It's Official: SCOTUS Overturns Roe v. Wade

[provoman]

Maybe the next abortion rights case could be an Ad Litem case, to sue a State on behalf of the unborn for failure to provide care to the living unborn.

[Tacenda]

22 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!

Pretty soon there will be a time of day, each day, where a loud speaker will go on at night and we'll be made to kneel in prayer. Half kidding.

[Meadowchik]

1 minute ago, juliann said:

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. 

Opposition to that emphasis is imo just ignorance of how it does happen, that although it is rare it can be necessary.

[Calm]

1 hour ago, smac97 said:

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.)

And why couldn’t this have been the first approach rather than the one that is “shifted into”.

[Calm]

8 minutes ago, provoman said:

Maybe the next abortion rights case could be an Ad Litem case, to sue a State on behalf of the unborn for failure to provide care to the living unborn.

That would be useful.

[juliann]

5 minutes ago, Meadowchik said:

Opposition to that emphasis is imo just ignorance of how it does happen, that although it is rare it can be necessary.

But it has happened. That, to me, is like saying it is rare for death penalty cases to suffer excruciating pain... so it doesn't need to be stopped. 

[mfbukowski]

47 minutes ago, The Nehor said:

LOL

You must live in Rightyland. Here in Disneyville, in the state of Leftyland, between Roe news and gun carry news, the protests could make the "insurrection" look like a walk in the park.

[Tacenda]

2 minutes ago, mfbukowski said:

You must live in Rightyland. Here in Disneyville, in the state of Leftyland, between Roe news and gun carry news, the protests could make the "insurrection" look like a walk in the park.

Oh, I hope not. 

[smac97]

2 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!

Justice Thomas is, I think, making a valid point.  The Federal Government was never intended to be all things to all people.  Nor was the Supreme Court intended to be an unelected super-legislature, doling out unenumerated "constitutional rights" like some sort of jurisprudential Pez dispenser.

That is not to say that Justice Thomas is opposed to "rights" pertaining to contraceptives, etc., but rather that it is not, or should not be, within the Supreme Court's purview to create them, and that the Constitution instead states that such matters "are reserved to the States respectively, or to the people."

Moreover, Justice Thomas's concurring opinion does not have the force of law, as opposed to the majority opinion, which does.  And the majority opinion states:

Quote

As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
...
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. [] But we have stated unequivocally that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Supra, at 66. We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. Therefore, a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by “appeals to a broader right to autonomy.” [] It is hard to see how we could be clearer. Moreover, even putting aside that these cases are distinguishable, there is a further point that the dissent ignores: Each precedent is subject to its own stare decisis analysis, and the factors that our doctrine instructs us to consider like reliance and workability are different for these cases than for our abortion jurisprudence.

Thanks,

-Smac

[Meadowchik]

1 hour ago, smac97 said:

Here:

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:

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

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:

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:

 

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

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

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.)

The original decision was correct. To the point, when it comes to a(nother) woman's pregnancy, it's none of our business.

This will do damage, actual and direct, but it will also defray the public trust in the government and in its promise to uphold our rights. It is a result of hardened hearts and will do further damage of hardening hearts.

This is very, very bad.

Here's an anecdote: for an entire year in the state of Texas a woman waited while the state held evidence of her husband sexually abusing her children. During that time the divorce was finalized and him given joint custody while the evidence hadn't even been looked at.

Was there political will in Texas during that time? Oh yes, it was powerful and well funded, but not in the right ways. It was being used--in part--to leverage the abortion issue for partisanship. Instead of for relieving the backlogs in courts, and cities to provide justice to women and children who needed it.

[SeekingUnderstanding]

2 minutes ago, mfbukowski said:

You must live in Rightyland. Here in Disneyville, in the state of Leftyland, between Roe news and gun carry news, the protests could make the "insurrection" look like a walk in the park.

You mean they are threatening to undermine the hallmark of any free society (the peaceful transfer of power)?

[The Nehor]

20 minutes ago, SeekingUnderstanding said:

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?

Magic 8 Ball says: “All signs point to No”

[smac97]

8 minutes ago, Calm said:

And why couldn’t this have been the first approach rather than the one that is “shifted into”.

The "first approach" has, I think, involved both fighting legal battles and persuasion, education, accommodation, etc.

The legal battles aren't over, but have instead shifted to the state legislatures and state appellate courts.  

My comment about "shift{ing}" pertained to emphasis.

Thanks,

-Smac

[SeekingUnderstanding]

2 minutes ago, smac97 said:

Justice Thomas is, I think, making a valid point.  The Federal Government was never intended to be all things to all people.  Nor was the Supreme Court intended to be an unelected super-legislature, doling out unenumerated "constitutional rights" like some sort of jurisprudential Pez dispenser.

 

And yet some the court found a right to self defense in there somewhere as well as an individual right to bear arms independent of a well regulated militia. (Both of which are brand new rights compared to the relatively established right to privacy). 

[The Nehor]

21 minutes ago, JLHPROF said:

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.

Let me tell you a fun story about the Senate and its filibuster rules before you go all in on this as a done deal.

[JLHPROF]

It's not like abortion is going away overnight.  There's a huge chunk of states where it will remain legal.
Of course, Utah is not one of them.

https://www.yahoo.com/gma/where-abortion-stands-state-state-142320027.html

[The Nehor]

19 minutes ago, Tacenda said:

Pretty soon there will be a time of day, each day, where a loud speaker will go on at night and we'll be made to kneel in prayer. Half kidding.

Surely you are not suggesting that the staunch opponents of Sharia Law would implement religious laws themselves. That would be hypocrisy of the most vile kind and I can’t see the GOP daring to do anything…….lol, nope, I could not keep a straight face.

[SeekingUnderstanding]

2 minutes ago, JLHPROF said:

It's not like abortion is going away overnight.  There's a huge chunk of states where it will remain legal.
Of course, Utah is not one of them.

https://www.yahoo.com/gma/where-abortion-stands-state-state-142320027.html

Right. This only impacts the poor and vulnerable. Rich people are always exempt. As the good Lord always says “Blessed are the rich”

Edited June 24, 2022 by SeekingUnderstanding

[The Nehor]

7 minutes ago, smac97 said:

Justice Thomas is, I think, making a valid point.  The Federal Government was never intended to be all things to all people.  Nor was the Supreme Court intended to be an unelected super-legislature, doling out unenumerated "constitutional rights" like some sort of jurisprudential Pez dispenser.

That is not to say that Justice Thomas is opposed to "rights" pertaining to contraceptives, etc., but rather that it is not, or should not be, within the Supreme Court's purview to create them, and that the Constitution instead states that such matters "are reserved to the States respectively, or to the people."

Moreover, Justice Thomas's concurring opinion does not have the force of law, as opposed to the majority opinion, which does.  And the majority opinion states:

Thanks,

-Smac

It is a little long but I guess we could fit this on the tombstone of the conservative movement.

[The Nehor]

12 minutes ago, mfbukowski said:

You must live in Rightyland. Here in Disneyville, in the state of Leftyland, between Roe news and gun carry news, the protests could make the "insurrection" look like a walk in the park.

How many legislative buildings have been stormed so far with intent to kill the lawmakers?

[JLHPROF]

1 minute ago, SeekingUnderstanding said:

Right. This only impacts the poor and vulnerable. Rich people are always exempt. 

You're going to have to try harder than that to gain my sympathy for people who willingly have sex but don't want a baby.
I have no sympathy in those situations.

Rape and incest are of course a different situation.
How about our elected representatives pass actual laws that their constituents want and quit looking for loopholes?

[smac97]

1 minute ago, Meadowchik said:

The original decision was correct. To the point, when it comes to a(nother) woman's pregnancy, it's none of our business.

First, that's not what Roe said.  To the contrary, Roe allowed for abortion to be "our business" (that is, subject to some regulation by the state).

Second, Roe was very poorly reasoned as a matter of constitutional law and theory, and in that sense was not "correct."

Third, government regulations can and do intrude into matters of bodily autonomy.

Fourth, when the issue before us imperils the life of the unborn child, it is very much our business.

1 minute ago, Meadowchik said:

This will do damage, actual and direct,

65 millions abortions can also be reasonably characterized as "damage, actual and direct."

1 minute ago, Meadowchik said:

but it will also defray the public trust in the government and in its promise to uphold our rights.

Actually, I think it may have the opposite effect.  People on your side of the debate will now probably become more assertive in addressing this issue in state legislatures.  

In other words, people like you will now have more of a voice than you did under Roe.

1 minute ago, Meadowchik said:

It is a result of hardened hearts and will do further damage of hardening hearts.

Hence my comments about how those of us who are pleased with today's decision should proceed.

1 minute ago, Meadowchik said:

This is very, very bad.

With respect, I think it is a very good development, both because it will foster the preservation of the lives of the unborn, and because it will allow "the people" to have a say in how abortion should be regulated.

Thanks,

-Smac

[smac97]

28 minutes ago, ttribe said:

False equivalency. 

I'm not the two (slavery and elective abortion) are "equivalent."  I am saying they have some characteristics in common.

I am not asserting an equivalency, but rather an analogy.  A comparison of shared traits between two otherwise dissimilar things.

Thanks,

-Smac

[rongo]

I'm most surprised that it was 6-3, and not 5-4. I wonder if the leak backfired, and instead of upending the decision, pushed Roberts over to vote with the conservatives?

[The Nehor]

1 minute ago, JLHPROF said:

You're going to have to try harder than that to gain my sympathy for people who willingly have sex but don't want a baby.
I have no sympathy in those situations.

Rape and incest are of course a different situation.
How about our elected representatives pass actual laws that their constituents want and quit looking for loopholes?

Rape and incest are not “of course a different situation” for the people behind the push to end abortion.

And of course you don’t have sympathy. They’re all sluts. The women of course. Men don’t have much to worry about.