Roe v Wade is on deck

[SLD]

Probably a clerk is the source. The clerks don’t necessarily share the judge’s view. They could be liberals working for Alito.

??? Justices pick their own clerks. But the draft opinion is circulated to all justices - has to be, so the dissenters can prepare theirs.

Yeah. Could be. But it’s likely a clerk regardless. They choose their own clerks, but that doesn’t mean they share the same viewpoints always. But yes, it could be another clerk.

 

[blastula]

This story happened to come out earlier in the day.

Antiabortion activists, Republicans push for 'heartbeat bill' as Supreme Court weighs Roe v. Wade - The Washington Post.

Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.

The effort, activists say, is designed to bring a fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.

A group of Republican senators has discussed at multiple meetings the possibility of banning abortion at around six weeks, said Sen. James Lankford (Okla.), who was in attendance and said he would support the legislation. Sen. Joni Ernst (R-Iowa) will introduce the legislation in the Senate, according to an antiabortion advocate with knowledge of the discussions who spoke on the condition of anonymity to discuss internal strategy. Ernst did not respond to a request for comment.

One top advocate, Marjorie Dannenfelser, president of the antiabortion group Susan B. Anthony List, has spoken privately with 10 possible Republican presidential contenders, including former president Donald Trump, to talk through national antiabortion strategy. Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.

 

[blastula]

Time to pack the court.

Packing the court because you do not agree with a specific ruling (and a speculated ruling at this point at that) would set a horrible precedent.

Had Trump done that the tenor around here would be "fascism", "dictator" etc.

It was already time after Garland.

 

[Derec]

Yeah. Could be. But it’s likely a clerk regardless. They choose their own clerks, but that doesn’t mean they share the same viewpoints always. But yes, it could be another clerk.

Trausti is right. The leak probably originated with a liberal justice's clerk, not Alito's.

 

[blastula]

Probably? Eh, no one knows.

Interesting thread on the history of scotus leaks. This is not the first time. Roe itself was leaked.

 

[Loren Pechtel]

The leaking of this document is very unusual for the Supreme Court. Could this leak be a deliberate one by one of the Justices?

I suspect it's one of the ones on the left trying to get enough backlash to keep the court from doing it.

 

[Loren Pechtel]

“Roe expressed the ‘feel[ing]’ that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance,” Alito writes.

The "emanations from the penumbrae" has always been a weird and weak legal argument.
And I agree with Roe in principle, as I do with Griswold, Lawrence and Obergefell.

However (and with the danger of being accused of hobby horsing) I do not think the Left cares too much about the principle. They like the outcome when it comes to abortion or gay sex/marriage, but if they do not agree with the choice, they do not much care for the right of consenting adults to make it.

I have yet to see a coherent argument why the reasoning behind Roe and Lawrence should not mean that laws against consensual adult work are just as unconstitutional as those against abortion or sodomy.

Or for that matter the laws against indecent exposure. It's no different than walking around with a message on your clothes that many find offensive. And what if it's a form of speech? (Consider a woman wearing only a band around her abdomen that says "If seeing this makes you lose control you're an animal, not a person.")

Or against depiction of certain acts in pornography. If they were offensive to everybody there would be no market, nobody would want them. Who cares if most would be offended, they don't need to look.

 

[lpetrich]

This Politico article includes an inlined version of that leaked document, and one can make a separate PDF of it if one wants. I did so, and I didn't find a clear statement of the intended effects of that decision. Does it leave abortion to the states? Congress?

There are also possible effects on LGBT+ rights. Will opponents of LGBT+ people get what they want in some states?

blastula noted that anti-abortionists want to go further: Antiabortion activists, Republicans push for 'heartbeat bill' as Supreme Court weighs Roe v. Wade - The Washington Post

Another thing likely to become a big issue is abortion tourism. In some states, abortion opponents are already trying to outlaw going outside those states to get abortion. Anti-abortionists may want a nationwide version of such a law, and they may even want to outlaw traveling to another country to get an abortion.

 

[Ford]

This Politico article includes an inlined version of that leaked document, and one can make a separate PDF of it if one wants. I did so, and I didn't find a clear statement of the intended effects of that decision. Does it leave abortion to the states?

Is there anyone who thinks that the "intended effects" of this decision that the right has been working towards since the 1970s is anything other than a federal ban on any and all abortions?

If so, please leave your comment at this number: 1-800 Dude Seriously

Leaving it up to the states? Seems to me I remember that there was a bit of a flap some time ago over differing opinions of the rights of individuals and whether said rights applied equally among the various states.

IIRC, that all was worked out and the states were all allowed to apply individual rights selectively. Right?

 

[Jimmy Higgins]

Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows

“We hold that Roe and Casey must be overruled,” Justice Alito writes in an initial majority draft circulated inside the court.

www.politico.com

Time to pack the court.

Wow... so much for by steps. And fuck Sen. Collins.

Birth control is next folks. The mid-terms just got interesting.

Regarding birth control, they raise Griswold, but say that it doesn't involve harming life. In fact, they try to indicate that they are not talking about other things, like gay sex decrimilization and birth control.

And to ensure that our decision is not mis- understood or mischaracterized, we emphasize that our de- cision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

 

[Jimmy Higgins]

Funny... the state can't enforce mask mandates during a pandemic, but can tell a woman she has to give birth to a child.

 

[Jimmy Higgins]

Under our precedents, rational-basis review is the appropriate standard for such challenges. As we have explained, ‘procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history. See supra, at_-_.

It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged ‘under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.”

Firstly, man, that sounds like anti-Brown v Board Education talk. This is easily the worst part of the decision. They reverse several decades of precedence and don't have the balls to actually set a real standard. This appears to be a blank check.

Worse yet, based on the blank check status, a heart beat bill can get reviewed, but not put on the back burner, effectively making it law until SCOTUS decides whether it is legitimate or not.

 

[Jimmy Higgins]

Continuing on the balls-less SCOTUS majority, we get to the part where over half of abortions are pill induced. So clearly early on. Their decision hinges on abortion being about harming potential life. But this potential life is always potential life from fertilization. Their dickless (ovaryless) findings are so baseless and without direction. Does a state have a legit interest in banning the abortion pill? Is an abortion pill an abortion? What difference is an abortion pill from 'the pill' pill?

Their ruling says an appealing court must measure the state's desire legitimately. But against what? If a woman doesn't have a right to an abortion, what basis exists for allowing the abortion pill to be made available?

This decision is clearly going to cause problems, very predictable ones, and the court even balked at addressing those, like potential inter-state abortion restrictions. The majority went into the file cabinet, pulled out all of the files, threw them on the floor and then told the States to clean it up.

The mess continues as they say the courts must not put their social or emotional inputs in decisions... in a decision where they talk about an abortion procedure and how gruesome it is. This decision is so full of shit.

 

[Worldtraveller]

Funny... the state can't enforce mask mandates during a pandemic, but can tell a woman she has to give birth to a child.

Well, women aren't fully realized people.

Something like 3/5 maybe?

 

[Harry Bosch]

Funny... the state can't enforce mask mandates during a pandemic, but can tell a woman she has to give birth to a child.

Very sad, but true. I just hope that this can finally unite the left into political action. The religious right wanted to stop abortion more than the left wanted to protect choice. And therefore, they have won several very close elections (Bush sr v Gore, Trump v Clinton). Those two elections cost us 5 supreme court justices. That's the difference. If the left sits on their hands in 2022 and doesn't vote, we deserve the outcome.

 

[Jimmy Higgins]

Funny... the state can't enforce mask mandates during a pandemic, but can tell a woman she has to give birth to a child.

Very sad, but true. I just hope that this can finally unite the left into political action. The religious right wanted to stop abortion more than the left wanted to protect choice. And therefore, they have won several very close elections (Bush sr v Gore, Trump v Clinton). Those two elections cost us 5 supreme court justices. That's the difference. If the left sits on their hands in 2022 and doesn't vote, we deserve the outcome.

Well, we as in "those who weren't pragmatic" would be responsible, and women would never "deserve the outcome".

I just can't get over how shitty the draft decision is. I hope that they at least tighten things up... unless the point is for it to be vague and useless. I suppose the only good thing about the decision is that the term "potential life" could be easily done away with by a future court. A fetus has no legal standing. Can't be charged with crimes, isn't even a deduction on taxes.

 

[lpetrich]

Not only LGBT+ rights may be in trouble, but also birth control.

What happens if Roe v Wade is overturned - The Washington Post

Abortion will become subject to state law, and state law now varies wildly, to abortion acceptance in the northeast and west coast to abortion rejection almost everywhere in between. If anything, state law has become more polarized over the last half-century, with both abortion protection and abortion restriction increasing over time.

How abortion laws in Texas, Mississippi and the U.S. compare to other countries - Washington Post - "Chief Justice Roberts said Mississippi’s 15 week abortion ban was'the standard’ around the world. The reality is more complicated."

It’s true that many countries have a cutoff of 15 weeks, or earlier. But a closer look reveals a much more complicated picture. For example, many European countries limit on-request abortions to the first trimester, more restrictive than much of the United States. And the United States is one of less than a dozen countries that allows abortions after 20 weeks of pregnancy on any grounds.

But many countries also offer broad exceptions after the first three months for socioeconomic reasons such as unemployment, medical issues like fetal impairment or social issues like the age of the mother. The Mississippi law’s exemptions are only in cases of the life or health of the pregnant person, or a lethal fetal anomaly.

“They also don’t have the same types of barriers that we have here,” Center for Reproductive Rights Litigation Director Julie Rikelman said to Roberts. There is only one abortion clinic in Mississippi.

A lot of US states have TRAP - Targeted Restriction of Abortion Provider - laws, laws for regulating abortion out of existence. It's Republicans who author these laws, and Republicans like to talk about how oppressed businesses are by regulation of them. But when they don't like something, they try to regulate it to death.

I doubt that TRAP laws are common elsewhere in the world.

Mark Levels, a professor of health at Maastricht University who studied the development of abortion laws over four decades, said that in places like the Netherlands where abortion on request is available until the fetus is viable, most abortions still take place in the first trimester.

He attributed this fact to the combination of widespread availability of effective contraceptives, like birth control pills, and a culture that openly talks about sex and provides sexual education. “If you really want to ban abortion, the one thing that you can do is provide contraceptives freely and openly, and be open about it,” Levels told The Post.

Liberal abortion laws do not necessarily mean abortions are easily accessible. There are countries with procedural barriers including doctor approval, parental consent and mandatory waiting periods. In Germany, women must receive counseling and wait three days to get an abortion. In the Netherlands, the waiting period is five days so that, according to a government website, “you can think carefully about your decision.”

,,,
Even countries where abortion is legal, or decriminalized, women can still face obstacles to access. A 2020 study found that in Italy, where abortion is legal, access can still be limited because over 70 percent of gynecologists are registered as conscientious objectors. This designation allows them to refuse abortions due to moral or religious beliefs. And while abortion was decriminalized in South Korea in January, it is not clear if the procedure is widely available to those seeking it.

 

[Elixir]

If this “opinion”, opposed by 70% of the American public, is forced upon the nation, the illegitimacy of the Court will have become an unarguable fact. Expanding the court to rectify the situation will be the only course that might preserve the founders’ intent to form a democratic republic with a government representing the will of the governed.
The opinion is not supported by one single scotus member who was appointed by a president who won the popular vote. Not one. It is sheer tyranny of the minority.

 

[lpetrich]

"Of the 56 countries that have made significant changes to their national abortion laws since 1994, only 3 have become more restrictive, according to the Center for Reproductive Rights."

Poland (to health of mother), and El Salvador and Nicaragua (banned outright).

So the US is going in the opposite direction.

In the Americas, the United States is one of the least restrictive in the region when it comes to abortion access. But as conservative states push to pass legislation making access to abortion more difficult, countries in Latin America have had a “green wave” toward liberalization.

Canada is even less restrictive than the US, I must note.

Something that the article didn't mention very much was how much abortion-related culture warring there is outside the US. Not very much, or at least I get that impression.

 

[Jimmy Higgins]

If this “opinion”, opposed by 70% of the American public, is forced upon the nation, the illegitimacy of the Court will have become an unarguable fact. Expanding the court to rectify the situation will be the only course that might preserve the founders’ intent to form a democratic republic with a government representing the will of the governed.
The opinion is not supported by one single scotus member who was appointed by a president who won the popular vote. Not one. It is sheer tyranny of the minority.

• W won the popular vote in 2004.
• We add justices now, the GOP will just do the same
• How popular a law is isn't relevant (Brown v Board of Education wasn't popular in many places)

This decision is foul because it doesn't set a standard, requests lower courts keep emotion out of future decision when they put it in this one, create a 'potential life' standard for rights against the rights of 'actual life', utterly and completely ignore the problems in the courts this decision undoubtedly causes and leaves them unaddressed. They implicitly note:

We hold that Roe and Casey must be overruled. The Con- stitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted) The right to abortion docs not fall within this category.

This is extraordinarily dangerous. They note later that this decision doesn't undo other cases they mention in here, but where in the heck is the right to birth control in the 'deeply rooted' history of our nation? This is a primer to over-rule a lot of stuff. This is going to be one of the first courts in a long time that'll be more interested in retracting rights, than expanding on them. The Christian Dominion SCOTUS is in session.