Roe v Wade has been overturned. How do you feel about that?

[Frelga]

Ohio GOP lawmakers introduce Texas-style abortion ban bil

And here goes Ohio.

[Voronwë the Faithful]

I listened to some of the argument today. It seemed very clear that it will come down to what Roberts and Kavanaugh do. I would guess that they will uphold Mississippi's 15 week law and all put reverse Roe altogether, while giving lip service to not doing so.

[N.E. Brigand]

Senator Susan Collins of Maine, who cited private assurances from Brett Kavanaugh that he believed Roe v. Wade was settled law as part of her justification for voting for him, today suggested that she would support a federal law for abortion rights.

That's meaningless unless she also supports overriding the filibuster to do so.

[Voronwë the Faithful]

https://www.campaignforanewbillofrights.org/

[N.E. Brigand]

"How many divisions has John Roberts?"

(That's where I fear we may be headed.)

[N.E. Brigand]

Democrats definitely deserve some blame for letting things get to this point. For example, many have pointed to Ruth Bader Ginsburg's refusal to retire in 2014, when Barack Obama could have nominated her successor for confirmation by the Democratic-controlled Senate.

But also, as a candidate in 2008, Barack Obama said that signing the Freedom of Choice Act would be "the first thing I'd do as president."

The Freedom of Choice Act would have made it "the policy of the United States that every woman has the fundamental right to choose to bear a child; terminate a pregnancy prior to fetal viability; or terminate a pregnancy after viability when necessary to protect her life or her health" and would have "prohibit[ed] a federal, state, or local governmental entity from denying or interfering with a woman's right to exercise such choices; or discriminating against the exercise of those rights in the regulation or provision of benefits, facilities, services, or information."

The bill died in committee after President Obama said in 2009 that passing it was not his "highest legislative priority." Democrats had control of both houses of Congress, but only a filibuster-proof majority in the Senate for five months during his first two years in office. To be fair, when Obama said he'd push the Choice Act through first, the U.S. wasn't yet reeling from the Great Recession. And he did manage to see other important initiatives accomplished, notably including the Affordable Care Act, but even that took a fair bit of wrangling of centrist Democrats.

There was also a fair bit of complacency in media figures who claimed to support abortion rights but made some bad choices. Democratic Senator Mark Udall of Colorado lost to Republican challenger Cory Gardner in the 2014 election. The Denver Post endorsed Gardner in an editorial that said that "contrary to Udall's tedious refrain, Gardner's election would pose no threat to abortion rights."

That's the election in which Mitch McConnell and the Republicans took control of the Senate. And Gardner voted to confirm all three Trump nominees to the Supreme Court: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

[River]

I admit I didn't pay much attention to the Udall/Gardner campaign. I read later that Udall did a bad job which is why we ended up with Gardner...who we booted six years later. My vote for Udall was pretty much a lock for a lot of reasons, but the biggest one was this: Gardner was the CO-4 House Rep when Ted Cruz shut down the government in 2013. At that time, the chunk of Colorado north of Westminster and between the Front Range and the Platte River was still reeling from the flooding a month prior. Longmont, a city in Gardner's district, was literally cut in half when the St. Vrain Creek spilled its banks. Boulder got completely cut off from the rest of the world. The mountain communities had a choice: helicopter evacuation or an undefined period of isolation due to road washouts. I will never forget watching the National Guard choppers flying in after the rain stopped. We know someone who chose to stay put and spent a couple months unable to drive away from his home. We know another couple that also chose to stay, correctly gambling that their road into Boulder would be one of the first restored. And then afterwards, it was moldy drywall city everywhere. FEMA rolled in and FEMA was still there when Ted Cruz had his performative tantrum.

And what did Gardner do, while his district and the district next door were still a sodden messes and his constituents were in hotels because their homes were unlivable or gone? He supported the shutdown. He was and is a complete hack. Anyone who thought otherwise was kidding themselves.

[N.E. Brigand]

Buffy Wicks, a California state assemblywoman, tells the story of a lifesaving emergency medical procedure she underwent two months ago that would probably not be available to a woman suffering the same condition in Texas. After home treatments suggested by her doctor over the phone failed to stop painful cramping and heavy bleeding, "My healthcare provider was able to get me into the doctor that morning. After an examination, ultrasound & pregnancy test, she told me 'You’re pregnant. You’re miscarrying. And you need a D&C (an emergency abortion procedure) now.'" To be clear, she didn't even know she was pregnant, learning that in the same moment she learned the pregnancy needed to be terminated immediately.

Strictly speaking, that procedure is not banned by Texas's laws, but as a practical matter, it would be very hard to obtain. As Wicks points out, pro-life legal arguments rarely content with this question Justice Sonia Sotomayor asked yesterday: "When does the life of a woman ... putting her life at risk ... when does that enter the calculus?"

[Túrin Turambar]

Democrats definitely deserve some blame for letting things get to this point. For example, many have pointed to Ruth Bader Ginsburg's refusal to retire in 2014, when Barack Obama could have nominated her successor for confirmation by the Democratic-controlled Senate.

This is without doubt one of the darkest ironies of the current state of affairs. Justice Ginsburg was one of the strongest supporters of Roe on the Supreme Court, yet a decision she made (not to retire under President Obama) may very well lead directly to its end.

The Democrats have certainly been victims of bad luck (three court vacancies in one presidential term) and the weighting the Senate gives to small rural red-leaning states, and I actually suspect it would have come to a showdown over Roe sooner or later, but it's unfortunate for them it's come sooner.

[N.E. Brigand]

The Democrats have certainly been victims of bad luck (three court vacancies in one presidential term) and the weighting the Senate gives to small rural red-leaning states, and I actually suspect it would have come to a showdown over Roe sooner or later, but it's unfortunate for them it's come sooner.

Two, not three.

Antonin Scalia died with ten months left in Barack Obama's presidency.

[elengil]

https://www.nytimes.com/2021/12/09/us/t ... ional.html

HOUSTON — A state district court judge in Texas ruled on Thursday that the unique enforcement scheme of a restrictive abortion law violated the State Constitution by allowing any private citizen to sue abortion providers or others accused of breaking the law.

In a 48-page opinion, Judge David Peeples found that the approach, which had been seen by anti-abortion groups as its greatest strength, unconstitutionally granted standing to those who were not injured, denied due process and represented an “unlawful delegation of enforcement power to a private person.”

[N.E. Brigand]

The Supreme Court issued an 8-1 ruling today allowing some but not all challenges to the Texas abortion law to proceed, but the law itself remains in effect (unless a lower court now issues a stay): the Court ruled that abortion providers can sue certain Texas officials but not others. Only Clarence Thomas would have blocked all challenges to the law.

Legal journalists indicate that the ruling, which split four different ways on different aspects of the suit, reads more like a 5-4 split in favor of the Texas law, but that wasn't actually under consideration here. In other words, it bodes ill for abortion rights. Observers are citing this from Chief Justice Roberts (joined by Justices Breyer, Sotomayor, and Kagan) as a key passage:

"The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake."

And remember, Roberts is a solid conservative who likely would outlaw abortion if he could.

[Voronwë the Faithful]

From Chief Justice Roberts, in his opinion (which was joined by the three moderate justices) concurring in the opinion to the extent that it allowed the challenge to proceed, but dissenting to the extent that ruled that some officials could not be sued:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

I have been opposed to the idea of adding additional justices to the court, and I'm still not convinced that is the right solution, but something needs to be done.

[Voronwë the Faithful]

From Justice Sotomayor's separate opinion:

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the
right to “veto” or “nullif[y]” any federal law with which they disagreed. ... The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished. They experienced a revival in the post-war South, and the violence that ensued led Congress to enact Rev. Stat. §1979, 42 U. S. C. §1983. “Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.”
¶¶
In its finest moments, this Court has ensured that constitutional rights “can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes . . . whether attempted ‘ingeniously or ingenuously.’” Cooper v. Aaron, 358 U. S. 1, 17 (1958) (quoting Smith v. Texas, 311 U. S. 128, 132 (1940)). Today’s fractured Court evinces no such courage. While the Court properly holds that this suit may proceed against the licensing officials, it errs gravely in foreclosing relief against state-court officials and the state attorney general. By so doing, the Court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our Constitution and our Republic.

[N.E. Brigand]

To put it bluntly: my opinion is that the anti-abortion movement is effectively pro-rape.

Also if the Court does overturn Roe, the Biden administration should issue an executive order overruling the Court's decision. And when the Court rules to overturn that order, just issue a new order overruling the previous ruling. Keep it going until they give up.

That's what the Buchanan administration should have done when Dred Scot was decided. That's what the McKinley administration should have done when Plessy v. Ferguson was decided. Sure Andrew Jackson was in the wrong when he did it, but he won the argument, didn't he? And nobody's ever undone what he did. Stop pussyfooting around and just get the constitutional crisis over with. It does society no good if women have to wait 50 years for justice. Justice delayed is justice denied.

[N.E. Brigand]

Yes, I do know the next Republican president could then issue executive orders to undo what Biden did.

But abortion rights have the support of a majority of Americans.

[RoseMorninStar]

For many years I presumed Republicans truly didn't want Roe overturned/it was bluster because it has been such a good talking point to rally voters. I wonder, if Roe is overturned, if that will result in a shift in the electorate or if the culture wars have gone so far they no longer need the abortion card in a way that they used to.

[N.E. Brigand]

Jill Stein voters:



(source)

[Túrin Turambar]

For many years I presumed Republicans truly didn't want Roe overturned/it was bluster because it has been such a good talking point to rally voters. I wonder, if Roe is overturned, if that will result in a shift in the electorate or if the culture wars have gone so far they no longer need the abortion card in a way that they used to.

I was wondering the same thing this morning. In the end, I think that Republicans will simply replace "overturn Roe v Wade" with "protect (whatever the name of this case will end up being)". And on the flipside, it will Democrats pushing to overturn the case as a get-out-the-vote effort. So I don't think too much will change.

(Assuming the leaked judgement is accurate and all, I've got no idea)

[N.E. Brigand]

I like Elie Mystal's four suggested lawsuits here:



(It's so weird that you never see American conservatives complain about abortion being legal in Israel.)





But while I'm predisposed to believe that all four hypothetical suits would be right on the merits, Mystal is also smart enough to acknowledge in that thread that the Court's conservatives don't care about the merits. There's no "one weird trick" to get SCOTUS to step back from theocracy.

Also a problem with any such lawsuit is that by the time it would be decided, the plaintiff would have been forced to give birth and it would be dismissed as moot.

Personally I think the conservative Supreme Court justices in the third example, if they ruled against the woman, would be accessories to rape and should be prosecuted as such. (Just like the Courts in Dred Scott and Plessy were violating the rights of millions of African Americans and should have been held liable for what they did. No judicial supremacy! Down with Marbury v. Madison!) Someone talk me down from my extreme but correct position. Tell me why we should pretend that this isn't true for the sake of decorum. Yes, I'm really steamed.

(Mystal had a sharp quip back in January when today's apparent news seemed only hypothetical to many: "I want the Supreme Court has said the government doesn't have the authority to make people wear a mask when it later says it *does* have the right to force women to give birth against their will.")

So what actually must happen is this: Democrats must vote in overwhelming numbers this fall, hold the House, and increase their Senate majority by at least two. Then they should pass a law codifying the protections of Roe.

Mystal does have one short-term proposal Democrats ought to take in the meantime: "Biden should send federal abortion providers to the states."

Just do it, Joe.