It's Official: SCOTUS Overturns Roe v. Wade

[smac97]

Here:

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The Supreme Court in a 6-3 decision on Friday overturned Roe v. Wade, the landmark ruling that established the constitutional right to abortion in the U.S. in 1973.

The court’s controversial but expected ruling gives individual states the power to set their own abortion laws without concern of running afoul of Roe, which for nearly half a century had permitted abortions during the first two trimesters of pregnancy.

Almost half the states are expected to outlaw or severely restrict abortion as a result of the Supreme Court’s decision. Other states plan to maintain more liberal rules governing the termination of pregnancies.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” a syllabus of the opinion said.

Justice Samuel Alito, as expected, wrote the majority opinion that tossed out Roe. He was joined in that judgment by the five other conservatives on the high court, including Chief Justice John Roberts.

The court’s three liberal justices filed a dissenting opinion to the ruling.

We hold that Roe and Casey must be overruled,” Alito wrote.

“The Constitution 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,” Alito wrote. “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.”

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Alito wrote.

Here is the full text of the decision (213 pages!).

A few thoughts:

1. Roe has long been viewed in legal/academic circles as a very poorly-reasoned decision.  This assessment, though not universal, was shared even by many who support abortion rights.

2. Roe has held a place in the public consciousness since it was published in 1973.  However, it was largely superseded by a later 1992 decision, Planned Parenthood v. Casey, which was also widely viewed as being poorly reasoned.

3. The second-from-last paragraph above includes an important statement about how the Constitution works.  The Constitution's text actually references (in LegalSpeak, "enumerates") some "rights," such as Free Speech, Free Press, etc.  However, it also appears to acknowledge the existence of unenumerated rights (that is, rights which are not recognized in the text, but which nevertheless are to be given constitutional protection).  See here:

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In the United States, the Ninth Amendment to the U.S. Constitution protects against federal infringement of unenumerated rights. The text reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Supreme Court of the United States has also interpreted the Fourteenth Amendment to the U.S. Constitution to protect against state infringement of certain unenumerated rights including, among others, the right to send one's children to private school and the right to marital privacy.

The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, and the right to keep personal matters private.^[4]

These unenumerated rights are sometimes characterized as being found in the "penumbra" of the Constitution:

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In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights.^[2] These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea[s]" that are explicitly expressed in other constitutional provisions.^[3] Although researchers have traced the origin of the term to the nineteenth century, the term first gained significant popular attention in 1965, when Justice William O. Douglas's majority opinion in Griswold v. Connecticut identified a right to privacy in the penumbra of the constitution.^[4]
...
Although the meaning of the term has varied over time,^[11] scholars now generally agree that the term refers to a group of rights that are not explicitly stated in the constitution, but can be inferred from other enumerated rights.^[12] The definition of the term was originally derived from its primary scientific meaning, which is "a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light".^[10] By analogy, rights that exist in the constitution's penumbra can be found in the "shadows" of other portions of the constitution.^[13] Additionally, the process of identifying rights in constitutional penumbras is known as penumbral reasoning.^[14] Brannon P. Denning and Glenn H. Reynolds have described this interpretive framework as the process of "drawing logical inferences by looking at relevant parts of the Constitution as a whole and their relationship to one another."^[15] Glenn H. Reynolds has also characterized penumbral reasoning as a process of "reasoning-by-interpolation" where judges identify the full scope and extent of constitutional rights.^[16]

This is how we end up with "Constitutional rights" that are not actually in the Constitution.  And although this has long been a point of criticism from people on the political "right," those same people would probably not want to fully set aside such "penumbral reasoning."  See here:

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The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution, including but not limited to:

• The right to interstate travel^[14]
• The right to parent one's children^[15]
• The right to privacy^[16]
• The right to marriage^[17]
• The right of self-defense

Thus, the same legal reasoning that "created" the right to abortion also "created" rights to privacy, parenting, marriage, and so on.

The right to abortion was, in a sense, "found" in the text of the Constitution.  The reasoning in Roe went something like this:

• A. The Fourteenth Amendment to the Constitution includes the "Due Process" clause, stating that states are prohibited from depriving “any person of life, liberty, or property, without due process of law.”
• B. The word "liberty" in the Fourteenth Amendment obviously requires some interpretation.  Over the years the Supreme Court has interpreted it to mean that Americans have what are called "liberty interests," or rights that arise from the reference to "liberty" in the Due Process clause.
• C. The legal test generally cited by the courts to determine whethere there is a "fundamental" (that is, constitutional) right under the "liberty" provision in the Due Process Clause is that the supposed right must be "implicit in the concept of ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L. Ed. 288 (1937), or "deeply rooted in this Nation's history and tradition," Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938, 52 L. Ed. 2d 531 (1977) (plurality opinion).  In other words, the courts can just make up rights willy-nilly.  They must instead find that the supposed fundamental right (right to privacy, right to parenting, etc.) is, though not in the text of the Constitution, nevertheless something that is "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition."
• D. Roe did not specifically apply the foregoing "ordered liberty" / "deeply rooted" test.  Instead, it focused on the right to abortion as arising from the "right to privacy," which in turn arises from the "liberty" provision in the Due Process clause:

 

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The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, ...  the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.  These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty,' are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, [] in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

• E. Roe went to to apply "compelling state interest" test to determine whether state laws constraining abortion were constitutional:

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Where certain 'fundamental rights' are involved, the Court has held that regulation limiting these rights may be justified only by a 'compelling state interest,' and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake.

This is one of the most common criticisms of Roe, it's even included in Justice Rehnquist's dissenting opinion in Roe:

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The Court eschews the history of the Fourteenth Amendment in its reliance on the 'compelling state interest' test.  But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the 'compelling state interest test,' the Court's opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

4. Roe largely operated to restrict (though not totally eliminate) the ability of the states to regulate abortion.  As a practical result, abortion has become substantially more widely available as compared to the pre-Roe era. The decision published today, Dobbs v. Jackson Women’s Health Organization, overturns Roe, which means that "the authority to regulate abortion is returned to the people and their elected representatives."

5. I think society has changed a lot since 1973.  Birth control has vastly improved, is far more readily and easily available, and is very affordable (often available for free).  Technology has improved our ability to detect a pregnancy in its earlier stages.  "Safe Haven" laws exist in all fifty states.  

6. I am concerned about violence.  I hope that people who will be protesting this decision do not resort to violence as a form of political disagreement.  

7. The abortion debate is not over, and likely never will be.  While those who, like me, are opposed to elective abortion will be pleased for today's decision, there is still much left to do.  We need to proceed with kindness, patience, and equanimity.  We need to acknowledge and respect the strongly-held (and, in many ways, reasonable) concerns held by those who disagree with us.  I think it will be very important that we continue to try to persuade and accommodate as much as possible, and not just rely on legalities.

Changing the law is not enough.  We now need to shift into a "change hearts and minds" way of thinking and acting.  "{O}nly by persuasion, by long-suffering, by gentleness and meekness, and by love unfeigned; By kindness, and pure knowledge, which shall greatly enlarge the soul without hypocrisy, and without guile—Reproving betimes with sharpness, when moved upon by the Holy Ghost; and then showing forth afterwards an increase of love toward him whom thou hast reproved, lest he esteem thee to be his enemy."  (D&C 121:42-43.)

Edited June 24, 2022 by smac97

[The Nehor]

12 minutes ago, smac97 said:

6. I am concerned about violence.  I hope that people who will be protesting this decision do not resort to violence as a form of political disagreement.  

LOL

[smac97]

8 minutes ago, The Nehor said:

Quote

6. I am concerned about violence.  I hope that people who will be protesting this decision do not resort to violence as a form of political disagreement.  

LOL

The Frightening Threat to Brett Kavanaugh

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Following the egregious leak of the draft opinion signaling that the Supreme Court was poised to strike down Roe v. Wade, pro-abortion crowds descended on the homes of justices in a transparent effort to intimidate them into changing their minds. To no avail, we urged President Biden to stop equivocating and to take the threat to justices seriously. {} If there was any doubt just how real the danger is, the frightening news about Justice Brett Kavanaugh should remove it.

Early Wednesday morning, an armed California man was detained by police shortly after getting out of a taxicab in front of Kavanaugh’s house. According to the criminal complaint, “An inventory search of the seized suitcase and backpack revealed a black tactical chest rig and tactical knife, a Glock 17 with two magazines and ammunition, pepper spray, zip ties, a hammer, screwdriver, nail punch, crow bar, pistol light, duct tape, hiking boots with padding on the outside of the soles, and other items.” He told police he intended to break into Kavanaugh’s house and kill him, because he was upset about the leaked abortion opinion and the Uvalde school shooting, and “believed that the Justice he intended to kill would side with Second Amendment decisions that would loosen gun control laws.” The complaint says that he found Kavanaugh’s address on the Internet.

As disturbing as this news is, we cannot say it is surprising. In the weeks following the leaked Justice Samuel Alito opinion in Dobbs v. Jackson Women’s Health, pro-abortion protesters have vandalized and firebombed pro-life organizations, harassed churchgoers, and shown up at justices’ homes. Leading up to the incident at Kavanaugh’s house, justices received a flood of death threats. Even after news broke of the foiled assassination attempt, protesters gathered Wednesday evening to picket outside his home.
...
The time for playing games is over. The prospect of the assassination of a Supreme Court justice linked to the outcome of a pending case poses such a significant threat to our republic that it should send chills down the spine of every American. The House should pass the Supreme Court security bill immediately, Biden should stop equivocating about intimidation efforts by his own side, federal laws against protesting at judges’ homes should be enforced, justices should receive all the protection they need, and we should all pray for their safety.

(Emphases added.)

The concern about violence is warranted.

Thanks,

-Smac

Edited June 24, 2022 by smac97

[ttribe]

It's official, U.S. women have one less freedom than they did yesterday. 

[rodheadlee]

3 minutes ago, ttribe said:

It's official, U.S. women have one less freedom than they did yesterday. 

That's not true, and you know it. It brings the decisions back to the individual states.

[ttribe]

3 minutes ago, rodheadlee said:

That's not true, and you know it. It brings the decisions back to the individual states.

Actually, it is true as many states have automatic triggers outright banning abortion should the Federal protection be lifted. Those triggers range in time from immediately to around 90 days (I believe).

Moreover, my statement still stands as yesterday there existed a Federal protection on banning abortion, and today there doesn't. 

[SeekingUnderstanding]

https://thehill.com/regulation/court-battles/3535841-thomas-calls-for-overturning-precedents-on-contraceptives-lgbtq-rights/amp/
 

Looks like the right to have sex in your home and the right to use contraception are next. Yay conservative Christian values!

[JAHS]

10 minutes ago, ttribe said:

It's official, U.S. women have one less freedom than they did yesterday. 

Men are also not allowed to have someone killed.

[smac97]

5 hours ago, ttribe said:

It's official, U.S. women have one less freedom than they did yesterday. 

When an act is necessarily and inherently and wrongfully injurious to another person, engaging in that act ought not to be characterized as a "freedom."

On June 19, 1865 U.S. Army general Gordon Granger arrived in Galveston, Texas, to proclaim the war had ended and so had slavery (in the Confederate states).  We now celebrate June 19, "Juneteenth," as "{a} holiday commemorating the emancipation of enslaved African Americans."  From the perspective of the African Americans, the Juneteenth elimination of the "right" or "freedom" to hold black men, women and children in involuntary servitude was to be celebrated.

In time, I hope something similar can be said regarding the perspective of the unborn and June 24.

Thanks,

-Smac

Edited June 24, 2022 by smac97

[Duncan]

I expect that Canada will get American mistresses, wives and girlfriends of US Politicians, celebrities etc. They'll always find away around the law

 

[The Nehor]

5 minutes ago, SeekingUnderstanding said:

https://thehill.com/regulation/court-battles/3535841-thomas-calls-for-overturning-precedents-on-contraceptives-lgbtq-rights/amp/
 

Looks like the right to have sex in your home and the right to use contraception are next. Yay conservative Christian values!

Oddly Thomas didn’t mention the Supreme Court ruling affirming the right to interracial marriage which was also decided on similar grounds. Is he only in favor of this kind of reappraisal when it wouldn’t put his own marriage at risk. Hopefully he will have the moral courage to recuse himself if the court deals with that precedent.

[Meadowchik]

The dog has caught the car, but dogs don't drive.

In other words, this result was not determined by a healthy understanding of the social contract, nor by how healthy government works.

It's reactive and destructive. What we'll get--to return to the metaphor--is a car that doesn't work and stinks quite a lot.

[CA Steve]

5 minutes ago, Duncan said:

I expect that Canada will get American mistresses, wives and girlfriends of US Politicians, celebrities etc. They'll always find away around the law

 

Those that can afford to travel to Canada will do so, unfortunately this will have the greatest impact on poor women & girls who cannot afford the safer alternatives. But on the bright side the back alley abortion butchers who will now be in demand don't need a concealed carry permit to defend themselves! It's a wonderful world with all these new freedoms. 🤐

[provoman]

Disappointing ruling. The zealotry of State legislatures to to essentially create an all out ban, is just absurd.

“Birthcontrol has vastly improved, is far more readily and easily available, and is very affordable (often available for free).”

Birth control, in my opinion is not relevant. Especially in consideration of the Hobby Lobby case, or that many women do not have reasonable access.

“Technology has improved our ability to detect a pregnancy in its earlier stages.”

”Detect a pregnancy” also does not seem relevant, except in viability outside the womb - so keep Roe and Casey.

”Safe Haven" laws exist in all fifty states.”

This also, in my opinion is not relevant. As some States do not allow abortion if the pregnancy is due to rape or incest. This is not to say an abortion should be allowed outside of Roe and Casey in cases of rape/incest. But to force a person pregnant from rape/incest to carry the pregnancy to term because “she can always leave it on the door step of the fire department” does not make any sense.

Separately, as discussed elsewhere on the Board, the States that have imposed the most restrictions on abortions are also States which rank the lowest regarding overall well-being for children (aecf.org)

States that posture “sanctity of life” would do well to help those in need to preserve life…but in reality it is just appears as posturing without works.

[Duncan]

Just now, CA Steve said:

Those that can afford to travel to Canada will do so, unfortunately this will have the greatest impact on poor women & girls who cannot afford the safer alternatives. But on the bright side the back alley abortion butchers who will now be in demand don't need a concealed carry permit to defend themselves! It's a wonderful world with all these new freedoms. 🤐

I completely agree

[The Nehor]

23 minutes ago, smac97 said:

The Frightening Threat to Brett Kavanaugh

(Emphases added.)

The concern about violence is warranted.

Thanks,

-Smac

You misunderstood why I was laughing. I wasn’t laughing at the idea that violence coming would be absurd. I was laughing that it is definitely coming. Target Obergefell and it is gonna get real spicy.

The reaction is very predictable.

Sowing and reaping and all that.

[Meadowchik]

As an American woman, I see this as a betrayal of my right to right, liberty, and pursuit of happiness. My body is not your domain, leave me alone.

[The Nehor]

14 minutes ago, smac97 said:

In time, I hope something similar can be said regarding the perspective of the unborn and June 24.

LOL

*wiping away laughing tears* Oh, that is a good one.

[SeekingUnderstanding]

2 minutes ago, CA Steve said:

Those that can afford to travel to Canada will do so, unfortunately this will have the greatest impact on poor women & girls who cannot afford the safer alternatives. But on the bright side the back alley abortion butchers who will now be in demand don't need a concealed carry permit to defend themselves! It's a wonderful world with all these new freedoms. 🤐

What do you mean!? I’m sure all those pro life conservative crusaders will be quick to enact policies to help the most vulnerable among us? Right? No?

[Tacenda]

35 minutes ago, The Nehor said:

LOL

In President Biden's speech just now, he practically begged that those that protest must keep it peaceful, I like that!

[Tacenda]

The timing of overturning Roe vs Wade, couldn't come at a worse time.

[ttribe]

18 minutes ago, smac97 said:

When an act is necessarily and inherently and wrongfully injurious to another person, engaging in that act ought not to be characterized as a "freedom."

On June 19, 1865 U.S. Army general Gordon Granger arrived in Galveston, Texas, to proclaim the war had ended and so had slavery (in the Confederate states).  We now celebrate June 19, "Juneteenth," as "{a} holiday commemorating the emancipation of enslaved African Americans."  From the perspective of the African Americans, the Juneteenth elimination of the "right" or "freedom" to hold them in servitude was to be celebrated.

In time, I hope something similar can be said regarding the perspective of the unborn and June 24.

Thanks,

-Smac

False equivalency. 

[JLHPROF]

I give Congress 4 months to pass an actual law making abortion legal.
With Democrats controlling the House, Senate, and White House it will fly through.  There's enough moderate Republicans on this issue that this will be rewritten as law.

The Supreme Court doesn't make law.  They just rule on it.

• "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” read the majority opinion.

Up next, a national law that does confer the right.
They'll push this through to maintain the status quo before the November midterms.

Edited June 24, 2022 by JLHPROF

[Meadowchik]

1 minute ago, The Nehor said:

You misunderstood why I was laughing. I wasn’t laughing at the idea that violence coming would be absurd. I was laughing that it is definitely coming. Target Obergefell and it is gonna get real spicy.

The reaction is very predictable.

Sowing and reaping and all that.

There was a bit of violence in 1776. I guess we women should just shut up and be grateful for our judiciary protecting us from our own judgement?

[juliann]

The vast majority of people are ok with early abortion. Most states are or will allow for it. There will always be some who don't, of course, so it does put more pressure on the woman to know her body and do it in time. I just can't get with unlimited abortion, it is sickening. Putting so much emphasis on late term rights did a lot of damage.