Tuesday, May 03, 2022

What Is Actually In the Upcoming SCOTUS Ruling to Overturn Roe

I'm not a legal scholar, merely a political history amateur, so I should refer to others will legal backgrounds have their say on what they've noticed in the leaked rough draft.

Here's Paul Campos at Lawyers Guns and Money giving his two cents

(2) The hypocrisy of the Furious Five in regard to the issue of democratic legitimacy is something to behold. The overwhelming majority of the public supports legal abortion in most circumstances — to the Great Unwashed the question of whether Roe should have been overruled and the question of whether abortion should be legal is of course the same question — but in a few weeks abortion is going to be illegal in much of the United States because it’s a Republic Not a Democracy. What that means in practice is that a distinct minority of religious fanatics, white supremacists, and super fans of the patriarchy (but I repeat myself) will get to make abortion illegal, despite an overwhelming national consensus against doing so, because our political system is set up to empower those people far beyond what power they would have in anything resembling an actual democracy...

(3) Speaking of which, the most emetic portions of Alito’s little Schoolhouse Rock sermon were the bits where he claimed that the Dobbs majority was taking no position on the substantive question of whether or not abortion should be legal. Sure Sammy. So when the radically anti-democratic [see (2) above] GOP trifecta makes abortion illegal across the entire nation in three years or so, you’ll be striking that anti-federalist overreach down, right? Oh I thinks not...

Here's Ian Millhiser at Vox to give some understanding:

1) This is a maximalist opinion

For many years, largely as a bid to convince the relatively moderate conservative Justice Anthony Kennedy to permit as many abortion restrictions as possible, many abortion opponents did not explicitly ask the Supreme Court to overrule Roe. Instead, they urged the Court to uphold restrictions that would make it so difficult or expensive to operate an abortion clinic that facilities in anti-abortion states would simply shut down.

But Kennedy is no longer on the Court. And Jackson already achieved the goal of permitting states to shut down abortion clinics by imposing such severe costs on those clinics that they could not remain open. There’s only one more frontier left for abortion opponents to cross: a Supreme Court decision explicitly overruling Roe. And Alito’s opinion skips gleefully across that frontier.

“Roe was egregiously wrong from the start,” Alito claims in the draft opinion, which holds “that Roe and Casey must be overruled...”

4) If Alito prevails, abortion will swiftly be illegal in at least 18 states

At least 18 states currently have total or near-total abortion bans on the books. Some of these laws were enacted before Roe was decided, while others were enacted more recently. Some of these laws contain narrow exceptions to protect individuals who need an abortion to save their life or to avoid a permanent disability, but not all contain exceptions for non-life-threatening medical conditions. Some of these bans will also forbid abortion even when a pregnancy results from rape...

If Roe is overruled, many of these laws will take effect immediately. Others will take effect days, weeks, or perhaps a month after Roe is overruled. But, by the end of the summer, it is likely they will be in full effect...

Here's Mary Ziegler at The Atlantic (paywalled):

Something fundamental about the Supreme Court has changed in recent months. It is not simply that the Court has a conservative supermajority, although that is true enough. What is really striking is just how emboldened that conservative supermajority is—how willing to take on a number of deeply divisive culture-war issues; how blasé about making major decisions via the Court’s shadow docket; how open to making rapid, profound changes to long-standing precedent. Last night, when Politico released a leaked February draft of an opinion by Justice Samuel Alito that would reverse Roe v. Wade, the landmark decision recognizing the right to choose abortion, the public got its most arresting taste thus far of just what this conservative bloc could do...

...The draft claims that the justices cannot predict the consequences of their actions and, even if such a prediction were possible, shouldn’t care what the public thinks anyway. The job of the Supreme Court, Alito suggests in the draft, is to say what the law is, not to care about what the people think, much less what the people think the Constitution means...

That the conservative majority could make such an argument—that it could believe such an idea—is a product of America’s grievous polarization. This majority knows that it will be celebrated by the conservative legal movement and the leaders of the Republican Party...

But even so, the speed with which this conservative majority is moving to reverse Roe is astonishing. The Court did not have to take this case—the lower courts had not split on the constitutionality of 15-week bans. The anti-abortion-rights movement had not invested much in such laws, which did not make for an especially strong case against abortion rights. The conservative majority is not going to sit around and wait; nothing about this seems particularly hard for these justices. No soul-searching was required.

This is the kind of draft that comes from that sense of certainty. It suggests that there can be no right to abortion because states were criminalizing abortion when the relevant constitutional provision, the Fourteenth Amendment, was ratified. Though the draft stresses that other precedents are not on the chopping block, it’s unclear why that would be: The same logic applies to same-sex intimacy and contraception, which were being outlawed at roughly the same time.

The draft concludes that this issue should be decided by voters, not justices, but—and this is subtle but quite significant—it also distinguishes abortion from other rights the Court has protected by stressing the value of fetal life. If this language is in the final opinion, it will be read by anti-abortion-rights leaders as an invitation to return to the Court and ask the conservative justices to hold that the Constitution recognizes the personhood of the fetus—and that abortion is unconstitutional in blue as well as red states. If the Court goes that route, the issue will be far, far out of the hands of voters in all states for a very long time to come...

In short: America is going backwards, the Republican minority control of our nation is going to make things worse, and the only recourse is for a supermajority of American voters even in the Red states to rise up and kick Republican officials out of elected office before it's too late.

GET THE GODDAMNED VOTE OUT, AMERICA. AND FOR THE LOVE OF GOD STOP VOTING REPUBLICAN.


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