That's my question, jumping way ahead after reading the New York Magazine headline, "Could Dobbs Be Reversed Like Roe Was?"
That's by Ed Kilgore. I'll have to publish this post and click on my "Ed Kilgore" tag to see what I've thought of his published musings over the years, but come on. Obviously, Dobbs can be overruled. We won't be able to stop talking about overruling Dobbs. Remember, we talked about overruling Roe for 50 years before it happened? Do the Dobbs haters have that kind of passion and stamina?
At some point in the next 50 or 100 years, there will be a majority of Supreme Court Justices who want to overrule Dobbs and get back to Roe (or forward to a new, better Roe (Casey was already a new, better Roe, and Roe can be re-improved)).
Now, let's see what Kilgore says:
The political conditions necessary for Democrats to re-flip the Court are exceptionally daunting. They’d have to hold on to both the White House and the Senate for long enough to get lucky with conservative vacancies....
He proceeds to talk about the 2022 and 2024 elections. What a short time frame! The anti-Roe forces worked for 50 years to achieve their goal. But in Kilgore's nearsighted vision, it's a fight in state legislatures, the very fight envisioned by the Dobbs majority envisioned.
He doesn't get anywhere near my question: What will the confirmation hearings look like in the future when a Democratic President gets to fill a vacancy? For decades we've seen the nominees of Republican Presidents grilled about whether they would overrule Roe. The tables are now turned, and the new nominees will be asked about overturning Dobbs. I suppose they will plug in the usual material about the value of stare decisis and decline to discuss whether Roe or Casey or Dobbs were correctly decided because it's a question that might come before the Court.
We'll get the right back, I'm guessing. And it won't take 50 years. And then we'll get back to looking for Republican Party nominees who will restore Dobbs. It will never end.
Posts
91 comments:
Ann said
We'll get the right back, I'm guessing. And it won't take 50 years. And then we'll get back to looking for Republican Party nominees who will restore Dobbs. It will never end.
Or maybe it will end as the various states work out their laws. My guess is that within a decade all states will at least be cool with the first trimester. Nonprofits will spring up to transport women to more liberal states for second trimester. Expect pitched battle in blue states over third trimester. Laws prohibiting travelling out of state will be shot down as unconstitutional.
Eventually everyone settles down and the issue loses impact.
This is my guess.
Holy carp pick a stage of grief and stick with it…now for the bad news- many of you will be dead before it happens so no never, ever, ever again for you. Still feel better?
ADDED: that stare decisis argument disappeared faster than Joe Biden’s nose meets No More Tears Shampoo…
"At some point in the next 50 or 100 years..."
That point assumes the United States will still be in a recognizable form permitting Bayesian probability modeling.
You're such an optimist! Happy 4th of July!
In the meantime, the State legislatures will enact laws chosen by the people in each State. The process that Roe short-circuited will re-commence, and the infection that Roe created will heal. If the will of the people is heard and enacted in a majority of the States, the hunt to overturn Dobbs will not have anywhere near the passion as that of Roe. That’s the whole point behind the Dobbs ruling, no?
I agree with Michael. To many people the absolutism of the two sides is in a way logical but crazy. Either an unborn child is fully human from protection, deserving of constitutional protection, or a woman is fully sovereign over her body, and the poor kid just happens to be a trespasser. Sometimes you might allow a trespasser to stay, and develop a good relationship with her, who knows?
I think fifteen or so weeks will hold up quite well in many states, and blue states will do their thing without being such a golden model of a great place to live that all states will emulate them as quickly as possible.
None of this, should be ANY Problem.. Not ANY Problem At ALL
After all, we've been told; for the last several decades.. That,
The Overwhelming Majority of Americas Support Abortion!!!!!
So, there should not be ANY Problem.. Right?
I mean, Since The Overwhelming Majority of Americas Support Abortion, lawmakers should be EAGER to 'codify' abortion rights... Right? i mean, RIGHT?
The Overwhelming Majority of Americas DO support abortion, don't they? DON'T THEY??
"Will you vote to overrule Dobbs?"
"Shut up, racist!"
We'll get the right back, I'm guessing. And it won't take 50 years.
Maybe, but it's more likely that the process that was already underway way when the Roe court illegitimately, shortsightedly (and dubiously) took it out of the hands of the American people and decided this momentous question all by their own arrogant selves will resume and the people will work it out like they would have 50 years ago if the court hadn't gotten in the way.
Maybe Kilgore wants to move fast because he realizes that abortion will not be a major issue in 10 years. If the left doesn't move fast, the moment will pass and they will never get what they want. Their worst nightmare will be realized--the country will be slightly less divided.
@rehajm 6:42 AM: Stare decisis - exactly! It will be entertaining to see if that argument is used in the future.
They could be asked:
1) Does the 14th amendment guarantee certain unspecified rights?
2) Were Obergefell and Griswold decided correctly?
I suppose they can also be asked: Was Roe v Wade decided correctly?
I know prospective judges aren't supposed to say how they would rule on hypothetical future cases. But I think they can discuss their opinions on historical cases - is that right?
I suppose that Alito and Thomas might be wrong, and that state legislatures will ignore Dobbs and their voters and maintain/instutute unworkable and unacceptable abortion laws, and then some future Supreme Court will then decide that the original Roe was such a brilliant piece of Constitutional jurisprudence that it needs to be reinstated...
Maybe Moveon.org can spearhead the campaign.
I remember back in the Nineties when I was most active at the abortion clinics hearing a senior leader in the struggle, a person I revered, say: "We have lost already. A whole generation of women has grown up thinking abortion was a right. We wanted to change the ruling back before that happened." In other words, the Justices Reagan appointed lied to him about their intentions and we weren't able to reverse the ruling before it was internalized by many young women as a "right." It was then that I began to think that the Supreme Court ruling in abortion had to be "return to the states." An education program was needed but that wouldn't get off the ground till people felt they were going to have to vote in some way.
I think there are some facts that will come out slowly in no particular order which will prevent an eternal ping-pong on the issue:
1. The clinics are and always have been dangerous to women's health. There has been scarring of wombs; there have been deaths where women bled out after an abortion. It's customary to conduct the abortion in the known presence of STD infections which means pushing the germs up into the whole reproductive tract and into whatever minor cuts occur in the procedure. These women are given antibiotics to treat the inevitable infection. But the infection is not considered a consequence of the abortion if it has not declared itself within a short period of time, a period too short for a major infection to declare itself. Then these dangerous infections are treated at hospitals. And the fact that women keep coming to hospitals from given abortionists is the reason why the hospitals will not give these abortionists admitting privileges.
2. Abortion was legalized in the US due to a push led the American Eugenics Society - Alan Guttmacher, for example, was a member. Eugenics always aims to reduce the numbers of an allegedly inferior group. To the AES the black community was such a group and the goal was to present abortion in such a way that members of the black community would be more likely to abort than members of other groups and this would cause a relative and then an absolute decline in numbers. And this has happened. Abortion was presented as a way out of poverty and over time a disproportionate number of blacks have come to use abortion. They are 34% of all abortions but only 12% of the population and their numbers are declining both relatively and absolutely. I understand that this is not the goal of Planned Parenthood supporters today (mostly) but it was the goal of the founders and the machine once set running goes on the way it was set to work. Supporters of PPFA and its abortions and their consequences have to confront this issue. Scraping Margaret Sanger's name off the New York HQ of PPFA because it is recognized that she was a eugenicist doesn't scrape away the consequences to PPFA of her affiliation.
Well, these are just some examples of things to be discussed once real discussion is necessary as it now is.
"They’d have to hold on to both the White House and the Senate for long enough to get lucky with conservative vacancies."
Or, you know, one of their supporters could fly across the country armed to the teeth with a murder suitcase and just start killing them.
Oh wait ... they're already doing that!
(On that note: Still no news reporting on how Kavanaugh's would-be assassin got his gun and the rest of his murder kit onto a US airliner and through TSA checkpoints. In fact, this whole story has gone poof altogether. Doesn't fit the narrative, I suppose.)
"I suppose they will plug in the usual material about the value of stare decisis and decline to discuss whether Roe or Casey or Dobbs were correctly decided."
Your question has already been answered, Ann.
Ketani Jackson Five was asked directly if she knew what a woman is and she replied that she could not, because she's not a biologist.
She out and out committed perjury to get on the Court. She knows goddamn well what a woman is. Even biologically, she knows. She could have deferred as you suggest, but she did not. She just straight-up committed perjury by lying in the Senate's face, and they proceeded to then confirm her anyway.
Nothing has politicized the court as has abortion. It’s been toxic sewage for decades seeping up from the blocked waste pipes of public life contaminating everything as it touches. This must be left to the states to be disposed of in the legislatures. Leave the court out of it. Who isn’t sick of it every time a seat must be filled?
- Krumhorn
I don't know. Roe was a decision with both the overpopulation hysteria driven by academics and media combined with the fear by the 'elite' of population growth of the "underclass" now free from social control due to civil right legislation. It was a part of the ugly underbelly of 'The Great Society'. Will such conditions return?
SCOTUS should stay out of it. Either Congress or the states should make the law.
I disagree. Abortion isn't a major issue for most voters, and if the Dems take a beating in November, it will solidify the accepted wisdom that economic issues are more important for Dems. Abortion is pretty much a primary issue for a small minority of progressives, namely activist women, and I suspect is much more important to Boomer and early Gen X women than it is to millennials and gen z. For the former, it represented the ability to avoid pregnancy in favor of climbing the ladder of success at a time (early 90s to early aughts) when the prosperity of the US appeared to make that a very real trade off. For the latter, they're looking at their second major recession, houses priced out of reach, crippling student loans, and a job market that is likely to leave them scrambling to change careers again. Being a stay-at-home mom looks more appealing then. Roe was kept on life support by a determined cadre of politically influential feminists, a reflexive pro-choice attitude among younger dems, and a network of money that went to national abortion-rights groups. The first are aging out, the second won't care enough, and the third will have to shift their attention and organization to 50 state-level fights. That will make it difficult to pursue a national-level strategy.
Second, Roe was always fragile, as even progressive jurists and legal scholars admitted it had numerous flaws. Dobbs, by simply casting the issue back down to the states, seems a lot more legally stable. Progressive justices may tweak around the edges, such as federal funding- in fact, they may feel more freedom to do so- but I suspect that they'll be hesitant to drag the court back fully into that mud pit.
My guess, Dobbs remains, a few more radical Progressives campaign against it, but the fight generally shifts to the states and stays there, with the federal fight centered around fed funding of abortions and abortions at fed facilities. Dem pols poo-poo Dobbs while trying to avoid any reason to actually overturn it (basically the mirror of what the GOP establishment did).
Now, if the GOP was feeling its oats, after November they'd push to remove abortion from SCOTUS's appellate jurisdiction entirely. It would add another layer of protection.
Abortion will become an even more profitable business for states like New York and California. "Visit the finest spa and abortion center in the Hamptons". "The Cinderella Abortion Clinic conveniently located at Disneyland". The politicians there won't want to lose both the public and personal revenue generated by being the abortion capitals of the US. Only 10% of abortions happen in the red states now. It's not people who live in those states who are all fired up over Dobbs. When the big money behind the abortion lobby finds another cause, states where abortion is prevalent will pass laws that reflect that, and women will discover birth control in much greater numbers where it's not. The left doesn't have the patience the right has. They will insist on finding ways to abort their babies long before the mix on the Court has had time to change enough to overturn Dobbs. By the time it does, abortion will be a non-issue.
Funny how no abortionist is talking about Planned Parenthood actually doing what it’s name claims - helping young women plan and the various tools available to them before they are pregnant. All talk is about helping to kill more unborn babies. The veil is lifted.
Hopefully, by the time Democrats have gained a foothold in the Supreme Court, the states will have settled on abortion regulations that they find acceptable.
It is better for the health of our republic for people to realize that the power to boss-around other states is the same power for them to boss around your state. Learn to live with differences. The alternative is that the US breaks apart and this would almost certainly lead to a civil war.
The Dobbs decision says: "THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment. "
What is the difference be a concurring opinion, and an opinion concurring in the judgment? Is this a distinction that is used frequently in the Supreme Court?
Question for the Professor..
In your mind, doesn't stare decisis count anymore? Or, at least not here?
As I understood it Roe was a bad ruling, but it should have stayed, because it was old..
Since this new ruling is new.. It should go, even though it was well thought out??
Or , is it that stare decisis is for rulings that Althouse likes, and NOT for ones she doesn't?
Just trying to understand
---It will never end.
Maybe she's trolling. If not, someone does not get it.
It's all over but the shouting. As others have said, the democratic process is already in action in numerous states. All this will be resolved state-by-state over the next couple years. Roe will be filed under Bad Memories like Dred Scott.
"What will the confirmation hearings look like in the future when a Democratic President gets to fill a vacancy?"
A cross between a Ringling Bros/Barnum & Bailey Circus and the beaches at Tarawa during the landing in WWII.
I do wonder what shape this country would be in if half of the country had priorities other than getting rid of the baby. And I further wonder what, if anything, Democrats would have to call out or focus on if not for abortion?
You expect you’ll “get the right [to kill innocent children] back.” Sad.
h: "What is the difference be a concurring opinion, and an opinion concurring in the judgment?"
In the Dobbs case, the former marks you as an irredeemable deplorable worthy of prosecution and jailtime while the latter means you might still be invited to all the right cocktail parties (with Giant Jumbo Shrimp Cocktails!) and your children might not be hounded out of their private schools.
On what basis would Dodd be overturned? The "we don't like it" basis?
Roe had serious constitutional problems from the beginning. Even RBG acknowledged that, as did many other Constitutional scholars. I suspect that even Ann did in her classrooms.
What serious constitutional problems does Dodd present? If there are any, I must have missed them in the dissents.
The GOP have indicated that if they take the Senate they won't be confirming Biden judicial nominees. If that happens it will be the end of committee hearings for judicial nominees.
" I suppose they will plug in the usual material about the value of stare decisis and decline to discuss whether Roe or Casey or Dobbs were correctly decided because it's a question that might come before the Court."
The difference being their responses will NOT be purgery. Just ask WaPo.
"What will the confirmation hearings look like in the future when a Democratic President gets to fill a vacancy?"
LOL
It will look like all the other Lindsay Graham-ish democratical nominee lovefests.
A few of the Usual Suspect republican Senators will pretend to be opposed to the nominee to allow just enough other republicans to put the democratical nominee over the top.
On what basis would Dodd be overturned? The "we don't like it" basis?
Based on the dissenting opinions on the big three rulings just presented the answer is "Yes".
I supposed stare decisis discussions will be replaced with substantive due process discussions.
readering: "The GOP have indicated that if they take the Senate they won't be confirming Biden judicial nominees. If that happens it will be the end of committee hearings for judicial nominees."
LOL
You mean like this?
"The Senate's record-breaking gridlock under Trump
Filibusters against the president's (Trump's) nominees have hit historic highs."
readerings usual blather
"What is the difference be a concurring opinion, and an opinion concurring in the judgment? Is this a distinction that is used frequently in the Supreme Court?"
Thomas and Kavanaugh joined the main opinion. Roberts did not. Roberts just agreed with the outcome, not what was said in the opinion, so his concurring opinion is his only reason for deciding the way he did. Thomas and Kavanaugh just had some extra things they wanted to say, but they also agreed with the main opinion, which had a majority, written by Alito.
One significant omission in this discussion: the impact of technology on how abortion is viewed by the public.
The line pushed by the radical leftists abortionists/NeverTrumpers that a real baby doesnt exist in the womb and that destroying that most innocent of human life is no big whoop will continue to lose support.
Gadfly hardest hit. Babies biggest winners.
Keep Roe, Roe, Roe your baby, adjust viability to six weeks when baby meets granny, in state, if not in process. From conception for the "big bang" of human evolution (i.e. life).
Will Democrats continue to nominate safe votes that check interest group boxes, rather than individuals who will be able over time to forcefully make the case for, and build a coalition supporting, substantive due process rights?
As soon as Democrats have enough senators and the presidency, they will pack the court in their favor and fuck stari decidus in the GOAT ass. Then the Militia will be strictly regulated.
I expect that some people were very disappointed when Prohibition was repealed. I imagine that those people believed that they could get Prohibition back.
They were wrong. Regulation of alcohol was turned over to the states, who chose a wide variety of regulatory regimes. Everyone lived happily ever after.
Democrats are stupid, but they are not so stupid that they will starting asking for Dobbs to be reversed.
My perception is that Thomas issues the most concurring in judgment opinions.
Odd California appellate practice of concurring in judgment only with no explanation.
How will the Supreme Court nominees of Democratic Presidents answer the question "Will you vote to overrule Dobbs?
Don't ask "whether".
Ask on what grounds it could be done.
That would be far more enlightening of judicial knowledge and temperament.
If what I expect happens this November does happen- the country is buried in mail-in-ballots in every state that has a Democrat governor with the DoJ burying the rest of the states with court and executive orders- then Roe on steroids will be reinstated as early as next January, with no line of viability restricting it. Also, all abortions publically funded.
In 2039, Chief Justice Josh Craddock, joined by Amy Coney Barrett, Amul Thapar, Barbara Lagoa, and James Chiun-Yue Ho will hold that the 14th Amendment protects life in the womb from conception striking down laws in California and New York, among others.
(That's the equivalent of what Roe did, except on the other side.)
See Craddock's Harvard Journal of Law & Public Policy article “Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?”
Dobbs is a tightly, well-reasoned, opinion. Roe was anti-Constitutional, intellectual junk. We know lefty judges prefer the latter, so they might overrule Dobbs if given the chance.
By the time the court might be in a position to reverse Dobbs the citizens of the states will have decided how they wish to approach abortion and it will no longer be an issue. As would have happened if the court kept its nose out 50 years ago.
Overruling Dobbs does not reinstate Roe or the three-justice opinion (33 percent of the Court) of Casey.
They can't rely on "but stare decisis" to resurrect an abortion right. They will need to manufacture it anew. But, as everyone has known for 50 years, there is no rational justification for an abortion right.
readering: "The GOP have indicated that if they take the Senate they won't be confirming Biden judicial nominees. If that happens it will be the end of committee hearings for judicial nominees."
Right. "The GOP," that faceless enemy. This is blatantly absurd and false and indicative of the cause of division in the country. How do you reconcile with people who are fabulists and/or ignoramuses?
At some point in the next 50 or 100 years, there will be a majority of Supreme Court Justices who want to overrule Dobbs
No, there won't.
You've currently got 3. Not 4, Roberts didn't want to nuke Roe, but now that it's gone he doesn't want it back.
So, you're going to get all the States making the abortion laws they see fit. And you may see some people to get laws they like.
The anti-Roe people could run on "abortion is a problem for the States. We trust you voters, vote for us and we'll give you power back."
The anti Roe crowd has to run on "you people can't be trusted to do the right thing, so elect me and I'll put people on SCOTUS to take this power away from you."
That's really not a winning message.
Esp once people find out that all the screaming about the horrors of a Roe repeal was a huge pile of BS
Howard said...
As soon as Democrats have enough senators and the presidency, they will pack the court in their favor and fuck stari decidus in the GOAT ass. Then the Militia will be strictly regulated.
No, Howard, then the militia will come out and kill enough people that the rest understand what a bad idea that was
The Dobbs decision says: "THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment. "
What is the difference be a concurring opinion, and an opinion concurring in the judgment? Is this a distinction that is used frequently in the Supreme Court?
The JUDGMENT in Dobbs was that the Mississippi law is constitutional. And that is all that the judgment said. Roberts joined that. The majority opinion went further to address a matter dealing with judicial matters, namely, the effect of precedent that courts considered in cases. Roberts said that this extra matter was not necessary to reach the judgment that was reached, which was that in the judgment of the Court, the Mississippi law did not violate the Constitution.
Thomas and Kavanaugh agreed (concurred) with that extra matter, but wanted to add a few additional editorial comments of their own.
You left out Bruen. Every single Democrat judicial nominee, at all levels, will be asked what they believe the current law is that they're bound to follow as lower curt judges, specifically with respect to Bruen (guns) and Dobbs.
But here's the thing: IIRC, RBG had to refuse to say what she thought about Roe & abortion
GOP nominees, OTOH, will not get confirmed unless they've first said that they fully agree with Bruen and Dobbs.
Not "it's the current precedent" but "I fully agree with the holding as far as they went"
Otherwise the GOP won't vote for them
Stated another way, the JUDGMENT of the Court was limited to: Defendant Mississippi wins; Plaintiff Abortion Facility loses.
All else is explanation and comment, i.e. "opinion."
That would be like pulling your leg out of a bear trap and then sticking your head in instead.
I don't suppose it occurred to anybody that Dobbs is the moderate compromise?
A 50 year effort to overturn Dobbs presupposes that state legislatures can't find something acceptable to their own constituencies in 25 election cycles. I think they will, and everybody will be stuck with the chronic half a loaf dissatisfaction that surrounds every issue in a democracy.
The other thing about 50 year fights is that everybody else in the coalition has to be willing to take a back seat for that long. Is this really going to be that big a priority in Democratic circles for the next 12 presidential elections?
Dragon kind of hint at this, but Technology is the biggest "threat" to overturning Dobbs.
Very soon, we will be able to transplant fetuses into pig wombs and artificial wombs. (Or human wombs). Once that happens, abortion becomes merely one of the options, and an unappealing one at that.
You think adoption is crazy now. Wait until you see couples bidding to adopt and carry fetuses.
Here's the problem with a repeal of Dobbs:
At some level, everyone knows that Roe was bullshit, and so was Casey. That's why everyone babbles about "you're taking away a right we had for 50 years!" rather than "you're violating the Constitution!"
Is abortion really important to you? Then you'll move to a State where it's to your desires, and then it will stop being an issue.
Roe generated 50 years of hate because it forced its rules on all the opponents.
Dobbs doesn't do that. It forces you to respect diversity, and let other people have different laws than you, but it doesn't force you to live under laws you hate.
So no, the driving force that led to the repeal of Roe isn't there for Dobbs
Howard said...
fuck stari decidus in the GOAT ass
Exactly how is the different from everything the Left has been doing on SCOTUS for the last 90 years? From Wickard to Obergefell, you all have never had the slightest shred of a respect for stare decisis
Which is one of the big reasons why we don't ever listen to you when you babble about it: when you deny protections to others, you lose them for yourself
"What is the difference be a concurring opinion, and an opinion concurring in the judgment?"
In a concurring opinion, you agree with (and voted for) the controlling opinion, but there's some extra point you want to make that you believe is still consistent with the opinion
In an opinion concurring in the judgment you disagree with and don't vote for the main opinion, but you get to the same result in the case as the main opinion.
So, Roberts wanted to NOT strike down the LA law, but also not strike down Roe.
The "judgement" was that the LA law passed muster. The "opinion" was that Roe was dead,a dn would no longer bind States.
Michael said...
Or maybe it will end as the various states work out their laws. My guess is that within a decade all states will at least be cool with the first trimester
Nope. There's going to be a bunch of States that cut it off at heartbeat
Nonprofits will spring up to transport women to more liberal states for second trimester... Laws prohibiting travelling out of state will be shot down as unconstitutional.
I don't see why. Here's why:
Age of Consent is 18 in FL, and 16 in AL.
It's a crime to take a 16 year of girl from FL to AL so you can fuck her.
And it should be
So why should it NOT be a crime to take a 13 week old girl from AL to FL so you can kill her?
Sorry. But if you live in a State where abortion is illegal, you can either move out and never go back, or you can have the baby and give him or her up for adoption.
We need to have a mechanism in place so that Thomas and Alito can keep voting for years after their deaths like RBG did...
Buckwheathikes said...
(On that note: Still no news reporting on how Kavanaugh's would-be assassin got his gun and the rest of his murder kit onto a US airliner and through TSA checkpoints. In fact, this whole story has gone poof altogether. Doesn't fit the narrative, I suppose.)
That's because there's nothing newsworthy about that. You want to take a gun on a plane flight? You bring it in a container with a lock that is NOT "TSA approved".
You tell them at the check in counter that you have a gun to check.
It and you get taken to a special checking area where they make sure you don't have ammo or anything else illegal in the gun case, then you lock it up and they put special tags on it.
Easy peasy
Why can't Dems refocus on passing Roe-like laws in every state, or in as many states as they think feasible? That seems sensible.
"We'll get the right back, I'm guessing. And it won't take 50 years."
**********
All this talk about getting a supposed right "back" shows that it was a judge-made "right" in the first place.
When our BlogMistress was born there was no such "right" in America. But after 200 years the Supremes claimed to "find" one by poking into Constitutional entrails. Where was it before then?
If numerous states adopt a broad consensus as to when abortion is *permissible*, there will be no pressure to once again cram ten pounds of abortion bullshit into a five-pound bag by declaring it an untrammeled "constitutional right".
Blogger readering said..."The GOP have indicated that if they take the Senate they won't be confirming Biden judicial nominees. If that happens it will be the end of committee hearings for judicial nominees."
Or, Biden could nominate justices committed to following the Constitution. I mean, it could happen.
We'll get the right back, I'm guessing. And it won't take 50 years
You've reached the "acceptance and hope" phase of grief. It will all be ok.
If a female employee has a baby, the employer winds up with a whole pisspot full of potential costs.
Prenatal care
Time off for prenatal care visits
Delivery costs
Maternity leave
Ongoing child care til the kid is 18 (26?)
Employees time off when the kid is sick
And so on. Possibly $50m or more over 20 years.
Paid for, in most cases, directly by the company. Although often administered by a health care provider.
Cost of an abortion is how much, $1,000 or so? Probably less if using a pill. Add another $1m or so for travel and it still makes a lot more financial sense than having the baby. To the company, which is the one paying.
Is it possible that at some future point in CA, NY or other states, companies will pay only for abortion as part of their health plan? A woman might be offered a voucher for the abortion cost that they can apply to either abortion or maternity.
John LGBTQBNY Henry
We'll get the right back, I'm guessing. And it won't take 50 years. And then we'll get back to looking for Republican Party nominees who will restore Dobbs. It will never end.
Well, the Constitution is pretty old. No big surprise if it develops epilepsy of the penumbra.
I see the Democrats have started their July 4 celebration in Illinois already.
I decided not to drive by the "Fuck the Fourth" celebration in Tucson today. Hate to get hit by a stray bullet.
Like others I think time cuts against proponents of overturning Dobbs. In most of Europe, which is much less socially conservative than America, even most of the blue states, abortion isn't a big political issue. European countries went through the democratic process and came up with various timelines regarding abortion prohibitions. Most of these timelines are more restrictive than the ones in blue states. In 10 years time, the level of interest in abortion laws will have plummeted. What is going to sustain progressive judicial groups and enough interest in the public to keep the fight going beyond that?
In some ways Roe held a silver lining for conservatives. Roe was wrongly decided according to originalist jurisprudence and the effect of the case was severe enough to sustain ardent opposition to Roe and support for originalist judges that an entire system was created to research, discuss, and teach originalist jurisprudence. With groups like the Federalist Society, now Republicans have a great farm system to turn to in finding new judges. This doesn't just apply at the Supreme Court level, but all levels and in state courts as well as federal. And since groups like these are expressly conservative in nature, it will be hard for progressives to do their slow walk through the institutions with them. This could be a conservative judicial system that can last a century.
Why can't Dems refocus on passing Roe-like laws in every state, or in as many states as they think feasible? That seems sensible.
Roe allowed for exceptions, at least the appearance of limitations (in practice there were none). Accepting ANY limitation destroys the pro-abortionists entire argument of absolute bodily autonomy and that prenatal babies are a lesser class of being without any significance.
For the Dems, it is all or nothing.
Yancey Ward said...
If what I expect happens this November does happen- the country is buried in mail-in-ballots in every state that has a Democrat governor with the DoJ burying the rest of the states with court and executive orders
Then the guns come out and we have a civil war.
I'm going to be a poll watcher, and anyone who excludes me will discover they can't count anything
I expect that will be the reality in most places like Philly and Detroit
Greg's Obesity Army of the Deplorable States of America only scares people like AOC and Jamie Raskin.
So Althouse thinks in fifty years or so, some liberal jurists are going to REALLY discover the REAL guarantee guarantee of the right to an abortion in the Constitution.That's so precious.
Michael K I don't think that comment will age well.
We'll get the right back, I'm guessing. And it won't take 50 years. And then we'll get back to looking for Republican Party nominees who will restore Dobbs. It will never end.
"We'll." I don't want to puncture anyone's celebratory mood today but, for heaven's sake, political regimes end, significant world-changing wars happen, entire nations migrate from one location to another, peoples lose interest in maintaining their civilisations: of course 'it will end', the struggle over this so-called 'right', but probably not in the way we imagine that it might. But through all of it, as long as the US survives, many of us will continue to insist that no one has a 'right' to kill innocent human beings and that the pretense to such a 'right' is viscerally damaging to the res publica.
In 2039, Chief Justice Josh Craddock, joined by Amy Coney Barrett, Amul Thapar, Barbara Lagoa, and James Chiun-Yue Ho will hold that the 14th Amendment protects life in the womb from conception....
Let's hope it happens long before 2039, the decision, I mean.
Greg the Class Traitor: excellent comments, particularly the one regarding age of consent. I hadn’t thought of it that way.
Ann, re: overturning Dobbs I’m not a lawyer, so there’s that, but I can’t conceive of a controversy that the SCOTUS would have to resolve that would require overturning Dobbs en route. Certainly, it couldn’t be a state suing another because its abortion laws were too restrictive.
Sodomy experience. Hardwick 5-4 upholds Georgia criminal statute 1986. 1998 statute is ruled unconstitutional by Georgia Supreme Court. 2003 Texas statute is ruled unconstitutional 6-3. Now Texas AG says he's going to try to revive Texas statute. For boys and girls? (See O'Connor, part of Bowers majority, concurring in judgment!)
But seems more likely pro-choice Congress and president sufficiently aligned in less than 49 years.
You have to wonder about the "Roe effect" as blue staters abort themselves into extinction whether Dobbs will disrupt the trend.
There may not be a majority of them around in 10 years and they can forget about their new found friends in the illegal/hispanic community that choose life when given a chance.
In 10 years this dispute may be as relevant as Jimmy Carter granting asylum to draft dodgers that fled to Canada. Only dying boomers will care.
If the Supreme Court is going to reverse and re-reverse the same ruling over and over again, it is going to lose its legitimacy.
The saving grace with Dobbs is Roe was an illogical piece of drivel produced because the justices at the time really, really, really wanted this outcome and didn't care about the law, the Constitution, or anything else other than getting their way. It was a straight power play. Dobbs is a Constitutionally sound ruling.
“I suppose that Alito and Thomas might be wrong, and that state legislatures will ignore Dobbs and their voters and maintain/instutute unworkable and unacceptable abortion laws, and then some future Supreme Court will then decide that the original Roe was such a brilliant piece of Constitutional jurisprudence that it needs to be reinstated...”
I don’t think tat likely. But we have a half a etury or so to find out. One problem is going to e that Dobbs was much better and more tightly reasoned than Roe. Plus, or big difference between today and a half a etury ago is that travel is much easier ether states. You dawdled and missed the abortion deadline in your own state? No problem. Just hop on a plane and have your abortion later that day in a state that allows later abortions. Can’t afford the flight? No problem - Planed Parenthood etc have plenty of money.
I haven't had the time to read all the comments, so I'll just throw this in. I don't think this country has come to a consensus that NO LIMITS on abortion are tolerable.
"We'll get the right back, I'm guessing. And it won't take 50 years. And then we'll get back to looking for Republican Party nominees who will restore Dobbs. It will never end."
What if instead of vying for court dominance to put judges in place based on their decision to overturn one single ruling about one very narrow issue we, just hear me out here, decide the abortion question through the legislature and build for a moderate compromised consensus? It's an idea so crazy, it might just work!!
Hey Skipper said...
Greg the Class Traitor: excellent comments, particularly the one regarding age of consent. I hadn’t thought of it that way.
Thank you. That analogy just sort of hit me
Roe was unpopular. That's the problem with treating it as just another court case.
What other decision was so unpopular after 50 years?
Plessy v. Ferguson?
At some point in the next 50 or 100 years, there will be a majority of Supreme Court Justices who want to overrule Dobbs and get back to Roe
The pro-life movement has been saying for 50 years that abortion kills a baby.
This argument has made the fight over abortion messy and emotional. Many people who have had abortions (understandably) are very hostile to the idea that they have killed a baby.
Other people, after abortions, have accepted that they have killed a baby. That's why many of these people (including some notable abortion doctors) have become pro-life.
Many of the people who get emotional about abortion feel this way because they've had abortions. As abortions decline in numbers, this number of voters get smaller and smaller.
One of the notable things about the Dobbs opinion is that it noted -- over and over -- that Roe is different from the other "substantive" due process cases because of the unborn baby. Implicitly this is acknowledging that abortion might kill a baby and it was a Supreme fuck up to find a right to abort pregnancies without regard to the issue.
It's entirely possible that the Supreme Court will find a right to emergency contraception in the Constitution, under Griswold, without overruling Dobbs.
It's also possible -- although I think far less likely -- that the Court will in the future find a right to abort pregnancies that don't qualify as homicides under a state's death statutes.
The reason I think this is highly unlikely is that their original abortion ruling caused 50 years of street protests, several fucked up Court nominations, and one assassination attempt.
I concede it's possible. However, even if a future Supreme Court were to attempt to bring back a right to abort pregnancies, the idea that they would simply want to bring back the rules of Roe is absurd. (Even Casey had an urge to rewrite the rules!)
Any future finding of a "right to abort pregnancies" would avoid the obvious problem of Roe and would take infanticide off the table. They would, for instance, cite death statutes in Texas.
I don't think the Supreme Court would recklessly try to reinstate infanticide as a requirement of our Constitutional law.
The correct answer to such a question is, "I'm not a lawyer."
To Ann's original question, on how a nominee of a Democratic president will address Dobbs. It's pretty easy, isn't it?
"Dobbs is a precedent of the Supreme Court. A good justice will consider it, as they would with any other precedent, because adherence to precedent is an important part of American legal tradition.
"But beyond that, I cannot say more, because doing so may lead to an appearance that I have prejudged a case likely to come before the Court."
Post a Comment