Tuesday, May 3, 2022

Thoughts on the SCOTUS draft opinion on Roe

Last night, POLITICO reported on a draft SCOTUS opinion written in February that someone leaked. SCOTUS confirmed that it is a real draft, although they say they did not mean for it to be leaked and that they do not know who did it. SCOTUS may have already revised this draft since then or may plan to revise it, but if it were to be issued as-is, the opinion would essentially overturn Roe v. Wade.

In the discussion on Twitter, you can see people making points like this (as I paraphrase and expand upon them):

  • Justice Alito knows perfectly well that the other rights are also moral issues. (Otherwise, why mention them?) In 2020, he (along with Justice Thomas) wrote that Obergefell (the 2015 decision that guarantees the right to same-sex marriage in every state) "will continue to have ruinous consequences for religious liberty" until the court reverses its decision, as "the court has created a problem that only it can fix." Here, in the 2022 draft opinion that would overturn Roe, when he says he doesn't believe it's a moral issue at all, obviously he's dissimulating. He's giving a heads-up to everyone who will celebrate the loss of those rights and taunting everyone else who will be hurt by it.
  • U.S. Constitutional "originalism," overall, is nonsense. First, there is no reason — not a coherent one, and not a livable one — to privilege history from a couple hundred years ago as being the right and true answer to all legal questions and thereby to ignore all history that has happened since. Lots of legal ideas from our collective history were extremely terrible both in principle and in implementation. Second, for the Supreme Court to be willing to ignore all its own precedents is itself weird. It'd have to consider and decide all cases de novo, from scratch. It's making a heck of a lot more work for itself. It is not actually going to do that work. The court will claim either "originalism" or "court precedent" when it is advantageous and convenient for it to do so.
  • They have to resort to originalism because they have no proof that guaranteeing rights to traditionally minoritized/marginalized/oppressed people causes any social harm. Since they can't claim that people living their lives is demonstrably bad (because it demonstrably is not), they have to resort to the claim that the Founders wouldn't have liked it or recognized it. This is ethical deontology rather than consequentialism, and this slides conceptually into a matter of religious belief. Religiously, he believes that a human embryo must be respected as a full human person beginning at conception, perhaps even sometimes taking precedent over the life or health of the person in whose uterus it is growing. He appeals to the Founders as quasi-religious authorities who, he thinks, would have agreed with him or who at least would not have said otherwise.
  • This is connected to current attempts by conservatives to control the content in history, science, and social studies textbooks. They have certain predetermined ideas of what the answers are, and those are the answers that would have been given in the 1700s, at least as they imagine the answers would have been given then, or at least for whichever questions they choose to prioritize.
  • Conservatives have no claim to support "limited government." If they truly cared about limiting the scope of government reach and intrusion, they wouldn't be forever trying to regulate gender, sexuality, and reproduction, so let's dispense with that bogus idea.

See also: "Choosing Pragmatism Over Textualism," A method of judicial interpretation that looks only to the original meaning of legal texts risks producing a Constitution and laws that no one would want. Stephen Breyer, NY Review of Books, May 23, 2024

Also:

Per this thread by A.H. (please follow her, too, on Twitter!), these U.S. precedents are threatened:

  • Meyer v. Nebraska (1923) — protects your right to teach your kids languages other than English
  • Skinner v Oklahoma (1942) — says no one can forcibly sterilize you
  • Griswold v. Connecticut (1965) — protects married couples' right to buy contraceptives
  • Loving v. Virginia (1968) — lets you marry a person of another race
  • Stanley v. Georgia (1969) — allows you to watch porn
  • Roe v. Wade (1973) — allows you to have an abortion without excessive restriction
  • Lawrence v. Texas (2003) — struck down sodomy laws
  • Obergefell v. Hodges (2015) — lets you marry a person of the same sex/gender

Bostock v. Clayton County (2020) too? I am tossing up an idea. Right now, I don't know exactly how they'll get rid of that one, but of course they will.

Relatedly, as someone pointed out, Buck v. Bell (1927) is still around. It allows states to sterilize people who are in public institutions.

Also, the potential (and likely) SCOTUS overturning of Roe is not the sole threat, because:

And the horror is also in the future, because (prediction):

Also, FYI:

Amounts to:

In late April 2023, Alito claims to have an idea, but not proof, of who leaked the draft. Hmm.

Also, check out today's article by Jude Ellison Doyle, "We Have Entered the 'Anti-Gender' Endgame":

"There is no cavalry coming over the hill, no Hail Mary play, no impending wave of pro-choice activism that’s going to save us. There simply are not enough pro-choice justices on SCOTUS to save abortion. ... For there to be a massive feminist uprising in defense of Roe, there would need to be a functional feminist movement in the United States. There isn’t one. Since approximately 2016, a misogynist backlash has almost completely dismantled it. ... Gay marriage, gay sex, youth transition, any transition, interracial marriage, domestic partnership without marriage, abortion. contraception, or simply not being forcibly sterilized and/or detransitioned by the state — none of this is safe. None of this is “traditional.” All of it is on the line."

See this October 2021 article from the Guttmacher Institute: "26 States Are Certain or Likely to Ban Abortion Without Roe: Here’s Which Ones and Why"

See this June 2022 article from HuffPost: "These States Will Ban Abortion If Roe Is Overturned" (Subtitle: "Trigger bans, pre-Roe restrictions and fetal heartbeat laws will automatically activate in 22 states if the Supreme Court overrules Roe v. Wade.")

Josh Marshall argues in the New York Times in June 2022:

"...you can’t make an election into a referendum on an issue if you can’t point to anything winning the election would accomplish. To make the 2022 elections a referendum on Roe, Democrats have to put protecting Roe and abortion rights on the table.

Here’s one way to do that: get clear public commitments from every Senate Democrat (and candidate for Senate) not only to vote for the Roe bill in January 2023 but also to change the filibuster rules to ensure that a majority vote would actually pass the bill and send it to the White House for the president’s signature.

* * *

If my math is right and there are 48 Senate Democrats ready to make that pledge, they need two additional Democratic senators in the next Congress. And that is the party’s message that makes the 2022 midterms a referendum on Roe: 'Give us the House and two more senators, and we will make Roe law in January 2023.'"

It is important to remember (stats about anti-abortion violence, provided by this HuffPost article):

"From 1977 to 2020 in America, anti-abortion activists committed at least 11 murders, 26 attempted murders, 956 threats of harm or death, 624 stalking incidents and four kidnappings, according to data collected by the National Abortion Federation. They have bombed 42 abortion clinics, set 194 on fire, attempted to bomb or burn an additional 104 and made 667 bomb threats."

When it's illegal for someone to get an abortion pill, her husband can threaten to "report" her for the abortion and meanwhile extort sex and other services from her.

Texas Man Allegedly Used Abortion Suit To Blackmail Ex-Wife For Sex Marcus Silva apparently thought suing his ex-wife's friends would help his cause, according to a new filing. Sara Boboltz, HuffPost, Oct 4, 2023

Another HuffPost article:

"Globally, abortion rights and access have broadly expanded in the 50 years since the Supreme Court’s decision in Roe v. Wade made the practice legal in the United States. But a small number of countries have moved in the opposite direction, especially in the last decade, seeking to outlaw abortions, harden existing bans, or enacting new restrictions.

These nations ― countries like Brazil, El Salvador, Hungary, India, Nicaragua and Poland ― share one major commonality: They are almost exclusively countries that experts consider 'backsliding democracies,' in which abortion access is one of many rights under threat.

Now, the United States ― itself now widely considered a democracy in decline ― is about to join them."

Update, February 25, 2023:

"Now 45 and a federal judge, Kacsmaryk (kaz-MARE-ik) has the opportunity to impose the most far-reaching limit on abortion access since the Supreme Court overturned Roe v. Wade in June [2022].

The judge, nominated by President Trump and confirmed in 2019, will soon rule on a lawsuit seeking to revoke U.S. government approval of mifepristone, a key abortion medication. That outcome could, at least temporarily, halt over half the legal abortions carried out across the country, including in states led by Democrats where abortion rights are protected."

— "The Texas judge who could take down the abortion pill," Caroline Kitchener and Ann E. Marimow, Washington Post, February 25, 2023.

Arkansas plans to memorialize the end of legal abortion in the state (3-min listen) JANUARY 3, 2024

Update: On April 3, 2023, Florida's senate passed a 6-week abortion ban.

On April 7:

OH WAIT

Justice Samuel Alito Took Luxury Fishing Vacation With GOP Billionaire Who Later Had Cases Before the Court In the years after the undisclosed trip to Alaska, Republican megadonor Paul Singer’s hedge fund has repeatedly had business before the Supreme Court. Alito has never recused himself.
Justin Elliott, Joshua Kaplan, Alex Mierjeski. ProPublica. Jun 20, 2023

See also: "This Novel Imagines Fascism in the 1930s USA". It's a 4-minute read on Medium. Medium lets you read a certain number of stories for free every month. You may also consider a paid membership on the platform.

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