Well, I think the odds are that next June or thereabouts the Supreme Court will overturn Roe. I was moved and deeply pleased by Associate Justice Sotomayor's comment about the stench of those proceedings and the loss it will produce of any faith in the objectivity of the court. This is going to impose an impossible burden on the women of America, an unconscionable burden. The decision, coming when it will, will also create an extraordinary opportunity for the Democratic Party in the midterm elections. I genuinely believe that this may actually make it possible for the Democrats, against all the odds, to win the midterms.
We shall see.
Yes, Justice Sotomayor, in her typical eloquent candor, underscored the hypocrisy of some of her fellow justices’ analysis. She correctly pointed out that the list of cases which Kavanaugh identified as demonstrating how the principle of stare decisis cannot be used to continue to sustain a poorly reasoned and insupportable precedent all involved cases in which the Court had held that government had improperly trespassed on individual rights – Miranda warning requirement, right to counsel in capital cases – whereas sustaining the constitutionality of the Mississippi statute would be a ruling in the opposite direction.
ReplyDeleteI was particularly disturbed and disappointed by what I regarded as a lack of logical thinking. For example, J. Kavanaugh’s assertion that the case involved an irreconcilable clash between two rights, which required the Court to reject one right over asserting another right, with no way to balance the two False. J. Blackmun’s majority decision in Roe did balance the two rights, by defending the woman’s liberty interest up through the 2nd trimester, and the fetus’s interest through the final trimester, when the fetus would be viable outside the womb. Likewise, J. Roberts assertion that he did not see the matter as one of viability, but protecting the woman’s right to choose, and that 15 weeks was sufficient to protect that right. The role of viability in protecting each party’s liberty interest made sense. Once you reject the claim that personhood begins at conception, then the logical point at which the liberty interest of the mother should give way to the liberty interest of the fetus is at the point when science indicates that most fetuses can survive outside the womb at 24 weeks, but not before. Since the fetus can survive without being attached to the mother at that point, it’s liberty interest takes precedence over the mohter’s.
The statements by J.’s Kavanaugh and Barrettt demonstrated to me that they had committed perjury during their nomination hearings when they asserted regarding Roe v .Wade that they would respect the traditional role of stare decisis – as if they had not already concluded that stare decisis did not protect Roe v. Wade? B.S.
P.S.:
ReplyDeleteI asked my wife what is the maximum time within which a woman should know that she is pregnant – something that perhaps the male Justices on the S. Ct. do not know. She told me 6-8 weeks. Therefore, the 15-week limit in the Mississippi statute would allow many women no more than 7 weeks to find an abortion clinic, schedule a date for the abortion, and have the abortion completed by the 15th week. Anyone who has ever experienced the difficulty in scheduling an appointment with one’s doctor at an office one has visited in the past can appreciate the practical difficulties the 15-week deadline will place on many women, particularly in states where there are only two or less abortion clinics. In Mississippi, there is currently only one abortion clinic left. The surrounding states likewise have few abortion clinics left, requiring that women in those states travel West or Northeast to schedule and complete their abortion in time. Justice Roberts’ flippant remark that 15 weeks should be enough to protect a woman’s right to choose shows his ignorance and insensitivity.
RPW: "The decision, coming when it will, will also create an extraordinary opportunity for the Democratic Party in the midterm elections. I genuinely believe that this may actually make it possible for the Democrats, against all the odds, to win the midterms."
ReplyDeleteDemocrats will lose big in 2022 whether Roe is overturned or not. It's a midterm, so it's almost guaranteed that as the party of the WH (and majorities in Congress) they would lose one way or another. Numerous states have been passing abortion restrictions all along in these past few years, yet that hasn't really been enough to motivate voters to consistently and decisively choose Democrats. The overturn of Roe would not in itself constitute a federal ban on all abortion; it would just leave abortion policy to the states, allowing "blue" states to continue to permit abortion. The percentage of state and local elections voters who will change their vote (or decide to vote instead of sit out an election) on the basis of abortion policy is probably much smaller than you think, even if 60% of the people of the country might disagree with the overturn of Roe.
On the other hand, the percentage of voters who will be thinking about the high inflation and the disruptions of COVID-19 policy in 2022 will be very large. People will vote for change, and that will mean losses for Democratic incumbents and challengers, especially with the new redistricting maps.
Eric, I know, I know but at 87 and lives on hope.
ReplyDeleteThat should read "one lives on hope."
ReplyDeleteWhat this decision will do at minimum is provide further confirmation that the justice system is not objective but rather ideological, which in a political framework, means biased politically (in addition to the many other ways that the justice system is known to be biased).
ReplyDeleteThis will further undermine the legitimacy of the institutions of government and also representative democracy in the US, that is, the republic. It is coming to the point that no matter the outcome, half the electorate will view the incoming government as illegitimate.
Recall that Aristotle opined that the only way to have a truly democratic system of governance was through selection of officials by lottery.
"It is accepted as democratic when public offices are allocated by lot; and as oligarchic when they are filled by election. — Aristotle, Politics, Book IV
To Dr. Wolff's point, regardless of the conventional wisdom that the minority party will gain seats in the first off-year election, the Dems are in a good position to reverse that trend. From a purely political position, an overturning of Roe will be best for the Dems, but who knows. Any 'burdening' of a woman's right to control her own body gives Dems the advantage. The advantage derives from the overwhelming support for abortions rights demonstrated in recent polling. The shift of educated, Republican leaning suburban/exurban women toward the Dems in 2018 will grow. (Millennial women already vote 70% Democratic.)
ReplyDeleteThe other factor that has the potential to leverage seats in red states will be an attack that goes like this: "as a result of my opponent's policies on masks, social distancing and vaccination, there were thousand of unnecessary deaths and X millions of dollars of unnecessary health care costs. My opponent was willing to put our children at risk by prohibiting mask wearing in schools and not requiring teachers to be vaccinated, etc."
This last point reinforces the likelihood of women defecting from the republican party. It is, after all, the party of misogyny, and what better way to make that point than to put political expediency/ideological conformity above of children's health.
One last angle Dem candidates can use is, if appropriate, slam the opponent for voting to delay and disrupt the constitutional process for determining the electoral college result. Slam them for undermining the constitution and supporting an attempted coup d'etat
Finally, directly take on the selfish, ignorant and indefensible concept of Liberty widely held by the right. If the opponent thinks he/she has the liberty to act in ways that harm others, they are simply selfish, ignorant fools who know not whereof they speak.
The above notwithstanding, I don't know of many democrats who can take this fight to the republicans. Bluntness will be a virtue, and the best way to counter republicans' bullshit.
If Robert's has his way and convinces four of the Gang of Five that the time isn't yet ripe, I'd assume Miss. is upheld with BS reasoning that Roe actually isn't being overturned but is merely updated while the Texas law is found to be unconstitutional. Talking heads and the NYT spins this as evidence of moderation/ both sides/ yadayada and low information voters shrug.
ReplyDeleteIt would be great if they overstepped but ...
I haven't listened to the oral argument (though I may at some point), only heard brief excerpts. Nor have I read every comment here closely.
ReplyDeleteWith those caveats, I wd point out -- and it's not an original point, obviously -- that if viability is the line at which the balance of interests shifts, then it cd be argued that as medical advances push viability back in time, the Roe standard becomes outdated on its own terms. Not that that prob would save the Ms. 15-week limit, but it does open the door to modifying the Roe line. I forget (if I ever knew) what the Ct said on this pt in Planned Parenthood v. Casey and other relevant cases. Did this issue come up at the oral argument?
Btw the burden on women that the post here refers to will be disproportionately borne by poor women (and women of color).
LFC,
ReplyDeleteIn Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976), decided four years after Roe v. Wade, restrictions on a woman’s right to obtain an abortion contained in a Missouri statute were challenged as violating the constitutional right to an abortion recognized in Roe. Justice Blackmun, writing for the majority overturning certain provisions of the statute, stated, id.at 63:
“In Roe, we used the term ‘viable,’ properly we thought, to signify the point at which the fetus is ‘potentially able to live outside the mother’s womb, albeit with artificial aid,’ and presumably capable of ‘meaningful life outside the mother’s womb[.]’ We noted that this point is ‘usually placed’ at about seven months or 28 weeks, but may occur earlier. …”
So, the concept of viability incorporates the use of artificial means to keep the fetus alive, and, therefore, advances in medical knowledge and procedures can push the date of viability to less than 24 weeks, as you suggest. However, there are limits on how much earlier such knowledge and technology can sustain viability. In the following article, dated 12/1/21, the science writer for the N.Y.T., Pam Belluck, wrote: “In recent years, advances in medicine and efforts by some centers have nudged that threshold slightly earlier. Now, many hospitals will attempt to provide lifesaving treatment like resuscitation and ventilation to babies delivered at 23 weeks of pregnancy.” That is only one week earlier than when Roe was decided 48 years ago. I suspect, given the frailty of a 23 week old fetus, there is little more that advances in medical science can do to keep a fetus alive, even via artificial means, under 23 weeks.
https://www.nytimes.com/2021/12/01/us/politics/viability-abortion.html
Ms. Belluck closed her article stating: “There is no possibility of fetal viability at the point at which the Mississippi law would outlaw most abortions in the state, 15 weeks, nor are Mississippi officials claiming that a baby could survive at that stage.”
For this reason, the conservative justices are seeking to shift the focus from viability to the right to choose. I was astounded when J. Roberts alluded to the private papefrs of J. Blackmun, stating that certain remarks by J. Blackmun in those papers indicated that the concept of viability was mere dicta (i.e., an aside not central to the decision). Nonsense. It is explicitly discussed in Roe as the basis for evaluating the shifting of the liberty interest from the mother to the fetus. That a supposed conservative would resort to invoking a deceased Justice’s private papers to support a legal argument is outrageous. It has, to my knowledge, never been done before.
(Contineud)
In Planned Parenthood of Southeastern Pa. v. Casey, the Court, in a 5-4 decision cobbled together with Justices O’Connor, Kennedy and Souter, with Justices Blacmun and Stevens concurring in part and dissenting in part, the concept of viability continued as the central focus of the shifting liberty interests. Justice O’Connor wrote:
ReplyDelete“Constitutional protection of the woman’s decision to terminate the pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ The controlling word in cases before us is ‘liberty.’ Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years … the Clause has been understood to contain a substantive component as well, one ‘barring certain government actions regardless of the fairness of the procedures used to implement them.’ [i.e., the legislative action enacting the law in question] … As Justice Brandeis (joined by Justice Holmes) observed, ‘[d]espite arguments to the country which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States.”
The conservatives on the Court hate the concept of substantive due process, because it can be used to expand the rights which Americans are deemed to possess beyond the scope of state regulation. Comments like those by J. Kavanaugh that, “Nowhere in the Constitution does it say anything about the right to an abortion” are utterly ludicrous. Exactly, knucklehead, because the rights are implicit in the concept of substantive due process. J. Sotomayor appropriately pushed back, stating that many of the Court’s decisions turn on the protection of rights which are not explicitly stated in the Constitution but which are protected by our ingrained concepts of liberty under the 14th Amendment, like the right of members of the same gender to marry, sustained in the majority opinion written by J. Kennedy in Obergefell, which J. Sotomayor pointedly suggested would also be vulnerable to reversal if the Court reverses or modifies the scope of Roe.
In Casey, J. Blackmun prophetically wrote:
“In one sense, the Court’s approach is worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short – the distance is but a single vote.
“I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”
(Continued)
Regarding the nature of substantive due process, consider, could the State of Mississippi, or any other state, pass a law which made it illegal for anyone who ways more than 300 lbs. to cross state lines, on the grounds that it will give citizens in other states a bad impression of Mississippians? Could it pass a statute forbidding all citizens from dying their hair purple? Of course not. Such laws would violate our notions of individual liberty. Yet, there is nothing in the Constitution protecting your right to eat until you explode, or to dye your hair any color you want.
ReplyDeleteAre there limits to the scope of rights protected by substantive due process? The Supreme Court has held that the right to assisted suicide is not such a right, and can be prohibited or allowed by the states as they wish. The scope of substantive due process is also at the forefront of the debate over mask and vaccine mandates – those who are rejecting such mandates are claiming that they invade their right to individual liberty. Are they right? Suppose the omicron variant of covid turns out to be even more virulent than the delta variant, and deaths from omicron start spiking? Do individuals who continue to refuse to be vaccinated or wear a mask have a liberty interest that entitles them to do so? Is their liberty interest greater than that of a pregnant woman who want to obtain an abortion in Mississippi after 15 weeks?
In this regard, consider the story of Mary Mallon, commonly known as “Typhoid Mary,” (1869-1938). Ms. Mallon was an asymptomatic carrier of the typhoid bacteria. She worked as a cook and infected many of her co-workers, who died from typhoid. She refused to stop working as cook. This was before the discovery of anti-bacterial vaccines. The New York City Health Dept. ordered that she be forcibly held in quarantine over two time periods, 1907-1910, and 1915-1938. She died in quarantine at the age of 69. Consider, if deaths from omicron, or another variant, begin to accelerate, would the various states, or the federal government, have the right to vaccinate the unvaccinated against their will? Is forcing a person to have a substance injected into their body a less invasion of the liberty interest than denying a woman the right to a medical procedure she requests? What if the refusal to be vaccinated prevents the creation of herd immunity and threatens the extinction of a substantial proportion of the human race?
(Along the lines of vaccines and viruses, I have a question for the medically knowledgeable readers of this blog. How is it that the viruses which caused polio and smallpox did not mutate as quickly as the corona virus, which consequently allowed the polio and smallpox vaccines to eliminate them?)
RNA viruses (COVID) mutate at a faster rate than DNA viruses (Smallpox). In general, DNA viruses are easier to design vaccines for.
ReplyDeleteEvolution-wise, viruses with high mutation rates are weeded out by natural selection. Interestingly, SARS-COV2 seems to have developed new mechanisms of mutation not seen before.
Anonymous,
ReplyDeleteThank you for the explnation.
There was a time when conservatives did like substantive due process, namely during the so-called Lochner era.
ReplyDeletehttps://en.wikipedia.org/wiki/Lochner_era
LFC,
ReplyDeleteCorrect, they liked the principle of substantive due process during the late decades of the 19th century, and early decades of the 20th century. They used it in favor of businesses by claiming it supported the freedom of contract so as to undermine employee claims that they wre being mistreated or underpaid - they had freely contracted the terms and conditions of their employment and therefore had not basis to complain. The New Deal changed and the right to organize changed this.
It's not clear that Dems will gain much in the mid-terms from overturn of Roe V Wade. Youngkin's remarks on abortion don't seem to have hurt him that much. Abortion does not rank that high on most voters most important issues list. And then the % of voters who perceive themselvs as being directly impacted is not great. We want the world to be different than this.
ReplyDelete