I believe the complete overturning of Roe v. Wade, which will take place at the end of June, has the power to completely change the midterm elections and give the Democrats the possibility of holding the House and adding to their slender control of the Senate. Some commentators are suggesting that the short attention span of the American public will make this leaked draft decision a seven-day wonder, but that, I think, misunderstands what is actually going to happen.
The next two months will no doubt be absorbed with talk about
inflation, the Ukraine war, and then the House January 6 committee hearings (which
will start while Susie and I are in Paris, alas.)
But then at the end of June the Supreme Court will hand down
its decision on Roe and at that moment, literally immediately, abortion will
become illegal in more than a dozen states and will pretty much become illegal
in the next month or so after that in another dozen states. Nobody, I predict,
will be talking about anything else.
The secret to victory in midterm elections is and always has
been turnout. If the immediate loss of access to abortion does not trigger an
outpouring of anti-Republican votes, then we might as well just go into hiding
and wait for full-scale fascism to take over this benighted country.
I was so uncontrollably angry last night that when Elizabeth
Warren appeared on MSNBC and told viewers to donate to Jessica Cisneros to
defeat the antiabortion Democrat Henry Cuellar in Texas, I got out of bed, went
to my desk, and donated $500.
This is it, folks. We have the votes in this country to
change things if we just can be bothered to come out and cast those votes. Between now and election day that means
donating money and – for those who are able – volunteering to work for
candidates. My Parkinson’s stops me from walking the wards and my micrographia
even makes it impossible for me to work on mailings but I have money so I will
give it and I have a tiny megaphone in this blog so I will use it to encourage
my readers, such as they may be, to throw themselves into the fight.
104 comments:
Yes, but the conservatives will be equally motivated in this culture war, won't they?
It is hard to say this: but Alito is as much our enemy as Putin- even more threatening. Remember Putin's interference in the election of Trump gave birth to this moment
Not only will the right be equally motivated, but they are going to blame the inflation, which I suspect will be the number one issue, on Biden and the Democrats.
Time for Lysistrata in reddish states. Or maybe a general strike.
Meanwhile, we can all refuse to travel to anti-abortion states, and deal with companies that stand aside from the fight.
The main numbers person for Governor Cooper talked here at Carolina Meadows. He pointed out that we had the best turnout of Democratic voters ever but that the Republicans did much better. If we had the same turnout we would have elected Biden and won more statewide offices. It is true that turnout is essential. We Democrats have to work hard on turnout this election. I hope that the only good spinoff of the demolition of Roe will be the fervor to get out. All the volunteering possible will help.
"Yes, but the conservatives will be equally motivated in this culture war, won't they?"
But they aren't equally distributed. As soon as the decision comes out there will be considerable energy on the Right to follow the logic of the decision to other issues. This will motivate turn out in general and in suburban and exurban districts not necessarily to the Right's advantage.
I just played another Ukrainian chess, ranked somewhat higher than me. I told him about the Ukrainian player last week who spouted anti-American epithets. He said there are some Ukrainians who are not really Ukrainian. I indicated I thought he was from the Donbass region, and he agreed. After I promoted to a Queen, he fought me to a draw. 95 moves, the longest game I’ve played. As we parted, I wished him well and told him to give the Russians hell.
Very much beside the point, but its author is, I believe, the translator into English of Marx's Grundrisse, and besides, I think there are a few Bay Area visitors to this blog. And maybe it's good to be reminded that it's not just rogue justices in DC but supposedly progressive city governments in "blue states" which are capable of mayhem:
https://www.berkeleyside.org/2022/04/29/opinion-berkeley-marina-plan-would-destroy-cesar-chavez-park
What is truly sad is the fact that the democratic party is placing the blame and all of the work on the voters. The democratic base has elected two presidents in the last decade, one with two terms, and has also given the democrats a majority in the senate a few times. However, they have failed to codify Roe v. Wade into standing law. The fault of this court decision rests solely in the hands of the democratic party, Obama/Biden, and RBG.
Anonymous,
You do not know what you are talking about. Codifying Roe v. Wade as a statute would not have saved the decision, or a woman’s right to choose. If Alito’s opinion becomes the majority decision, then the majority on the Court are essentially saying the Roe v. Wade was wrongly decided and violated the Constitution. Any statute which codified Roe v. Wade would likewise be unconstitutional. The only way to prevent the overturning of Roe v. Wade was to insure that Gore, and then Clinton, got elected and prevented the appointment of Alito by Bush II, and Gorsuch, Kavanaugh and Barrett by Trump.
Anon, School House Rock smooths over the rough edges. You might explore how Senate rules work (it also doesn't help that a solid majority of the Senate.
The purpose of "codifying Roe" is to create a political effect as well as protecting the provision of and access to abortion. The House has already passed the bill and the Senate will vote on it next week. It will fail because there aren't sixty votes to pass (or 50 to end the filibuster).
Should there be such a bill passed the Supremes might nix it but that would amp up the politics (an initial loss can end with a win). Of course, there is jurisdiction stripping.
(Should there be enough Dems to actually pass such a bill, there would also be enough to do some serious judicial reform.
15 - 18 Justices with staggered 15 - 18 year terms. Circuits expanded 15 - 18 and expanded to undo the Trump damage. Ditto districts.)
Mr. Susselman,
Sorry but I think you are underplaying the effect that making Roe v. Wade law would've had. The conservative justices, especially Roberts, care a lot about the legitimacy of the Supreme Court. That being said, if Roe v. Wade was codified then any move to overturn it would hinder the perceived legitimacy that the court has. Besides Alito's firm opinion on adhering to Stare Decisis, opposing that AND a set in stone law would completely unravel whatever legitimacy there was left. If Roe was codified that is at least one more hurdle for conservatives to jump over in this fight. A decision by SCOTUS to overturn a past decision of theirs affects that decision and its progeny. It does not directly attack statues that say similar things unless that statue was directly at issue. It is harder for SCOTUS to declare laws passed by congress unconstituional than for them to overturn decsions they have made in the past -- as evidenced by this and many other opinions SCOTUS has handed down. It is not just a failure of the national democratic machine, but also a state level failure.
With that being said, I will take your rudeness as you just being blunt. However, I do know that codifying Roe v. Wade would only lengthen the timeframe in which the laws would be deemed unconstitutional. This also does not remove blame from the democratic party; which is a party that has had plenty of chances to make this decision final.
Ugh, I'm sorry, I couldn't resist clicking on this (Fox News commentators arguing about abortion), and now I feel compelled to vent...
The American right continues to outdo itself in producing the world's most punchable faces. Greg Gutfeld is currently winning the contest in my book, followed closely by Matt Gaetz.* It's remarkable to see someone argue so stridently against abortion rights despite having the strongest possible counterargument whenever he looks in a mirror.
But okay, enough ad hominem. (Actually, one more. Conservatives tend not to understand what "ad hominem" actually means. It's as if they say, "My beliefs may be idiotic, but did you know that pointing this out to me actually validates them?")
Gutfeld states that abortion rights advocates "don't have the balls" to state their position plainly. He laments that they "used to" describe abortion as a difficult, sometimes tragic, but necessary evil; whereas nowadays everyone's taking to social media to celebrate abortion as a cool thing to do, or something.
A few thoughts on this. It's false and dishonest, obviously. Gutfeld (so accustomed to being dishonest himself) can't fathom that there is such a thing as honesty on the part of those who don't share his views; either that, or he takes it for granted that the ethics of reproductive and sexual decisions couldn't possibly involve any real conflict or uncertainty, that it's one-size-fits-all, without any grey area: It's evidently just a matter of "Embrace pregnancy and parental responsibility unconditionally - otherwise, keep your pants on!" Anyone who insinuates that the world can be more complicated than that must be some deviant fornicator trying to muddy the waters with self-serving sophistry.
It's hypocritical, too. If Gutfeld valued honesty and forthrightness, then he would articulate his own position somewhat as follows: "I think people, especially women, should be punished for enjoying their sex lives (so long as I'm not involved). God commands it, or at any rate, I find it unpleasant to suppose I could be mistaken about this."
*If you missed it, here's Gaetz's comment: "How many of the women rallying against overturning Roe are over-educated, under-loved millennials who sadly return from protests to a lonely microwave dinner with their cats, and no bumble matches?"
M.S.
You should think about putting on a professorial mien, briefly, and patiently (and politely) explaining to Anon why you think he/she is wrong. Calling him/her an idiot doesn't help anything. We all can lose our tempers, but we have an open comment section here, and we shd try to keep it minimally civil. I myself have not always followed that rule in the past, so I'm not intending to hold myself out as an example, just suggesting that you take a deep breath before you type. On this particular question (Roe v Wade), we're all basically on the same side. No one here has expressed support for SCOTUS overruling it. Worth keeping that in mind.
I still believe the Supremacy Clause plus the Commerce Clause would be sufficient to support a federal law either banning nationally or protecting from state assault various aspects of reproductive health care. One potential factor is that business is helped by uniformity. Roberts and Kavanaugh are both corporate lackeys.
This is from 15 USC 1334:
"(b) State regulations
No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter."
Perhaps you are focusing too much on "abortion" and "constitutional right" as opposed to certain procedures being part of routine medical care. Federal law is full of regulations that preempt state law on all sorts of things. Meddling with Commerce Clause law would not be as easy as making stuff up to overrule Roe/Casey and would engage primal forces.
aaall
I looked at the text of the Supremacy Clause to remind myself, and I think MS's pt is that it opens by saying *the Constitution* and federal law *made in pursuance thereof* is the supreme law of the land. So before you get to the question of federal law preempting state law, you need to clear the hurdle of whether the federal law in question comports with the Constitution, and if SCOTUS doesn't think abortion is constitutionally protected, then it's likely not to uphold a federal statute seeking to protect abortion rts nationally against certain states' contrary views. I take this to be what MS is saying.
Plus the SCOTUS since the Rehnquist days interprets the Commerce Clause somewhat more narrowly than before, I think.
OK, so I guess I have to explain why no statutory provision protecting the right to abortion could possibly work.
Prior to Roe v. Wade, states had the right under their common law police powers to ban abortion. In order to override that police power, J. Blackmun had to formulate a theory of a fundamental right which would be protected under one or more Constitutional provisions. Without a basis for a fundamental constitutional right, the states could not be deprived of their right under their police powers to ban abortions. Blackmun combined two Constitutional provisions – the right to privacy under the 4th Amendment, following J. Douglas’ Opinion in Griswold that the requirement that the state must obtain a warrant before it could search either a person or a home entailed a right to privacy. Douglas expanded this right to privacy to include the right to privacy regarding one’s sexual practices, including the right to contraception. Blackmun combined this with the liberty interest protected against state intrusion under the 14th Amendment, asserting that a woman has a liberty interest in control over her body. That liberty interest begins to wane over time as the liberty interest of the developing fetus has to be taken into consideration. The compromise was that the fetus’s liberty interest only supersedes the mother’s liberty interest when the fetus becomes viable outside the womb, even it it requires artificial means to keep the fetus alive.
In order to reject a fundamental right to an abortion up to the end of the second trimester, Alito and his conservative cronies have to reject have to reject both the privacy interest under the 4th Amendment, because the obligation to obtain a warrant says nothing about abortions (or contraceptives, for that matter). And then it has to expand the liberty interest of the fetus to begin earlier than viability. How can they do this? Essentially by ipsi dixit – by adopting the strict constructionist theory of the Constitution and saying it. Once you get rid of the right of abortion as a fundamental right, the states’ police powers come back into sway. That leaves it up to each state to decide whether it want to exercise its police powers through legislation to either ban or allow abortion. Take a state that exercises its police powers to pass legislation banning abortions either altogether or after the first trimester. For that state the embryo and/or fetus has a fundamental liberty interest that supersedes any liberty interest of the mother. Any federal statute which nationalizes the right to have an abortion to be able to overcome the police power of the states that ban or limit the right to abortion. Those states will argue that this federal statute violates our right to ban or limit abortions in order to protect the liberty interest of the embryo/fetus. No federal statute can override at what stage we maintain that the liberty interest of an embryo/fetus supersedes the liberty interest of the mother. Our right to draw the line where we wish is protected the Constitution, since Roe v. Wade has been reversed. That is a sound constitutional argument that no federal statute can overcome.
(continued)
Can the Commerce Clause be implemented to override the states’ police powers as was done to pass the Civil Rights Act of 1964? I don’t think so. The Civil Rights Act of 1964 was enacted in order to invalidate state Jim Crow laws which enforce segregation in places of public accommodation – restaurants, hotels, movie theaters, etc., which asserted that individuals and businesses had a right to refuse to provide services to African-Americans if they so chose. The Commerce Clause, Article I, Section 8, states: The Congress shall have Power … To regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes. This is amplified by what is referred to as the Enabling Clause, which states, Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers[.]” The rationale was that since all restaurants, hotels, movie theaters, etc. purchased merchandise needed to operate their business which crossed state lines, Congress the authority under the Commerce Clause to require that they not discriminate against any patrons based on their race, national origin, gender or religion.
How would invoking the Commerce Clause to require a state which bans abortions altogether, or restricts them to the 1st trimester work? Would Congress say that because hospitals and medical facilities in that state use medical supplies and medical instruments which they purchase across state lines they must serve the woman who wants an abortion the same way a restaurant must serve an African-American who enters the restaurant to purchase a meal. The state would respond that we do not allow abortions because we are protecting the liberty interest of the embryo/fetus, and no federal law enacted pursuant to the Commerce Clause can require that we forfeit that fundamental right to protect the embryo/fetus just because our hospitals and medical facilities use medical supplies and medical equipment purchased across state lines. A Supreme Court which is willing to overturn Roe v. Wade to begin with would buy that argument in a heartbeat and say that the states’ right to ban abortions is protected by the Constitution, and the Constitution overrides any federal law contrary to it via the Supremacy Clause. See Marbury v. Madison. The only way to have prevented this from occurring was to have voted for Gore and Clinton to prevent the appointment of Alito, Gorsuch, Kavanaugh and Barrett to the Supreme Court, period.
The Cisneros contest is important, a bellwether for sure. Thank you!!
I wouldn't say that voting for those Dems was the "only" way; the anonymous Anonymous above is absolutely right: Obama promised straight away, when he had a supermajority, to codify Roe but did nothing.
PS
Perhaps someone can explain to me why a legislatively codified Roe wouldn't eventually be kicked back by the same SCOTUS? What kind of language would it have to have to make that particular interpretation of the 14th Amendment stick?
Jerry,
It would not have mattered if Obama had pushed to have Roe v. Wade codified as a law. Once Roe v. Wade was overturned, that statute would have gone by the wayside as well.
Post-script:
Nor would basing such a federal statute on the Ninth Amendment work.
The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Alito and his cronies would say, “So what. All that means is that the Constitution reserves to the people of Texas and Mississippi to ban abortions at whatever point in a pregnancy they deem appropriate, and for the people of California and New York to protect the right to an abortion up to whatever point in time they deem appropriate.”
aaall
My initial reaction to your USC 1534 example with cigarettes was positive--but then it occurred to me that cigarettes are clearly an article in interstate commerce, so a Federal statute regulating them--and usurping any state authority--would fall under the commerce clause. It's hard to see how abortion can fit under that clause.
Post-post-script:
The next possible (probable?) target: gay marriage.
How would this occur? Georgia or another Red State passes a law stating that it does not recognized marriage between individuals of the same gender. A gay or lesbian couple seek to obtain a marriage license in that state, and they are rejected. They sue the state asserting that their constitutional right to marry has been violated. The case goes to the S. Ct., and Alito and his cronies reverse Obergefell v. Hodges, saying that the right to marry regardless of gender is not a fundamental right, ipsi dixit.
This, like the right to an abortion, would vary from state to state. This would leave the following question: Two men get married, or have gotten married, in New York. They move to Georgia which has a law in place prohibiting gay marriage. They obtain jobs in Georgia, but their employers refuse to provide them with spousal benefits which they provide two other traditionally married couples, relying on the Georgia law. Does Georgia have to recognize the validity of the New York marriage license under the Full Faith and Credit Clause, Article IV, Sec. 1> “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The S. Ct. has held in divorce cases that states have to recognize the validity of divorces granted in Nevada despite the fact that the couple could not have obtained a divorce in the state in which they were married. Will the same apply to gay marriages. This question was a subsidiary question in Obergefell, but J. Kennedy did not have to address it since he and the majority held there was a constitutional right to marry whomever one chooses, regardless of gender. (If only Gore and Clinton had been elected. Sigh.)
As some of the previous comments suggest or make clear, once Roe is overturned the question of abortion and its regulation becomes essentially an issue of federalism (the balance of federal vs state powers). States wanting to set their own rules would presumably rely on their common-law "police powers" (as MS has noted) and perhaps on the 10th amendment, reserving to the states (or the people) powers not granted by the Const to the fed govt. Those seeking a nationwide regulation by fed statute wd pretty much have to rely on the commerce clause, w the problems already noted.
I'm not sure I wd worry too much about Obergefell if Roe is overturned. In terms of the public passions it generates and the intensity with which the advocates of each side hold their views, gay marriage is actually a less controversial matter than abortion. Moreover, the competing interests are different in the two areas, and no one can claim that the legalization of gay marriage involves the taking of life (however defined).
Would overthrowing gay marriage affect civil unions between people of the same sex?
I assume civil unions also exist in the United States. In Chile we have civil unions between people of the same or opposite sex, but no marriage between people of the same sex.
For example, I have a civil union with my partner (of the opposite sex), because neither of us is into getting married.
s. wallerstein,
Any sate could prohibit either or both. If the issue went to the S. Ct., the Court, as currently constituted would likely say there is not a fundamental right to either in the Constitution, and each state is fee to do as wishes, prohibit either, or both, or neither.
Marc Susselman
So why are the Dems running around like codification would solve the problem?
Jerry,
Either because they do not know constitutional law, or they do know constitutional law and want to make it appear like they are doing something effective to outsmart the Supreme Court in order to drum up voter turnout in the midterm elections. This will only give those who support abortion rights false hope, and to me it is disingenuous. I don’t like disingenuous arguments, regardless who promotes them, the Republican or the Democrats.
I propose that we push for legislation in each of the Red States prohibiting men and women while living in the state from dying their hair green. There is no fundamental right in the Constitution, not even in the 14th Amendment, to dye one’s hair green. It is not even within the penumbra of the liberty interest protected under the 14th Amendment, because there is no such thing as a penumbra of rights. The only exception would be if you already dyed your hair green in a Blue State and traveled into a Red State. You would not be required to have your hair shorn as you cross the border.
Marc,
Thanks.
I correct myself. Gay marriage was legalized a few months ago in Chile and as LFC points out above, it does not bother the right as much as abortion does. Much of the right, in Chile at least, voted in favor of gay marriage, while all of the right (as far as I know) is anti-abortion and due to their opposition, abortion here is only legal in three cases: danger to the mother's life, severe fetal malformation and rape.
s. wallerstein,
Well, the U.S., as you know, is less liberal than Chile. Last week the S. Ct. heard oral argument on whether a school district which terminated a football coach for praying on the 50 yd. line after every football game violated the coach’s 1st Amendment right of freedom of religion. Based on the questioning, it appeared that the majority conservative justices leaned in favor of reversing the lower court and holding that the school district did violate his 1st Amendment right. So, I would not be surprised to find some states enacting legislation prohibiting gay marriage, and it being upheld in the S. Ct.
Regarding green hair legislation, one might argue that the state may only exercise its police power in a manner which promotes the public’s safety or health. They might argue that green hair reflects only green light wavelengths, but absorbs all other wavelengths, which increases the risk of skin cancer. Better yet, ban all black hair and black clothes, because black absorbs all the wavelengths and dramatically increases the risk of cancer.
One of my favorite commentaries about the nature of the law is a parable written by Franz Kafka. It is quite accurate. I had it printed on parchment and framed, and it hung on the wall of my law office. If you have never read it, here it is below.
Before the Law
by Franz Kafka
Translation by Ian Johnston
Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment. The man thinks about it and then asks if he will be allowed to come in later on. “It is possible,” says the gatekeeper, “but not now.” At the moment the gate to the law stands open, as always, and the gatekeeper walks to the side, so the man bends over in order to see through the gate into the inside. When the gatekeeper notices that, he laughs and says: “If it tempts you so much, try it in spite of my prohibition. But take note: I am powerful. And I am only the most lowly gatekeeper. But from room to room stand gatekeepers, each more powerful than the other. I can’t endure even one glimpse of the third.” The man from the country has not expected such difficulties: the law should always be accessible for everyone, he thinks, but as he now looks more closely at the gatekeeper in his fur coat, at his large pointed nose and his long, thin, black Tartar’s beard, he decides that it would be better to wait until he gets permission to go inside. The gatekeeper gives him a stool and allows him to sit down at the side in front of the gate. There he sits for days and years. He makes many attempts to be let in, and he wears the gatekeeper out with his requests. The gatekeeper often interrogates him briefly, questioning him about his homeland and many other things, but they are indifferent questions, the kind great men put, and at the end he always tells him once more that he cannot let him inside yet. The man, who has equipped himself with many things for his journey, spends everything, no matter how valuable, to win over the gatekeeper. The latter takes it all but, as he does so, says, “I am taking this only so that you do not think you have failed to do anything.” During the many years the man observes the gatekeeper almost continuously. He forgets the other gatekeepers, and this one seems to him the only obstacle for entry into the law. He curses the unlucky circumstance, in the first years thoughtlessly and out loud, later, as he grows old, he still mumbles to himself. He becomes childish and, since in the long years studying the gatekeeper he has come to know the fleas in his fur collar, he even asks the fleas to help him persuade the gatekeeper. Finally his eyesight grows weak, and he does not know whether things are really darker around him or whether his eyes are merely deceiving him. But he recognizes now in the darkness an illumination which breaks inextinguishably out of the gateway to the law. Now he no longer has much time to live. Before his death he gathers in his head all his experiences of the entire time up into one question which he has not yet put to the gatekeeper. He waves to him, since he can no longer lift up his stiffening body.
The gatekeeper has to bend way down to him, for the great difference has changed things to the disadvantage of the man “What do you still want to know, then?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is it that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I am now going to close it.”
Marc,
I'm not sure that the U.S. is less "liberal" (in the sense the word is used in the U.S.) than Chile, but the Republicans are off the political spectrum.
Let's take rightwing ex-Chilean president Piñera, like Trump an unscrupulous and greedy billionaire, against abortion, but not against gay marriage, not a climate change denier, not anti-vacination, not against using masks, not anti-Darwin, made some politically incorrect comments when the transgender issue first appeared, but quickly corrected them, etc.
In certain quarters the complain is often heard that in Democratic administrations when something is proposed there will be lawyers who will explain why that can't be done while in Republican administrations Republican lawyers tasks are to figure out how to make it so.
Another parable:
"The aide said that guys like me were 'in what we call the reality-based community,' which he defined as people who 'believe that solutions emerge from your judicious study of discernible reality.' [...] 'That's not the way the world really works anymore,' he continued. 'We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors...and you, all of you, will be left to just study what we do'"
This isn't just about drumming up voter turn out, it's about changing the politics and reforming obsolete structures. This is a slow-boring sort of thing. If a proposed law fails in the Senate because not enough Democratic Senators and stupid Senate rules and that effects the mid-terms in a positive way because the Dems finally got their messaging act together then that is hardly disingenuous. Going forward the goal s/b to discredit the majority on this Court, how the Article III courts are screwed up, and how to fix them (among other things).
LFC, I was just using that as an example after a cursory tour through the USC. The commerce clause is used in the currently proposed law that has already passed the House as well as in all sorts of unrelated matters - existing abortion law, food labeling, etc. Perhaps the problem is treating abortion as something other then a medical procedure; something that can be separated out without leading to serious problems.
Absent personhood from conception, the state (and individual state) interest in a developing fetus will always be challengeable.
There is no way to actually ban abortion in a society that values liberty. We now have state laws that, absent Roe, will make every miscarriage susceptible to a criminal investigation. Doctors in these states are already questioning what they can legally do. The bounty hunter laws are going to be a nightmare.
"So why are the Dems running around like codification would solve the problem?"
Nothing is ever "solved", we never really win, and reaction never sleeps.
"I'm not sure I wd worry too much about Obergefell..."
I follow some of these folks so we should be prepared. Everything will be on the table.
aaall,
I think it should be obvious that I share many of your social values and that overturning Roe v. Wade is going to wreak havoc on the families of a lot of Americans, and that the S. Ct. in it current composition is really f--=ed up. But no matter how many Democrats are elected to the House and Senate, there is nothing the Democrats can do to undo what the S. Ct. appears likely to do regarding the continued viability of Roe v. Wade and preserving a woman’s right to choose. I believe it is a right. You believe it is a right. LFC, s. wallerstein, David Palmeter, Jerry Fresia, Prof. Wolff, probably everybody who reads this blog believes it is a right. None of this matters at this point, as long as at least 5 Justices on the S. Ct. do not believe it is a right. I guess I assumed everyone understood, at least everyone who has a college degree understood, how the Constitution and Congressional litigation interact. I assumed most educated people appreciated that the only way to preserve Roe v. Wade was to insure that at least five of the S. Ct. justices were liberals, or conscientious Republicans -like J. Blackmun. And that to insure this the liberals and Democrats had to do everything possible to elect Presidents who were left leaning on social issues, even if they were not sufficiently left leaning on all issues that progressives wanted. I assumed that if educated people were aware of this, they would do everything in their power to make sure that such presidential candidates got elected by not wasting their votes on more psychologically appealing candidates who had little to no chance of getting elected. Apparently my assumptions were wrong, and, given the ages of the conservative Justices, there is absolutely nothing legal -, nothing - which Congress or the rest of us can do to undo the elections of 2000 and 2016. I guess I gave a lot of educated Americans too much credit to use common sense.
Roe was a 7-2 decision. The majority consisted of three Nixon appointees (Blackmun, Burger, Powell), one Roosevelt appointee (Douglas), two Eisenhower appointees (Brennan, Stewart) and a Johnson appointee (Marshall). The dissenters were a Nixon appointee (Rhenquist) and a Kennedy appointee (White).
No doubt there were constitutional scholars and Court followers who could have predicted this result or something close to it based on their knowledge of the Justices' opinions in other cases. One thing that wouldn't have helped them predict was knowing the political party of the President who appointed them.
The Supreme Court has lost any respect it had, and so have the lower courts. All you need to know most of time when you see a news report of a Supreme Court decision is who appointed the justices in the majority. The same is true with lower court decisions.
The country has lost something vital to a democracy when it's courts are seen as a bunch of political hacks. We can thank the Federalist Society for most of this. And, at the risk of incurring s. wallerstein's disapproval, I'd add Ralph Nader and the 90 thousand plus Floridians who voted for him in 2000--and gave us Mr. Justice Alito.
David,
Agreed.
"But no matter how many Democrats are elected to the House and Senate, there is nothing the Democrats can do to undo what the S. Ct. appears likely to do..."
In a representative democracy, given the numbers, a lot can be done. That is how we have Social Security, Medicare, and other good things. With the numbers, even the threat of doing something can produce results.
For example, given control of the Executive and Congress in sufficient numbers, make "senior status" mandatory instead of optional (de facto terms) (Thomas, Alito, Roberts - gone, gone, gone - 3 + 3 = 6).
Given the numbers, re-balance all the Article III Courts after the McConnell/Trump assault on their integrity. Revisit reproductive rights with an equal protection argument and an eighteen member SC.
It isn't a matter of education (folks like Cruz, Hawley, Vance have Ivy educations and they are still evil). It's work and determination. No where in the Constitution is it written that we have to put up with nine Justices and 13 circuits.
Fascist over-reach can provide an opportunity. Why not take it?
Another thought on legislation protecting reproductive access. Given the numbers to pass it, there would also be the numbers to jurisdiction strip.
David Palmeter,
I bet you drive a car. Would you like it if every day I sermonize you about how driving a car contributes to global warming?
I bet you eat meat. Would you like it if every day I sermonize you about how many cows and chickens factory farmed under deplorable conditions were slaughtered so that you could satisfy your evil hunger?
I bet you've done nothing about the slaughter in Yemen carried out by Saudi Arabia with U.S. supplied arms. Would you like it if every day I sermonize you about how you're complicit in that terrible holocaust?
No, you wouldn't like it because you already know the above and you live what you consider to be an ethical life and it's not my business to sermonize you.
You know, I got 789 points on the verbal SAT (to brag a little) and although surely, my reading comprehension has declined a bit with the years, I understood your point about Nader the first time you guys talked about it and processed it in my own way.
In my case at least if someone sermonizes me constantly, I'd likely to do the opposite because nothing turns me off more than a sermon. If you want to do politics and convince others, try to convince them, not to turn them off.
DP, one thing the Federalist Society demonstrates is persistence (and $) can change things. In Ireland the actual results of banning abortion changed the politics. Post Roe Federalists were able to sell the sizzle. They now have to deal with the steak.
Pace LFC, but this is apt.
https://www.lawyersgunsmoneyblog.com/2022/05/only-fools-fall-in-love
s. wallerstein
Sorry. I didn't mean to sermonize--but the 3rd party issue drives me up the wall. We've lost a lot in my lifetime because of it. In 1968, the left deserted Hubert Humphrey because the smoke- filled room nominated him and not Eugene McCarthy--and gave us Nixon who, among other things, gave us the late not-so-great William Rhenquist.
When you don't like the party establishment's positions, the answer is not to run against them in the election and become a spoiler. The answer is to do what AOC, Bernie Sanders and, ironically, Donald Trump did--run against them in the primary. Bernie didn't get the nomination either time, but he's moved the Democrats to the left.
Sorry again. That reads like a sermon. I'm frustrated and spouting off.
David Palmeter,
I appreciate your apology.
By the way, since you've participated in this forum a long time, you may or may not recall that in 2016, following Professor Wolff's lead, I supported Hillary after having supported Bernie and in 2020 I supported Biden, again after having supported Bernie.
I've also stated explicitly here that if Donald Trump is the candidate in 2024, the Greens should not run a presidential candidate and should support the Democratic candidate as a Macron-like figure, whoever he or she is.
When Sleepy Joe was sharp and quick and friends with anti-abortionist Strom Thurmond:
+ ...Biden got there before Alito did, voting in 1981 to support a constitutional amendment that would allow states to overturn Roe v. Wade. Soon after the Roe ruling, Biden announced his opinion that the court had “gone too far” and that women shouldn’t have the “sole right to say what should happen to her body.”
Jerry,
What's your point?
Jerry,
As you know, since Biden made those remarks you quote, the political context has changed in certain relevant ways. American politics in general has become somewhat more polarized, and the voting "bases" of the respective parties have become highly influential in effectively requiring party leaders to adopt certain positions. In this context any sitting Dem President wd have to fully support Roe, irrespective of what his personal views on abortion have been in the past or might be now. In this context all that your quotes show is that Biden is a politician rather than, say, an academic philosopher free to express personal views with no political constraints. In other words, what it is possible politically for a Democratic officeholder to say about Roe has changed over the years. There are still a few "anti-choice" or "pro-life" Democrats but not many. In the Senate it's Joe Manchin and Robert Casey and that's it afaik.
S. Wallystein,
"You know, I got 789 points on the verbal SAT (to brag a little) "
LOL - It's 2022 and Wallystein is bragging about his SAT scores...the glory days are well behind us, boys...
I have finally had an opportunity to review J. Alito’s draft opinion. As I anticipated it is based on slippery constitutional analysis and superficial reasoning.
He discredits the notion that a privacy interest protected by the 4th Amendment is valid. This is low hanging fruit for a strict constructionist. There is no mention of privacy in the 4th Amendment, let alone the right to an abortion.
The crux of the argument is what is meant by the use of the word “liberty” in the 14th Amendment, which states in Sec. 1:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Alito correctly asserts that in determining whether a right is a “fundamental right” protected by the liberty clause, the S. Ct. has determined the right is protected under the first 8 Amendments, or if it falls into a second category, which is the issue relating to the right to an abortion. The second category her states “comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.” The crux of Alito’s argument appears on p. 11, where he states, “In deciding whether a right falls into [the second] category[], the Court has long asked whether the right is ‘deeply rooted in [our] history and traditions’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’”
He then launches into a very long exposition regarding the history of abortion laws, starting with the colonies and going forward. J. Blackmun included a similar exposition in his opinion in Roe v. Wade. I scanned Alito’s disquisition without evaluating where or why he differs with Blackmun, because I believe the history of abortion is largely irrelevant to the question of whether the right to an abortion is within the liberty interest protected by the 14th Amendment. Blackmun and Alito came down on different sides regarding the lesson of the historical review. But it is irrelevant. The real question is whether the right to an abortion falls into the second category, regardless the history. Is it within the “scheme of ordered liberty.” Alito concludes that it is not by essentially conflating that question with the first – if the history does not indicated that the American people have recognized the right to an abortion as a fundamental right, then it is not within the “scheme of ordered liberty.”
(Continued)
But this analysis ignores the paramount question – what do the words of the 14th Amendment say? There are literally thousands of Supreme Court decisions which have held that in determining what a constitutional provision or statute means, we start with the language in question. Under the express terms of the Amendment, it protects against depriving “persons” of life or liberty. Now, there is no question that a pregnant mother constitutes a person. But does the embryo/fetus qualify as a “person” entitled to the protection of the 14th Amendment? This is not the same kind of question which the Court has addressed regarding the status of corporations. The ruling that corporations qualify as “persons” under the 14th Amendment is a policy decision, made on arbitrary policy grounds. But the question whether an embryo/fetus is a “person” is a biological question, that only science can answer – not religion, because the 1st Amendment requires the separation of the state from religious precepts. The coupling of sperm and egg forms what is referred to as a “blastocyst” or “zygote.” No competent neurologist would claim that a blastocyst/zyogotet is a “person.” As the cells of the blastocyst begin to divide, after it has implanted on the woman’s uterus wall, they develop into an embryo. This occurs about 10 to 12 days after implantation. No competent neurologist would claim that an embryo, which has no spinal cord and central nervous system, it a person. It is a potential person – but the 14th Amendment does not protect “potential persons.” It protects “persons” and only persons. As the embryo grows, it transforms into a fetus, which occurs 10 weeks into the pregnancy. But the fetus, also, does not have a central nervous system sufficient to constitute a person, and no competent neurologist would say otherwise. The earlies point at which a fetus could be considered a person is the point in time when it can experience pain. Many studies have been conducted to determine when this occurs, and the consensus is that it occurs at the earliest at week 24 of the pregnancy. See
https://www.fatherly.com/health-science/fetus-feel-pain-in-the-womb/.
Alito’s dismissive treatment of Blackmun’s decision is superficial. In his decision, Blackmun in fact stated, “But in nearly all these instances [in which the word ‘person’ is used in the Constitution], the use of the word I such that it has application only potentially. None indicates, with any assurance, that it has any possible pre-natal application.” In a footnote, Blackmun stated, “We are not aware that in the taking of any census under this clause [the Apportionment Clause], a fetus has ever been counted.”
So what does this mean in terms of the language of the 14th Amendment. It means, I would maintain, that up to the 23rd week of the pregnancy, there is only one “person” protected by the 14th Amendment. By the 24th week, there are two “persons’ protected by the 14th Amendment. At that point the mother does not have the right to take the life of the fetus via an abortion.
(Continued)
Therefore, codifying Roe v. Wade in a federal statute is not the answer, because Roe allows an abortion up to the 32nd week. I believe a federal statute protecting the liberty interest of the mother up to the 23rd week could be drafted that would not be subject being declared unconstitutional under Alito’s draft, should it bcomes the majority opinion. The statute would have to contain language along the following lines:
“Pursuant to the words of the 14th Amendment, and based on the medical evidence which indicates that a fetus cannot feel pain prior to the 24th week of a pregnancy, and therefore is not a person under the terms of the 14th Amendment, no state may prohibit a woman from having an abortion prior to the 24th week of her pregnancy.” This may not be as good as Roe v. Wade, but it is better than nothing
The Mississippi statute under review bans abortions at greater than 15 weeks. It is rumored that J. Roberts is trying to convince JJ. Kavanaugh and Barrett to sustain the Mississippi statute without overturning Roe v. Wade. So, am I contradicting what I have written in prior comments that no federal statute can preserve Roe v. Wade? Technically, no, since what I am proposing does not codify Roe v. Wade. But still, if the Court sustains the constitutionality of the Mississippi statute, how can a federal law which would contradict that holding survive constitutional review? It would force the Court to confront the question which Alito’s proposed decision is avoiding – when does personhood begin and maintain that the answer to that question can only be answered by science, not religion or personal preferences.
Marc,
I remember from my law school days something to the effect that a Federal statue will supersede a State statute if the Federal statute is constitutional. Is this an area where both the Federal government and the States can legislate? If so, a Federal statute would prevail. (I claim no expertise in this area, but that possibility has occurred to me.)
David,
Yes, a constitutional federal statute supersedes a contradictory state statute. The question will be if either Alito's opinion, or the watered down opinion J. Roberts is supposed to prefer, renders the statute I am proposing as unconstitutional. I would anticipate federal district courts and Courts of Appeal will strike the proposed statute down as unconstitutional because it is contrary to whatever decision is issued in the Dobbs case. The appellants would then seek certiorari in the S. Ct. and argue that the Court has to answer the question which Alito's opinion avoids - when does a zygote become a person? I would think that no self-respecting jurist (which I agree is open to debate) would maintain that a zygote is a person. It is an appendage to the mother, who has the right to amputate any part of her body she wishes. When does the fetus become a person? How can it be a person if it has no central nervous system and cannot feel pain? force the Court to address this issue. Codifying Roe v. Wade does not accomplish this.
What constitutes personhood is, of course, a philosophical question which has a great deal of argumentation behind it. In general, personhood is not mere sentience. Otherwise, any sentient being would have to be regarded as a person. What constitutes personhood is an open question, which has been described in various ways. For example, here is John Locke on what a person is: "A thinking intelligent being that has reason and reflection and can consider itself as itself, the same thinking thing, in different times and places." Contemporary philosopher Mary Warren emphasizes not only mental capacities but also social capacities, such as the capacity for love, cooperation, and moral reciprocity.
Gorsuch may well have his own view on what a constitutional person is, as suggested by Corey Brettschneider in "Gorsuch, Abortion and the Concept of Personhood." I will be interested to see who writes opinions for the decision we expect in late June.
anonymous @1:15 p.m.
If you're going to criticize someone, the least you can do is spell their name correctly.
"How can it be a person if it has no central nervous system and cannot feel pain? Force the Court to address this issue."
Simple. If the courts or a constitutional amendment (or for that matter a state legislature under some theories) says it is so then it is so. This is a theological/philosophical argument anyway and is more likely then not to be driven by priors. The law is merely a cudgel to achieve other ends. You seem to presume good faith on the part of the Court.
Under your proposal should a pregnancy go south in the 29th week and an abortion be necessary to save the life of the mother would a guardian ad litem be required/possible along with a judicial proceeding? What would stop a state from requiring a GAL for any decision affecting the fetus? Even if there are emergency provisions, the emergency would have to be established at a later date. You want to be a doctor in those jurisdictions? Then there are the bounty hunter laws...
The starting point for any laws concerning abortion is the general rule that actually effective and enforced abortion laws are incompatible with a free society.
RE: the anon LFC references - perhaps antisemitism is a bridge too far?
Marc,
I haven't read Alito's draft, except for the opening passages, but I don't really understand your analysis.
The key question, it seems to me, is whether the 14th amendment recognizes or protects a pregnant woman's liberty interest in controlling her own reproductive process. Only if that question is answered in the affirmative does one get to the question of balancing the woman's liberty interest in bodily autonomy of this sort against the fetus's interest in being born.
But Alito is going to answer that threshold question negatively, isn't he? He's saying there is no constitutional liberty interest at all in the control of one's reproductive process via abortion. The language about "deeply rooted in history and traditions" and "implicit in the scheme of ordered liberty" comes from prior S Ct cases. That's why Alito is addressing the history and why it's relevant. If he can show, to his satisfaction at any rate, that abortion is not deeply rooted in "the nation's history and traditions," then it's presumably not implicit in the "scheme of ordered liberty" -- these questions, it seems to me, are indeed tied together, especially given the vagueness of these phrases.
And if there is no constitutional liberty interest in abortion, then there is no need to face the question of when life begins.
So it seems to me your proposed statute does not get around the problem. If the Court rules that there is no liberty interest in having an abortion, period, then the fed govt cannot tell the states to allow a woman to have an abortion up to 23 weeks, or 10 weeks, or 2 weeks, or whatever, because the Court will have ruled that there is no liberty interest in abortion, full stop. When the fetus becomes a person is irrelevant on this analysis, because it's not a question of whether the fetus is protected by the 14th amendment, it's a question of whether a woman's right to have an abortion at all is protected by the 14th amendment, and the Court is going to answer that negatively.
anon is a troll. Best just to ignore him. Eventually he'll get bored and go away to bother someone else.
David,
None of the philosophical definitions you offer can qualify to define who a person is under the 14th Amendment. Applying any of those definitions, no fetus would qualify – no fetus, even at 9 months, can be documented as having thee ability of reason and reflection; and no fetus can be documented as having the capacity for love, cooperation and moral responsibility. If these definitions applied, then a woman would have the right to have an abortion through the third trimester, which was rejected in Roe v. Wade. We are not going to overcome Alito and his fellow conservatives’ view on personhood by extending it even beyond what Roe v. Wade recognized. The best definition for purposes of the 14th Amendment is the earliest point at which a fetus can feel pain, and the medical evidence indicates that is at 24 weeks.
On a side note, a social milestone occurred today. For the first time an African-American woman sang the National Anthem at the Kentucky Derby, a former slave state.
BTW, ~80% of abortions occur in the first 10 weeks while ~1% occur after 20 weeks. A "bargain" focused on technicalities of fetal development that would protect ~99% of abortions isn't going to fly with folks who want to end abortion.
"...and the medical evidence indicates that is at 24 weeks."
There are two discrete events that are beyond dispute and not subject to change based on new information - conception and birth. You bid pain and I'll raise you heartbeats. "Pain" and "heartbeats" are merely the new quickening.
LFC and aaall,
I do not agree with either of you. What I propose has more likelihood of succeeding than predicating the right to an abortion on the Commerce Clause.
Obviously a pregnant woman has a liberty interest. The 14th Amendment says so. She is obviously a person. Everyone born in the U.S., regardless their mental capacity, is a person under the 14th Amendment and has a liberty interest. That liberty interest protects a woman’s right to have a hysterectomy; it protects her right to amputate her legs if she wishes. It does not protect her against the competing liberty interest of her husband whom she catches cheating on her and shoots him, fatally wounding him. The cheating husband also has a liberty interest to his life and liberty. The issue comes down to competing right under competing liberty interest. But in order to have to have a liberty interest, the entity in question has to be a person to begin with. Alito cannot, without being disingenuous, just brush these competing interests aside and say, well, the pregnant mother has a lot liberty interests over her body, so, yes, she can amputate her limbs if she wishes, because her limbs are not “persons” under the 14th Amendment, but she does not have the right to abort a fetus, regardless whether the fetus is a person or not. If the fetus is not a person, then it has no rights under the 14th Amendment. And therefore for purposes of the 14th Amendment we must determine at what point it becomes a person – and it cannot be any of the philosophical definitions offered by Locke, or Mary Warren, or Peter Singer, or Prof. Wolff for that matter. Only a medical doctor or neurologist can provide a valid, scientific definition, and the only definition which is objectively determinable is at what point in time is the fetus’s nervous system sufficiently developed as to feel pain – and the earliest time is at 24 weeks. Otherwise, Alito and his conservative cronies have to maintain that even a zygote is a person under the 14th Amendment. How can a zygote be a person if the pregnant mother’s left leg is not a person?
aaall,
Fine, so you bid heart beat. It does not matter what the physiological criterions is – there has to be some criterion by virtue of which under the 14th Amendment the zygote becomes a person, because the zygote itself cannot qualify as a person. So, J. Alito, if the zygote is not a person under the 14th Amendment, can you tell me at what medically ascertainable point does the zygote become a person? The arbitrary choice under the Mississippi statute is 15 weeks. What happens at 15 weeks which transforms the fetus which is not a person at 14 week to a person at 15 weeks? Sure, they can say, we determine it by ipsi dixit, and that is our right as S. Ct. Justices. But let’s force them to say it. A better criterion is at the earliest point at which a fetus can feel pain. That criterion has both intellectual and emotive persuasiveness.
"The best definition [of personhood] for purposes of the 14th Amendment is the earliest point at which a fetus can feel pain, and the medical evidence indicates that is at 24 weeks."
Marc, I just find this approach to be muddled. The ability to feel pain is a characteristic of sentience. It doesn't make sense to say that sentience is personhood. If sentience is personhood, then any living creature that feels pain is a person. A dog is a person. A rabbit is a person. Pretty much any mammal. And likely many non-mammal creatures. If the court were to define sentience as constitutional personhood, we would end up with the untenable view that human animals who feel pain are persons but non-human animals who feel pain are not persons. Every fetus that can feel pain, then, would be entitled to have its life protected but we would be free to eat, stuff, display and wear all manner of sentient non-human animals, who arguably have more of the characteristics we commonly associate with personhood than a fetus in its 24th week.
I realize that Alito, Gorsuch, et al will look to the 14th amendment for justification for their ruling, but the 14th amendment is silent on the question of abortion. It's arbitrary to decide that genetically human fetuses become persons when they become sentient. And if the question is to be decided arbitrarily, then the definition of constitutional personhood is what the court says it is.
David,
I am frankly surprised that you are making this argument. Obviously, the predicate for being a person under the 14th Amendment is that the entity in question must be the product of the joining of a human sperm and a human egg. You add to that sentience, in the form of the ability to feel pain. Being sentient is a necessary, but not sufficient condition to qualify as a person under the 14th Amendment. This excludes insect, reptile, most mammals, leaving only human fetuses as qualifying to being persons under the 14th Amendment.
Personhood is what the Court says it is? Can the Court with any degree of validity say that a human zygote qualifies for personhood, unlike the pregnant woman's left leg? The 14th Amendment precludes the state - any state - from depriving persons of life or liberty. Only persons qualify for this protection. Zygotes are not persons. At what point in their development do they become persons.
Do you or aaall or LFC have any better proposals as to how to save a woman's right to choose?
As Martin Luther said, "Here I stand. I can do no other." (I love that quote. I just used it in a brief which I field in the 6th Circuit Court of Appeals on Thursday.)
By the way, I retract what I wrote above about the Kentucky Derby. Just before the race, they had a choir sing My Old Kentucky Home. Yuck.
" Alito cannot, without being disingenuous.."
MS, perhaps this relates back to a recent discussion on morality which became rather technical. The world simply isn't as you seem to want it to be. For that matter it's not the way I want it to be. The Federalist Right has an agenda. Logic and reason that doesn't serve that agenda won't get far. Do you believe that Roberts actually believed the nonsense he wrote in Shelby? Read Gorsuch and Thomas on Masterpiece. After 200+ years of slavery, the Civil War, and near 100 years of Jim Crow, every thing suddenly changed after a few decades? A less extreme Republican majority was willing to do a coup to advance the Right's goals. This Court is going to listen to sweet reason on abortion? Besides the liberty interest has to go because gay folk are next in line.
As a practical matter what you are proposing will be politically in apt. A court case a two or three years in the future isn't going to be useful. A failed bill that uses "pain" as a marker will be divisive and confusing. The House bill uses fetal viability (current SC standard) which is an established standard (de facto or de jure) in over half the states. People get viability. The time frame you use for "pain" roughly coincides with viability, so why introduce another concept? Besides "viability" is, within limits, a medical judgment. Why replace medical judgment with a hard limit?
"(8) A prohibition on abortion at any point or points in time prior to fetal viability, including a prohibition or restriction on a particular abortion procedure."
Here's the full justification section:
"(25) Congress has the authority to enact this Act to protect abortion services pursuant to—
(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States;
(B) its powers under section 5 of the Fourteenth Amendment to the Constitution of the United States to enforce the provisions of section 1 of the Fourteenth Amendment; and
(C) its powers under the necessary and proper clause of section 8 of Article I of the Constitution of the United States."
https://www.congress.gov/bill/117th-congress/house-bill/3755/text
Just read an interesting observation on how Republicans and conservative organizations have handled the "leak." Almost like talking points have gone out before the leak. It takes an established organization to pull something like that off. Who is a prime mover in such an organization? Her "best friend" is on the SC. T alone or collusion between A & T. Just wondering.
Marc,
This will be my last comment for a while on this because I have some other things to do.
On p.14 of the draft opinion, Alito writes that "the Fourteenth Amendment does not protect the right to an abortion." Why not? Because it's not rooted in the nation's "history and traditions."
On the basis of the opening pp., that's what he appears to doing here. He's saying unequivocally there is no constitutional right to an abortion. He's not balancing competing interests.
Since on his view abortion is not protected by the 14th Am., the whole debate over personhood is irrelevant for him. That the fetus represents *potential* life is really all he has to assume, and that's easily demonstrable.
"Do you or aaall or LFC have any better proposals as to how to save a woman's right to choose?"
Marc, in the short term, I don't have any proposal for saving a woman's right to choose--at least in the states where it will be prohibited as soon as the decision is announced. In the long run, we'll need to live in a different country. I hope--because I don't seem to have any other rational choice--that this decision, and the ones that follow in its wake, will spark an overwhelmingly powerful movement that, over the course of years or perhaps decades, will sweep the Republicans out of power. When the Democrats have a sustainable majority, they will then be able to start the process of remaking the Court, and the law, and if they hold power long enough, the people will regain some of the rights that I expect to see lost as long as this Court holds sway.
"Zygotes are not persons."
According to the theology of a majority of the SC they are and conception is the marker. Integralism is a rising factor on the right (the holder of a named chair at HLS is an integralist). You're right, of course, but being right isn't enough in this time line. None of the Supremes are open integralists (closeted? who knows) but bodies and orbits.
If everything goes right the trajectory of a zygote is an adult human. The best trajectory of a severed left leg is a happy vulture.
This isn't just about overturning Roe. This court seems to also have non-delegation in its sights so if the next two elections go south global warming will be deciding a lot.
LFC and aaall.
This is also my last comment on this subject on this thread, since I have other work to do as well.
Look, of course Alito and his cronies can say whatever they want to say. But not only does it have to be consistent with the past jurisprudence relating to the 14th Amendment, it also has to be consistent with the express language of the 14th Amendment itself. There are literally thousands of prior S. Ct. cases which hold that the language of a provision of the Constitution is paramount. As purported strict constructionists, they are bound by those precedents. The 14th Amendment does not say anything about “potential persons. “ It only speaks about “persons,” period. You cannot change the word “persons” into “potential persons” under prior Supreme Court precedents.
I grant you that Alito believes that the right to an abortion is not anchored in our history or traditions (although his review of the history of abortion is skewed). But there is a second criterion : is the right to an abortion within the scope of ordered liberty. There’s that word – liberty. You cannot determine what is within the scope of ordered liberty without interpreting how it is used in the 14th Amendment, and the Amendment guarantees to all persons who are citizens of the U.S. protection against the deprivation of their liberty. Only persons have liberty. And so we are back to determining whether a fetus at 23 weeks is or is not a person under the 14th Amendment. The only way Alito and his cronies can claim that it is a person is either by claiming that a zygote is a person from the beginning – a ludicrous claim, which, yes, they may be willing to make – or they have to identify at what point in the development of the zygote to embryo to fetus does it become a person, entitled to the protection of the 14th Amendment? And by what criteria do we determine this? Whatever it is – heartbeat, feeling pain, moving – then that is the cut-off point for allowing an abortion. Take “moving “ Why does moving transform the non-person embryo into a person? How can this be without rendering the zygote a person, since the zygote moves when it implants on the lining of the womb.
And aaall, you keep relying on the Commerce Clause, That clearly is not going to work. Ethe Enabling Clause is limited by the parameters of the Commerce Clause itself, and engaging in interstate commerce has nothing to do with the right of a woman to obtain an abortion if the definition of “person” in the 14th Amendment does not protect a fetus at week 23. We are back at square one.
Look, if my proposal does not work, then there are only two options protecting a woman’s right to choose – expanding the size of the S. Ct., a highly unlikely event. Or, waiting until three of current conservative Justices die or retire and hope that it happens when a Democrat is Presdent, and the Democrats control the Senate. That could be quite a long time.
I am signing off.
I'd say that people are going to have to start organizing alternative networks so that low-income women from red states can travel to blue states to have abortions either free or at very low cost.
Actually, from what I can see, the whole system is so rotten that it seems to be a positive step forward for decent people to get together to create alternatives based on solidarity and mutual good will. A new feminist and anti-fascist counter-culture is called for.
After a good night’s sleep, I’m back.
Two SNL skits about abortion.
Then:
https://www.youtube.com/watch?v=exSZQICbSb8
And now (they nailed it):
https://deadline.com/2022/05/snl-cold-open-spoofs-samuel-alitos-abortion-opinion-1235018691/
This article from the Seattle Times, "Washington doctor on leading edge of abortion rights turns to next frontier after Roe: Pills," describes how abortion pills can be ordered from an offshore medical provider and how in-country physicians can support the women who use these pills. In a way, this addresses s. wallerstein's point about the need for networks. Such networks won't preserve a woman's legal right to an abortion, but it does help women to exercise that right in spite of the law.
From the seattle Times article:
"Poppema said pharmacists couldn’t ask questions because of the federal patient privacy law. As for people who might sue because the pills were used for abortion, she asked, “How the hell would they prove that? Just curious.”
As I read the Texas law there is no penalty to the plaintiff for losing a case and at least 10 grand for winning. Meanwhile the defendant has to hire an attorney and go through a trial. Win or lose the defendant loses ("shame if you had to go to trial and lose but for five grand this could go away"). File enough cases in the right county and there is bank to be made.
In my remote rural county in California there was a lawyer who went around looking for ADA violations. He made a lot of money and shut down a few businesses. A recent law school grad could do worse then starting up in a state with Texas-like legislation.
A long national nightmare is just beginning.
Pain:
https://www.congress.gov/bill/117th-congress/senate-bill/61/text
I'm very undecided about abortion, but I am also definitely against letting a woman die because she can't get an abortion.
Is the following argument (I recently thought up) eloquent enough for the anti-abortion protestors, or is it just too gruesome to use?
"I have a question. If omnivorous humans in favor of abortion rights don't believe fetuses are human beings, then why don't they dice them up, cook, & eat them like chicken?
--That's disgusting!
--Why is that disgusting?
--Because they're human beings!
--Gotcha!!!"
Of course, now the the argument would probably change to whether a fetus is a body part or a complete human being...
Michael,
Yes, under the 14th Amendment it would perfectly alright for a woman (or her significant other) to chop up and eat the remnants of an aborted fetus. It is disgusting, not because the fetus is a person or a human being, because it would also be disgusting for a woman (or her significant other) to amputate one of her limbs, put it in a blender, and eat it. Neither is immoral, or illegal, although both would be disgusting, just because it is disgusting. Has nothing to do with personhood in either case.
Michael Llenos,
If abortions turn you off, fine, no argument, but can't you see that a pregnant woman, whether or not her life is in danger, has a right to decide whether or not to terminate her pregnancy in the early months of that situation?
There are of lots of edible things that so-called omnivorous people don't eat, for example, their pets when they die and that doesn't make their pets human beings. I don't eat meat at all, by the way and haven't for 25 years now.
ML, I'm sure it happens and what we eat has nothing to do with species and everything to do with culture and circumstances (snowstorms, plane cashes in the Andes).
The interaction of abortion and other values in a political system is another matter.
"I'm very undecided about abortion, but I am also definitely against letting a woman die because she can't get an abortion."
Perhaps if you keep reading and rereading the above sentence something will dawn n you.
Marc & s.wallerstein,
Of course, it's disgusting because it is considered a human body part.
And my question was pointed towards human omnivores & not vegetarians. S. Wallerstein made a good argument concerning pets though.
BTW, I do believe abortion can be justified for the sole reason that I am not the person to make that decision. That's between a woman and her abortionist doctor. But the flip side of that is that I take no responsibility for anyone who does or doesn't want to get an abortion.
It's kind of like the Buddhist philosophy of food. If you didn't kill that animal just for me, then I have no problem with eating that food.
Getting in touch with one's food source by learning to kill animals is folly. I have no sin or bad karma with eating a turkey leg from that turkey that someone else killed.
aaall
'I'm very undecided about abortion'
That is a general statement regarding the entire main genus category about abortion as an entire whole.
'but I am also definitely against letting a woman die because she can't get an abortion'
That is a specific statement about one small part of abortion. I am still very undecided about all of the other specific cases & parts concerning abortion.
I wrote: 'BTW, I do believe abortion can be justified for the sole reason that I am not the person to make that decision. That's between a woman and her abortionist doctor'
The categorical imperative would defend me by saying this maxim:
"All medical procedures are the sole responsibility between a sane person and their professional physician."
I'm still undecided, though. I'm against abortion, and yet it is not up to me to make that decision. And specifically I believe when two lives are in danger, then try to save one if you can.
I meant in my last post that if both person's are going to die, then if you can only save one life, then save it.
ML, your personal feelings are irrelevant to what is currently happening in the United States. Prior to Roe abortion laws were usually more honored in the breech and women still presented at ERs and often died. The current theocrats and fascists running the Republican Party are serious about enforcing their laws. History would demonstrate that seriously enforced laws banning abortion are incompatible with most of our notions of a free society. Laws that are too granular make doctors dither and that kills women (see Savita Halappanavar).
aaall,
Senate Bill 61 which you have linked to, proposed by the Republicans, follows my reasoning that a fetus is not a person until it can feel pain. The Senate bill places that at 20 weeks, and prohibits the abortion of any fetus older than 20 weeks. The Democrats should offer a bill which protects a woman’s right to have an abortion at less than 20 weeks, which is 5 months. While this is less than the 9 months which was protected under Roe, it is better than nothing. The Mississippi law which Alito’s decision holds is constitutional prohibits abortions at 15 weeks, less than 4 months. Passing a law which protect a woman’s right to have an abortion at 20 weeks or less would invalidate the Mississippi statute, and preclude states which forbid abortion from conception. Additional language should be added allowing an abortion at any stage if necessary to protect the life of the mother, or if the pregnancy is the result of rape or incest.
"While this is less than the 9 months which was protected under Roe"
Typo?
ML -
It's not unusual to have moral reservations with abortion. Quite a large number of Roe's defenders evidently do! I don't have the numbers handy (I'll look them up if you want), but most Americans fall somewhere between either of the two extremes; I think the least popular view is that all abortion should be banned, followed by the view that all abortion should be allowed. I don't know the specifics offhand, and someone can correct me if I'm wrong, but most Americans seem sympathetic with the idea of a certain amount of restriction - with allowing some abortions but not others. (Personally, I tend to doubt the appropriateness of the proposed restrictions, but I'm willing to consider the opposing views.)
Now, Roe's opponents, including on the Supreme Court, strike me not only as having an opinion at odds with the values of most Americans; but as having the mindset that women who abort frequently/usually/normally do so for grossly self-centered reasons. (I.e., that the "standard case" looks like a woman who wants to pursue sexual gratification without consequence, and would regard unintended pregnancy as a bother to be "taken care of" at her earliest convenience.) At worst, this mindset is profoundly sexist; at best, it suggests a refusal to set aside one's preconceived notions and listen attentively and compassionately to actual women's stories (as if afraid of what would probably be discovered).
Setting aside the question of privacy, and just speaking in the abstract, I think most people would look at abortion as something that generally calls for justification - in the abstract, abortion isn't (or isn't always) at the same level of moral significance as trimming one's nails or smashing a mosquito. Once you allow this, you allow the possibility that some justifications would be stronger than others; many would be undeniably compelling, while (arguably) others might be somewhat sketchy. (I think of a former student who, in writing a defense of abortion rights, remarked at one point in her paper that a woman who aborted repeatedly might tend to arouse suspicion.)
But even so, it wouldn't follow that a wholesale ban on abortion would be a reasonable proposal. That would be just as simpleminded and reckless (and probably just as popular among Republicans) as gutting the social safety net because of "all the lazy fraudsters who just want a handout."
Michael
You're saying what I agree with. There needs to be a bipartisan middle area where we can all meet. Since we are all finite creatures, our experiences in this universe are all relative. Having no abortion no matter what is an absolute draconian law. Having abortion with no restrictions is just as absolute. This Earth we live on (& it's physical laws) are based mostly on relative probability. There is always a thriving middle ground to follow.
That last post was mine. This new system takes getting used to.
Anon/ML, you just described Roe/Casey, the ruling about to be overruled..
Eric,
Yes, an error, it should have read 6 months. But even under Roe, an abortion in the case of rape or incest, or to save the life of the mother, is available up to 9 months. The statutes being considered in some states eliminate even these exceptions.
I want to point out how intellectually, and legally, disingenuous J. Alto is in his leaked majority Opinion. The majority ruling of a Supreme Court decision requires 5 votes, all of which concur on a legal ruling. This majority concurrence is referred to as the Court’s “holding.” It requires a majority consensus in order for there to be a holding. The holding in Roe v. Wade was that a woman had a constitutional right to have an abortion during the first 6 months of the pregnancy; but that the state could impose conditions on that right during the last 3 months of the pregnancy.
There are several disingenuous passages in Alito’s Opinion, but the most disingenuous passage appears on pp. 3-4: “Paradoxically, the judgment in Casey [Planned Parenthood v. Casey, 505 U.S. 833 (1992)] did a fair amount of overruling. Several important abortion decisions were overruled in toto, and Roe itself was overruled in part. Casey threw out Roe’s trimester scheme and substituted a new rule of uncertain origin under which States were forbidden to adopt any regulation to have an abortion.” (Footnote omitted.) This statement is unequivocally false. There was a 7-2 holding in Roe, which adopted the trimester formula which J. Blackmun set forth. Only another contrary holding can overrule a prior holding. But in Casey, there was no holding. There were several 3 Justice plurality opinions, but not holding which could “overrule” Roe. Justices O’Connor, Kennedy and Souter set forth the “undue burden” test in one plurality opinion. That plurality opinion was not a holding, and did not “overrule” Roe’s trimester holding. It modified it somewhat by referring to the first two trimesters as extending up to the point in time when the fetus is not viable outside the womb. That may have reduced the 6-month first two trimester period from 6 to 5 months. Because the O’Connor/Kennedy/Souter plurality Opinion was the lead Opinion, it has been regarded as having precedential weight. But Alito’s claim that it “overrode” Roe is a bald-faced lie.
And let me quote what that plurality Opinion stated about the scope of the liberty interest protected under the 14th Amendment:
“Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. … Our cases recognize ‘the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’ … Our precedents ‘have respected the private realm of family life which the state cannot enter.’ … These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of he universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (Case citations omitted.)
I can think of no better definition of the meaning of “liberty” protected by the 14th Amendment. Alito’s arrogant dismissal of this concept marks a narrow-minded, medieval intellect that deserves no respect whatsoever. His assertion that the decision in Roe was “egregiously wrong” is the statement of an egotistical asshole.
Correction:
The quotation from Alito's proposed Opinion should have read: "... States were forbidden to adopt any regulation that imposed an 'undue burden' on a woman's right to have an abortion." This correction does not alter the conclusion that Alito is being egregiously disingenuous.
I don’t often agree with Sen. Gillibrand, but I agree with her assessment in this interview with Jake Tapper:
https://www.cnn.com/videos/politics/2022/05/08/supreme-court-justices-abortion-confirmation-gillibrand-sotu-vpx.cnn
If Justices Gorsuch, Kavanaugh and Barrett vote to overturn Roe v. Wade, they, at the very least, deliberately misled the members of the Judiciary Committee, and arguably committed perjury. Would it have made a difference if they each had been candid and honest and had testified that they thought Roe v. Wade was wrongly decided and if confirmed, and given the opportunity, they would vote to overturn Roe? Would this have changed the minds of any of the Republican senators who voted to confirm them? Probably not.
Except possibly Susan Collins and Lisa Murkowski.
LFC, they talk a good game but unless Mitch gives them a golden ticket they vote with the caucus esp. Collins.
MS, the bill I referenced doesn't lay out a right, it creates a crime and is directed at physicians. Should it pass it goes under Title 18 and provides for fines and prison as well as the possibility of phony baloney civil penalties. It's another Republican con job to slip slide into national illegalization of aspects of reproductive health care. Also the paper work mandated seems a bit oppressive. I referenced the bill to demonstrate Republican bad faith.
The bill also maintains the "viability" standard and indicates that "pain" is a moving standard.
On another issue, if Steve Schmidt's latest Twitter fest is true the Russian penetration of the GOP goes way back.
Marc Susselman: "If Justices Gorsuch, Kavanaugh and Barrett vote to overturn Roe v. Wade, they, at the very least, deliberately misled the members of the Judiciary Committee, and arguably committed perjury."
Get off the soapbox. Everybody knows how this game is played, the members of the Senate most of all. Successful nominees say whatever they need to say to get the confirmation. They're lawyers, after all.
Thomas and Alito clearly lied in their confirmation hearings, to cite two obvious examples. Justices who have received their commissions do not face any penalties for misbehavior they engaged in during the confirmation or that they engage in while in office. And there's no way that will change with 50-50 Senates and the current Constitution.
A precedent is a precedent—until it isn't anymore.
One other thing. People change. In fact, in many situations we'd be upset if they didn't. How do you prove to a jury that it is a lie to say as an applicant for a job that you will behave a certain way if hired, but to then do something else once in office (when information becomes available to you that was not available before you got the job)?
Rehnquist permitting perjury during his confirmation hearings to become chief justice
"The Memo That Rehnquist Wrote and Had to Disown"
https://www.nytimes.com/2005/09/11/weekinreview/the-memo-that-rehnquist-wrote-and-had-to-disown.html
"Four Witnesses Dispute Word of Rehnquist"
https://www.latimes.com/archives/la-xpm-1986-08-02-mn-973-story.html
"Former Prosecutor Says He Saw Rehnquist in Voter Confrontation Effort"
https://apnews.com/article/499f8c78d1235e4720aacaa008491969
John Dean wrote a whole book on that topic ("The Rehnquist Choice").
Heard on the 5-4 Podcast:
(Michael)
"... the right wing has a f'ing positive agenda that they act on aggressively when they're in power. They know what they want to do with the courts; they identify people who will help them do that. And they f'ing put those people on the courts en masse. They do everything they can to make sure those are the only people on the courts....
What do the Democrats do? What's their agenda? ...
That doesn't exist. When I asked Sheldon Whitehouse about this, who is one of the better senators, he was like, 'That's what makes us "the good guys." It's that we don't have something like that. We don't have an agenda.' F' off! You're telling people that the courts are important, and your agenda is TBD? This page left intentionally blank? WTF?
...
There's something called a blue slip in the Senate ... In the process of nominating and confirming a judge, the home state senator gets to express concerns, and essentially have a veto on any judge that's appointed in their state. Blue slips have existed for a while. During the Trump era they basically stopped respecting those for circuit courts of appeals; now Democrats are not respecting those for circuit courts of appeals, either. But they are doing it for district courts. And there are over 70 vacancies in the federal district courts right now. And most of them are in red states. And you know what? Just say, 'F' it. F' the blue slips. F' you. We're putting 70 pro-choice judges on the bench in red states right now.' You could do that TODAY.
Don't tell me you can't find 70 nominees. There are thousands ... who could do that job. Just do it! You could introduce a court packing or other court reform bill. You have a 250-page report detailing all sorts of different court reforms that you put together. F'ing act on it! Do something! And you know what? If you lose the vote on that you say, 'This is why you vote for us.'"
Hatch ignored blue slips and then Leahy restarted the process. Some folks on the center-left believe that if you set a good example then conservatives will be shamed into doing the right thing. When the other side goes all Schmittian, that doesn't work.
Eric,
I don't believe calling perjury for what it is is preaching from a soapbox - regardless how long it has been occurring.
Perjury doth never profit. The reason? If its profits, none dare call it perjury.
So lets start calling it for what it is - loudly and repeatedly.
correction: "Rehnquist committing perjury"
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