Roe v Wade is on deck

[Metaphor]

---

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.

If the job of a judge was simply to support public opinion, then they wouldn't need law degrees.

They are supposed to deal with the law though, not strand arguments as one would see in a web board.

But that is my point.

It wouldn't matter if 100% of the American population supported abortion. The case is about whether there is a Constitutional guarantee of abortion rights. That seems like a legal question to me, and whether the population supports abortion, or thinks there is a Constitutional guarantee of it, is entirely irrelevant.

As for actual legal reasoning, it seems to me that it's unavoidably like a first year Uni English literature class. You can say anything you want about any text as long as you make it sound convincing, up to and including 'reading against the text', which means putting things there that is obviously the opposite of the author's intention.

My opinion is that the 1973 decision based on 'privacy rights' is extremely laboured and dubious.

 

[lpetrich]

How Congress reacted to the leaked SCOTUS draft that would overturn Roe v. Wade. - "How Congress reacted to the leaked Supreme Court opinion draft that would overturn Roe v. Wade."

Leading Republicans on Tuesday ... tried to divert attention to the scandalous leak of that news itself.

Preferring that to something that would rile up Democratic voters. Republicans have long depended on riling up their base with outrages, even manufactured outrages. Now Democrats get to do that about abortion.

Though we have no idea how the draft opinion leaked, or who leaked it, or why they leaked it, the rhetoric coming from Republicans implied that it came from an angry liberal employed by the Supreme Court who wanted to intimidate a conservative justice into changing his or her mind.

“Liberals want to rip the blindfold off Lady Justice,” Senate Minority Leader Mitch McConnell inveighed in floor remarks Tuesday. “They want to override impartiality with intimidation. They want to elevate mob rule over the rule of law.” The leaker, he added, knew the danger this could put justices in. McConnell recommended, then, that “this lawless action should be investigated and punished to the fullest extent possible,” and that “if a crime was committed, the Department of Justice must pursue it completely.” (Chief Justice John Roberts, in a statement released later Tuesday morning, confirmed that the draft was “authentic”—though not a “final position of any member on the issues in the case”—and directed the marshal of the court to investigate the leak.)

McConnell’s remarks were, at least, tamer than those of some conservative commentators, who viewed the leak of the draft opinion as worse than the Jan. 6, 2021, insurrection and other efforts to overturn the result of a presidential election.

Like this:
Best Selling Biologist Matt Walsh on Twitter: "The SCOTUS leak is an actual insurrection. An attempt to completely upend and delegitimize the rule of law, incite violence and chaos, and potentially plunge the nation into civil war. January 6th was a stroll in the park compared to this. It's not even close." / Twitter
There wasn't a big mob surrounding the Supreme Court building, smashing their way in, and demanding "Hang Sam Alito! Hang Sam Alito!"

The Federalist on Twitter: "The SCOTUS Abortion Decision Leak Is What Actual Treasonous Insurrection Looks Like (link)" / Twitter
noting
The SCOTUS Leak Is What Actual Treasonous Insurrection Looks Like - "If we allow the court’s process of upholding the rule of law to become poisoned by partisan leaks, the consequences will be cataclysmic."

Linking to The Only Reason To Leak SCOTUS Opinion Is To Bully Justices

The right has finally found the real insurrection - The Washington Post

For more than a year, there has been a concerted effort on the political right to diminish the idea that the attack on the U.S. Capitol on Jan. 6, 2021, marked an “insurrection.” Fox News host Tucker Carlson likes to put the term in scare quotes when he talks about the riot, a quiet expression of disdain to match his audible ones. Republican officials and right-wing pundits have repeatedly downplayed the attack and sought to separate it from any attempt to undermine the government. Donald Trump, for example, has repeatedly claimed that the “real” insurrection was the 2020 election.

This tactic should be quite familiar by now. It’s usually just a form of whataboutism, trying to compare what the rioters did that day as they sought to block the finalization of Trump’s election loss to things such as pro forma objections from lawmakers in earlier years. We saw the same pattern with the investigation into Russian interference and into Trump’s baseless insistences about election fraud: Whatabout Hillary Clinton and Russia! Whatabout the Democrats’ rejection of election results!

Soon after Politico released a draft Supreme Court opinion that reflected an intent to overturn Roe v. Wade, though, the right had a new about to what. The leak of that document, they claimed, was an actual insurrection.

Almost as if all they can do is try to claim tha their critics are guilty of what they themselves are guilty of.

 

[lpetrich]

Ari Fleischer on Sean Hannity's show on Fox News

“Make no mistake, Sean, this is an insurrection against the Supreme Court. I’ve already seen people on the left celebrating this leaker, calling him brave, trying to throw a Hail Mary, to stop the ruling from being issued,” Fleischer said. “ … This is an insurrection against the court and it needs to be found who did it and whatever legal means can be taken against him needs to be taken.”

Former Arkansas governor Mike Huckabee (R) agreed that it was an insurrection “not by some guy from some state who got hot under the collar and went to D.C. and got overheated at a rally. This is an insurrection by a person who is paid for by the taxpayers and who has a duty under his particular job and employment to keep his mouth shut, and he didn’t do it.”

He added that he hoped “everyone will use that term.” In the hours since, his hope has largely come to fruition.

‘Jan 6 was a STROLL in the park compared to this’: Conservatives MERCILESS in calling out SCOTUS leak as the actual insurrection it is – twitchy.com

The Recount on Twitter: "“You wanna talk about an insurrection, that’s a judicial insurrection.”

— Gov. Ron DeSantis (R-FL) on the leaked Supreme Court draft opinion to overturn Roe v. Wade (vid link)" / Twitter

Back to the WaPo.

What’s important to note, of course, is that we don’t know who leaked the opinion — if anyone! — or why. The New York Times’s Supreme Court reporter, Adam Liptak, offered a convincing case that the leak came not from someone affiliated with the political left but, instead, from the right. He noted a Wall Street Journal editorial suggesting that Chief Justice John G. Roberts Jr. was trying to peel some justices from the majority.

Perhaps there is broader knowledge about the leaker than is publicly understood, giving those making these “insurrection” claims some confidence. Or perhaps, a lot of people will have spent a lot of time calling something an insurrection only to once again wish that people would stop using that term.

I like this comment:

dzeiher

If Gov'nor Ron is calling it an insurrection at a press conference that just shows this was a FOX coordinated campaign to distract from findings and requests to lawmakers by the 1/6 committee. DeSantis doesn't have an original thought in that fascist head of his. The Governor of Florida is a FOX/alt right puppet. Bill signings in front of uniformed schoolchildren and that CRT fear mongerer Christopher Rufo, all for show. No actual journalists or reputable news organizations at his press conferences, only FOX and those to its right.

I think this has Ginny's husband's prints all over it.

Clarence Thomas?

 

[Politesse]

I hate the "culture wars", sometimes. This is one of those debates where people try to police you into the most extreme positions with no compromise or consideration, where I would have felt that some nuance would be more appropriate.

 

[lpetrich]

Senate Republicans' circulate draft abortion talking points on Roe decision
noting
NRSC Memo on Dobbs - DocumentCloud

Summary in Axios:

• "Be the compassionate, consensus-builder on abortion policy. ... While people have many different views on abortion policy, Americans are compassionate people who want to welcome every new baby into the world," it says.
• "Expose the Democrats for the extreme views they hold," the document says, arguing, "Joe Biden and the Democrats have extreme and radical views on abortion that are outside of the mainstream of most Americans."
• "Forcefully refute Democrat lies regarding GOP positions on abortion and women's health care," it adds, saying Republicans do not want to take away contraception, mammograms and female health care or throw doctors and women in jail.

I wouldn't trust a bit of that, because some opponents of abortion also oppose birth control.

Back to Slate:

But the focus on a leaker, rather than on the news of a once-in-a-generation Supreme Court opinion, was a coordinated strategy straight out of a National Republican Senatorial Committee talking point memo released Tuesday and reported by Axios. The memo urged Republican senators to focus their reaction on the leak, which was part of the “Radical Left’s” broader strategy of delegitimizing—and then packing—the court. They want to drive the debate in that more fertile direction, and away from the fact that a majority of the Supreme Court aims to take away a popular right from the American people. They’ll have another month or so to get their responses in order on that.

Seems like they want a distraction from the contents of that brief. Its hard-line opposition to abortion is only popular in the Republican Party's base, and Republicans want to have it both ways, appealing to their base and to the broader public.

 

[Ford]

If this becomes a ruling and GQP is in control next January, there will be federal legislation to ban abortion moving through the legislature by March.

Which will be vetoed, of course, but that would have to be the way forward for the GQP.

In other forums (well, Facebook), I've seen the "states rights" argument rear it's ugly head. That is - or was - a settled matter. States don't really have "rights." Individuals have rights which are guaranteed by the Constitution, and whether secured by legislation or legal precedent apply equally (thanks to the 14th Amendment) no matter what state you're in.

If you have the right to pick your nose in public in Rhode Island, you have that right in Alabama, and no state law can take it away.

This ruling seems to be saying that in fact, your inalienable rights can indeed be entirely dependent upon your location. You can have a right to something in one state, but cross state lines and there's no guarantee you'll have it anymore. This is nothing new. Until very recently, the same sex marriage you had in Colorado was illegal in Mississippi. A few decades ago the same standard applied to your inter-racial marriage. Birth control? Legal in state A, but if you leave, you can't have plan B.

What else could be overturned? Desegregation? Prayer in schools? Voting rights? (ah, shit...they already destroyed the Voting Rights Act)

The Republican Party needs to figure out if they want to usher in a new "states rights" era where you need a card at the state line explaining which rights you don't have if you cross, or if they wanna go full "take our country back...to the 1950s" and make gay marriage, inter-racial marriage, and not being the "right kind of Christian" illegal on the national level.

 

[Metaphor]

Which will be vetoed, of course, but that would have to be the way forward for the GQP.

In other forums (well, Facebook), I've seen the "states rights" argument rear it's ugly head. That is - or was - a settled matter. States don't really have "rights." Individuals have rights which are guaranteed by the Constitution, and whether secured by legislation or legal precedent apply equally (thanks to the 14th Amendment) no matter what state you're in.

If you have the right to pick your nose in public in Rhode Island, you have that right in Alabama, and no state law can take it away.

What? That's clearly false.

 

[Ford]

Which will be vetoed, of course, but that would have to be the way forward for the GQP.

In other forums (well, Facebook), I've seen the "states rights" argument rear it's ugly head. That is - or was - a settled matter. States don't really have "rights." Individuals have rights which are guaranteed by the Constitution, and whether secured by legislation or legal precedent apply equally (thanks to the 14th Amendment) no matter what state you're in.

If you have the right to pick your nose in public in Rhode Island, you have that right in Alabama, and no state law can take it away.

What? That's clearly false.

Pick your nose then, but the point is that there are rights which cannot be discarded by states on a whim. There's a pretty good body of legal work that's been done on this point.

Let's take something a little more serious than boogers. Are you saying that a black person's right to vote (for example) is conditional based upon what state they reside in? More to the point, do you think it should be?

As Tucker Swanson says, I'm just asking questions....

 

[Elixir]

Which will be vetoed

… and that veto will become the 2024 war cry, along with “stop the steal”.

 

[Metaphor]

Which will be vetoed, of course, but that would have to be the way forward for the GQP.

In other forums (well, Facebook), I've seen the "states rights" argument rear it's ugly head. That is - or was - a settled matter. States don't really have "rights." Individuals have rights which are guaranteed by the Constitution, and whether secured by legislation or legal precedent apply equally (thanks to the 14th Amendment) no matter what state you're in.

If you have the right to pick your nose in public in Rhode Island, you have that right in Alabama, and no state law can take it away.

What? That's clearly false.

Pick your nose then, but the point is that there are rights which cannot be discarded by states on a whim. There's a pretty good body of legal work that's been done on this point.

Let's take something a little more serious than boogers. Are you saying that a black person's right to vote (for example) is conditional based upon what state they reside in? More to the point, do you think it should be?

As Tucker Swanson says, I'm just asking questions....

I'm saying what you said is clearly false. You have the right to smoke weed in some states but not in others, for example.

 

[Jimmy Higgins]

Almost as if all they can do is try to claim tha their critics are guilty of what they themselves are guilty of.

That is pretty much all they do.

 

[repoman]

 

[Playball40]

Little Miracles Trust - Home

www.neonataltrust.org.nz

Another Trausti irrelevancy.

Not at all. These’s discussion upthread on the moral equivalence of abortion at 30 weeks and murder of a 30 week premie.

RvW does not allow for abortion at 30 weeks. It will allow induced labor (not an abortion) for the safety of the mother. People forced to induce labor at 30 weeks are DEVASTATED. But that's not something you can comprehend.

RvW already has all the 'limitations' needed.

 

[lpetrich]

Key Passages From the Leaked Supreme Court Roe v. Wade Draft - The New York Times

Justice Alito said Roe imposed a ‘highly restrictive regime on the entire nation.’

At the time of Roe, 30 states still prohibited abortion at all stages. In the years prior to that decision, about a third of the states had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire nation, and it effectively struck down the abortion laws of every single state.

Restrictive to opponents of abortion, yes.

He wrote that ‘the Constitution makes no reference to abortion.’

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.

The Constitution does not mention the Air Force either. The Constitution is very hard to amend, thus all the effort to interpret it rather than to amend it.

‘Roe and Casey have enflamed debate,’ he said.

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.

To opponents of abortion, yes.

He cited ‘an unbroken tradition of prohibiting abortion’ until Roe.

The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.

Except that the history of abortion is more complicated than that. In past centuries, when it was prohibited, it was mainly prohibited before quickening, when the fetus starts to move, or else when it involves something potentially dangerous, like a "pessary" (something stuck into the womb, in the Hippocratic Oath), or else for social reasons, like when the pregnant woman's husband does not want her to get an abortion.  History of Abortion

He argued that elected representatives can decide ‘how abortion should be regulated.’

Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.

"Ordered liberty"?

Women are not without ‘political power,’ Justice Alito added.

Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.

So he wants the court to avoid taking sides about abortion?

 

[Jimmy Higgins]

Women are not without ‘political power,’ Justice Alito added.

Our decision returns the issue to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting and running for office. Women are not without electoral or political power.

So he wants the court to avoid taking sides about abortion?

This is truly a confusing portion of the findings. As how can a woman have standing to challenge the law... if there is no right to an abortion?

I didn't like Roberts much but felt he was SCOTUS-able. Alito was too radical for me with his "unitary executive" crap, and never should have been put on the Court. And now we are seeing why.

 

[Toni]

Little Miracles Trust - Home

www.neonataltrust.org.nz

Another Trausti irrelevancy.

Not at all. These’s discussion upthread on the moral equivalence of abortion at 30 weeks and murder of a 30 week premie.

RvW does not allow for abortion at 30 weeks. It will allow induced labor (not an abortion) for the safety of the mother. People forced to induce labor at 30 weeks are DEVASTATED. But that's not something you can comprehend.

RvW already has all the 'limitations' needed.

This is not quite accurate. Roe says that abortions MAY be prohibited so long as there are exceptions for the life and health of the mother. It does NOT say anything about the method for terminating the pregnancy.

Some late term abortions are performed via c-section if that is deemed safest for the mother. Sometimes labor is induced.

Note: There is no law anywhere that says any doctor or medical provider MUST terminate a pregnancy. Roe v Wade also does not set forth acceptable means of termination.

 

[lpetrich]

I think that it's possible to support abortion while considering Roe vs. Wade a bad decision.

As for codifying RvW into law, there were several efforts over the last decade.

Judy Chu | Congress.gov | Library of Congress - search URL for all bills about abortion sponsored by Rep. Judy Chu.

I looked at the legislative history of all these bills.

• 2013: no action. Senate companion: hearings
• 2015: no action. Senate companion: no action
• 2017: no action. Senate companion: no action
• 2019: no action. Senate companion: no action
• 2021: passed the House and went to the Senate. Senate companion: no action

The 2021 bill's House vote: Roll Call 295 | Bill Number: H. R. 3755
D: Y 218, N 1, nv 1
R: N 210, nv 2
Ttl: Y 218, N 211, nv 3

The only Democrat to vote against it: Henry Cuellar, D-TX-28. He is being primaried by Jessica Cisneros, someone who have voted yes on that bill.

Not voting: Liz Cheney R-WY, Lawson D-FL, Lesko R-AZ

Not surprisingly, that bill was filibustered in the Senate. Some Republican likely put a hold on it.

On Cloture on the Motion to Proceed (Motion to Invoke Cloture: Motion to Proceed to H.R. 3755. )
D+I: Y 46, nv 3
R: D 1, N 47, nv 3
Ttl: Y 46, N 48, nv 6

The only Democrat to vote against it: Joe Manchin, D-WV

The 2021 Senate companion bill had all but two Democrats as cosponsors, including the sponsor.

I next checked on Kyrsten Sinema's votes. She cosponsored the 2013, 2015, and 2017 House bills, and the 2019 and 2021 Senate bills, and she voted yes in the 2021 House bill's cloture vote.

 

[lpetrich]

Mark Joseph Stern on Twitter: "Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history." (link)" / Twitter

What counts as "deeply rooted in history"?

Alito's draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not "deeply rooted in history."

Alito's draft opinion gives a shout out to Amy Coney Barrett's theory that "safe haven" laws diminish the need for abortion by allowing new parents to relinquish their child lawfully.

Let me explain what this draft does and doesn't say about gay rights because I realize the screenshot above doesn't tell the whole story.

There are parts of the opinion in which Alito parrots Kavanaugh's reasoning—that abortion is "unique" because it involves taking a "life."

And there is a portion in which Alito says: Hey, we promise this decision won't imperil other precedents.

Two problems. First, he's talking about precedents that came *before* 1992's Planned Parenthood v. Casey.

Lawrence (sodomy) and Obergefell (same-sex marriage) came later.

Second, the meat of Alito's opinion is a lengthly repudiation of "unenumerated rights" that are not laid out in the Constitution. The Supreme Court may only protect these rights, Alito says, if they are "deeply rooted" in history. Abortion is not. Neither is same-sex marriage.

True, Alito says: There are other rights that may not be "deeply rooted," but our precedents protect them anyway, like interracial marriage. These seem OK.

This list does not include any gay rights cases, which are conspicuously separate from the precedents that Alito blesses!

Alito seems to identify the gay rights decisions as part of "a broader right to autonomy and to define one's 'concept of existence.'"

That's correct; the concept of individual autonomy lay at the heart of these rulings. It's a concept that Alito totally trashes and disavows.

Then Alito says: I promise we're not jeopardizing "the cases on which Roe and Casey rely" because they are "inapposite."

Here, Alito is talking about Loving (interracial marriage), contraception (Griswold), sterilization (Skinner), and raising children (Pierce). Those are safe.

But Alito actually makes it extremely clear that he is *not* including Lawrence or Obergefell in his category of safe precedents! Instead, he appears to include them as an example of illegitimate rights like abortion, which he is overruling in this very opinion!

This will not be the final version of Alito's opinion, and I think it's quite possible that Kavanaugh or Barrett will force him to soften this language. But as written, the draft is quite blithe and unflinching in its disdain for the constitutional basis of gay rights.

More on the sweeping logic of Alito's draft opinion here.

Again, I think Kavanaugh or Barrett may ask him to tone it down before it's announced. Right now, it's not hiding the ball about what's next.

noting
Supreme Court leaked abortion draft: how the court plans to overturn Roe v. Wade. - "The justice’s scathing condemnation of abortion pretends not to imperil other rights. Don’t believe it."

 

[lpetrich]

Alexandria Ocasio-Cortez on Twitter: "As we’ve warned, SCOTUS isn’t just coming for abortion - they’re coming for the right to privacy Roe rests on, which includes gay marriage + civil rights.

Manchin is blocking Congress codifying Roe. House has seemingly forgotten about Clarence Thomas. These 2 points must change" / Twitter

Alexandria Ocasio-Cortez on Twitter: "People elected Democrats ..." / Twitter

People elected Democrats precisely so we could lead in perilous moments like these- to codify Roe, hold corruption accountable, & have a President who uses his legal authority to break through Congressional gridlock on items from student debt to climate.

It’s high time we do it.

If we don’t, what message does that send? We can’t sit around, finger point, & hand wring as people’s futures + equality are on the line.

It’s time to be decisive, lead with confidence, fight for a prosperous future for all and protect the vulnerable.

Leave it all on the field.

Bernie Sanders on Twitter: "Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes." / Twitter

AOC then stumps for Jessica Cisneros, who is trying to primary Henry Cuellar. Marie Newman successfully primaried in 2020 another anti-abortion Democrat, Dan Lipinski.

 

[Jimmy Higgins]

I'm not certain how making this into Federal Law protects Roe. SCOTUS can just say there is no right to this (it isn't in the Constitution), and it should be left to the states.