Good morning. At 10am the Supreme Court will hear argument on whether the Constitution protects a right to certain abortions.
You can listen live at the Court's website. —>https://t.co/dXBdCAxqyt pic.twitter.com/CMm4C9DK1z
— Gabriel Malor (@gabrielmalor) December 1, 2021
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One hopes Counsel pointed him to the preamble to the Declaration of Independence, where liberty is declared an inalienable Right endowed by the Creator . . . .Report
Hey, I think that there are a *TON* of rights that emanate from various penumbras.
It’s just that nobody else does. Privacy? We’ve got an established compelling interest. Liberty? We’ve got an established compelling interest. Autonomy? We’ve got an established compelling interest.Report
I don’t agree that THE document founding our nation, which declares the liberty is an inalienable right, is just a compelling interest. Before they created the Constitution to tell us how the nation’s government was going to work, they wrote the Declaration to tell us why.Report
Don’t tell me! Tell the government!Report
“How” trumps “why”.Report
I’d also point out one of the underlying problems.
I look at the emanations from the penumbras and see a whole bunch of rights based on such things as privacy, liberty, and autonomy.
But watch this: “Does a law-abiding adult citizen have a right to own an AR-15?”
I don’t necessarily need your answer to this question. I just need you to acknowledge that there is a powerful school of thought out there that says “of course not, there’s nothing in the Constitution that says that any given person can own an assault rifle!”
This isn’t about whether or not people are allowed by the Constitution to own guns, of course. Just about looking at the Constitution and seeing what’s alienable. I mean, if you can see how someone might interpret the Constitution to say “no, citizens can own stuff like an AR-15”, that’s great. But the issue isn’t about looking at the Constitution and seeing whether there’s room for it to allow stuff. It’s about looking at it and not seeing the penumbra, let alone the emanation.Report
I think the decision will be a plurality mess. Lots of liberal commentators think it will be a 5-4 overturn of Roe with ABC writing. This would put Roberts in dissent with the liberals. The trillion dollar question is whether anyone will come out and write that they think abortion violates the 14th amendment.
I think there needs to be a “the court made its decision, now let them enforce it” statement in case of a nationwide ban. Grumbling institutionalism will not suffice against such action.Report
I bet money a nationwide ban is fast tracked through the Congress the first day they get the trifecta.Report
I’d take the other side of that bet. The GOP politicians don’t give a damn about abortion and the day they pass a ban is the day they’ll be washed out of power. Also they would never, ever, be able to pass it without 60 votes and the GOP hasn’t had 60 Senate votes in forever. They would never blow up the filibuster to pass an abortion ban. They like abortion right where it is.Report
I think this bit of pundit wisdom has been proven manifestly wrong but like buts if pundit saavy never dies. I don’t get the idea that it is best to appear blase above all else. Alarm should be sounded before “too late.” But the desire not to be called “chicken little” is too strong.Report
Heh, you think the GOP will kill the filibuster and open the way for a bare Democratic Majority+1 to pass any kinds of legislation they want (including electoral reform or *gasp*tax increases) over abortion? You and Chip have far more of a romantic view of the GOP than I do Saul me lad.Report
Yes. I think McConnell would like it a minute. Or whoever the next GOP Senate majority is. When people tell you are, believe them.Report
If the wily old turtle shuffles off to retirement or dies then I’d have to reappraise. But Mitch, evil as he is, is not an idiot- would that he were.Report
https://www.npr.org/2017/04/06/522847700/senate-pulls-nuclear-trigger-to-ease-gorsuch-confirmation
Again, it should not take “too late” before someone revises their view.Report
None of which was surpising. The Dems pushed back on Mitches blockage of judges during Obama’s term by threatening to reduce the filibusters salience to judges just as the GOP had threatened the Dems previously under Bush. Unlike the Dems under bush, the GOP continued blockading and so the Dems (correctly in my view) eliminated the filibuster for non-Supreme court judges. At that point everyone and their dog knew that the filibuster for Supreme Court Judges would go out the window the moment it actually presented an impediment.
The filibuster is a huge advantage to the right. The only thing they genuinely care about (tax cut service for their plutocratic pay masters) can be done via reconciliation. Everything else faces a 60 vote threshold in the Senate. Axing the filibuster for abortion assumes a GOP more devoted to pro-life principles than I think actually exists in reality.
Though, again, if Mitch is out of the picture then it depends on who the new GOP leader is. If it’s one of the loons then who the hell knows what they’ll do.Report
Washed out, how?
Seriously, game it out for us.
When Trump takes office in 2025, and signs the bill presented by Speaker Boebert and Majority Leader McConnell, and the law is challenged and upheld with Comey Barret writing for the majority, what happens then?
B-but, the 2026 midterms!
Held in districts rigged by Republicans? Certified by Republican secretaries of state handpicked by Trumpists? Challenges ruled on by Federalist Society hacks?
Amid the deafening roar of the vast Fox/ OAN/ Sinclair media network?
We’ve already seen how in places they control, the Democrats need to win in a 60% wave, merely to get 50%.
Once the Republicans take a state, they do whatever they can to make sure it can never happen again.
Sorry, the game is becoming progressively rigged.Report
But you don’t understand Chip, the most important thing always is never to sound alarmed.Report
This is why I keep talking about how normal and pleasant life under authoritarianism is, because most liberals like to imagine some science fiction scenario, with the smug belief that it is impossible.
But life under a Trumpian regime would be pretty much just like American 1920 or so, where a certain class and race enjoyed freedom, while the other classes and races were oppressed.
Or even Russia and China 2021, where for the vast majority of people there, life is pretty normal.
When we point out that elections in countries like Venezuela or Honduras are rigged, everyone nods their head without argument, but to suggest that such a thing could happen here gets angry denial, like there is some magic bubble covering the USA shielding us from the human condition.Report
The Republicans aren’t going to resist the ability to go for the full policy desires of the Evangeliban enforced federally. This is mainly because the inmates are running the asylum these days and the number of moderate Republicans that can hold the bay are next to nothing. It will be bad for many of the people the Republicans need it not to be bad for .Report
Agreed they’re trying to rig the game. But a national abortion ban? That’s one heck of a wave of angry voters for them to try and rig their way around.
And, again, you seem to think they would nuke the filibuster, Mitch McConnell’s beloved filibuster, over abortion? Seriously??Report
Imagine if Chip visited you in 2015, and described the events of Jan 6 to you, where a mob of Republicans broke into the Capitol and very nearly murdered the Speaker of the House, and for a few moments, the Vice President was seriously considering overthrowing a free election.
And that, not only did the voters not rise up in fury and boot the Republicans from power, but will in all likelihood reward them with all the branches of power.
Would you have “taken the other side of that bet”?
P.S. Notice how no one batted an eye at the notion of “Speaker Boebert”? An idea which only a few years ago would be a laughable hypothetical seems now like a reasonable possibility.Report
Nope, I wouldn’t have. Jan. 6th didn’t feel particularly surprising to me.
Now saying the GOP would endanger their tax cuts and future electoral prospects for abortion? Like I said, you assume they have far more principles than I do.
As to Speaker Boebert? Of course I wouldn’t bat an eye. Look at how lil Ryan and Boehner before him fared. It’s getting to the point where only a loon would WANT to be speaker for a GOP majority.Report
If there wasn’t a backlash to the near overthrow of democracy why would the actual overthrow of democracy be different?
I mean if President Trumps handpicked Georgia Sec of State find backlash votes running 60% against the GOP what stops him from tossing out just enough “fraudulent” ballots to block the backlash?Report
“Near overthrow” is a little exaggerated for the Jan 6 mess isn’t it? It was serious and an incredible breach of norms but it didn’t come “near” to overthrowing the election. It’s also not very germane to the question of abortion. On the question of abortion I’m asserting that the GOP will chose power and short term benefit over principles, as they typically do. You are the one claiming they care so much about abortion they’ll risk all their plutocratic fanservice for it? I think that assumes a GOP not very much in evidence and am genuinely impressed that you think so much more of them than I do.Report
Is there anything in the world which can rise your level of concern from yawning blase?Report
All kinds of things, none of which are connected, sorry, to your constant state of frenetic panic.Report
North,
The best case scenario of a decision is still very bad for tens of millions of women across the United States.Report
We have about 850k abortions a year.
Maybe a third of the states (by population) will get heavy into abortion restriction.
Presumably about two thirds of that will still be able to drive over state lines.
Presumably about two thirds of the remaining will have the fiscal resources to fly (plane ticket plus hotel is cheap).
Those are all WAGs but we’re talking about 30k women a year. All of them will be poor.
We’ll have really heartbreaking cases, but we’re in tens of thousands and not tens of millions. If the pro-choice wants to fund transportation across state lines then that could drop to hundreds.Report
$1k x 30k people is $30 million dollars. That’s cheap air ticket.
Of course it would be MUCH cheaper to just mail them a home abortion drug. That we could do for $50 a person, so $1.5 million.
This is why I don’t expect serious political consequences. Technology and information have increased a lot since before Roe. People will adapt.Report
Tell me you know nothing about human reproduction without saying you know nothing about human reproduction.Report
Don’t some of these laws threaten legal punishment on anyone who helps anyone get an abortion?Report
Ignoring that they’re probably not enforced; I expect it’s hard for a state to put legal punishment if that person has never entered the state and the activity is legal where they are.
That’s over and above the problem that the much more “guilty” party is the woman.Report
And what if a state makes it illegal to help transport someone over state lines to receive an abortion?Report
It was done before Roe. The number of people convicted was zero.
We’re in “impossible to enforce” territory for multiple reasons.Report
There is a constitutional right to travel between the states. I’d think it would be tough for such a law to withstand scrutiny.Report
Good point. But we also shouldn’t act like everyone can just cross a state’s line. Let’s say Florida outlaws it. How many states would someone have to go through to find one where it was legal? Maybe North Carolina? Virginia? Maryland?Report
Priceline says Round Trip flight from South Florida (FLL) to New York (NYC) is $85. Leave one week from today and get back the next day.
That was with less than a minute’s worth of searching but presumably Priceline does a good job at “cheap”.
Not sure how many states that is.Report
I’m imagining this logic applied to all the other Constitutional rights.Report
Society uses “ongoing consent” in every other medical situation and we’ve also outlawed slavery. There was room to get it right and make it logically consistent, that logical consistency would have made it a lot stronger because bright lines would have been drawn.
Roe’s central flaw was it said the gov has the “right” to meddle in pregnancy. That it “has an interest” in a woman’s physical autonomy after a certain point. That we can force her to function as a slave to her fetus.
Since then we’ve just been fighting over where the gov’s ability begins and ends.
Bad logic results in bad outcomes.Report
The Constitution also holds that the government can ban certain type of weapons.
Also a terrible logic, since one can plainly see where this leads.Report
The underlying government “interest” in 7-9 month pregnant women is what exactly?
In reality, late term Abortion is the stuff of medical horror cases. Dead baby and/or threatening the life of the mother.
Letting politicians step in and virtue signal by passing laws which insist this situation can’t exist and the woman and her doctor just don’t understand ethics helps society how?
Get rid of that carve out and we have abortion on demand. That’s the logic which Roe flinched away from, and since then we’ve just talking about how much of the camel to let into the tent.
Why exactly is forcing a woman to use her organs to support a life different from forcing anyone else to do the same thing? Because we’re not sure if a fetus is human/alive/sentient?Report
Just making up statistics is not a particularly good way to make an argument, even in the comments section of some random blog.
I recommend talking to an abortion fund. The number of people who need help funding abortions where they already live exceeds your numbers by a significant amount. The number of people who would need funding to travel across state (or here in Texas, also international) borders will be (already is, in some cases) staggering. More often than not, they’ll simply not have the abortion they want or need.Report
What if the Georgia SoS or Arizona SoS had complied with Trumps demand?
What if Mike Pence had chosen differently?Report
How?
In what way?Report
If he had thrown out just enough ballots in a handful of counties the current SCOTUS would have been replaying Bush V Gore, with Trump as the incumbent.
And you’ve heard of the Eastman memo?
These people are telling you exactly how they plan to block any vote they don’t like.
Please listen to them.Report
Uh yeah, in that scenario they’d have precipitated a constitutional crisis and ended up with President Pelosi.
And, again, this is all entirely irrelevant to the question of abortion which we were discussing.Report
It’s not though. One of the reasons we are here on Roe is that the Congress has never actually taken up legislation either to protect or toss (and no, Susan Collins is not serious about it this time either – she’s just pissed she got played by Kavanaugh).
Republicans know deep in their souls that a federal abortion ban would get a bunch of them run out of power, and Democrats know that a federal law protecting abortion – even limited abortion – would push too many people to republicans, so we’ve been at a stalemate.
But now, on the cusp of what they think is permanent minority Republican rule, the rump state party members have gotten strict laws passed to force SCOTUS hand. They are setting the table for a Republican Congress to finally ban abortion once they control it permanently and to leverage what they think is control of the states to keep the ban going once litigation starts. They have played the long game – again – and believe they have run the table on Democrats on this one. Thus, if they have to try again to run the coup and use Eastman’s ideas to cement that power grab, they will.
This is, historically, how democracies fall.Report
Mmmhmm and, as we were discussing before this particular non-sequitur came up, I was dubious the GOP would axe the filibuster to pass a national abortion ban because their politicians don’t care strongly about abortion whereas they do care strongly about the advantages the filibuster gives them. Instead of addressing this the conversation veered off into a ditch about January 6th.Report
Why in the world would the Democrats oppose the Supreme Court overturning Roe?
This is a once-in-a-lifetime fundraising opportunity!Report
well Democrats seem to work harder at actually serving their constituents.Report
If I tried to dissuade you of that, what might you be willing to look at as evidence?Report
I never said it was a top priority. I’m well aware of Obama’s record. I criticized it regularly on my own blog.
My statement stands however – Republicans have spent a lot of time recently grandstanding against and voting against Democratic bills that they are now crowing about back home because of all the money their constituents are getting. Roe, until very recently, has bene the same thing.Report
I took “Speaker Boebert” as sarcasm. Or parody. Or some such. Too many oldsters in the Republican Caucus won’t vote a clearly incompetent still-newbie into the Speaker’s seat.Report
Do I have to complain every time someone states an absurd scenario? Have I not said “Chip doesn’t understand Republicans” enough? I didn’t bat an eye at *you* making that prediction, Chip. not at the prediction itself.Report
You and I are both old enough to remember when Republicans wore pins saying “Speaker of the House Gingrich” as a shocking troll stunt because it was so obviously crazy.
(1992 for the young’uns).Report
Boebert makes Gingrich look like the deep thinker he claimed/claims to be. Boebert finished her GED shortly before her first primary election, has never run a committee, has never had a leadership position. Gingrich was a prof of history and geography well before he entered politics, and bright/smooth enough to work his way up through leadership — six years as whip and four more as leader of the conference.Report
Surely, the party that worships Donald Trump would never be so crazy as to elevate a non-politician to high office!Report
Trump was elevated by voters in primaries and the general. For the House, Boebert has to be elevated by all of the highly-educated fake rubes. Hawley: Stanford and Yale. Marjorie Taylor Greene: inherited wealth and U of Georgia. Jim Jordan: MA, BA, and JD. Paul Gosar: BS and DDS from Creighton, a reasonably well-regarded Jesuit school.
They are not going to install Boebert in a position where she can actually tell them what to do.Report
Surely, the Congressmen who voted overwhelmingly to block the impeachment of Donald Trump and who stood in solidarity with Paul Gosar, would never elevate someone like Lauren Boebert to a high rank!Report
As with your last scenario that would prove all your claims (the Ohio senate race), let’s watch for the results, and afterwards we can discuss them, see which of us is right, what it says about the country, et cetera.Report
Assuming Justice Thomas is sincere in his jurisprudence I think he’d also vote to hold a federal ban unconstitutional. But I think North is right. The most aggressive outcome would be to send the issue back to the states. I think even that is unlikely.Report
I don’t. It relieves them of the need to actually deal with the Texas law . . . .Report
The way a “ban” plays out in the states is anyone with resources can avoid it. Home abortion kit.
Drive across state lines. Plane ticket if you really need to go that far. That’s EXTREMELY different from a national ban where we pretend to get serious.Report
There won’t be a nationwide ban. I do think there’s a decent possibility of some indecipherable plurality opinion though. Something like Thomas, Alito, and (Gorsuch or Comey) vote to overturn, Roberts, Kavanaugh and (Gorsuch or Comey) have some middling Casey-esque splitting of the unborn fetus, Sotomayor, Breyer, Kagan write stare decisis in size 800 font followed by a long lament that the court even heard this.Report
I assume they will claim to leave Roe in place but also leave in place the state law preventing abortion.Report
Best guess is there will be no nationwide ban. The anti abortion supremes will cloak any ban like thing in smoke to make it seem like there is no ban. They will leave a lot to states to minimize fights and let the red states do what they want but not poke a hornets nest in other states. It will be a semi ban to let the red run states go buck wild.
So my marker is down. Good betting advice is to assume i will be wrong but ymmv and put a few bucks down for me.Report
I think you are probably right and so is InMD but this is also not the time for a milquetoast response because of knee jerk institutionalism and stating “we don’t like the decision of the court but…”
Democracy needs and faith in institutions to survive. But sometimes democrats are too knee jerk defensive of it and Breyer is deluded in his belief that the Supremes are non-political. A knee jerk defense of institutions and institutional decisions need to be followed as long as procedure is proper. That turns deference to institutions into sleep walking to authoritarianism.Report
I agree the pro choice side needs to react strongly. Especially since the “ban” is going to be shrouded in bs to protect it. I doiubt any ban like decision will really work the way they hope it will. Any major change will piss enough people off to create a strong reaction even if the voters ( whose voice is muffled by gerrymandering etc) may seem to support it. Any decision strong enough to make the anti Ab side feel like they won will be enough to sway a significant % of people. Even moving 5% of voters can cause a wave election.Report
I don’t have any special window into the Supreme’s minds… but I can say that the 14th Amendment talk has gotten louder…. so here’s my gut:
14th Amendment: Thomas* / Alito
Penumbra isn’t the basis for a sound legal regime: Comey/Kavanaugh(?)
Shhhh we can make this go away at 16-20 weeks: Gorsuch/Kavanaugh(!)/Roberts(?) **
Plurality allows for broader definition of state interests, viability, and restrictions landing somewhere between 16-20 weeks…. law already has provisions for Rape/Incest and Health of Mother (source: Guttmacher).
Nothing changes in any practical way.
* assuming Thomas doesn’t want to revisit all the amendments on the day the decision is settled.
** Roberts defects if it’s anything more than 16-20 weeks.Report
Definitely not going to be a nationwide ban. Obviously the liberals wouldn’t support it and the institutionalist party folk conservatives know it’d flambé the GOP like a marshmallow in a volcano if abortion was banned nationally so they wouldn’t support it either. It’s gonna be a muddle.
My bet is the nibble and chew around the whole thing so red states can back door ban but claim they’re not while fluttering their eyelashes disingenuously. The true believer constituency on the Supreme court isn’t big enough to make some light brigade charge at blue state abortions.Report
It would be the end of the institution’s legitimacy. I don’t believe they’re as hackneyed as Saul does but even if they were I assume they would understand ending their power is not in their interest.Report
Yeah, Roberts at least understands what a ban would mean for his party and his court. He’s going to fight like heck over that. Also, reading the discussion going on in the court right now it reads like the conservatives are talking about ending Roe, not inverting it.
The state of play currently appears to be:
Liberals: Defending Roe
Conservatives: Planning on ending Roe (and going out of their way to signal that ending Roe won’t impact other things like gay rights or contraception)
Roberts: Trying to peddle a case for keeping Roe in a watered down form but not finding any takers.Report
Justice Sotomayor said as much today at oral argument.Report
Would those be the same institutionalist GOP party folk who *checks notes* blocked Donald Trump from becoming President?
The sobering truth that Americans need to grasp is that Paul Gosar and Marjorie Taylor Green ARE the GOP institution.
Jan 6 and the ensuing machinations to overthrow the state level electoral systems shows that the GOP, as an institution, has stopped caring about elections.
2024 will be “One man, One vote. One Last Time.”Report
Odd, I don’t recall the Supreme Court ever weighing in on Trumps nomination.
The institutionalists of the GOP, outside the court, faced a grim choice when Trump cinched the nomination- finagle some when to jettison him and accept that they’d lose the Presidential Election in a route or accept him and make a go of it. They chose the latter.
Institutionalists on the court currently seem to be considering two options: Inverting Roe into a national ban and accepting the massive electoral backlash that’d invite or overturning Roe and making a run of it on states rights/federalists grounds. It is again obvious which one would offer the best yield for the GOP electorally and I think they’ll again choose the latter.
I’m surprised you disagree Chip. I’m saying the GOP institutionalists will choose power and short term gain over principle any day of the week and twice on Fridays. You think otherwise?Report
There’s an interesting article running about the intertubes claiming that the GOP might as well make MTG Spoeaker since she has shown way more backbone the McCarthy.Report
She fights, but does she pick the right battles?
She quips, which is what the GOP seems to really want, but does she have the organizational skills needed to not just run but effectively control a complex body of willful and independent actors like the House of Representatives? Hell, as popular as she might be with the base, does she really command enough respect from her peers to manage her own caucus?Report
She’s cowed McCarthy, what, six or seven time since she hit the Hill? That’s certainly one form of control, and were she given the gavel I’m also sure she’d be happy to scorch the earth in the caucus in ways McCarthy is not yet comfortable doing. And whether she rules by fear or respect, she will definitely rule. Like a lot of moderates trying to play at Trumpian extremism, McCarthy isn’t really psychologically or mentally equipped to handle her.
Granted she’s no McConnell, but McCarthy won’t be able to get a speakership if she objects because she will wrangle enough Trump acolytes in the caucus to vote against him.Report
I put my marker down:
https://twitter.com/burtlikko/status/1466156741033291779?s=20Report
Yeah, that seems about right.
It leaves everybody pissed off. Roe “overturned” but not in any real sense of the term. Abortion will still be legal but they move from this arbitrary line to that one. People will feel like abortion has been banned but it hasn’t. And the people who will have wanted it banned will feel like nothing of note was actually done.Report
When Breyer dies during a GOP administration, we’ll have a 7-2 Federnalist Court. They’ll overturn the 17th, make gun ownership mandatory, and move the abortion limit back to *14* weeks.Report
Oh, please. They’ll find tax hikes unconstitutional and find another half dozen qualified immunity categories.Report
I also concur that it is a plurality decisionReport
Sure. We disagree on how he’ll actually rule as to the Mississippi law in immediate issue, but it’s pretty clear Roberts is going to insist that he didn’t vote to overrule anything and, if possible, to insist that nothing was actually overruled.
Kick the can. Kick it good. Ki-ki-kick it REAL GOOD!Report
Roberts would love to write a majority decision that somehow upholds the Mississippi law while also explicitly stating Roe and Casey stand. He is not going to get that.Report
He’s also looking to use this as an excuse to dismiss the Texas law a moot . . . .Report
Kick the can. Kick it good. Ki-ki-kick it REAL GOOD!
Surprising how little he’s been able to do that. Kennedy forced his hand on same-sex marriage, on regulation of greenhouse gases, and on ballot initiatives taking fundamental authority from state legislative bodies. Given fundamental changes in health insurance structure, it appears (to me, at least) that the best he did was kick the Medicaid expansion down the road, but in such a way that even the reactionary states will eventually opt for the federal bribes.
This looks to be the term where the new majority of justices that are farther right-wing than Roberts are going to block kicking the can. The things teed up: allowing states to ban abortion, unlimited gun ownership, and not just rolling back climate change regulation but massive rollback of the regulatory state in general. Hoist on his own petard is my take — he totally misread the outcomes of gutting the VRA, and how quickly they would bite.Report
Seems to be a thing though that Congressional and state Republicans are counting on, in as much as that misreading has granted them a ton of leeway to try and cement their minority rule plans.Report
Has Thomas said that this is the first time he’s ever discussed Roe?Report
I don’t know, TBQH. He doesn’t speak much outside of FedSoc and similar events; he speaks very little (greater than zero, though, and more in the Zoom arguments) during oral argument.Report
I’ve started not being surprised when transcripts include him.Report
The Zoom limits on interruptions, carried over to the in-person sessions now, seem to confirm what he has often said in the past: he didn’t ask questions during oral arguments because he didn’t want to be interrupted.Report
The logical outcome of the bodily autonomy line of questioning is woman being held for the duration of their pregnancy to prevent any activities harmful to the zygote/embryo/fetus. But I don’t see that getting more than three votes.Report
Roe would have been a wonderful law. All very compromisey with the state getting to step in, if it wants, after X weeks, and really getting to step in after Y.
Trying to claim X weeks was found in the Constitution is a bit much. We’re deep into Philosopher King territory.
The Court could, and imho should, have simply said humans are never allowed to involuntarily do what a fetus is doing to the woman and the condition is akin to slavery.
That leads to abortion on demand, but the Court didn’t want to eliminate the States ability to meddle. So now we have this “how much meddling is allowed” absurdity.Report
Also, the point of Roe is to overturn state bans. If the Court stops using it for that, it’s gone without being formally overturned.Report
true, though that SHOULD call into question a LOT of federal law making and SCOTUS ruling by Congress, since aside from the Privacy issue, and the 14th Amendment conundrum, a state by state decision means you have commerce clause issues.Report
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I’ll give him the first three but the other two . . . not so much.Report
An opportunity for a jack move:
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Wouldn’t work. If Dobbs goes the way most people think it will, states will be able to impose whatever restrictions they damn please, or as few. If a bunch of states impose restrictive laws, the residents can’t just “ignore” them and get abortions. They can’t “ignore” state laws the Supremes have said the states could pass.
To be fair to Cooper, “ignoring” might work in a case where the Court is telling some government it can’t do something that it wants to do — like mandate vaccination requirements — and that’s mainly what he has in mind. But it won’t work when the Court is telling some government it can’t be stopped from doing what it wantsReport
Where it will get interesting will be when people ignore the laws by going over state lines, and those states respond by passing laws saying you’re not allowed to leave the state for this purpose.
We’re DEEP into “trying to control other people’s actions” with 60% of the country not willing obey. And that 60% is even in theory, a lot of that 40% are probably also not willing to obey.Report
Look at Texas – they have in-state bounty hunting for abortions these days, and its written to sanction not the woman seeking the abortion, but the people who help her. So in theory if she catches the plane to NY as you suggest up thread the aircrew and airline could be sued. And for the moment the Texas law is operable while SCOTUS sorts Dobbs. If they really do throw it to the states I expect ALEC will have the Texas statute as a model at the ready.
Which is all the more reason Congress needs to actually legislate n this because its fast becoming an interstate commerce regulation issue aside form its enormous privacy and liberty implications.Report
The Texas law can be used as a model for all sorts of bad ideas.
It will be thrown out after Roe is ended.Report
By the way, it should be clear that Obergefell is next.Report
Slippery slope!
This is actually something that is fairly measurable. Given how gay marriage polls, it strikes me as not likely to give a decent ROI. As such, I don’t see Obergefell being next. (But, yeah, this is measurable.)
CRT/bad DEI? Big gains are possible.Report
I think chances of reversal on Obergefell are low. At the very least you’d have to feel good that you could get Gorsuch to alter certain arguments about the nature of sex that he accepted in Bostock.
The CRT/DEI stuff is ripe for CRA lawsuits and they’re already starting. My guess is there’s eventually going to be an ongoing flow of successful lawsuits against it that the prestige media mostly ignores, similarly to how it is/was with the Title IX campus rape kangaroo courts.Report
That poll is a linear line going up and it’s not done. 70% support is already pretty close to “wrath of god” from a political point of view. 10 more years and we could see 90%.
No one is going to touch this one. The churches will change to accept gays and that will be that.Report
Most Americans favor the availability of first-trimester abortions. It doesn’t matter.Report
Most Pro-Choice Americans aren’t willing to vote on this. A silly number of Pro-Life Americans are.
The number of anti-gay Americans who are willing to vote on that is extremely small, much smaller than the number of gay Americans.Report
The Mississippi law being challenged sets the line at 15 weeks…Report
If Roe is overturned, other states can set it shorter, e.g. Texas at six.Report
CRT, the fake issue being used to justify book burning?
https://www.washingtonpost.com/politics/2021/11/10/i-think-we-should-throw-those-books-fire-movement-builds-right-target-books/Report
Yes. I think that CRT/bad DEI will be challenged at the SCotUS before gay marriage will be. (Indeed, I think that gay marriage won’t be.)
This is measurable.Report
The test case will be a school district banning a biography about Justice Thurgood Marshall.
Clarence Thomas will write the majority opinion that there is no Constitutional right to denigrate American history. A new test will be devised, where “fighting words” exception to the 1st Amendment will be expanded to include causing discomfort to real Americans.Report