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.

66 thoughts on “Roe No Mo

  1. The decision that Alito wrote makes no sense. It is full of contradictions and Orwellian doublespeak. It makes a mockery of any legal principle and destroys the standing and reputation of the court.

    There are many implied rights in many court rulings, although the Roe v Wade ruling is narrowly wobbly, the overall notion of the right to choose in a situation of highly personal impact and moral judgement is more than sound, it is the very essence and axis of liberty v authoritarian domination.

    The spirit of the Constitution is the government should not stick its nose into people’s lives without a larger societal interest and even then that interest must be well beyond ideological fiats. This is the basis for the prohibition against respecting a religion, or for free speech, freedom of assembly, or limits on searches and seizures. It underpins Miranda rights. On and on.

    I do not even need to be a lawyer to understand that the text is incomprehensible gibberish, based on the personal political opinions of these conservative justices, without any basis in law or the constitution.

  2. Serious question, E: have you read Alito’s opinion?

    I have, twice now, and I’m impressed. He goes point by point through every argument you’ve raised here and explained why every one of them is not only historically wrong and lacking in legal basis, but also explains why Roe is bad Constitutional law on a par with Plessy and Lochner, two massively wrong cases that both were properly overturned by later courts.

    Why do people on the Right have their talking points in order? Because I’ve been arguing with Liberals over Roe since I was in high school. I’ve heard every argument and refuted them all, many times. After 50 years of rehearsal, it’s not hard to present an organized analysis. I’ve been doing it most of my life.

    The wikipedia articles and news columns from which you’re drawing your talking points are opinion pieces, not Alito’s opinion itself. Try studying the source material for a change.

  3. Try studying the source material for a change.

    C’mon JD, surely you do not believe trollbots are capable of independent thought?

  4. Wow, just wow… C’mon JD, this puts a nail in the “studying the source material for a change” coffin once and for all.

    After leftists and the corporate media freaked out about people using ivermectin, which they reduced to a “horse dewormer,” as a potential Covid-19 treatment, those same people are advising women to get horse drugs from veterinarians to facilitate do-it-yourself chemical abortions as the United States Supreme Court moves to overturn Roe v. Wade. “With the Supreme Court poised to overturn the constitutional right to abortion, an anarchist collective that makes DIY medicine has released detailed instructions for making abortion pills,” VICE tweeted.

  5. The most dangerous part of the draft is Alito’s reasoning that the Constitution does not address abortioin.

    There are lots of Rights not addressed in the Constitution. Contraception, interracial marriage, gay marriage, Miranda warnings to name 4.

    Young people might not believe this but prior to Griswold v Comnecticutt in 1963 states could and did ban contraception.

    Prior to Loving v Virginia states could and did ban interracial marriage.

    This is an explosive example of so-called originalist thinking.

  6. Probably not, JPA, except we know there are lots of SITD readers who don’t nitpick every detail as I do, but instead take in the debate to quietly ponder the points for themselves. I think it’s important for lies to be rebutted, so people aren’t led astray and maybe even can use some of my analyses in their own discussions. Maybe that’s grandiose – maybe I’m just a argumentative SOB at heart – but it helps if I can pretend I’m providing a public service.

    It’s important to remember that “when does life begin” is not a new question. The words “fetus” and “abortion” came to English from Latin. The issue been debated for millennia, literally, going back to Roman times from whence comes much of our legal code, for example:

    When you write a Last Will and Testament leaving everything to your ‘children,’ does that include an unborn child who existed in the womb before you died but was born after you died? Does that clump of cells have a right to inherit?

    If you place a restrictive covenant on your land, the Rule Against Perpetuities says it can last no longer than 21 years after the end of any ‘life in being.’ Is an unborn child a life? Does that clump of cells extend the restriction a few more months?

    When the Constitution was written, what did the Founders believe the law to be and what rights were they trying to protect? Was it murder to kill someone else’s baby in the womb? To kill your own baby in the womb?

    Justice Alito’s opinion cites historical legal precedent going back more than 500 years. He discusses Supreme Court cases on fundamental rights going back more than a century. He explains why prior incorrect Supreme Court decisions were overturned and why this one should be, as well. He points out that overturning Roe won’t end the debate, it will merely shift the debate back to the state legislatures and when those laws are inevitably challenged, he provides guidance on the proper level of judicial scrutiny to give the new laws.

    Seriously, it’s an amazing piece of work. I’m impressed.

  7. Moderation. Dang it.

    I responded to your point JPA. Just have to wait for it to appear.

    As to Emery’s fear that the nation might revert to Constitutional government, he’s exactly correct. Before about 1960 when the federal courts took over running the country through court orders, the state legislatures made those decisions. It’s called “federalism” and it’s an essential part of the American scheme of government, covered by the Ninth and Tenth Amendments.

  8. Brown’s piece points out a key issue: that constitutional analysis can turn on how specifically or generally you define a right, and the specificity can be manipulated to achieve a desired result — such as bodily autonomy vs. abortion.

    Trying to remember the case in which some justice said a law didn’t discriminate between men and women but between pregnant and non-pregnant persons — in effect, adopting language and distinctions that would later be ridiculed as “woke.”

    Geduldig v. Aiello (which Alito cites in the draft)

    Alito’s Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning

  9. “Contraception, interracial marriage, gay marriage, Miranda warnings to name 4”

    Which Alito, in his opinion, specifically states his opinion does not and will not rule on.

    Strawman aborted.

  10. Let’s pretend Alito opened the door to the Supreme Court rolling back all those 1960’s court-made “rights.” What would happen to gay marriage in Minnesota? What would happen to contraception sales in Minnesota? What would happen to interracial marriage in Minnesota?

    Nothing. Because we already have state laws regulating those things.

    Yeah, but what about Mississippi? And Alabama? What about them?

    The residents of those states can figure out their own solutions, enact their own laws. That’s what a ‘laboratory of democracy’ looks like – different states trying different policies to see what works best. Kind of like our recent experience with COVID. Minnesota locked down hard, Florida stayed wide open. Which worked better (not going to debate that, only using it as a recent example where individual states chose different solutions to the same problem).

    Representative democracy. People voting for their own laws. What a concept!

  11. I’m hoping this action gives leftist reprobates the push they need to GTFO of decent, civilized states. That’s why, although I doubt they’ll pass muster, I’m in favor of some of the ideas I’ve seen floating around for chasing down murdering thots that travel from civilized states to shit hole states that allow infanticide, and then return to be among civilized people.

    Trash that takes itself out is best trash.

  12. E, I read the Reason article. I read Alito’s opinion. I invite you to do the same and draw your own conclusions, instead of out-sourcing your thinking through selection bias.

    I think you’ll find Alito included his historical research on abortion before and after ‘quickening’ to rebut the proposition that abortion has long been considered a fundamental right and to demonstrate that, on the contrary, abortion has long been considered a heinous crime. It is still a crime in much of the civilized world and was still a crime in most states when Roe was decided. If abortion was a long-standing fundamental right, nobody in the world noticed it.

    The article author’s attempts to link vague concepts of ‘bodily integrity’ to ‘killing an unborn child’ are too tenuous and nebulous for the judicial branch to supercede the legislative branch’s authority to regulate them. It’s a tendentious opinion piece, same as the others you’ve relied on.

    Read the source material.

  13. Pingback: In The Mailbox: 05.04.22 (Morning Edition) : The Other McCain

  14. Emery has answered none of the issues Alito wrote his opinion on: the Supreme Court literally writing legislation is a mistake, and so Roe V Wade and Casey must be overturned.

  15. ^ I like and respect a number of conservative legal thinkers trying to reassure us that this won’t go past Roe. But I sense they’re talking about the legal movement as they wish it were, not the legal movement as it is, the one that embraced John Eastman.

  16. I am not one of those legal thinkers. I hope the Supreme Court does find the backbone to overturn other acts of egregious judicial activism, to return power to the people to act through their elected representatives, to restore the nation to Constitutional government.

    The Constitution has a perfectly good amentment mechanism which has been used two dozen times. All it takes is time and money and hard work. Don’t like the Constution as it is? Want to add more amendments to cover gay marriage, criminal rights, hair braids? Go do it. But do it the right way, through the people, not dictated through the courts in an effort to overthrow the government of the United States.

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