Shot in the Dark

Roe No Mo

So we have a leak and it appears the Supremos are sending Roe v. Wade and Casey v. Planned Parenthood to the dustbin of history. A few very brief thoughts:

  • Justice Alito is right: Roe was always built on a foundation of nothing. Justice White was also correct when Roe was decided. Roe was an exercise of raw judicial power. And raw power is always used eventually.
  • And if we’re in housekeeping season, now do Wickard v. Filburn.
  • The Dobbs ruling, assuming it goes through, changes nothing in Minnesota. Abortion is legal by statute here.
  • The leak itself is awful for the Court, but it was also inevitable. There was always an incentive to break this particular taboo and the leaker will be celebrated, not punished. MSNBC will have a corner office prepared by EOB today.
  • I don’t know what Chief Justice John Roberts will do, but it’s going to be another opportunity for him to go peak weasel.
  • One unanswered question — does Dobbs apply to pregnant men?

The usual caveats about interesting times are in full effect.

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66 responses to “Roe No Mo”

  1. jdm Avatar
    jdm

    an exercise of raw judicial power in the service of a left-wing cause?

    Say it ain’t so!

  2. Joe Doakes Avatar
    Joe Doakes

    The threat of riots during the Chauvin trial was intended to terrify the members of the jury. The threat of riots during Supreme Court deliberations is intended to terrify the justicies. It’s domestic terrorism.

    That’s all Liberals have left. They can’t honestly win a debate; they can’t honestly win at the ballot box; they can’t honestly win in the court; they can only win by threatening to kill us.

    One step closer to the day when it all comes crashing down.

    Heckovajob, Sonia.

  3. Emery Avatar
    Emery

    JD: In your opinion — It is not a case about abortion as such but a case about whether and how states can pass laws to regulate and limit abortion procedures?

    Or was Roe was about the 14th Amendment and whether a right to privacy exists?

  4. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    The people who drone on and on about protecting “our democracy” are now in the position of having to defend the undemocratic Roe V Wade decision and disparage abortion law being determined by the votes of the people’s representatives.
    California says that it will work to enshrine abortion rights into its state constitution, safely removing abortion rights from the Democratic process.
    When you see the Hordes of democrats and progressives protesting the Alito opinion at the SC, remember these people are protesting people being able to vote on abortion laws.

    The suspected leaker is one Amit Jain, a clerk who works for Sotomayor. When I read about that it tugged at a recent memory. Took me a while to track it down, but a few months back Sotomayor was widely mocked when, in oral arguments, she made several statements about covid and children that were so widely off the mark that she came off as being, frankly, stupid. She exaggerated the number of children hospitalized for covid by a factor of 25 or so. Anyway, regardless of Sotomayor’s status as an ijit, this was a problem created by her clerks. It’s the job of the clerks to do the ground work and research that the justice can use to formulate relevant questions. Sotomayor was failed by her clerks.
    So, back when the SC was deciding the constitutionality of Biden’s vax mandate, I looked up the names of her clerks. Amit Jain was one of them. They were all Ivy Leaguers, all hardcore radical ideologues.
    Not surprised, after their failure to prep Sotomayor on the covid mandate case, if one of her clerks was unprofessional enough to leak Alito’s position. These are people who, despite their Ivy League credentials, believe that half of Americans are literal Nazis.

  5. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    Look at all the jokers, like Ocasio-Cortez, crowing about women’s rights today.
    Nope, it’s not a woman’s right to abortion anymore. Since Ocasio-Cortez believes that men can get pregnant and use abortion services, it’s a men’s rights issue as much as a women’s rights issue. Any man is as qualified as any woman to have his voice heard and his opinion valued on the topic.
    The progressives could not be turned from taking this path to Krazy Town, give them all the leash they want.

  6. Emery Avatar
    Emery

    This potential decision is a serious and important matter that will change rules about abortions in some places.

    That said, it would be really helpful if all readers and commenters could remember that Roe v. Wade is not a case about abortion. It is a case about the rights of the states to regulate their internal affairs.

    So in all states with modern and progressive abortion statutes, altering the decision in Roe v. Wade will make little difference to the provision of abortion services.

    It is only in states with old-fashioned and restrictive abortion statutes that altering the decision in Roe v. Wade will make a difference. In those states the legislature will be free to enact a more restrictive statute or to enforce restrictions that are already enshrined in law.

  7. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    Or was Roe was about the 14th Amendment and whether a right to privacy exists?

    The voice of ignorance is talking again.
    Emery knows full well the word “privacy” does not appear in the 14th amendment or anywhere else in the constitution.

  8. Emery Avatar
    Emery

    “In January 1973, the Supreme Court issued a 7–2 decision in McCorvey’s favor ruling that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a “right to privacy” that protects a pregnant woman’s right to choose whether to have an abortion.” ~ https://en.wikipedia.org/wiki/Philosophical_aspects_of_the_abortion_debate

  9. Emery Avatar
    Emery

    I’m old enough to remember Gorsuch and Kavanaugh saying Roe v Wade was settled law.

  10. Jay Dee Avatar
    Jay Dee

    Try this on for size. The alleged leak is a total fabrication designed to create chaos. Already several politicians have been saying this doesn’t sound like what the justices were thinking in private conversations. Wanna bet this is a psyop to stir up the Democratic base?

  11. Emery Avatar
    Emery

    I’m just not able to see the violation of court norms here as the primary issue or even one of the top five issues.

  12. Blade Nzimande Avatar
    Blade Nzimande

    Roe v. Wade is not a case about abortion. It is a case about the rights of the states to regulate their internal affairs.

    Cool. Now do the War of Northern Aggression, rAT!

  13. Blade Nzimande Avatar
    Blade Nzimande

    I’m really enjoying all these fucking rats that have been screaming about J6 trespassing and parading without a permit being an AttaCK on DeMOcrAcy! now dismissing the leak with “Fuck the SCOTUS”; “SCOTUS is irrelevant!” and, my favorite, “People are pissed off!”

    lol…fucking slobs.

  14. Blade Nzimande Avatar
    Blade Nzimande

    Degenerate, leftist thots are saying this is an attack on poor black and Hispanic women.

    OK. I’m your Huckleberry. Let’s have a carve out for them.

  15. bosshoss429 Avatar
    bosshoss429

    Just remember that Planned Parenthood was founded by a virulently racist and eugenicist Margaret Sanger. The DemoCommies have always used it as covert racism. More black babies have been murdered by PP than any other ethnic group.

  16. mjb003 Avatar
    mjb003

    My first thought was exactly what Jay Dee said-“The alleged leak is a total fabrication designed to create chaos.”

    And it will probably bring chaos for a while. My own thoughts on abortion- I don’t like it. People rambling about their rights to end a pregnancy on demand is a slap in the face to everyone trying to conceive. But, banning it won’t change the number of abortions significantly. What will is a better economy. Of course, a better economy would change a lot of the current problems in this country right now, including the leak. If the economy was good, if people had productive lives right now, there wouldn’t be an audience for the leak.

  17. bikebubba Avatar
    bikebubba

    Yes, Emery, the stated logic for Roe is that there is some “penumbra” of privacy that applies to prenatal infanticide and contraception, but somehow does not proscribe laws against sexual assault, though in a shockingly high portion of abortions, sexual assault is in play. It’s also a key concept in Obergefell v. Hodge, so if Roe falls (as it should), pop the popcorn. It will be fun to watch.

    Word has it that feminists are lining up outside the Supreme Court to get their “Handmaid” outfits. (h/t Babylon Bee)

  18. Joe Doakes Avatar
    Joe Doakes

    The problem with the privacy argument is the analysis is incomplete.

    The government has an interest in preserving human life. Okay.
    The pregnant woman has the right to privacy from government intrusion. Okay.

    But what happened to the unborn child? Doesn’t she have any rights? Why is mother’s right to privacy more important than baby’s right to life? The court doesn’t say. It side-steps that analysis by assuming the baby has no rights, same as Negros in the Old South or Jews in Nazi Germany. Since none of them have any rights, it’s okay to kill them out of hand, at any time, for any reason or no reason.

    No, E, I don’t agree that Roe v. Wade is grounded in valid concepts of privacy. It’s grounded in concepts of Nazism and Slavery, making Roe just as much an abomination as they were. Alito’s draft opinion is correct – Roe was wrong from the beginning.

  19. jdm Avatar
    jdm

    But what happened to the unborn child?

    A mere lump of cells. No rights!

  20. Emery Avatar
    Emery

    Here is the first paragraph of the judgment of the majority given by Blackmun:-

    /1. This Texas federal appeal and its Georgia companion, Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue./

    Roe v. Wade is very definitely a case about what individual states may do by their legislation to regulate or prohibit abortion.

    The Supreme Court decided that the privacy protections of the Constitution required a different approach from the one taken by the Texas statute.

    Most of the discussion in the judgment is not binding on subsequent courts because it is ‘obiter dictum’ — things said by a judge that were not necessary to the decision he made.

  21. Mr. D Avatar
    Mr. D

    The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical knowledge and techniques, and of new thinking about an old issue./

    And you can see the problem, right? “New thinking about an old issue” is a foundation of fairy dust. And one could easily argue that “advancing medical knowledge and techniques” work against Roe as well. The result? Blackmun’s current colleague on the bench is Ozymandias.

  22. Emery Avatar
    Emery

    @mr d — What a sensible, concise and accurate comment, and I’m sure the young women in America whose basic rights are being dragged through the mud are much reassured by your level-headedness.

    I’m conflicted on abortion as someone raised catholic, anti-death penalty, and who doesn’t think there’s a definitive answer on when human life begins. But I think it should be a woman’s decision. It’s tragic that the Supreme Court is taking that away.

  23. Mr. D Avatar
    Mr. D

    @mr d — What a sensible, concise and accurate comment, and I’m sure the young women in America whose basic rights are being dragged through the mud are much reassured by your level-headedness.

    The best, really the only way, to ensure abortion remains is to pass legislation and have the executive sign it into law. Court decisions based on other factors are always at risk.

  24. justplainangry Avatar
    justplainangry

    Clerk to be elevated to sainthood and anointed to a judgeship in three… two… one…

  25. Joe Doakes Avatar
    Joe Doakes

    There’s nothing mysterious about the biology and theology doesn’t enter into it at all. It’s the lawyers who mucked up the analysis.

    Life already exists in the gametes, the sperm and the egg. If they were dead, they couldn’t combine to produce life. Only life can produce more life.

    Human life exists when the gametes unite to create a zygote containing 23 chromosome pairs. It’s a very small human life – just one cell – but it contains all the necessary genetic information to grow into an adult human.

    The right to government protection of that human life exists when the law says it does. At present, the law says a person convicted of the death penalty loses the right to government protection of his life, and an unborn child has not yet gained that right. Even that definition has been stretched by the partial-birth abortion cases: a baby fully born except for one small patch of the top of the skull, can be killed by the abortion provider with impunity. If the child is not fully born, the child is not yet entitled to government protection of its right to life.

    The only way to claim abortion is purely a woman’s choice is to claim the baby should have no more rights than a Negro slave or a Jew in Nazi Germany.

    Go ahead then, defend that claim. Tell us why.

  26. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    I’ve always thought that the “unjust burden” and “bodily autonomy” arguments in favor of abortion crash on the rocks of child support. In most jurisdictions, a woman, by making the choice to carry a baby to term and keep it, burdens the father of the child with paying the mother 25% of his income for 18 years.
    The woman is not just making the decision for herself, she is making it for the father as well. His bodily autonomy and his unjust burden are not considered at all.

  27. Joe Doakes Avatar
    Joe Doakes

    So where in the Constitution does it say an unborn baby should be treated as a Negro slave in the Old South or a Jew in Nazi Germany? Where in the Declaration of Independence, in the Federalist papers, in the deliberations of the Founders drawing up the Constitution do we find support for that analysis?

    We don’t. Abortion rights weren’t covered because abortion was so obviously not a federal issue that it never occured to the Founders to mention it. And not being mentioned means it’s covered by the Ninth and Tenth Amendments as a proper subject for regulation by the states.

    Once you realize the debate is not biology (when does human life begin) and is not privacy (government versus mother) but is policy (when should government start protecting that life), then the debate moves out of the academy, out of the courtroom, and into the legislatures of the several states.

    Overturning Roe will not end the abortion debate, it will send the debate back where it belongs, to the people’s elected representatives. That’s a good thing.

  28. bikebubba Avatar
    bikebubba

    @mr d — What a sensible, concise and accurate comment, and I’m sure the young women in America whose basic rights are being dragged through the mud are much reassured by your level-headedness.

    “What a sensible, concise and accurate comment, and I’m sure the slaveowners in America whose basic rights are being dragged through the mud are much reassured by your level-headedness.”

    FIFY. Seriously, what you’re doing is assuming that prenatal infanticide is a basic right, which is something that Christians of all ages would generally dispute. Really, even if one did not adhere to faith, a good look at the demographics of abortion–predominantly used to hide the evidence of fornication and irresponsibility and significantly used to hide the evidence of statutory or forcible rape–ought to temper our enthusiasm for its legality.

    It certainly ought to make us very concerned that abortion clinics have generally refused to file legally required reports of sexual assault when minors come there, don’t you think?

  29. Mr. D Avatar
    Mr. D

    Overturning Roe will not end the abortion debate, it will send the debate back where it belongs, to the people’s elected representatives. That’s a good thing.

    This. I have always believed that, absent the intervention of Blackmun &co, we would have reached a general consensus on abortion during the 1970s. It would have remained a contentious issue, but we would have avoided a lot of ugliness and heartache.

  30. Emery Avatar
    Emery

    Who is a person, what is liberty, and what is the role of the court? If you are pro-choice, you believe that it is ultimately the mother that chooses, that they are the person, and they have the liberty to choose. If you are pro-life, you say at the moment of fertilization you have a new person, and they get to choose (and since they can’t tell you, you have to protect them). There is no easy way to reconcile these views.

    The ultimately problem with Roe v Wade is that the court played the role of an arbitrator and tried to “solve” this tension by finding a middle ground (abortion allowed until a certain point). That may not hold up well to constitutional scrutiny, but a lot of key pieces of legal precedent don’t really stand up to a literal reading of the constitution. Ultimately the court probably recognized that both women and the fetus have rights, and tried to achieve a balance. Maybe the solution wasn’t great, but the alternative was to find 100% for mothers or the fetuses, in which case you greatly infringe on the rights of one or the other. So I think they made a choice, and don’t really buy into that argument that the court was clearly overreaching. That is easy to say with hindsight, and it is notable that what Alito calls “egregiously wrong from the start” has stood to almost 50 years of challenges! That says something powerful. Maybe it isn’t constitutionally pure, but maybe it is better than any alternative that has been presented.

    And that is the problem here. What is being held up as the alternative? This Mississippi law is a sham law designed purely to undermine Roe v Wade. It will be immediately superceded by other laws that will massively roll back women’s rights, including through so-called trigger laws. The Supreme Court surely knows this law has no other purpose than to undermine a long held precedent. It should not hear these kinds of cases.

    Ultimately, this Supreme Court is attempting to hide behind a pure interpretation of the constitution (so-called “textualism”), but in reality they are being more political the the court back in 1973. They are purposely allowing themselves to succumb to obviously insincere legal games in order to upend a 50 year precedent. That is another bad precedent, and a sad day for the US.

  31. Joe Doakes Avatar
    Joe Doakes

    Look for abortion advocates to drag out all the old tropes again:

    Giving a clump of cells more rights than the mother, is inequitable.
    Different states will have different rules which is inequitable.
    People in strict states won’t have the same freedom as loose states, inequitably.
    Pregnant women who can’t afford abortion tourism will suffer, inequitably.
    Victims of rape and incest will suffer, inequitably.
    Children born into poverty will suffer, inequitably.
    Black women will suffer most of all, inequitably.
    People who can’t afford contraceptives will suffer, inequitably.

    Yes, yes, it’s all very unfair except . . . when you find yourself arguing on the same side as slave owners and Nazis, maybe it’s time to wonder: am I on the wrong side?

  32. Joe Doakes Avatar
    Joe Doakes

    Huh. Moderation. Try again:

    Look for abortion advocates to drag out all the old tropes again:

    Giving a clump of cells more rights than the mother, is inequitable.
    Different states will have different rules which is inequitable.
    People in strict states won’t have the same freedom as loose states, inequitably.
    Pregnant women who can’t afford abortion tourism will suffer, inequitably.
    Victims of [substitute sex crimes] will suffer, inequitably.
    Children born into poverty will suffer, inequitably.
    Black women will suffer most of all, inequitably.
    People who can’t afford contraceptives will suffer, inequitably.

    Yes, yes, it’s all very unfair except . . . when you find yourself arguing on the same side as slave owners and [substitute WW II Germans], maybe it’s time to wonder: am I on the wrong side?

  33. justplainangry Avatar
    justplainangry

    malthusians hardest hit… watch for Gates and Soros to step up funding for usual suspects.

  34. jimf Avatar
    jimf

    As I saw over at Instapundit- Progressives have given away their 2 favorite to go to responses on abortion.
    “My body, my choice” rings pretty hollow after Vax mandates
    “It’s a women’s issue” is tough if there’s no definition of a woman.

  35. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    I see that Ann Althouse is pushing the “undue burden” argument. Althouse is completely unreliable on this topic, she throws reason out the window when it comes to abortion.
    I think the problem is that, rationally considered, all emotion aside, pro-choice people believe that the essential identity of women is that they may choose to conceive and bring a child to birth, while the truth is that they are the only human beings capable of conceiving a child and bringing it to birth. What, other than being able to conceive and carry a child, differentiates women from men? As the Left reminds us, there are an awful lot of men who are capable of imitating all of the external appearances of being female.
    But they can’t produce children. Nope. Never. Can’t happen.
    There are a lot of edge cases and circumstantial cases to consider, but the truth of the matter is that nature, or God, has designed women to do this thing. If you can’t differentiate between women and men, how can you differentiate between black men and white men?

  36. Emery Avatar
    Emery

    Moderation is lit 🔥

  37. jdm Avatar
    jdm

    When the Mobius Loop collapses
    Progressives have given away their two favorite go to responses on abortion.

    “My body my choice” rings pretty hollow after Vax mandates.

    “It’s a women’s issue” is tough if there’s no definition of woman.

  38. Joe Doakes Avatar
    Joe Doakes

    “Ultimately the court probably recognized that both women and the fetus have rights, and tried to achieve a balance.”

    I do not believe that’s correct, E. I believe the court struck a balance between the woman’s right to privacy and the government’s power to protect human life. But it never addressed the rights of the unborn child. The unborn child has no rights, until birth is complete.

    Unless I’m mistaken? Perhaps you can point me to a passage in the opinion that proves otherwise?

  39. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    John Yoo thinks that the leak is part of an effort to politicize the court. Yoo does not name who is behind this, but it’s obviously the Democrats. They have punched far above their weight in gaining control of the federal government’s institutions.

  40. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    I read the leaked opinion — well, I read the first six pages, the rest is basically foot notes. Alito is the presumed author of the first 6 pages.
    I don’t see anything about the current court taking any position on the sanctity of life or the rights of women (excuse me, “birthing people”).
    What I see is Alito criticizing Roe as a failed attempt to use the SC to settle a political issue, and Casey as a failed attempt to update and rationalize Roe by invoking the 14th amendment.
    It will be interesting to read the dissenting opinions, especially how they counter (or don’t) Alito’s points.

  41. Emery Avatar
    Emery

    ^ How do you know it wasn’t leaked by a conservative? There’s plenty of reasons for them to have done so, and the fact that Republicans all had their talking points on this ready is suspicious.

    The more likely cause of the leak are;
    1) ensuring wavering conservative justices like Kavenaguh are forced to vote for the change.
    2) laying down the ground work for the change

  42. TKS Avatar
    TKS

    The talking points are pretty well established on both sides.

    Nothing suspicious about the pre-printed protest signs at the SC though right?

  43. Emery Avatar
    Emery

    I don’t know who leaked the draft, and like I said before, it’s not in the top five most important issues about the decision. I suspect before long we’ll know, and until then, I find “the other side did it because their values are terrible” to be dull. Rights matter more.

  44. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    Your reasoning is specious, Emery.
    It would be an incredible gamble, considering the anti-abortion side held the high ground. You don’t gamble that away. OTOH, if you have the low ground, what do you have to lose?
    I will note that the leak was not of a digital document, but of a photographed or photocopied printed document. The leaker was doing what he or she had to do to hide his or her tracks.
    I think that the leaker will be discovered. At the moment, all of the justices must view their own clerks with suspicion. Not good.

  45. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    I would say that it is, in fact, the most important thing about the decision. The decision is not final, the leak attacks the authority and decision making process of the court and the leak came from within the court itself. The leak will affect how every case is deliberated going forward, since the justices know that one of their number or one of their clerks is willing to undermine the court to alter the outcome of a case.

  46. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    FYI, I can’t find ANY attack from the left on the leaker. Nothing. All the criticism of the leaker is coming from the right.

  47. Emery Avatar
    Emery

    The leak is the least of the SCOTUS’ problems.
    Justice Roberts gets to act indignant because of the breach of etiquette, instead of answering questions on how he justifies his court overturning settled law. How convenient for him.

  48. bikebubba Avatar
    bikebubba

    Emery, the genius of the U.S. Constitutional system is precisely that bad precedent can be overturned on the basis of higher precedent and the Constitution. That’s what’s going on here.

    Think about it a moment; the logic behind Roe is that states cannot decide that certain decisions related to sexuality cannot be proscribed by the states or federal government because they are inherently “private.” Now apart from the fact that the word “privacy” does not appear in the Constitution, ask yourself why this would apply to abortion and not, say, sexual assault in its various forms.

    Since you’ve always got at least two people involved in an abortion, it’s not as different as you might think, and hence, Constitutionally and logically speaking, it’s a mess. Thank God that precedent (e.g. “Dred Scott” and the like) is not a kind of “magisterium” that forms legal tradition that can never be contradicted.

  49. Emery Avatar
    Emery

    The foundation of our democracy is protective rights that prevent the government from abusing its power, e.g. imposing the religious beliefs of one group on another. A major function of the courts, and particularly SCOTUS, is to protect these rights, both enumerated and non-enumerated as provided by the ninth amendment. Stop pretending that Roe was somehow out of scope for SCOTUS just because you don’t agree with it.

  50. Mammuthus Primigenesis Avatar
    Mammuthus Primigenesis

    ^^ This is incoherent. In a democracy, there is no reason why the 51% of protestants shouldn’t impose their religion on the 49% who are Catholic. It is specifically non-democratic means that protect the rights of minorities.

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