Saturday, June 25, 2022

What would SCOTUS do with a fetal personhood case?

See: An earlier post on this blog about evangelicals praying with the U.S. President

To read the decision that overturned Roe v. Wade: "The Dobbs v. Jackson Decision, Annotated" (New York Times)

Earlier in 2022, the Dobbs decision was leaked to the press. The Supreme Court's internal investigation of the matter announced in January 2023 that it failed to identify who had leaked it. Robert Reich, on his Jan 20, 2023 Substack post, speculated that it was Justice Samuel Alito:

"First, it’s unlikely any of the justices was interviewed. The report said all witnesses were told they could be dismissed if they refused to answer questions. That’s a dead giveaway: Supreme Court justices cannot be dismissed from their jobs.

Second, Alito had a motive for leaking. He wrote the draft in Dobbs and got four other justices to tentatively sign on. He presumably wanted to lock them in. Leaking the draft was a way to do so.

Third, Alito is already under suspicion for leaking another draft Court opinion that he authored [Hobby Lobby], which marked another triumph for the religious right."

How the US compares to the rest of the world on abortion (CNN)

What comes next?

Mary Papenfuss, "Rachel Maddow Predicts 'Fetal Personhood' SCOTUS Case Will End Abortion Nationwide", HuffPost, June 25, 2022:

“A fetal personhood case ... would give this court a path to not just let individual states ban abortion, which is what they did today. ... A fetal personhood case could be their vehicle to impose a nationwide ban on abortion, on the order of the United States Supreme Court,” she said.

* * *

“The conservatives have the power on this court, and they will now wield it however they want, to achieve whatever outcomes they want, to change the country however they want without restriction — and you must do what they say,” she warned.

Maddow told viewers to begin watching for new cases that will challenge the rights Justice Clarence Thomas has already warned will be next on the chopping block: same-sex marriage and birth control.

“Watch for a county clerk somewhere to refuse a license to a couple trying to get married,” she said. “Watch for somebody who works at a health facility somewhere to refuse to process a prescription or an order for contraception. ... Watch for Texas or another Republican-controlled state to bring back its sodomy law.”

“For them, the dam has burst,” she said of the justices.

“What do you see in their behavior that would give you any reason to believe that they see a reason to stop?”

Also by Mary Papenfuss, please see "Decision Destroying Roe Threatens Legal Right To Interracial Marriage, Experts Warn," HuffPost, June 24, 2022:

Supreme Court Justice Clarence Thomas suggested Friday in a solo concurring opinion that the court should reexamine other rights protected under the due process clause of the 14th Amendment.

“We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.”

Thomas sidestepped the Loving case, which, if overturned as Roe was, could threaten his own interracial marriage. That doesn’t mean other justices wouldn’t toss out protections, despite any protestations they might make. Some of the justices had previously claimed they believed that Roe v. Wade was settled law.

Mary Ziegler wrote for the New York Times on June 24, 2022: "The fight to undo Roe, then, has been a fight to remake our country — and it has succeeded. That fight seems even more ominous when one looks around the globe: Other countries that have recently undone abortion rights are backsliding democracies." ("Roe’s Death Will Change American Democracy")

Since most of the country supports abortion access, this may hurt Republicans in the November 2022 midterm elections. "Trump Privately 'Sh**ting' On Roe Reversal, Fearing GOP, Midterm Backlash: Report," Mary Papenfuss, HuffPost, June 25, 2022:

GOP strategist John Thomas also moaned to Politico about the Roe ruling: “This is a losing issue for Republicans.”

This is “not a conversation we want to have,” he added. “We want to have a conversation about the economy. We want to have a conversation about Joe Biden, about pretty much anything else besides Roe.”

It’s like the “dog that caught the car,” quipped Sarah Longwell, a GOP strategist who became a supporter of Biden in 2020. While battling abortion is good for campaigns, ending abortion rights loses voters.

In Texas, for example, residents are unhappy with the state's ban on abortion ("Texans are seeing what a post-Roe world looks like. The GOP may regret it," Jennifer Rubin, Washington Post, July 7, 2022):

"If forced-birth activists thought this situation would be popular, they have greatly miscalculated. A new University of Texas/Texas Politics Project Poll finds only 37 percent of the state’s residents support the new law; 54 percent oppose it. Contrary to the new law, the poll reports, only 8 percent and 13 percent of Texas voters would ban access to abortion in the cases of rape and incest, respectively."

"Constitutional protection of unborn children as equal 'persons' under the law remains the movement’s ultimate — if elusive — goal," writes Erika Bachiochi, a conservative legal scholar who supported the overturning of Roe v. Wade, in an opinion for the New York Times on July 1, 2022.

Update: On 11 Oct 2022, SCOTUS declined without comment to take up a fetal personhood case.

In El Salvador, women have faced harsh punishments for miscarriages.

After Amari Marsh had a miscarriage, South Carolina prosecutors jailed her without bond, charged her with murder/homicide by child abuse, and threatened her with life imprisonment. The criminalization of pregnancy loss in red states after Dobbs: www.cnn.com/2024/09/23/h...

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— Mark Joseph Stern (@mjsdc.bsky.social) September 23, 2024 at 11:40 AM

"The next Republican president could effectively ban most abortions through a simple policy change at the Department of Justice, experts and advocates on both sides of the abortion debate say. ... At issue is the meaning of the 1873 Comstock Act... A Justice Department memo issued last year contends that the law doesn't prohibit mailing abortion drugs when the sender expects them to be used lawfully. A new administration could easily change that interpretation, experts say, and not just restrict patients from receiving pills at home — but also stop pharmacies and health care providers from getting shipments." — How the next Republican president could stop most abortions without Congress, Caitlin Owens, Axios, November 15, 2023

Images for 2024: New Year, New Fight: The year ahead in the ongoing battle for reproductive freedom. Aubrey Hirsch. The Audacity. January 26, 2024

"Arizona Republicans Refuse To Even Consider Basic Birth Control Protections": "Not once have any of my bills been heard in committee or reached the floor,” one of the bills' authors said. Lydia O'Connor,Mar 14, 2024

Abortions outside medical system increased sharply after Roe fell, study finds: Researchers report that volunteer-led networks distributing abortion pills helped drive a rise in ‘self-managed’ abortions. Caroline Kitchener and N. Kirkpatrick, Washington Post, March 25, 2024

"More recently, the Alabama Supreme Court’s ruling to take IVF away from families put this procedure used by millions of Americans to have children every year at risk. There have been bills introduced in over a dozen other states and at the federal level that would ban IVF." — press release from the office of Michigan Gov. Gretchen Whitmer, April 1, 2024

How to Keep Your Abortion Private in 2024, Tom Read

The GOP really knows how to motivate women to have children. Sterilization rates have doubled since the Dobbs decision. kffhealthnews.org/news/article...

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— Bethany Doolin (@bethanydoolin.bsky.social) Aug 10, 2024 at 6:14 PM

I don’t care that it’s old news, I don’t care that his supporters don’t care, I don’t care that this is just how he talks. A presidential candidate saying that people should go to jail for their opinions about his political allies should be a five-alarm fire in the discourse.

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— Jon Green (@jongreen.bsky.social) September 24, 2024 at 5:34 AM

For as long as he’s been around people who fashion themselves savvy have kept saying we should take Trump seriously but not literally. The longer this goes on the more I think that’s an excuse to not take him seriously either.

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— Jon Green (@jongreen.bsky.social) September 24, 2024 at 5:39 AM

Donald Trump assails judge and his daughter after gag order in New York hush-money criminal case, Michael R. Sisak, AP, March 27, 2024

eerie greenish photo of a woman
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