Roe v Wade is on deck

[ZiprHead]

 

[ZiprHead]

This is distressing: A Nebraska woman is facing felony charges for helping her teenage daughter obtain an abortion earlier this year. Her daughter, who was 17 years-old at the time and 22 weeks pregnant (abortion is illegal in the state after 20 weeks), is also being charged. She will be tried as an adult. I’m looking to get more details on the case, but a couple of noteworthy items: Law enforcement not only went through the girl’s medical records, but got a warrant for her Facebook messages. That’s where the mother and daughter allegedly talked about how to properly take abortion medication—the prosecutor is also using a message where the teen expressed not wanting to be pregnant as evidence.

Abortion, Every Day (8.8.22)

Nebraska charges teenager with illegal abortion

jessica.substack.com

 

[TomC]

There are apparently Republicans who think Democrats want to extend abortion rights a year and a half post birth.
Tom

 

[Derec]

There are apparently Republicans who think Democrats want to extend abortion rights a year and a half post birth.
Tom

Or longer.

 

[Derec]

Code for: we've done it 27 times, it's only impossible when the Congress is deadlocked by partisan bickering.

Congress is comparatively easy. Getting 3/4 of states to ratify it is the real challenge.
Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

 

[Politesse]

Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

That is by design. Consitutional amendment is not meant as an inexpensive political football, it should only happen where there is significant consensus as to the necessity.

 

[lostone]

which is why even the Equal Rights Amendment never became law. Many states see no need to protect the rights of women. The same states, pretty much, that have passed strict anti-abortion laws.

 

[lpetrich]

Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

That is by design. Consitutional amendment is not meant as an inexpensive political football, it should only happen where there is significant consensus as to the necessity.

Yes, one does not want it to be too easy, but the US Constitution is one of the most difficult to amend of nations' constitutions. US state constitutions are usually much easier to amend.

 

[Politesse]

Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

That is by design. Consitutional amendment is not meant as an inexpensive political football, it should only happen where there is significant consensus as to the necessity.

Yes, one does not want it to be too easy, but the US Constitution is one of the most difficult to amend of nations' constitutions. US state constitutions are usually much easier to amend.

Also true. But, there are historical reasons for that.

(We former colonists all severely, sometimes mortally, despise each other. And we always have.)

 

[ZiprHead]

Most Americans want chance to support abortion rights on state ballot, USA TODAY/Ipsos poll finds

Echoes of Kansas: Broad support for abortion measures on state ballots is more evidence of a backlash to the overturning of Roe v. Wade.

www.usatoday.com

Americans overwhelmingly would like to be able to vote on an abortion measure on their state ballot, an exclusive USA TODAY/Ipsos Poll finds. And if they had the chance, they would oppose efforts to ban the procedure by almost 2-1.

The survey, taken in the aftermath of the stunning defeat in Kansas last week of a proposal to remove abortion rights from the state constitution, is more evidence of a backlash to the Supreme Court's decision that allows states to sharpen restrictions on abortion or bar it entirely.

More:Kansas abortion vote raises warning signs for GOP nationwide in November.

Seven in 10 say they would support using a ballot measure to decide abortion rights in their state, an idea backed across party lines, by 73% of Democrats, 77% of Republicans and 67% of independents. Democrats are the most energized on the issue; 43% say they "strongly support" putting abortion on the ballot.

If there were a ballot measure in their state, those polled would vote by 54%-28% in favor of making abortion legal. Democrats support legal abortion in their state by 7-1 (76%-10%) and independents by 2-1 (52%-27%). Among Republicans, 34% would support abortion rights and 54% would oppose them, a worrisome fissure for the party that has long been identified with the anti-abortion movement.

At particular risk for the GOP are two groups of swing voters. Suburbanites by 56%-26% say they would vote to support abortion rights in a ballot measure. And women by 60%-25% would support an abortion rights initiative, significantly more than the backing among men of 47%-32%.

 

[lpetrich]

Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

That is by design. Consitutional amendment is not meant as an inexpensive political football, it should only happen where there is significant consensus as to the necessity.

Yes, one does not want it to be too easy, but the US Constitution is one of the most difficult to amend of nations' constitutions. US state constitutions are usually much easier to amend.

Also true. But, there are historical reasons for that.

Like what?

 

[TomC]

Like what?

The key word there is "historical".

When all this was being designed, late 18th century, the states really were pretty much sovereign entities. One wasn't so much an American as a Georgian or New Yorker. Things have changed hugely since then. But that view of the U.S. did largely shape our Founding Documents and institutions.

Frankly, if weren't for the ongoing existential threat of the British we'd have probably fractured into multiple countries by 1800.
Tom

 

[lpetrich]

Justice Samuel Alito, in some recent decisions, elevated "religious freedom" above everything else. But would he endorse "religious freedom" if it got in his way? Like Protestants who consider Catholics Mary-worshippers who are loyal to a foreign power?

Or this: Religious Liberty Is For Pro-Choice People Too

Though the constitutional law of “religious liberty” is a murky and ever-developing field, we are all accustomed to hearing anguished claims from conservative Christians that laws requiring them to provide or pay for reproductive-health services or treat LGBTQ employees and customers equally are an unacceptable violation of their beliefs. Now that the Supreme Court has struck down the federal right to an abortion, it’s clearer than ever that the Christian right and its Republican allies are aiming to construct a system where they are free to live their values as they wish, regardless of the impact on others.

But as a new lawsuit in Florida shows, what’s good for the conservative goose may also be good for the progressive gander.

Noting
Religious leaders sue over Florida abortion law signed by Ron DeSantis - The Washington Post

When the Rev. Laurie Hafner ministers to her Florida congregants about abortion, she looks to the founding values of the United Church of Christ, her lifelong denomination: religious freedom and freedom of thought. She taps into her reading of Genesis, which says “man became a living being” when God breathed “the breath of life” into Adam. She thinks of Jesus promising believers full and abundant life.

“I am pro-choice not in spite of my faith, but because of my faith,” Hafner says.

She is among seven Florida clergy members — two Christians, three Jews, one Unitarian Universalist and a Buddhist — who argue in separate lawsuits filed Monday that their ability to live and practice their religious faith is being violated by the state’s new, post-Roe abortion law. The law, which is one of the strictest in the country, making no exceptions for rape or incest, was signed in April by Gov. Ron DeSantis (R), in a Pentecostal church alongside antiabortion lawmakers such as the House speaker, who called life “a gift from God.”

Gov. Ron DeSantis is a Catholic.

The lawsuits are at the vanguard of a novel legal strategy arguing that new abortion restrictions violate Americans’ religious freedom, including that of clerics who advise pregnant people. The cases are part of an effort among a broad swath of religious Americans who support abortion access to rewrite the dominant modern cultural narrative that says the only “religious” view on abortion is to oppose it.

“The religious right has had the resources and the voices politically and socially to be so loud, and frankly, they don’t represent the Christian faith,” Hafner told The Washington Post. “Those of us on the other side, with maybe a more inclusive voice, need to be strong and more faithful and say: ‘There is another very important voice.’

“Look biblically; Jesus says nothing about abortion. He talks about loving your neighbor and living abundantly and fully. He says: ‘I come that you might have full life.’ Does that mean for a 10-year-old to bear the child of her molester? That you cut your life short because you aren’t able to rid your body of a fetus?”

All i can say is: where have they been? They've let the Religious Right be the public face of their religion.

“Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during pregnancy have been answered according to religious beliefs and creeds,” say the suits, which use identical language except when describing each plaintiff’s faith.

The new law, the suits read, sets “a pernicious elevation of the legal rights of fetuses while at the same time it devalues the quality of life and the health of the woman or girl who is pregnant. It is in direct conflict with Plaintiff’s clerical obligations and faith and imposes severe barriers and substantial burdens to their religious belief, speech and conduct.”

Along with
Synagogue challenges Florida abortion law over religion - The Washington Post

Back to my earlier-linked article.

Douglas Laycock, a professor at the University of Virginia School of Law and an authority on religious-freedom law, said states and the Supreme Court could curtail the efforts among faith leaders who support abortion rights by arguing that there is a “compelling government interest” in protecting fetal life. And the right kind of compelling government interest can be an exception to most constitutional rights, he explained.

“For better or worse, a compelling government interest is whatever five justices say it is,” Laycock said. “It’s a matter of judicial interpretation, not legislative enactment. And pretty clearly, we have six justices who would happily say that the state’s interest in fetal life is compelling” and outweighs the free exercise of religion.

Plus, Laycock said, the justices wouldn’t have taken the monumental step of overturning Roe v. Wade only to turn around and allow “an alternate route to choice, an enormous loophole, or even a small loophole.”

“They may like free exercise, but they oppose abortion more,” he said.

In effect, religious freedom only for kinds of religion that they like.

 

[Politesse]

Any controversial amendment will have a snowball's chance in a blast furnace of getting ratified.

That is by design. Consitutional amendment is not meant as an inexpensive political football, it should only happen where there is significant consensus as to the necessity.

Yes, one does not want it to be too easy, but the US Constitution is one of the most difficult to amend of nations' constitutions. US state constitutions are usually much easier to amend.

Also true. But, there are historical reasons for that.

Like what?

Fundamentally, there was a fear that the states, though "united" against foreign domination, were not truly equal to one another in power, wealth, and influence. You see an anxiety concerning domination by other states written into the Constitutional structure at several points, most powerfully the composition of the Senate, the requirements for constitutional amendment, the Tenth amendment itself, and we could have discussion about several other points here. It's important to keep in mind that the writing of the Consitution was itself a somewhat sketchy affair, overthrowing for all intents and purposes the government originally set up by the Revolutionaries. In that government, guided by the Articles of Confederation, states exercised much more liberally interpreted rights over their own affairs, but this also allowed the manipulation and abuse of smaller states by their more powerful neighbors. The first adopted draft of the US Constitution is a masterwork of compromise, creating a vastly more powerful federal government but using a complex system of checks and balances to keep it functional.

The problem with compromises is that they are very situational. By 1830, it was clear that the previous generation's compromises were not going to be sufficient placation to guarantee peace between the States. And after things had really fallen apart, a new set of compromises had to be negotiated in order to rebuild the United States as a single nation, resulting in amendments to the Constitution so all-encompassing in scope that they eventually changed the way the document was used altogether, and in many ways, we are still struggling to put the high-minded principles represented by the Fourteenth Amendment into practice. Pretending that the Constitution is, was, or ever could be a "perfect" or unchanging document is a flawed concept, a familiar mistake whose ending we all know, because of the previous occasions when the Union has fractured despite all of the safety measures we might try to apply.

 

[lpetrich]

Joseph Naumann, Catholic bishops lost in Kansas abortion vote - The Washington Post

Analysts were quick to frame the result as a setback for the antiabortion movement, but activists and experts say it also amounts to a rejection of the Catholic Church hierarchy, which had shelled out massive sums of money in support of the amendment’s passage. The vote may hint, too, at a mounting backlash against the church’s involvement in the nation’s abortion debate — not least among Catholics themselves.

"Keep your rosaries off our ovaries!"

In the wake of the vote, Archbishop Joseph Naumann of Kansas City, who publicly supported the amendment’s passage, issued a statement Wednesday lamenting its failure.

“We were not able to overcome the millions spent by the abortion industry to mislead Kansans about the amendment, nor the overwhelming bias of the secular press whose failure to report clearly on the true nature of the amendment served to advance the cause of the abortion industry,” Naumann wrote.

Boo hoo hoo hoo hoo

 

[lpetrich]

The Anti-Abortion Movement is Deciding: Hypocritical Misogyny or Abject Cruelty?

I am really thrilled to have a piece in the issue about IVF in a post-Roe limbo — how providers and patients alike are scared and uncertain about the future, how anti-abortion laws may make it much harder for people to start or expand their families, and how that’s shaping care and reproductive decision-making today.

Then getting into fetal personhood, including personhood since when the father's sperm goes into the mother's egg.

IVF complicates this. When Alabama passed a law criminalizing abortion and purporting to protect embryos, some objected because of concerns about IVF. If a fertilized egg is a person, the argument went, then IVF as it is currently practiced becomes either illegal or highly legally risky in a state that imbues a fertilized egg with a full set of rights. But Alabama state legislator Clyde Chambliss had an answer: “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.”

In other words, fertilized eggs are only people if they are inside of a woman.

As author Jill Filipovic says, "That doesn’t really make sense — unless the whole point is to control women, and not to protect fertilized eggs."

She continued with "Typical IVF procedures involve the creation of multiple embryos. Embryos that will not turn into a healthy pregnancy are typically screened out and discarded." Then discussing what to do about multiple viable ones. Donate them? Store them? Destroy them?

Today, roughly two in every 100 babies born in the US was conceived with the aid of reproductive technology. Those numbers are higher in areas where women have higher levels of education and have children later.

I’ve written before about how virtually no one — not even self-identified pro-lifers — actually believes that a fertilized egg is a person.

She then notes what an awkward dilemma IVF poses to anti-abortionists.

 

[lpetrich]

It seems to me that the Biden Admin was caught flat-footed by the Supreme Court's overturning of Roe vs. Wade. Even though it was very evident that that was what the court was likely to do. The appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The taking of the Dobbs case. The leaked decision document.

• As abortion access shrinks, eyes are on Biden. Where we stand 11 days after the Supreme Court decision. - POLITICO - 07/05/2022 03:42 PM EDT - Among the new developments on abortion access: a possible filibuster carveout, more state legal battles and an announcement from Google.
• Biden signs abortion rights executive order amid pressure - POLITICO - 07/08/2022 07:01 AM EDT - The order directs the Department of Health and Human Services to take new actions to protect access to abortion medication and consider updating guidance to clarify doctor responsibilities and protections under the Emergency Medical Treatment and Labor Act.
• Biden says he’s mulling health emergency for abortion access - POLITICO - 07/10/2022 04:34 PM EDT - Such a move has been pushed by advocates, but White House officials have questioned both its legality and effectiveness, and noted it would almost certainly face legal challenges.
• Biden’s abortion response curbed by fears of another Supreme Court showdown - POLITICO - 07/11/2022 12:27 PM EDT - The potential impact of the high court has left the White House feeling restricted by what post-Roe actions it can take.
• Biden admin looks to protect doctors providing emergency abortions, and warn those who don't - POLITICO - 07/11/2022 04:19 PM EDT - The new guidance assures doctors they'll be protected by federal law even if their state bans the procedure.
• Biden pledges executive orders on abortion. His options are limited. - POLITICO - 07/19/2022 05:19 PM EDT - Once more, however, aides are hung up on whether the policy would get tripped up by the courts.
• Biden and Harris praise Kansas voters for defeating anti-abortion amendment - POLITICO - 08/03/2022 04:26 PM EDT - The amendment’s defeat on Tuesday was the first ballot-box reflection of voters’ beliefs on access to abortion since the Supreme Court struck down Roe.

noting

• Executive Order on Protecting Access to Reproductive Healthcare Services - The White House
• FACT SHEET: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services - The White House
• Executive Order on Securing Access to Reproductive and Other Healthcare Services - The White House

 

[Politesse]

It seems to me that the Biden Admin was caught flat-footed by the Supreme Court's overturning of Roe vs. Wade.

I was, too. I really didn't think they would go this far.

 

[lpetrich]

A Court Without Precedent - The Atlantic

"The judiciary is supposed to be informed by historical memory, and guided by more than its members’ whims."

"Just a few years ago, a clear majority of Americans trusted the Supreme Court. Now, a month after Roe v. Wade was overturned, poll after poll shows that a clear majority of Americans do not."

For more than a decade, the Court has issued narrow rulings, decided by slim majorities, that align with Republican political goals. Five Justices unleashed dark money in politics. They gutted the Voting Rights Act. They pulled the rug out from under public-sector unions. In that sense, Dobbs—the decision overturning Roe—is part of a larger trend.

But the American public is right to see Dobbs as different. Not just because of the decision’s impact, or the outrage it’s caused. More than a radical opinion, Dobbs represents a radical new approach to interpreting the Constitution. If left unchecked, the justices’ decision could mark not just the end of Roe, but the upending of America’s system of checks and balances.

Stare decisis - "to stand by what was decided"

Stare decisis does not bind judges’ hands entirely. It does, however, restrain them. When the Court’s majority feels a past case was wrongly decided, it is expected to rule narrowly instead of broadly, chipping away at old precedents and only gradually establishing new ones. It’s the legal equivalent of choosing renovation over demolition. The law should evolve rather than lurch.

No less important, by following stare decisis, justices recognize that the Court is bigger than the people who happen to be serving on it, with decisions that outlast the people who make them. The judiciary is supposed to be informed by historical memory, and guided by more than its members’ whims. Stare decisis is what makes the Court an institution. Without it, the judiciary is just a collection of opinionated people.

Clarence Thomas rejects stare decisis, while the other court conservatives profess to uphold it.

About some broader issues about the RvW decision,

The first of these was pointed out by Chief Justice John Roberts, who joined the 6–3 Dobbs majority that upheld Mississppi’s ban on abortion after 15 weeks but did not support overturning Roe. Citing the “fundamental principle of judicial restraint,” he wrote, “It is only where there is no valid narrower ground of decision that we should go on to address a broader issue, such as whether a constitutional decision should be overturned.

 

[lpetrich]

In other words, while the 1954 Court felt Plessy was egregiously wrong, its egregious wrongess was not in itself enough for the Justices to overturn the ruling. They overturned Plessy, they argued, only because they had no other viable choice.

Perhaps the conservatives in Dobbs felt similarly about Roe, but that’s not the standard they used to justify their decision. Instead, in a concurring opinion, Kavanaugh laid out his own set of rules for disregarding precedent: “(i) the prior decision is not just wrong, but is egregiously wrong, (ii) the prior decision has caused significant negative jurisprudential or real-world consequences, and (iii) overruling the prior decision would not unduly upset legitimate reliance interests.”

The problem with Kavanaugh’s checklist is that each of its elements is completely subjective. In essence, Kavanaugh believes judges should unfailingly abide by past decisions unless they really don’t want to. That’s not a way to apply stare decisis. It’s a way to scrap it.

Seems like we are living in an era of judicial Calvinball, where the conservative Justices freely invent pseudo-historical and pseudo-Constitutional justifications for however they want to rule.