Here's the opinion: Dobbs v. Jackson Women's Health Organization.
ADDED: What's most interesting at this point, other than examining Alito's opinion to see what differences there may be from the leaked draft, is the Chief Justice's concurring opinion. What was this elusive middle position that he struggled to identify at oral argument and failed to sell to any of the other Justices?
Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 372–373 (1955) (Frankfurter, J., for the Court). I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no, and there is no need to go further to decide this case.
ALSO: From Roberts:
In its principal brief, the State bluntly announced that the Court should overrule Roe and Casey. The Constitution does not protect a right to an abortion, it argued, and a State should be able to prohibit elective abortions if a rational basis supports doing so.
The Court now rewards that gambit, noting three times that the parties presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and Casey.” Given those two options, the majority picks the latter.
This framing is not accurate. In its brief on the merits, Mississippi in fact argued at length that a decision simply rejecting the viability rule would result in a judgment in its favor. But even if the State had not argued as much, it would not matter. There is no rule that parties can confine this Court to disposing of their case on a particular ground—let alone when review was sought and granted on a different one. Our established practice is instead not to “formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”...
Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all. See Webster v. Reproductive Health Services, 492 U. S. 490, 518, 521 (1989) (plurality opinion) (rejecting Roe’s viability line as “rigid” and “indeterminate,” while also finding “no occasion to revisit the holding of Roe” that, under the Constitution, a State must provide an opportunity to choose to terminate a pregnancy).
122 comments:
The amount of violent domestic terrorism this decision will unleash will be unprecedented. As will the complete and utter silence of the corrupt Department of Justice when those terrorists start burning things down.
In CO - you can get an abortion up until your 9 moths due date.
This deserves the Bullshit tag. After the dust has settled I am willing to bet that the vast majority of states will adopt laws similar to those in effect in Europe. The minority, governed by the kill 'em anytime crowd, will be even more liberal.
Nice!!
Was there ever a "constitutional right" to an abortion? Is a right manufactured by one SCOTUS and later overruled by another SCOTUS really a "Constitutional Right"? Brown overruled a prior decision that gave states the "Right" to segregate schools by race. Was segregation a "Constitional Right"?
Trump's fault!
"That will transform American life"
You mean...the way American's and ever other country's life has been since...since....FOREVER?
No
Not that
Anything but that!
6-3 is like a 4 game sweep in the World Series!
Well, I was wrong
5 - 1 - 3
Roberts a loser to the last
This says it all:
One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court end[ed] up drafting” if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave “almost no sense of an obligation to try to be.”
Roe Overturned.
Hoes mad.
I'm gonna Ride Space Mountain.
ah yes, time for the drama queens to come out. for the left to do what it does best- destroy cities, injure people, and burn everything down.
the issue goes to the states. Elect people to vote for issues you want. Its not complicated. Just messy.
Personal responsibility just made a come back.
The stock market likes the result!
so women are the new dred scott
Donald Trump has done more for the Pro-Life movement than any establishment conservative in the past 40 years.
Donald. Trump.
I found this telling:
Thomas would do away with the entire doctrine of "substantive due process" and overrule Griswold, Lawrence and Obergefell as soon as possible. ~Pages 118-119
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
Let the mostly peaceful protests begin.
I knew drama queen Kavanaugh would write a separate opinion, saying nothing of interest. As usual.
An unconstitutional right is overturned. The right to an abortion was never in the Constituion.
Calling abortion a Constituional right when it was never there is the most evil dishonesty, a disingenuous frame. And NO ONE who uses such terminology should EVER be trusted again.
Yes, they will scream like banshees, but if you look at what happens in the states and other western democracies this is the norm. Abortion up until birth (and moments after) is only practiced in Russia, China, and the Norks.
Similar to the gun ruling, most states have concealed carry. The crooks already have concealed carry.
FINALLY !!!
PTL !
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s electe d representatives.
When I have time, it will be amusing to look through the decision and see why it is that Breyer is convinced that regulating our 2nd Amendment rights must be "left to state legislatures" because it's so complex, but human development and birth are so simple that the Courts are the proper place to make a one size fits all decision in that case
And...let the unpunished rioting begin!
As soon as I found out, I stopped and said a prayer thanking God but also asking him to protect those brave justices.
Donald Trump has done more for the pro-life movement than any establishment conservatives in the past 40 years.
Ask me how much I give a damn about January 6.
Roe and Lochner sittin' in a tree. K-I-S-S-I-N-G.
You know, a lot of people lived with Supreme Court precedents with which they vehemently disagreed for many years--decades--and as much as they hated them I don't remember them confidently stating those contrary rulings "tested the legitimacy of the court." I mean, there are some bad rulings out there that people hate and that hate has fueled all sorts of efforts to bring about change (supporting political candidates, writing books, endowing legal chairs/scholarships, etc) but apparently those people should have just said "the Court is illegitimate, let's riot/pack the court/disregard the rulings/threaten the Justice/burn down medical facilities." Think of the time that could have been saved!
What's most interesting at this point … is the Chief Justice's concurring opinion.
I have read speculation that he was trying to salvage most of Casey.
FWIW I disagree with this ruling. Viability is better than 15 weeks, which strikes me as arbitrary.
This opinion only rules that you do not have a 'constitutional right' to an abortion. Which appears to me a sensible reading of the constitution.
If you think your state should allow it, with some restrictions or no restrictions, go out and elect your representation and get your laws passed. In Colorado you can end the life in your womb up to the minute before birth for any reason you choose. I don't believe this ruling changes that. (although I personally think this Colorado law goes to far).
Team Nutter of the Supreme Court doesn’t care about any clear paths to avoiding overturning Roe v Wade. The Nutter agenda is paramount.
"The ruling will test the legitimacy of the court": standard leftist rhetoric for "I didn't get my way, so watch out, motherf******s."
Love the way the NYT has turned this into a "Republicans Pounce" story.
The stock market likes the result!
It's good for diaper manufacturers. And baby formula if there were any.
Our abilities and accomplishments as women are not contingent on the ability to pay someone to kill our unborn children. So many women have been lied to and they will realize that soon.
As much as many on the right may dislike him, a huge amount of respect and congratulations goes to Mitch McConnell. He took a huge gamble in 2016 by holding open that seat, and then was a machine getting three justices through. Today's victory is as much his as many others.
FWIW I disagree with this ruling. Viability is better than 15 weeks, which strikes me as arbitrary.
My guess is that most states will end up with some sort of viability test.
Mark said...
I found this telling:
Thomas would do away with the entire doctrine of "substantive due process" and overrule Griswold, Lawrence and Obergefell as soon as possible. ~Pages 118-119
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
Ah, yes, so the fear-mongering has already started - in the Dissent!. I doubt VERY SERIOUSLY that 'contraception access' will be banned or even strictly limited. Laws are made by the representatives of the people. I don't think the people would stand for this. Sheesh people, this is how our system is supposed to work. You're not supposed to use the courts to circumvent the legislative process.
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
LOL. Taking the Feds out of it and leaving the issue to the states, that is to the People, to decide is the very essence of limited government. If you try really hard maybe you can see how that applies to Breun too.
Mark's daily swing and a miss!
Roberts wanted to preserve ambiguity in abortion law.
Dumb Lefty Mark: "So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is."
At least Dumb Lefty Mark has the bare minimum intelligence level to recognize the impossibilty of effectively presenting a real constitutional basis for supporting and thus moves immediately to other topics.
Congrats Dumb Lefty Mark. You are possibly the least Dumb Lefty at Althouse!
"Top" marks!
First, two thumbs up for Brent's comment @9:29, although I might change "unconstitutional" to "non constitutional."
Just heard Nina Totenberg nattering on about "reliance" as an argument against this decision, and it makes me wonder if the leak was done by Roberts to give state legislatures a head start on drawing up their abortion laws.
Everyone send DJT a thank you card, but remember to send one to Harry Reid and McConnell as well. Without Reid nuking the filibuster and McConnell holding the line on Garland this would not have happened.
Thomas believes that the legislative branch should be making laws governing abortion, marriage and sex and not a panel of judges.
I agree with him.
Now to prune Title VII of the Civil Rights Act of 1964 and turn the wokies into castrati.
The ruling will test the legitimacy of the court...
Wrong. The ruling will restore the legitimacy of the court. It will test the legitimacy of the anti-insurrection crowd. They w8ll fail that test.
’The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.’
Tough shit. I live in a starkly dry county in which beer, wine, and liquor are severely forbidden but remain freely available in most others.
I'd expect Democrat statehouses until right to lifers eliminate themselves from Republican contests.
So, the people will decide. Blue states have abortion and will continue to have abortion. A few red states will ban abortion. some others will allow abortion but restrict it.
Democracy in action.
As someone stated above, you can thank Donald J. Trump. He didn't give us a Souter. And he stayed in the race in Oct 2016, despite Mitch McConnell, Ryan, Sasse, McCain, and Romney telling him to cede the race, and help elect Hillary.
This from a man, who isn't a social conservative. He just kept his campaign promise. Unlike Bush I and Bush II.
IN our celebration, let's not be too ready to rub noses in it. Real, people are going to be very emotionally affected by this. Let's not put salt in their wounds. Granted, I agree totally that Roe and Casey needed to go, and that abortion is evil, but that does not mean I am hateful toward people who feel impacted by this. I AM hateful toward those who will rampage, riot and destroy because they are against this. They need to be punished with Rico and terrorism laws, but they won't because their cause is a leftist cause and they have the "Mother may I" permission to riot.
There are hard choices for an unwanted pregnancy and we need to take responsibility as a society for eliminating the circumstances where a person feels the best choice is killing the child. People screw up all the time, let's not compound the problem by being judgmental and harsh.
The right to carry arms is specifically stated in the 2nd Amendment. The right to an abortion is no where mentioned in the constitution. Case closed. The pro-abortion groups can scream and holler all they want but we cannot invent rights that do not exist in constitutional law. Invented rights by activist judges will eventually be overturned when the opposing side is in power. So, we must read the constitution closely and follow the rights stated. No do overs! Go back to your state legislators and vote for the person who reflects your POV to get state law changed. Then the law will allow you to get an abortion legally in your state.That’s how democracy works.
"transform American life" Oh, puh-leeze. Most Americans support (if somewhat reluctantly) that abortions should be available early on but not later on in a pregnancy. Most state laws will come to reflect that, with different definitions of early and late.
Question. If ACB and husband go out on their lawn tonight to protect their family and property from rioters, will the state bar take action against their law licenses like what happened in Missouri to that lawyer couple?
The National Guard in VA and MD better be in place tonight around SCOTUS Justices' homes.
HoodlumDoodlum Said: "You know, a lot of people lived with Supreme Court precedents with which they vehemently disagreed for many years--decades--and as much as they hated them I don't remember them confidently stating those contrary rulings "tested the legitimacy of the court."
I've noticed through the years that the legitimacy of the court is only "tested" when it rules against the Democrat Party. When it rules in their favor, only then can they be "esteemed justices."
Kind of like elections are only "stolen" when Democrats lose, but when they win, it's impossible to steal an election due to reasons and shut up.
Now WE have a say.
It's much better this way.
Viability is better than 15 weeks, which strikes me as arbitrary.
One difficulty presented by this approach is that we keep improving on our medical performance with premature infants. That is, what was considered inviable ten twenty years ago is now viable, with over half of preemies delivered between 23 and 24 weeks surviving, as well as the occasional 20-week-old fetus.
@ Mark - Thomas isn't saying contraception and gay marriage should be outlawed. He's simply saying that the Constitution doesn't say anything about them.
If the Supreme Court were 9 Platonic Guardians, there to decide what the laws should be, then they should decide everything. But they are only supposed to determine what the Constitution says and doesn't say.
Ironically, "substantive due process" was what the early 1930s Supreme Court used to declare parts of the New Deal unconstitutional. For the next sixty years, it was considered illegitimate, a way to legislate the Justices' politics with no basis in the text of the Constitution. Thomas is just continuing that tradition, with different oxen being gored.
Generations of Progressives, painstakingly taught to repeat the words stare decisis, will now abandon the principle in its entirety.
It serves no purpose in the future they imagine.
Serious (and unfun) Question
How many people, will the pro-abortionists Kill this weekend at their 'mostly peaceful' protests?
reject the precedent
What precedent? It's all emanations, and penumbras.
"Time to get the government back into people's bedrooms again, apparently."
In this particular case we are talking about the taking of a human life, not what people do in their bedroom that others find icky. Thanks for playing.
What was this elusive middle position that he struggled to identify at oral argument and failed to sell to any of the other Justices?
It seems to me that Roberts was trying to be like O'Connor in Gutter v. Bollinger. Sort of "it's bad, but this decision is too big of a decision to make this quickly, let's come back in 25 years"
That didn't work.
Appears that leaking the decision didn't have the impact they hoped it would.
Women and children hardest hit. Oops, sorry for my non-woke utterance. What I meant to say is: "Womb carriers and transcended women (or is it men - I get confuse) and blobs of cells hardest hit..."
Thanks to President Obama and Secretary Clinton.
I guess I don't know the difference between 'joining an opinion' and 'concurring in an opinion'. The NYT is going (so far as I can see to this point) with 'Roe overturned 6-3' but apparently the score more properly is 5-1-3. Hmm.
The plaintiffs in the original case, who were in favor of abortion, really screwed up in bringing this case in the first place, and in presenting the issue as binary. They should be credited (or blamed) for the result.
Here, there is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all.
So . . . overruling Roe and Casey? I'm being glib here, but Roe was no longer controlling precedent except as pared back by Casey. Which I remember as one of those decadent late Roman Law on Citations type cases, where you have to count up opinions on each piece to figure out what the law is.
But the controlling opinion picks up on "viability" elements of the Roe holding to construct its new viability-centred framework. I suppose the Chief Justice wanted to do something similar (again evading the difficulty of constructing a persuasive affirmative argument for a right to abortion in favour of a handwave to Roe) but I don't think his new framework really picks up on anything in either of the earlier cases. But it's a matter of mere historical interest now, I suppose.
I love the Tribe quote in the beginning. The perfect person to cite.
The decision . . . will result in a starkly divided country . . .
Thanks a bunch, Roe v Wade
Did Justice Roberts' really call the state's argument (the winning argument, BTW) a "gambit"? What a schmuck.
In the end, I think the Times will be wrong--not as much will change as they think. And further, there will be a lot more variety even in blue states than they imagine. "Life begins at conception" is not that popular, but it's more popular than "until the moment of birth."
A vast majority of the population will find itself under laws that fall between the extremes because that is what they want.
And the rigth never tiress of poitning out, whiel the left determinedly refuses to notice, most US states will still be more liberal than most of Europe.
Our Democracy is now in peril!
That's because voters get to decide at the state level rather than a constitutional right created by the emanations and perturbations of Harry Blackman's ghost.
Starkly divided for sure, but that divide is 6 for and 3 against, which echoes the opinion of the various states of the union and the people. This is something that should be considered by those claiming today the court is illegitimate because they didn't get their way. If you want to bring up hypocrisy, then attempt to do so without yourself being one. Finally, "go home with love and in peace".
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
Lefty Mark is very upset that the Court did not agree with him. "Limited government" is not the same as getting what you want every time. Republicans have been trying to get birth control pills permitted over the counter sales. Democrats have defended the prescription limitation as it helps Planned Parenthood to control the Pill. That's OK with Lefty Mark, if he even knows about it.
Big Mike said...Viability is better than 15 weeks, which strikes me as arbitrary.
Viability is just as arbitrary as 15 weeks. At least 15 weeks is a definite time giving clear notice, viability is little more than a guess.
I gotta say, it's possible that I've finally become inured to being outraged from the constant rolling out of things to be outraged about on a daily basis. I say that because I should feel something now that this has happened, but I don't. Maybe because the leak got me over the outrage point. I feel no glee, because I know some states are cutting things off immediately and that is going to throw some people a major curveball. But I also don't feel pissed that the Court did what seems to be the right thing. Point out that it's not a Constitutional right and that to make it a law, it will need to be done legislatively, which is to say the Court is trying to get the country to follow it's own laws.
There will be mounds of people without facts foaming at the mouth about it. I just saw Elizabeth Warren with her eyes nearly coming out of her head, as an example. And I'm sure AOC will have some gems for us. And, finally, at last, when we thought they'd be running on nothing yet again, the Democrats have something to run on. Wait. Don't they always run on this? Will that change anything? Yes- actually. I think it will get more young people out to vote in the midterms. Those who would have not voted, might be inclined to do so, but only if the outrage can keep up for a few more months. Not sure if it can.
Then there's the other end of it. Blow up the cities, burn buildings, kill or hurt people, loot, threaten people who disagree with you and you'll see a reaction from the other side. The right will then come out in force in November.
So...this goes back to the states where it probably should have always been. Or the Democrats will take one last swing at a national legislation to pass before November. They'd best treat Joe and Kyrsten nice over the next few weeks.
Watching for the "mostly peaaceful" riots/demonstrations to begin.
@Mark 9:28
As much as you might wish it were so, the constitution simply does not restrict the ability of states to regulate matters relating to sexual relations, at least when such matters are disconnected from marriage as such was universally understood at the time of ratification and until a few moments ago. The Framers always intended (or at least certainly assumed) that the regulation of such matters was the province of The People acting through the legislatures of their sovereign states. For better or for worse, the widespread availability of contraceptives, the social acceptance of gay marriage, and even the legality of abortion under varying circumstances would have occurred in all 50 states without the Court cheating.
Well, it's good that they got it out. People may murder Justices for revenge, but at least there's no more profit motive of saving RvW.
I thought that this was the only argument I could understand on why a conservative aide would leak the opinion earlier: It would force SCOTUS to release the opinion somewhat earlier to protect Justices' safety, thereby saving innocent babies. I don't know if they did that.
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
It strikes me that a government that can declare what is a marriage, and what isn't, is already in my bedroom and needs to get out. That's especially true of a government that wants to make sure I have contraception in my bedroom.
"An unconstitutional right is overturned. The right to an abortion was never in the Constituion."
That doesn't necessarily mean it is not a right retained by the people, as per the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Appears that leaking the decision didn't have the impact they hoped it would.
I've long stuck to the theory that the leak from SCOTUS came from Sotomayor, and was to the WH. It wasn't meant for the public, but to give the left time to prepare for this day. The WH leaked to Politico because they were desperate for a change in the narrative and to rally Dems.
As I became more libertarian in my political leanings I became increasingly more comfortable with Roe and the basic principle of choice. I still lean that way, but having now read the Alito's opinion, Thomas', Kavanaugh's, and Robert's concurrences, and the dissent, I must concede that I think the Court got it right. If I had a vote I might well have sided with Roberts, I found Kavanaugh's discussion to be both refreshingly honest and persuasive.
While it would be an overstatement to suggest I have no respect for the mainstream media (I don't have that much), their response to Dobbs (as well as the response of the Democrats) is as appalling as it is predictable. Fascism is indeed alive and well in America. The putative protectors of democracy clearly have zero respect for or interest in the same.
The decision...will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.
That's the way our system was designed to work.
The decision . . . will result in a starkly divided country . . .
Like we already AREN'T divided thanks to Obama who divided us by RACE, gender, class and religion??
I'm not a lawyer but Roberts' opinion seems awfully weak legally and even dimwitted. Either that or he had to stretch too far to reach an outcome that he wanted. Isn't this the guy who said he only calls balls and strikes? He should run for Congress.
The Wisconsin Attorney General, Josh Kaul, says he won’t enforce the 1849 law banning abortion in our once great state. He doesn’t enforce election laws either. What’s the big deal?
Even if he did, you can still drive to Illinois, get your abortion, and the pick up some kind bud and gummies at one of the marijuana dispensaries on the way home. Make a day of it. Kill two birds with one stone. Actually, it would be kill a baby and get stoned.
Mark said...
I found this telling:
Thomas would do away with the entire doctrine of "substantive due process" and overrule Griswold, Lawrence and Obergefell as soon as possible. ~Pages 118-119
Of course he would. All those decisions are bullshit
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
1: Gay marriages dont' happen in people's bedrooms
2: You people have spent the time since Obergefell trying to destroy any Christian in the wedding business who didn't want to be involved in same sex "weddings".
So don't talk about "freedom" now, when you've been so assiduously fighting to keep it away from everyone else
3: The fact that the Constitution doesn't protect something from State laws doesn't mean such laws are a good idea
And if you seriously think any States are going to be outlawing the Pill, your'e a flaming lunatic
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
Says the guy who threw "my body, my choice" to the wolves when it came time for Covid shot mandates
The Clintons are getting their wish. Abortions will now be "safe, legal, and rare".
The decision . . . will result in a starkly divided country . . .
Actually, the decision will end up bringing us together
https://www.blogger.com/blog/post/edit/9085360431161166641/4331006668998202706
Public opinion on abortion, AP poll done after the Dobbs draft was released
Trimester Legal in all cases Legal in most cases Illegal in most cases Illegal in all cases
1st 38% 23% 22% 16%
2nd 15% 19% 30% 35%
3rd 8% 11% 26% 54%
Trimester Mostly legal Mostly illegal
1st 61% 38%
2nd 34% 65%
3rd 19% 80%
So, almost all States will ban abortion in the 3rd trimester
Almost all States will let abortion be legal up to some point in the 1st - 2nd trimester
There will be fighting around the edges. But the current Democrat "abortion to the moment of birth" insanity is going to go away, now that people's votes matter
Not this year. Probably not by 2024. But the mighty ultrasound will eventually force most Democrat politicians to ignore the extremists.
Because you can't be a politician if you can't get elected
No police to crucify, I expect minimal riots. Hope I am correct.
D.D. Driver said...
Roe and Lochner sittin' in a tree. K-I-S-S-I-N-G.
Now that was actually funny. Well played
Greg The Class Traitor said...if you seriously think any States are going to be outlawing the Pill, you're a flaming lunatic.
I know, right? And yet, they find fear mongering to be 'profitable'. So they'll keep it up, and many shallow thinkers will allow themselves to be provoked by it.
Biden today - “the health and life of women in this nation are now at risk.”
Thanks to SCOTUS, Democrats know what a woman is again.
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
Undoing (federal) government overreach is the essence of limited government. Go vote in your state's elections.
That doesn't necessarily mean it is not a right retained by the people, as per the Ninth Amendment
Except that as Alito points out, it never was a "right" for the first nearly 200 years of this country's existence. Ditto gay marriage.
Re: Mark:
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
As long as you believe in prosecuting people for marital rape, (which I do -- sorry Soames Forsyte) the government has been in and will remain in marital bedrooms. Of some relevance -- I think the non-recognition of marital rape was of a piece with the ancient right of privacy attaching to the marital bedroom, as described in Griswold v. Connecticut:
Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights older than our political parties, older than our school system.
When Griswold was decided, marital rape was not recognised in most (all?) states. Like every other sort of privilege or right of privacy, this amorphous sense that the marital bed was outside the law protected the guilty just as it protected the innocent, even though the guilty may end up benefitting more -- that's just the nature of privileges and immunities. But the framework that excluded the marital bed from the ordinary operation of the laws began breaking down in the 1970s. We still have some vestiges today (e.g. spousal privilege) but for the most part, I think the ship has long sailed on excluding regulation of the marital bed. The government is there to stay.
And indeed, as spelt out in the majority opinion, it's been "there" for a long time on abortion, which it appears was not traditionally considered subject to those sorts of marital privileges (so not even the same "there" at all). As far as contraception is concerned, my impression is that many of the conservatives on the court would find the appeal to history re: marital privacy quite persuasive. They might, however, consider it something of a bizarre non sequitur when applied to an unrelated third party, like someone operating a birth control clinic. Police don't have to invade the "sacred precincts of the marital bedroom" to gather evidence of the sale of illegal contraceptives after all. They can just collect it from the business location, just like any prosecution for illegal sale of a controlled pharmaceutical.
Josh Kaul, says he won’t enforce the 1849 law banning abortion in our once great state. He doesn’t enforce election laws either. What’s the big deal?
Leftwing (read Dem) State AG's have suddenly decided their job is to enforce their own political predjudices and not the state laws. I'm beginning to believe that State AG's should be appointed by the Governor and not elected.
"The decision...will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones."
It's almost as if the Founders thought different groups of voters in different parts of the country might have different ideas on how to live. If they had, they might have given it a name. Like maybe federalism.
Inga said...
Team Nutter of the Supreme Court doesn’t care about any clear paths to avoiding overturning Roe v Wade. The Nutter agenda is paramount.
1: Why would any honest Justice NOT want to overturn the most illegitimate SCOTUS decision since Dred Scott?
2: You need to have a chat with the lawyers of Jackson's Women's Health and the Biden Admin. To quote:
On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They contend that “no half-measures” are available and that we must either reaffirm or overrule Roe and Casey
When talking about "nutters", the people who completely ignore reality go to the top of the list, Inga
"IN our celebration, let's not be too ready to rub noses in it. Real, people are going to be very emotionally affected by this. Let's not put salt in their wounds."
Yeah, go you. Little lord fauntleroy. Thanks for the advice wise ol' graybeard. why does the center-right always have tone police?
Do that to the left, and they'll tell you to go fuck yourself. After they label you a nazi.
Mark said...
I found this telling:
Thomas would do away with the entire doctrine of "substantive due process" and overrule Griswold, Lawrence and Obergefell as soon as possible. ~Pages 118-119
So contraception access and gay marriage are next to fall. Time to get the government back into people's bedrooms again, apparently.
When I hear Republicans talk of limited government next time, I will be reminded how bullshit that claim is.
****************
Dull tool, man.
Substantive due process" is thoroughly embedded in American jurisprudence.
What Thomas really said is that doesn't want SDP arguments to be applied to "right to privacy" cases based on an alleged unwritten Constitutional right. The cases he points to had that fundamental defect, in his view.
In any case, Thomas's comment doesn't say he wants to "get rid of" contraception and gay marriage. He wants to send the issues back to the States, not impose it nationally and from 'on high".
The latter is precisely the kind of oppressive JUDICIAL policy conservatives DIS-favor. But apparently you're cool with that---as long as the decisions go your way.
As with Roe, states will no be free to pass legislation on abortion consistent with their constituents' views. That's the Federal system is. supposed to work. That's would Thomas would like to see happen.
rhhardin said...
I'd expect Democrat statehouses until right to lifers eliminate themselves from Republican contests.
Do you "expect" unicorns to poop Skittles on you tonight, too?
2/3 of voters think should be "mostly illegal" to completely illegal starting in the 2nd Trimester
14 weeks
So you "expect" that "abortion until birth" Democrats, a position supported by less than 20% of voters, are going to dominate State elections?
You're so funny
Lunatic, but funny
"The plaintiffs in the original case, who were in favor of abortion, really screwed up in bringing this case in the first place, and in presenting the issue as binary. They should be credited (or blamed) for the result."
That has been the pro-abort side's problem from the beginning. They challenged every single law meant to regulate abortion in one form or another, hoping the continuing legal beat down would discourage the pro-life side. Do that enough, and a court is going to come along that doesn't agree with you. Any casino owner could have told them it was a bad strategy. Play the game long enough and the house gets all your money.
I won't be satisfied until Sotomayor is id'd as the leaker, and she gets her slovenly azz impeached and removed.
Critter said, "I'm not a lawyer but Roberts' opinion seems awfully weak legally and even dimwitted."
IANAL either, but I think Roberts in plain English is, "Don't shoot me! I really tried to hold the line."
I really dont understand all this angst on the part of the Althouse lefties. I understand the ChiComs will be happy to sell as many baby body parts to you that you desire.
So, you know, chin up!
To me this line perfectly summed up why needed to be reversed: courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” Ferguson, 372 U. S., at 729–730. There was another line equivalent to this that said the abortion matter should be returned to THE PEOPLE (my emphasis) to decide. Could not be more right!
@Marc 10:44 ("I guess I don't know the difference between 'joining an opinion' and 'concurring in an opinion'.")
Think about it this way. There is the decision or judgment (the narrow thing the Court is deciding——in this case that the statute stands). And there are the opinions that explain the reasoning of the various Justices. Robert agrees with the decision, but he does not agree with (or join) the majority opinion.
SO, 5-4 on the overturning of Roe and Casey, but 6-3 on the constitutionality of the statute.
eliminating the constitutional right to abortion...
Stopped reading right there.
I was hoping somebody on the Supreme Court would insist that an unborn baby is a person with a right to life.
Kavanaugh writes separately to say his opinion is "neutral" on abortion. This while the Supreme Court claims that unborn children are non-persons who are outside the law and have no right to life.
Thomas writes separately to say that "substantive" due process is bad jurisprudence.
Nobody on the Supreme Court speaks for the unborn child, and so nobody on the Supreme Court has to explain why these babies are classified as property, or why state-sanctioned homicide is fine and our Constitution says nothing about that.
I'm glad they got the courage to strike down a horrible law. But the failure to see the humanity of unborn babies means we're going to continue to fight over these atrocities for many more decades.
You're not supposed to use the courts to circumvent the legislative process.
That would be the crux of the matter. Chickenshit Congress. Let the courts decide. That way they get to keep their jobs.
"In any case, Thomas's comment doesn't say he wants to "get rid of" contraception and gay marriage. He wants to send the issues back to the States, not impose it nationally and from 'on high"."
Given the many implications, including taxation, of marriage how do want to handle 50 different laws?
If a legally married gay couple filing joint for Federal and State taxes have income from a state that does not allow such marriages ... the Court is going to have to rule.
Many states ask you to report income from a specific line on your Federal form, but given they do not recognize the marriage (thus joint return) there is an issue that will bump back to the Supreme Court.
Nevermind visitation rights in the hospital and the many other spousal rights. If legally married in their home state, can another state deny that right? Does moving to a different state nullify the marriage (also, does it do so on a Federal level)?
Bouncing it back to the states does not work in the case of marriage like it does for health care.
>>I guess I don't know the difference between 'joining an opinion' and 'concurring in an opinion'.
FWIW, IAAL (and have been for almost 45 years), though not one that usually deals in constitutional matters. I did write a petition a couple of years ago that got us a cursory GVR (Grant cert., Vacate, and Remand to lower court) from the Supreme Court on the constitutionality of a state tax decision, though the Mass. SJC gave us short shrift on the remand.
I think the difference here is that you don't "concur" in an opinion. You either join (all or part of) a decision or you don't. Joining means you agree with the reasoning that leads to the result that you also agree with. Joining in part means that you don't agree with certain, specified portions of the opinion but don't think that portion affects the result. I think Thomas may do that more than the others. It may mean that you actually disagree with that portion of the reasoning (but, again, don't think it affects the result) or you just think the court shouldn't be addressing that issue in the context of the particular case.
What you concur with is the decision, not the opinion. That means you agree with the result but not the reasoning advanced by the majority to reach that result. That's what Roberts did here. Instead, you issue a concurring opinion explaining why you think the result is correct but the majority's reasoning is not.
You may also issue a concurring opinion if you join in the majority opinion, as Thomas and Kavanagh did here. In that case, the concurring opinion explains your understanding of why portions of the reasoning in the majority opinion are correct and may also disclaim potential implications of that reasoning that you don't agree with but don't bear on the decision in the particular case.
BTW, that's a heckuva syllabus, which is an unofficial, nonbonding summary of the decision by the court reporter.
--gpm
>>Given the many implications, including taxation, of marriage how do want to handle 50 different laws?
Thomas doesn't just just "bounc[e] it back to the states." He rejected the concept of "substantive due process," which was the basis of those decisions, but explicitly said that there are other constitutional considerations that may need to be considered, such as equal protection and the privileges and immunities clause (which, like the 9th amendment that Cook is suddenly so fond of, the Supreme Court hasn't given much effect to so far, except, I think, to say that clause provides a right to interstate travel; I have a vague recollection that the so-called Slaughterhouse cases eviscerated the P&I clause).
I'm not getting the exact language right, but one point that might be relevant here is the requirement that states give effect to the legal records in other states. That's how divorce was nationalized, i.e., if you get divorced in Nevada and Nevada recognizes that divorce, all the other states must also do so. There could be a similar result here vis-a-vis gay marriage.
--gpm
Courageous pro-life U.S. congressmen and senators should immediately file a bill invoking Congress’ 14th Amendment Section 5 enforcement power to nationally ban abortion on underlying Section 1 Equal Protection Clause grounds. It won’t pass. But this is our new end goal.
Josh Hammer, who is someone on Twitter. Isn't this question going to go to the Supreme Court, sooner or later? How can a single society survive abortion 'through the first breath' (I saw that charming locution online earlier) in California and New York and only to save etc the mother's life in Texas, Ohio, and Florida? Federalism, sure. We shall see how this plays out.
Te Deums all around. Today is the feast of Our Lord's Most Sacred Heart and (properly) the feast of the Nativity of Saint John the Baptist (cf Saint Luke 1,41-42). Not a coincidence, I think.
I think the difference here is that you don't "concur" in an opinion.... Many thanks, gpm, for the lucid explanation.
@St. Croix at 2:54 PM.
Yes. Exactly right. Gestating human life is human life, the legal protection of which, like all legal protections, must be informed by practical, prudential, and competing considerations. But to deny the ontological fact that the fetus is a human being is a special kind of callous indifference to law, science and decency.
"Thanks to President Obama and Secretary Clinton."
Yes, without their tireless work we may never have gotten Orange the Clown as president.
Thomas: Supreme Court should 'reconsider' gay marriage, contraception reads a bottom of the page headline in the the local daily-- $3 for the weekday edition these days. $3! But at the top of the page, the 'USA outdoor track and field championship' warrants a much larger font. One event I noticed for today is the final of the women's discus competition.
In its principal brief, the State bluntly announced that the Court should overrule Roe and Casey. The Constitution does not protect a right to an abortion, it argued, and a State should be able to prohibit elective abortions if a rational basis supports doing so.
The Court now rewards that gambit, noting three times that the parties presented “no half-measures” and argued that “we must either reaffirm or overrule Roe and Casey.” Given those two options, the majority picks the latter.
Typical Roberts.
Both sides made the exact same argument: either nuke Roe, or nuke this law.
But it's all the State's fault. No fault of any form accrues to the pro-abortion side
Yes, without their tireless work we may never have gotten Orange the Clown as president.
And THANK GOD for that!! THANKS to Donald Trump who actually did what he promised, unlike the career Politicians who lie to us, and never get anything done, because they would have nothing to run on in the next election. We need MORE Donald Trumps. Obama sucked.
Not coincidence that the day significant on RC calendar? Maybe not since the six in majority all raised RC, along with one dissenter. Other 2 dissenters not raised to believe Jesus divine, so surely coincidence for them.
Why do so many women want to kill babies?
Surely coincidence is an either/or phenomenon? Either it was coincidence, or it wasn't, the beliefs of the individual members of the Court notwithstanding. I visualize a memo going around the laptops, 'on which feast should we release Gruen?'. But I've never spent any time thinking about what coincidence is, so what do I know.
"Relentless freedom from doubt" is my new favorite phrase.
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