I guess it wasn’t “settled law” after all

[j44ke]

Jorn, I'm not sure your point works in the context here: The court says pretty explicitly that they want to get out of that game and push it back onto the legislative function. There's a pretty good argument that the Court stepped in it when they decided Roe in the style that a legislature would, making up the trimester tests almost out of the blue.

I agree that there are roles for the judicial, the executive and the legislative branch that exist without overlap. But I also think that there is a role for each individual branch when one or another of the branches exhibits rogue or absentee behavior. I see right of privacy and right of personal autonomy as areas where the current court wants to stand on the sidelines even as those rights are potentially being trod upon by the other branches. Extracting the court purely because it is "not my job" weakens of the overall structure of the government. I think the conservatives are potentially using the weakness of Roe as an argument for a smaller court, because the smaller court allows them convenient access to a moral agenda that is not necessarily an individual rights or constitutionally based one.

I get the aspect that abortion would in theory be best as a legislated solution, but when the result is absolute illegality (which I think is where we are headed in the next 5 years) is that correct constitutionally or a more accurately representative outcome? Will it eliminate the acrimony and division that Alito says is a product of the Court's over-reach on Roe? I doubt all of those things. I think this step-away from the center (and a center occupied by the three branches of government, not the Supreme Court as The Center) by the court creates a vacuum at that center that will not be wisely filled.

But that's my impression based on observation, not one made on any long-spent constitutional study.

[beeatnik]

I get the aspect that abortion would in theory be best as a legislated solution, but when the result is absolute illegality (which I think is where we are headed in the next 5 years) is that correct constitutionally or a more accurately representative outcome? Will it eliminate the acrimony and division that Alito says is a product of the Court's over-reach on Roe? I doubt all of those things. I think this step-away from the center (and a center occupied by the three branches of government, not the Supreme Court as The Center) by the court creates a vacuum at that center that will not be wisely filled.

But that's my impression based on observation, not one made on any long-spent constitutional study.

Missed this in May:

The Supreme Court probably wouldn’t have the votes to overturn the right to abortion in Roe v. Wade, as a leaked draft opinion proposes, if Justice Ruth Bader Ginsburg were still on the court. But Ginsburg was not a fan of the reasoning behind the 1973 ruling.

Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court. She argued that it would have been better to take a more incremental approach to legalizing abortion, rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws. She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted.

Ginsburg actually didn’t think Roe was the best case for establishing abortion rights. She would have preferred a case she worked on as a lawyer for the American Civil Liberties Union in the early 1970s.

In that case, Ginsburg represented an Air Force captain who became pregnant while serving as a nurse in Vietnam. In a twist, Ginsburg championed the woman’s right not to have an abortion; an Air Force rule at the time dictated that pregnant women had to terminate their pregnancies or be discharged.

Ginsburg challenged the rule on behalf of the woman, Susan Struck, in a case called Struck v. Secretary of Defense and won a stay preventing Struck’s discharge while the courts reviewed the case. In December 1972, two years after Struck gave birth to a baby and shortly after the Supreme Court agreed to hear the suit, the military changed the policy and let Struck remain on active duty.

The court agreed to drop the case as moot. The following month, it issued its Roe v. Wade ruling.

https://www.washingtonpost.com/histo...burg-roe-wade/

The article was linked here:

Opinion: Roe was very bad for America. The court gives us a chance to reset
Opinion by O. Carter Snead

https://www.cnn.com/2022/06/24/opini...ead/index.html

Saying the obvious again. Ginsburg shouldn't have thought of herself as immortal.

[echappist]

Opinion: Roe was very bad for America. The court gives us a chance to reset
Opinion by O. Carter Snead

https://www.cnn.com/2022/06/24/opini...ead/index.html

You effectively interjected by linking to that piece by Prof. Snead of Notre Dame, who has a quite biased view on the issue (he was employed by the GWB White House on issues re: bioethical matters). What are we supposed to take away from this piece, other than that it was a very polite victory dance, but a victory dance nonetheless? How do you believe that this aids in understanding and discourse?
And then we get this drivel from this professor to end this piece

But more importantly, we must be charitable. In particular, we owe our fellow citizens with whom we disagree the respect of listening and trying our level best to understand their arguments, the goods they hold most dear, the harms they most fear and to try to internalize their perspective. When we characterize their arguments, we must do so accurately and in their strongest form such that our interlocutors would recognize their own tone and substance in our rendition.

And we must genuinely embrace the notion that both sides have something vital to defend. Concretely, those who call themselves “pro-life” must understand that those who describe themselves as “pro-choice” are desperate to defend women’s bodily autonomy and secure their equal position in the economic and social life of our nation. And conversely, the latter advocates must acknowledge that the former are committed to the intrinsic equal dignity of every human being, born and unborn.

Once that’s out of the way, we can begin the hard work of trying to find common ground so that we can, together, care rightly for women, children (born and unborn) and families, both before and after they are born.

[echappist]

Read an article in Scientific American that got me even angrier about that. Guess one can blame my gender for not immediately picking up on this nuance but now that I've considered it I'm even angrier at the court. A woman or a couple can go into a pregnancy with the best of intentions but the pregnancy can for whatever reason develop into a high risk one. Suddenly the woman's life is now subordinate to the fetus and short of the mother going into sepsis the doctor risks state penalties or jail if he tries to do what's in the best interest of the mother. The Supreme Court and the State now make their needs paramount to the mother. This is absurd!

That's perhaps the worst aspect of this. Numerous types of genuine medical conditions that requires induced miscarriages/ medically-necessary abortions but won't see such requisite procedures performed, because doctors would be too scared to do anything to incur the wrath of the state.


This has already happened on at least two occasions in Poland, and at least on the face of Polish law, both would have been permissible (for falling under the category of mother's life in danger).

But given the severely restrictive nature of Polish law on this issue (allowing abortions only in cases of rape, incest or when the woman’s life is in danger), medical professionals, with their own self-preservation interests, appeared to have interpreted the law more restrictively than needed, thereby resulting in at least two preventable incidents of death. It matters not an iota that the hospital involved in one such incident was found to be liable: the woman's dead, and neither finding of malpractice nor compensation could change that.

And the worst part: Polish law on this issue is still less restrictive than what some states in the U.S. have in place...

[72gmc]

So conservatives argue that this intuitive or penumbral argument is against the rules of invention/interpretation by the Supreme Court. It crosses the line. The only way to build upon the original intent of the framers of the Constitution is through the legistlative branch by making laws at the state level or adding amendments to the Constitution at the federal level with the agreement of the required majority of the states.

I appreciate this wording, Jorn. It explains something I've been struggling to define.

I don't see how the originalist approach as defined by Scalia and the current justices is anything other than bad practice. By pretending to know what the framers were thinking, they hold their individual interpretations and fantasies to be equal to tangible, documented precedent. A rationale designed to allow only one way to interpret the words of the framers, and that is in the most limited way possible.

[beeatnik]

You effectively interjected by linking to that piece by Prof. Snead of Notre Dame, who has a quite biased view on the issue (he was employed by the GWB White House on issues re: bioethical matters). What are we supposed to take away from this piece, other than that it was a very polite victory dance, but a victory dance nonetheless? How do you believe that this aids in understanding and discourse?
And then we get this drivel from this professor to end this piece

You should direct those questions to the editors of CNN.com. I linked it for Jorn to further highlight the significance of a certain strain of Catholic Intellectual Tradition. As I alluded to earlier, fears of theocracy and Evangelical judicial ascendance, provide cover for a certain type of American Catholic. And as you may or not be aware to the average Evangelical an alliance with Roman Catholicism is the equivalent of a soul-destroying deal with Satan.

[echappist]

You should direct those questions to the editors of CNN.com. I linked it for Jorn to further highlight the significance of a certain strain of Catholic Intellectual Tradition. As I alluded to earlier, fears of theocracy and Evangelical judicial ascendance, provide cover for a certain type of American Catholic. And as you may or not be aware to the average Evangelical an alliance with Roman Catholicism is the equivalent of a soul-destroying deal with Satan.

Understood. Thanks for the clarification.

On its own, it just appeared that you found the ND professor’s comment to be worthy of reading.

[johnmdesigner]

Well here we go.
Let the shitshow begin...

https://www.yahoo.com/news/supreme-c...165628350.html

[COVRTDESIGN]

Well here we go.
Let the shitshow begin...

https://www.yahoo.com/news/supreme-c...165628350.html

Why the shitshow? Judge Jackson is already confirmed and ready to go. Still a shitshow court though for sure.

[echappist]

That someone wanted to propose legislation banning traveling for abortions shouldn't come as a surprise; that this cohort would want to craft such legislation using the civil litigation route should also not surprise.

But it was still a bit of a jolt to read about it, excerpts below, emphasis added (for those who want the full article, PM me).

The Thomas More Society, a conservative legal organization, is drafting model legislation for state lawmakers that would allow private citizens to sue anyone who helps a resident of a state that has banned abortion from terminating a pregnancy outside of that state. The draft language will borrow from the novel legal strategy behind a Texas abortion ban enacted last year in which private citizens were empowered to enforce the law through civil litigation.

The subject was much discussed at two national antiabortion conferences last weekend, with several lawmakers interested in introducing these kinds of bills in their own states.

The National Association of Christian Lawmakers, an antiabortion organization led by Republican state legislators, has begun working with the authors of the Texas abortion ban to explore model legislation that would restrict people from crossing state lines for abortions, said Texas state representative Tom Oliverson (R), the charter chair of the group’s national legislative council.

“Just because you jump across a state line doesn’t mean your home state doesn’t have jurisdiction,” said Peter Breen, vice president and senior counsel for the Thomas More Society. “It’s not a free abortion card when you drive across the state line.”

Also, what a bunch of scumbags this Thomas More society is. Apparently, many of its top officials are involved in the hack "2020 election probe" that the Wisconsin GOP enacted.

[Chik]

That someone wanted to propose legislation banning traveling for abortions shouldn't come as a surprise; that this cohort would want to craft such legislation using the civil litigation route should also not surprise.

But it was still a bit of a jolt to read about it, excerpts below, emphasis added (for those who want the full article, PM me).



Also, what a bunch of scumbags this Thomas More society is. Apparently, many of its top officials are involved in the hack "2020 election probe" that the Wisconsin GOP enacted.

Wow.

[Marvinlungwitz]

When they are done with Moore vs. Harper, we will likely be left with a permanently Republican federal government.

This country has become a very bizarre place, very quickly.

[robin3mj]

Anyone surprised by this hasn’t been paying attention. This is a 40-year dog chasing the car. Now that they’ve caught it all bets are off.

[fastupslowdown]

Seems the coal companies have more rights than our nation's daughters

[gregl]

Anyone surprised by this hasn’t been paying attention. This is a 40-year dog chasing the car. Now that they’ve caught it all bets are off.

IMO this goes back ever further. In the late 1950s - early 1960s, conservatives were alarmed by the growth of human rights. Specifically, civil rights and organized labor. Women’s rights came on to their radars a few years later. Money started pouring into conservative politicians. I suggest reading Dutch, Edmund Morris’s biography of Ronald Reagan. See how a Democrat union leader morphed into a conservative, Republican icon. Follow the money that propped up Reagan. It’s all about manipulation of politicians to retain right-wing money and power.

Greg

[Marvinlungwitz]

Anyone surprised by this hasn’t been paying attention. This is a 40-year dog chasing the car. Now that they’ve caught it all bets are off.

I’ve been aware of the threats, but the court reaching out to deliberately change precedent and our political structure at a such a rapid pace is unnerving.

Going back to 2016, I tried to explain to the never Hilary Clintonites I know that there really is a lesser of two evils.

[echappist]

When they are done with Moore vs. Harper, we will likely be left with a permanently Republican federal government.

This country has become a very bizarre place, very quickly.

Might not be completely GOP federal government, but certainly a near-permanent upper federal legislative chamber (not to mention various bicameral state legislative chambers).

I really hate to contemplate this (not least b/c it would mean I would likely need to give up my federal civil servant position), but the prospect of my wife and me moving up north is increasing, as my wife has Canadian citizenship as well. Might need to start looking at real estate in Windsor, ON...

[Marvinlungwitz]

Might not be completely GOP federal government, but certainly a near-permanent upper federal legislative chamber (not to mention various bicameral state legislative chambers).

I really hate to contemplate this (not least b/c it would mean I would likely need to give up my federal civil servant position), but the prospect of my wife and me moving up north is increasing, as my wife has Canadian citizenship as well. Might need to start looking at real estate in Windsor, ON...

Gerrymandering at will would be the most benign result. More malignant would be state legislatures over ruling voting results, which I’m sure PA, WI, etc., would have done in 2020 if they had had a green light from the SC.

[echappist]

Gerrymandering at will would be the most benign result. More malignant would be state legislatures over ruling voting results, which I’m sure PA, WI, etc., would have done in 2020 if they had had a green light from the SC.

s***, hadn't thought it might come to that...

[72gmc]

We are clearly on the cusp of wildly different election rules and standards from state to state.