Roe v Wade is on deck

[lpetrich]

Sen. Lisa Murkowski, R-AK

Frank Thorp V on Twitter: "MURKOWKSI on if she felt that SCOTUS nominees misled her during the confirmation process: "My confidence in the court has been rocked. "" / Twitter

Frank Thorp V on Twitter: "More MURKOWSKI: “If the decision is going the way that the draft that has been revealed is actually the case, it was not—it was not the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”" / Twitter

What does Susan Collins think?

I must note that both of them voted against the Women's Health Protection Act cloture action.

 

[Jimmy Higgins]

Sen. Lisa Murkowski, R-AK

Frank Thorp V on Twitter: "MURKOWKSI on if she felt that SCOTUS nominees misled her during the confirmation process: "My confidence in the court has been rocked. "" / Twitter

Frank Thorp V on Twitter: "More MURKOWSKI: “If the decision is going the way that the draft that has been revealed is actually the case, it was not—it was not the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”" / Twitter

What does Susan Collins think?

I must note that both of them voted against the Women's Health Protection Act cloture action.

Collins is saying similar. The two nominees lied in testimony. Kavanaugh was somewhat figured to align more with Roberts, but it turns out he is all out with Alito, maybe in line with those that paid off his debts.

 

[lpetrich]

Kyrsten Sinema on Twitter: "Statement on Draft Supreme Court Opinion (pic link)" / Twitter

A woman's health care choices should be between her, her family, and her doctor. Overturning Roe v. Wade endangers the health and wellbeing of women in Arizona and across America.

Protections in the Senate safeguarding against the erosion of women's access to health care have been used half-a-dozen times in the past ten years, and are more important now than ever.

Throughout my time in Congress, I've always supported women's access to health care. I'm a cosponsor of the Women's Health Protection Act, and I'Il continue working with anyone tO protect women's ability to make decisions about their futures.

Sure, but what is she willing to do about it? Wring her hands about how there is nothing that she can do since the R's have filibustered what she wants?

Alexandria Ocasio-Cortez on Twitter: "We could protect Roe tomorrow, but Sinema refuses to act on the filibuster. Until that changes she can take a seat talking about “women’s access to health care.”

Hold everyone contributing to this disaster accountable, GOP & Dem obstructionists included. She should be primaried." / Twitter

 

[Jarhyn]

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.

At the very least, they can pass a law that makes unambiguous the legal right of a person to seek abortion in another state or to buy pill-based abortifacients legally entitled to do so, as the federal government has a right to legislate interstate commerce.

 

[Toni]

Does anyone else think that this is, in part, kabuki theater, designed to rouse the anti-women vote which might otherwise be tempted to stay the course with a ( perhaps) waning pandemic, a looming WW3, and the promise of students loan forgiveness that will bring out younger voters despite their bellyaching that Biden hasn’t delivered all their Christmas ponies in 15 months?

Don’t get me wrong—I know that there actually are legislators who sincerely oppose abortion, at least for anyone not their mistress or daughter.

As nauseated as I am about the draft, in a totally different way, I am very concern d about the fact the draft was leaked. Surely it was leaked to manipulate someone(s). The question is who and why. And even more urgently—the damage done to yet another of our institutions seems deliberate and calculated.

 

[lpetrich]

The Recount on Twitter: "Reporter: “If all the polling is correct and abortion rights folks have public sentiment on their side, why have people continued to vote for a party that wants to do away with abortion rights?”

Press Sec. Psaki: “That sounds like a question for those people who vote that way.” (link)" / Twitter
then
Aaron Rupar on Twitter: "a majority of the court was nominated by presidents who lost the popular vote" / Twitter

I checked Justices 1789 to Present at the Supreme Court's site, and I found

• George Bush I + : Clarence Thomas 1991
• Bill Clinton + + : Steven Breyer 1994
• George Bush II - + : John Roberts 2005, Sam Alito 2006
• Barack Obama + + : Sonia Sotomayor 2009, Elena Kagan 2010
• Donald Trump - : Neil Gorsuch 2017, Brett Kavanaugh 2018, Amy Coney Barrett 2020

The + and - are whether the President won the popular vote, and for two elections, both elections.

 

[Bomb#20]

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.

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

 

[Jarhyn]

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.

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

What is unambiguous is that it is explicitly interstate commerce to cross state lines to make a commercial transaction legal in that place.

The states do not have a constitutional right to make any regulation of that.

 

[Bomb#20]

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

What is unambiguous is that it is explicitly interstate commerce to cross state lines to make a commercial transaction legal in that place.

The states do not have a constitutional right to make any regulation of that.

As far as I can see from the plain meaning of the text, the states do not have any constitutional rights whatsoever except the right to a jury trial if somebody sues them for over $20.

 

[lpetrich]

Then some activism.

Team AOC on Twitter: "Supporting local abortion funds that help arrange and pay for abortion care for patients who need it is one of the most impactful actions you can take for reproductive justice today.

Team @AOC is splitting donations between 5 groups doing this work: (link)" / Twitter

 

[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.

At the very least, they can pass a law that makes unambiguous the legal right of a person to seek abortion in another state or to buy pill-based abortifacients legally entitled to do so, as the federal government has a right to legislate interstate commerce.

And what stops Texas from challenging the law? The Alito ruling really exposes just how little they give a fuck about Constitutional Law.

 

[Politesse]

Does anyone else think that this is, in part, kabuki theater, designed to rouse the anti-women vote which might otherwise be tempted to stay the course with a ( perhaps) waning pandemic, a looming WW3, and the promise of students loan forgiveness that will bring out younger voters despite their bellyaching that Biden hasn’t delivered all their Christmas ponies in 15 months?

I have always thought this about the abortion "debate". Unfortunately, there are real and serious consequences for this particular sideshow.

 

[Jimmy Higgins]

Does anyone else think that this is, in part, kabuki theater, designed to rouse the anti-women vote which might otherwise be tempted to stay the course with a ( perhaps) waning pandemic, a looming WW3, and the promise of students loan forgiveness that will bring out younger voters despite their bellyaching that Biden hasn’t delivered all their Christmas ponies in 15 months?

Don’t get me wrong—I know that there actually are legislators who sincerely oppose abortion, at least for anyone not their mistress or daughter.

As nauseated as I am about the draft, in a totally different way, I am very concern d about the fact the draft was leaked. Surely it was leaked to manipulate someone(s). The question is who and why. And even more urgently—the damage done to yet another of our institutions seems deliberate and calculated.

My first guess is Justice Breyer who is retiring could have leaked it. And lpetrich posted info that provides a narrative explain why Chief Justice Roberts would have leaked it (though the CJ doing something like that would be quite something). CJ Roberts could have leaked it because he is sending a signal to Kavanaugh about just how radical this document is going to be perceived.

I'd imagine CJ Roberts would be fine with pulling back on abortion rights, but sees this step as way too big and judicially, way too recklessly. This effectively could shatter precedence.

 

[Jarhyn]

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

What is unambiguous is that it is explicitly interstate commerce to cross state lines to make a commercial transaction legal in that place.

The states do not have a constitutional right to make any regulation of that.

As far as I can see from the plain meaning of the text, the states do not have any constitutional rights whatsoever except the right to a jury trial if somebody sues them for over $20.

So playing linguistic pedant because you are either disinterested in honest discussion where you could just have corrected me to "not have the constitutionally guaranteed power relegated to them to regulate interstate commerce", so as to make an otherwise valid statement seem invalid.

Dishonest? Certainly.

Easily described? Certainly.

On brand? You be the judge.

 

[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.

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

What part of the Alito draft gives you the slightest idea that SCOTUS would rule against the state that challenges a Federally passed law protecting aspects of Roe?

 

[ZiprHead]

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

I think you meant to say "after quickening".

Abortion was quite common during the days of the founding fathers. Although it wasn't called abortion, abortion providers advertised in newspapers. It was common knowledge. If the founders thought it was important enough to address, they could have when they wrote the constitution.

 

[ZiprHead]

Seen elsewhere...

I will forgive them the irony if, having conceived it, they have regrets and choose to abort the ruling.

 

[blastula]

My first guess is Justice Breyer who is retiring could have leaked it. And lpetrich posted info that provides a narrative explain why Chief Justice Roberts would have leaked it (though the CJ doing something like that would be quite something). CJ Roberts could have leaked it because he is sending a signal to Kavanaugh about just how radical this document is going to be perceived.

That's backwards. The idea is that a conservative would be the leaker out of wanting to lock in the draft ruling as is, hoping to pressure the four others on board not to shift to a more moderate Roberts position.

Can see that thinking in the WSJ editorial below from last week

Abortion and the Supreme Court - WSJ

The Supreme Court will soon decide an abortion case in which Mississippi has asked the Justices to overturn Roe v. Wade. The oral argument suggested that five Justices lean toward doing so, but a ferocious lobbying campaign is trying to change their minds.

Judging from the Dec. 1 oral argument in Dobbs, the three liberal Justices would bar the Mississippi law that bans abortion after 15 weeks as a violation of Roe and Casey. Justices Thomas, Neil Gorsuch and Samuel Alito are likely votes to sustain the law and overturn both precedents. Justices Kavanaugh and Barrett seemed, in their questioning, to side with the three conservatives.

But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.

The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.

We hope he doesn’t succeed...

I kind of wonder whether WSJ wrote that after also having been leaked a copy of the draft, but that they didn't publish.

I do think it makes more sense for a conservative to be a leaker than a liberal. Conservatives in the court should be less likely to be concerned about liberal outrage as by conservative outrage. A leak doesn't give extra help in any elections when the official one is going to be released in about a month anyway. Except maybe to a conservative hoping to manage expectations or soften the blow from the official decision.

Or maybe it's just to distract from Thomas's non-recusal issue.

 

[Bomb#20]

The SCOTUS enforces federal law too, not just the constitution. They have a long history of siding with the feds against the states, usually by agreeing that "interstate commerce" is anything the feds say it is. It's why marijuana is still illegal at the federal level.

What is unambiguous is that it is explicitly interstate commerce to cross state lines to make a commercial transaction legal in that place.

The states do not have a constitutional right to make any regulation of that.

As far as I can see from the plain meaning of the text, the states do not have any constitutional rights whatsoever except the right to a jury trial if somebody sues them for over $20.

So playing linguistic pedant because you are either disinterested in honest discussion where you could just have corrected me to "not have the constitutionally guaranteed power relegated to them to regulate interstate commerce", so as to make an otherwise valid statement seem invalid.

Dishonest? Certainly.

Easily described? Certainly.

On brand? You be the judge.

Dude, I get that you hate me because of our various past run-ins, but seriously, what is with you? What the bejesus did that spew of abuse have to do with what I wrote? You are picking a fight with me for no reason. I was condemning the entire concept of "States' Rights" -- I'd have thought a progressive would agree with me about that. What is there to correct you about apart from your unprovoked personal attack on me? It is explicitly interstate commerce to cross state lines to make a commercial transaction legal in that place, just like you said. States do not have the constitutionally guaranteed power relegated to them to regulate interstate commerce, just like you said. States do not have the constitutionally guaranteed power relegated to them to regulate abortion, even when it isn't interstate commerce, just like I said.

Exactly which part of "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." do "States' Rights" fans not understand? The question answers itself: they evidently do not understand the ", or to the people." part. Back when the SCOTUS ruled that the power over the people's wombs was reserved not to the States respectively but to the people themselves, it was not exceeding its constitutional authority.

 

[ZiprHead]

SAMUEL ALITO’S ANTIABORTION INSPIRATION: A 17TH-CENTURY JURIST WHO SUPPORTED MARITAL RAPE AND HAD WOMEN EXECUTED

Yes, Alito literally quoted this guy, who was born in 1609, as a defense for ending Roe v. Wade in 2022. “Two treatises by Sir Matthew Hale,” Alito enthusiastically writes, “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’ See M. Hale, Pleas of the Crown.” As Jezebel notes, The History of the Pleas of the Crown “is a text that defended and laid the foundation for the marital rape exemption across the world” and reads: “For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Again, Alito used the arguments of this man to bolster his case.

Taking away the rights of pregnant people is quite clearly just the first step for Alito, though. Per Stern: [Alito] disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court [recognized] the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.”

And that’s another reason why the Roe preview is so disturbing. On Monday, former Justice Department official Elliot Williams tweeted: “You don’t need to read too far between the lines of Alito’s draft to see a rationale for overturning or weakening Griswold (the right to contraception) Obergefell (same-sex marriage) Loving (interracial marriage) Lawrence (consensual sex acts).” Incidentally, it was less than a month ago that GOP senator Mike Braun said that states should be allowed to ban interracial marriage (before claiming he misunderstood the question that led to him saying such a thing multiple times).