or a nearby state.

And there will be a fight in Congress to try and either legalize or ban abortion nationwide.

Either way, I hope the Court acts quickly so there’s at least some level of resolution.


rehajm said...

There was a way to think about your life that was enshrined as a constitutional right, and, if this opinion goes through, that will be gone

It’s a living, breathing document. (Too soon?)

Lexington Green said...

Elated to see this. In reality virtually nothing will change with regard to access to abortion. Women who want abortions can get them, and that will be true next week, next year, and in ten years. But to see one of the shrines of the left, something that is at the center of their view of government power, and a symbol of their control of that power, being smashed and thrown out like trash, is a moment of victory unlike anything I dreamed possible. I hope this opinion is real, and is published and becomes law.

Greg The Class Traitor said...

But Casey created a reliance on this new idea of reliance, that women could look forward on the path of life and believe that they will be, if they choose, free from unwanted pregnancy, that their body could only be subjected to this ordeal if they consent.

Um, nothing has changed.

If you don't want to get pregnant, don't have vaginal intercourse. it's a 100% successful method of contraception.

And it's EXACTLY the same "right" that men have.

If a man and woman have sex, and she decides not to get an abortion, his decision to have sex puts him on the hook for 18 years of child-care responsibility.

So long as that allies to the man, there's absolutely no reason why women should have a better deal

Rusty said...

Ann Althouse said...
"The logic of the reliance test was faulty. Even if women “relied” on Roe and Casey to provide a right to abortion, they had to know that half of the country and a majority of states were constantly taking legal and legislative action to overturn those decisions. This was never settled law because a large number of Americans, including many women, never allowed it to become settled law."

"Yes, that was always the problem, but Casey addressed the problem and created a precedent that this reliance counted and was real, and we proceeded to rely on it for 30 more years.

The message now is your rights can always be lost. As the saying goes: "'Eternal vigilance is the price of liberty." Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants."
Well. Yes. Precedent does count for something , but in this case this made up right cannot be found in the constitution.No matter how much it's bent and folded and twisted to find it. The founders never considered it. It should rightly be reserved for the states.The document is still the supreme law of the land including the first ten amendments. Not to worry. It is still legal to speak your mind and own a gun. For now.

Mike of Snoqualmie said...

The Southern slave holder relied upon Dred Scott decision and the segregationists relied upon Plessy v. Ferguson. That doesn't make those decisions right. It took a Civil War to overturn the former and Brown v. Board of Education the latter.

HoodlumDoodlum said...

Now, the Court congratulates itself for its staunch restraint as it plucks that idea of personal autonomy away from women and tosses it to legislatures

With respect, that seems a bit overwrought. The autonomy in question was from the start restricted and is in nearly half the states today quite restricted--it wasn't ever understood by most people as an unlimited right to abort at any time (up to the very moment of birth) for any reason, was it? The Dobbs case itself is about a law that would only prohibit abortion after 15 weeks, meaning the autonomy "plucked away" still exists until that time--almost 4 months!--and therefore seems like more a restriction than a removal even if you conceptualize the ability to abort as central to personal autonomy.
By analogy consider that while firearm ownership is constitutionally protected there are, in many states, severe limitations on the exercise and enjoyment of that right and federal law prohibits ownership of some types of firearms altogether. Certainly some pro-2A people believe any restriction on ownership is a violation of a natural right to bear arms, but the majority of people agree that even this fundamental right can be justly restricted and constrained--the boundaries of such constraint to be determined by the very processes this draft opinion mention (lobbying, voting, etc).
What's so harmful, or novel, about "commonsense regulation," after all?

Bender said...

Althouse wrote, “The message now is your rights can always be lost.”

You can't lose something you don't have and never did. Roe was simply 50 years of made-up license.

Meanwhile, the arc of the moral universe may be long, but it bends toward justice. Whether it is 50 years or 400 years or 2,000 years, justice will prevail, and it has. As for the ocean of innocent blood and battered souls and grievous exploitation which cry out for vengeance, don't worry. That bill has been paid by a Man on a Cross.

Michael K said...

Just remember, Chelsea Clinton's grandmother could have had an abortion if only Roe had been earlier.

Bender said...

“Yes, that was always the problem, but Dred Scott and Plessy addressed the problem and created a precedent that this reliance counted and was real, and we proceeded to rely on it for decades more."

eteam said...

Althouse wrote: "The message now is that your rights can always be lost. ... Freedom is never a solid ground to stand on and to assume you've got for your life and the lives of your descendants."

I am not a lawyer, so with this disclaimer I have the following questions for Ms. Althouse:

1. Is the 'message that your rights can always be lost' based on the imminent overturning of Roe/Casey? If yes, would this 'message' be baseless if Roe had never been decided by the Supreme Court?

2. If the 'message that your rights can always be lost' is based on the original Roe decision and the subsequent decision to overturn, then are you essentially saying that *any* mistake and correction by the Supreme Court in a rights case leaves *ALL* rights on shaky ground? If the answer is 'no', then the source of professed uncertainty in decreed rights is tied specifically to Roe (i.e. abortion), and it stands to reason that the resulting uncertainty would be limited to abortion rights.

Please correct me where my logic is flawed.

Greg The Class Traitor said...

Althouse wrote, “The message now is your rights can always be lost.”

It was never a right in the first place.

And since NY and CA residents actual 2nd Amendment rights have been gleefully trampled by the Democrats for decades, even if true the response would be "no shit Sherlock"

But you've got the opinion. They state that a "right to abortion" never existed as anything other than the imaginings of some power-mad bozos on SCOTUS.

If there's something incorrect in that argument please do tell us what it is.

Because I'm sorry if this makes you sad, but being on SCOTUS does not give you the power to create legitimate "rights"

realestateacct said...

If reliance is an important legal entitlement, then how does Keystone Pipeline get cancelled by executive order.

MikeR said...

I still don't understand why the first reaction ought not to be, Well the original decision was wrong. We can have some concerns about how to fix that carefully. But it's great that it's being fixed.

effinayright said...

I'm sure the southern slaves would have been completely totes cool to learn that the Dred Scott decision could be justified on the "reliance factor" argument.

Ditto Plessy.

I can hear them now: "Well, All RIGHT then!"

SNORT

effinayright said...

Everyone notice that the Perfesser passes over in silence that some citizens (in the South) lost their "property right" to own slaves, which up until the passage of the 13-15 Amendments was perfectly legal?

Almost all Americans applauded that change.

But now, she wails about loss of a "constitutional right" to kill unborn children.

Seventy five million babies. For convenience--when birth control and even "morning after" pills are cheap and easily available.

Jack Nicholson's character in "As Good as It Gets", got it right when asked about how he develops his female characters:

"I think of a man, and I take away reason and accountability."

So...fuck the night away, and don't worry about a thing.

It's downright scary that Ann Althouse was a constitutional law professor. SHE KNOWS that Roe v. Wade was one of the sloppiest legal decisions the Supremes ever made.

She won't defend it here.

Yet she holds herself out as a disinterested legal scholar.

SNORT



effinayright said...

David Begley said...
I agree with Professor Althouse. I also think that on this issue, we need a unified policy; not 50 laws.
**********************

OK. How about unified and restrictive welfare laws, so some states won't be magnets for illegals?

How about uniform drivers' license laws, specifying that you have to be a legal resident, have insurance and all that stuff DEMS resist?

How about unified gun laws, so some states won't jail you for having a valid firearms license in State A, and then lock you up when you take that gun into State B?

[You KNOW the Biden admin won't go for that]

How about uniform voting laws for all state/federal elections, allowing non-military mail-ins, unsecured and unmonitored drop boxes, and ballot harvesting? [You KNOW the Biden admin would love to impose that]

++++++++++++++++++
In short,

Because THAT's what's going on.

Tim said...

So, since up to 1960 or so, white people could rely on black people being treated as second class citizens by the law all across the south, we should go back to the Jim Crow laws? I know, let's go back and review Plessy v. Ferguson and Brown v. Board of Education since people relied on Plessy for decades before it was overturned. Killing babies is wrong, but that is not the big problem with Roe and Casey. There is nothing in the Constitution about abortion being a right, and there is nothing in the enumerated powers about Congress having jurisdiction over abortion. It belongs in the States. It demonstrates WHY this nation can only exist as a Federation of States, because the difference of opinion between the States is so vast that one size fits all does not work on an issue like abortion.

Rusty said...

"Seventy five million babies. For convenience--when birth control and even "morning after" pills are cheap and easily available."
That's the thing though isn't it. The statement they don't want to hear. Ladies. You always have the option of not opening your legs for every swingin' dick that comes your way. I know. Where's the fun in that?
On the plus side. I can't get pregnant and every leftist double X sh*thead is losing their shit. Elizabeth Warren had to be led away from the Supreme Court steps. There just isn't enough popcorn.

Tim said...
This comment has been removed by the author.
Gahrie said...

It's downright scary that Ann Althouse was a constitutional law professor. SHE KNOWS that Roe v. Wade was one of the sloppiest legal decisions the Supremes ever made.

She won't defend it here.

Yet she holds herself out as a disinterested legal scholar.


She won't even condemn this outrageous, unprecedented, comity destroying leak.

Greg The Class Traitor said...

David Begley said...
I agree with Professor Althouse. I also think that on this issue, we need a unified policy; not 50 laws.

We'll check in with you on that in 2025, when there's a GOP House, Senate, and White House

Václav Patrik Šulik said...

Thank you for this passage:

I know it is not just the woman's body that the woman choosing an abortion controls. It is also the tiny, vulnerable body of the the unborn child. That child is innocent of everything, but possessed of an interest in using another person's body because that body is its only path of entry into the world. Casey and Roe left that child's interests in the hands of the conscious, thinking person whose body fate had appropriated for this function. Somebody has to decide, and the Roe/Casey answer was to reserve the decision to the individual. Women relied on that idea of their autonomy in life.

It's what needs to be recognized by abortion-rights supporters. Just as I think pro-lifers need to recognize the horrible imposition of a full nine-month pregnancy on the expectant mother.

You and I disagree on the result. I think the Alito draft opinion is much stronger than either the Roe opinion or the Casey opinion. Frankly, I think his opinion concurring in part and dissenting in part in Casey [947 F. 2d 682 (3d Cir. 1991) link beginning at ¶150] is a solid attempt to apply Justice O'Conner's "undue burden" test. I wish the O'Connor/Kennedy/Souter trio had listened to Alito then and the dissents in Casey and shaped the case more narrowly at the time. Much of this could have been avoided.

John Clifford said...

I think the crux of the issue goes to whether what is being aborted (embryo/fetus/unborn child) is a human being and thus entitled to the rights to life, liberty, and property.

If the 'what' is a clump of human cells, is there a qualitative difference between a tumor and an embryo/fetus/unborn child? Seems obvious that while the pro-abortion people would answer 'No,' this is not what many of them think. For instance, Bill Clinton was widely lauded for his statement that abortion "should be safe, rare, and legal." Why should abortion be uncommon, rare even, if it's just a clump of cells, a wart, a tumor? Thus, by their own words these pro-abortion advocates stipulate that abortion is the ending of a human life. Further, the very term 'abortion' over alternatives such as 'removal' is a de facto admission of that point.

The battle over abortion is analogous to the battle over slavery, and the issue at the core is identical: is the subject rightly considered to be human? Interesting that the popitical party that holds the subject to not be worthy of human rights is the same on both issues.