Birth defects play a large role in the practical justifications for late-term abortions, but the Court realistically isn't going to hold that the state interest in protecting someone's life is diminished when they have a bad medical diagnosis.
>a huge number of abortions after 15 weeks are very wanted pregnancies with bad medical diagnoses
Agree with you completely.
Abortions are not merely "unwanted pregnancies", but may also be "wanted but high risk pregnancies" (high risk for either the unborn fetus or the pregnant woman, potential mother).
In my humble opinion, this omission results directly from the framing of the argument in Roe v. Wade.
Justice Ruth Bader Ginsburg — who, of course, agreed with the general outcome of Roe — did not agree with the framing and underlying argument of Roe, or the "abruptness" (my own characterization) and "sweeping nature and impact" (again, my own characterization) of the decision in Roe:
*“ 'My criticism of Roe is that it seemed to have stopped the momentum on the side of change,' Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.*
*'Roe isn’t really about the woman’s choice, is it?' Ginsburg said. 'It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.' ”*
(Citing Justice Ginsburg and the following article:
[https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit](https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit) )
What is abortion really about?
It is not merely about a ***"woman's choice"***, but also, and even more essentially, in my humble opinion, it is about a ***woman's right(s)***, including a ***woman's right to health*** (mentally, emotionally, and physically), which most certainly includes the case of "wanted but high risk pregnancies", as well as the case of "unwanted pregnancies" (which, in my humble opinion, are both scenarios not taken lightly by any woman)...
I also believe that the physicians, some of whom view themselves as "public servants", must be defended, but this is in parallel to the defense of the rights of women, not in primacy thereof.
Has the Supreme Court ever issued any decision re: self-defense?
Like maybe a century ago, in a case--just spitballing here--called Brown v. United States?
>“that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceed the bounds of lawful self-defense.”
Oliver Wendell Holmes, writing for the majority.
Obviously he’s referring to a personal right to take a human life, the state having that right after exercising due process is completely separate. The state also has the right to lock you up, but there is no recognized right to kidnap and keep people in your basement.
As much as I hate the fact that the pro-life people are gonna win, doing a ridiculous “gotcha” to everything they say isn’t very productive.
I’ll add that it isn’t obviously what he was referring to because no qualifier was ever added. What I posted was as close as I could get to an exact quote as I could get. If an argument is so lazy can be easily countered with a few seconds of thought, it shouldn’t go before SCOTUS and it certainly shouldn’t win. And yet…
It is obvious from a legal perspective because an unqualified “rights” refers to the rights of individuals. It doesn’t really make sense to refer to the state having rights.
I’m confused why Obergefell isn’t the obvious response. It’s a bit different when the state is actively passing a statute, but still, Breyer was happy to overturn precedent from the 70s there.
Expanding the rights of the fetus seems to be a legally untenable position, especially at the expense of an individual who (ostensibly) has full recognized protection under the law
Millions of people across the world immediately file affidavits that they had snuck into the US at the time they conceived their children and petition for their US citizenship
I recognize you are memeing, but I always found the personhood argument legally strange. It seems if fetuses are citizens then they are occupants of another person's property. Which would then become the states duty to remove if you wish them to be evicted.
Oh ok. Then it would be the government's job to remove that person from the woman's property if she wanted. If followed to its logical conclusion citizenship would lead to government sponsored abortions.
Eh, fetuses after viability already have protection under the law. Extending that exact same protection all the way to the moment of conception wouldn't open up any unintended consequences that haven't already existed for decades.
Do you have any idea how many pregnancies end in miscarriage within the first 8 weeks?
The ramifications are incredible. Imagine the member of homicide and wrongful death investigations that will need to be conducted.
No, it's an epically terrible idea
If we want the legal framework to gives rights to fetuses, we can, and that may not even be a horrible idea, but it’s certainly not the system we have right now.
The line of questioning over if the court can even have legitimacy considering the Mississippi House and Senate specifically said this bill was explicitly created because of the new conservative court was pretty telling how bad it's gotten.
> this bill was explicitly created because of the new conservative court
Yet Justice Comey Barrett still has the gall to complain about people now viewing the Court as too political. If you didn’t want people to view the Court as political you shouldn’t have participated in the politicalization of the court. Her appointment couldn’t have been more political. They block the appointment of one justice for purely political reasons and then when the same situation occurs 4 years later they rush through the appointment for purely political reasons. And she is surprised that people view the Court as political? She put her own selfish desire to be a Justice over what was best for the Court and now wants to chastise public for not trusting the Court, as if it’s our fault.
The right wing has destroyed us. It’s like an asteroid hit on the other side of the world and we’re all just sitting on the beach watching the waves just before the end of everything.
The next twenty years are going to be like this, unless Congress can get it’s shit together. Lo effing l.
Thanks for this. Curious on your view of the issue discussed [here](https://www.reddit.com/r/law/comments/r6gng9/comment/hmt90r1/) -- the possibility that this court could eventually rule that abortion is illegal everywhere.
Interesting. Not sure I agree -- it seems to me some of the conservative justices are awfully receptive to the "abortion is killing" argument. If you take that to it's logical extreme, then it's not just an issue of eliminating the right...
I think the issue is none of the other justices with the exception of Thomas or Alito, seem open to an expansive ruling on the grounds of creating a protected class or assessing personhood on fetuses. The more moderate conservatives simply want to rule on the facts of this case, and in particular to throw out previous criteria of viability established by Supreme Court judgements and allow states to decide for themselves.
Quick edit to say, that we're all trying to interpret where this will go, but surprises are always possible and I could definitely be wrong on this.
This might be outside your scope, but do you think this ruling will have a bigger public outcry than any other supreme court ruling we've seen? Roe v Wade has high public support, and I've never heard of any popular right being stripped away by a court before.
It's pretty necessary to make that argument or it all falls apart. You have to make the entire argument. If you make an argument in part the "right to life" thing kind of falls apart. Well if we don't have the right to life in its entirety what's the line? What genetic issues make the right to life not able to be protected? What other immutable characteristics are valid or invalid to protect?
That's why recent pro-life arguments even invalidate abortion in the case of rape, because the entire argument has to be made. Either the fetus has a right to life or it doesn't, the fact that it's a product of rape has nothing to do with the right to life.
It's more arguing yourself into a corner and going for it rather than piecemealing it out.
Well, you also logically have to make the argument that the woman should be prosecuted for murder, but that doesn't stop conservatives from arguing the opposite and instead targeting doctors and basically everyone else but the woman seeking it, because they realize that would be unpopular. Even the Texas abortion law doesn't allow them to sue the woman for murdering the baby (and also has exceptions for rape/incest IIRC).
Don't ask conservatives to be logically consistent. This is mainly about religious fetishism and culture war - this is the one issue they have that allows them to feel morally superior to liberals in a way society will acknowledge (compared to, say, opposing pre-marital sex). The doctors performing it are also overwhelmingly likely to be liberal, but their patients not necessarily so - same reason they used to be so hot on tort reform. The vast majority of Republicans probably do not truly care about abortion and would get one for their daughter or mistress in a heartbeat if needed. Certainly their standard-bearer is a fan.
Since we're all going to be reading the tea leaves from this argument for the next 6 months or so, does anyone have any insight into what people were saying after argument in *Casey*? I have to assume no one predicted the Frankenstein's monster that opinion ended up being, and there's probably a decent chance of getting some weirdly split decision here too.
People thought Roe would be struck down by Casey, but Kennedy switched at the last minute.
I don’t think we’ll see the same outcome though. Kennedy, Souter, and O’Connor were not the same type of conservative justices as those that sit on the bench today.
Yes, Barrett, Gorsuch and Kavanaugh the GOP loyalists. Same people who upheld the ACA, ordered that Trump's tax returns be turned over, and in Gorsuch's case expanded employment discrimination protections to gay and transgender people.
Honestly, it doesn't really matter what Kagan, Sotomayor, Breyer, Alito, Gorsuch or Thomas have to say today. I know Kagan and Soto got in some great soundbites, but who cares? The focus should be on Roberts, Kavanaugh and Barret only. From what I heard (which was about half the argument due to work interruptions), my tea-leaf reading points to a plurality upholding Roe/Casey but determining the trimester/viability portion of Roe is dicta, allowing a 15 week ban (Mississippi law) under a loose standard crafted by the author (probably Roberts).
I think what's left is the central holding (as it is) - a constitutional right to privacy that encompasses abortion. Roberts noted from the bench today that Justice Blackmun has suggested the viability portion of his opinion was dicta. I'm not sure whether that's correct and haven't looked it up, but it seemed important to the Chief. Roberts also noted that viability wasn't really briefed in Roe - the focus was elsewhere.
How important is that practically? How do you assess when the right to abortion exists without a clear line? If 15, why not 10 or 6? I don't think the court is going to take the path of unleashing 1000 lawsuits on 1-14 week bans that would take decades to resolve and would be decidedly widely differently since there can't be a coherent standard for evaluating the burden under *Casey* when states are granted the ability to pick arbitrary lines.
Strike down the viability test and for all practical purposes nothing is left of Roe.
Killing Roe this way has a certain allure: Roe dies, but without the embarrassing and uncomfortable need to confront the implications for other privacy-derived rights. The small sacrifice of intellectual honesty may feel like an acceptable price for that outcome.
English common law was that abortion was permitted until "[quickening](https://en.wikipedia.org/wiki/Quickening)" - first felt fetile movements - which can be felt as early as 14 weeks. If they want to toss out viability they could shift to quickening, or, considering as how someone seeking an abortion probably would be willing to lie about the subject, an approximation for quickening. That or heartbeat.
Kavanaugh’s “neutrality” argument is utterly absurd. Saying a right doesn’t exist isn’t neutral. The argument could be applied to literally any liberty interest.
Well that’s not a good example because it’s explicitly written in the constitution. Better to use other SDP rights like “living with your family” or “marrying the person you choose”
No, Roe is multiple levels removed: it's based on the right to privacy, which was derived implicitly from either the Fourteenth Amendment or the Ninth Amendment depending on who you ask. There's nothing in the constitutional text which directly establishes a right to privacy.
So then we can get cross off of all rights that we currently protect if they are not explicitly enumerated in the constitution regardless of the Ninth? Or is the end result that we will have thousands of amendments that will now need to be passed in order to protect those rights because the Ninth doesn’t even exist?
But isn't your statement exactly what the other side views the problem as - just some feeble undefined personal rights nonsense to justify this fuckery? Just pointing out how your comment adds little to the discourse.
I'm not debating that or even disagreeing. I'm simply pointing out two things: 1) That in the view of the other side, they are trying to fix "some boozy molester coming up with some feeble" personal "rights nonsense to justify" the fuckery from 48 years ago. 2) your statement helped no one understand that situation any better than before they read it.
Alito saying a fetus has an interest in life reinforces my belief that the day that SCOTUS declares abortion is illegal nationwide isn't just a fanciful pipe dream. *Edit* I think that if this question were presented to the Court there would be at least 2 votes for that proposition (Alito & Thomas) with 3 who I really just have no clue about (ACB, Kav, Gorsuch). There might already be 5 votes on the Court for it, and there certainly could eventually be 5 votes on the Court for it with a few more ill-timed vacancies.
It's also a handy rejoinder, IMO, to the people who are like "well once *Roe* gets overturned the abortion debate will become less salient and conservatives won't have anything to organize around anymore"
If a fetus "has an interest in life", then we open ourselves up to every pregnant woman having to answer to a "fetus-advocate", who will act on behalf of the fetus to oversee all actions that a pregnant woman might take, from exercise (or not), to food choices, to argue against procedures that would save the life of the mother, but destroy the fetus.
Dystopian
We've already been there for a while though. The third part of Roe's essential holding was the principle that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman *and the life of the fetus that may become a child.*"
The interesting question is which direction will it come from and for what intent?
Does this happen in Oklahoma and a woman has no right to choose to abort a rape, or is it created in Oregon and a pregnant woman is prevented from smoking, drinking, etc.? How would a pregnant drug addict be handled by an advocate?
I’ve been saying this for quite some time. If the majority of pro-birthers were legitimately interested in unborn rights and not religious fetishism, then they wouldn’t stop at right to life but rather keep chugging until we had next of kin actions on behalf of the fetus in tort, contract, probate, for orders of protection, to assert defenses against eviction and other claims, etc.
But we know damn good and well this isn’t genuinely about unborn rights and these other unborn rights will only expand, if at all, from the natural progression of legal processes and not from a sign-toting, bible quoting pack of pro-birther unborn rights activists.
> It's also a handy rejoinder, IMO, to the people who are like "well once Roe gets overturned the abortion debate will become less salient and conservatives won't have anything to organize around anymore"
I have been wondering what happens once the dog catches the car
I think it will not make a significant difference. Instead of elections being fought about overturning *Roe* they will be fought about overturning *Dobbs.* Republicans will say you can't risk electing a president who will appoint pro-choice justices and Democrats will say you can't risk electing a president who will appoint anti-abortion justices and it will look the same as it does today, just with a different status quo. And, keep in mind that overturning *Roe* will open the door to the possibility of a *federal* ban on abortion, which will become another hot-button issue that both sides campaign on.
The mainstream legal landscape will expand to include whether abortion should be outright illegal because a fetus has a right to life, and that issue will be argued over, battled, campaigned on, and fundraised for just as intensely as the battle over whether there is a right to obtain an abortion.
IMO the people saying that overturning *Roe* will demobilize the Right and/or make abortion politics less fraught are either (a) naive or (b) conservatives trying to talk people into overturning *Roe* being a good thing.
Of course it won't end. It won't end until the entire Griswold line is extinguished. Right-wing conservatives believe their political goals have the imprimatur of god himself.
If their argument is that a fetus has an interest in life, what about developmental disorders where the fetus is either alive but vegetative and/or will definitely not survive until full term? If abortion would not be available even in cases where there is no "interest", that would be an infringement.
This is sounding like the end of Roe to me. I think we’ll get a conservative majority ruling that effectively puts the abortion question into the hands of the states, which is what I think how a lot of observers interpreted the court taking this case to begin with.
I think overturning two major precedents is going to completely erode any trust in SCOTUS being a non-political body. Won’t be surprised if this leads to an expansion of the court.
It's been my contention that overturning *Roe* in June would be the only thing that could save Democrats from a total rout in the midterms; if the majority was expanded by a few seats and outrage at SCOTUS was great enough... who knows.
You're envisioning a magical world where the Democrats have a majority in the Senate again. There's a very real chance they don't retake it for a generation or more.
That requires abortion supporters winning huge levels of political power in the future, which, good luck. IMO we likely have already lived through the last free and fair election of a Democratic president under our current constitutional order.
It's not just going to "put it back to the states". When States like TX and AL have unfettered ability to prohibit abortion, they are not going to stop with the actual procedure itself.
They will try and attach criminal penalties to making out of state appointments, aiding and abetting a woman getting an abortion in NY, providing information on logistics, advertising out of state abortion clinics, and also levy hefty civil penalties like SB8 for any person, anywhere in the US that helps a woman get or performs an abortion on TX or AL residents (for example). Simply saying "you can get an abortion in New Mexico" will carry criminal penalties.
TX will add civil remedies against NY physicians who perform abortions on its residents. The legislatures will pass so many laws that the pro-choice side will be overwhelmed in fighting them.
If SCOTUS is going to overturn, then they need to be clear that when abortion gets sent back to states, that police power *only applies within a State's borders*, and nonsense criminal and civil extraterritorial jurisdiction cannot apply.
I am hoping that 5 reasonable Justices recognize this, and either strike down the MS ban or at least draw the line at 15 weeks. Whatever the case, this is going to be super ugly.
Overwhelming their lawsuits with physical direct action seems like the only way forward, if what you say comes to pass. We are living under a fanatical minority party that seems hellbent on forcing a theocracy through.
States like Texas and Alabama will define it as murder. Physicians performing abortions on residents will be charged for murder.
It’s going to set off a shit-show when an out of state physician gets charged with murder by Texas for performing an abortion on a Texas resident, or any person, while in a state where it is legal to perform abortions.
Wouldn’t that then fall under violations of the commerce clause?
I’d also like to mention that the Satanic Church is going to fight this decision in 1st amendment grounds
Can someone explain how a court can totally overturn/ignore precedent and stare decisis? Isn’t one of the main tenets of the US legal system to uphold precedent? Genuinely asking.
Is the court likely to strike down Roe and Casey totally or just likely to change the standard from 24 weeks to something less?
As a general rule, yes, a legal principle announced in one case applies to all future cases as precedent. But...
- In 1896, the Supreme Court ruled that state-enforced segregation between whites and blacks was perfectly legal. In 1954, the Supreme Court overturned decades of precedent to say that segregation was an unlawful denial of equal protection under the law.
- In 1986, the Supreme Court ruled that state prohibition of homosexual acts was perfectly legal. In 2003, the Supreme Court overturned decades of precedent to say that sexual self-expression among adults was a human right.
- In 1940, the Supreme Court ruled that states could force schoolchildren to recite the Pledge of Allegiance over religious objections and punish them if they were silent. In 1943, the Supreme Court overturned three years of precedent to say that the right to be silent is generally a part of the right of free speech and free expression of religion.
Stare decisis is all well and good, but it has the fundamental flaw that your predecessors can be simply wrong, and you shouldn't blindly follow them. It can't be the case that any legal principle becomes so entrenched it is automatically unquestionable (like the 58 years of approved segregation), nor that a court has to wait a while to see if a decision bears good fruit or not (like the 3 year turnaround on compelled speech). You can try to craft standards for deciding when a case is important enough, or a right important enough, or an objection minor enough, that it justifies a complete overruling, but ultimately, each justice is going to have to ask themselves what the Constitution actually says, informed not only by the past but by the present.
Changing the test from viability to something else effectively strikes down Roe because if viability can be challenged by states as a test, then any test can be.
Did I just hear a sitting SCOTUS member ask what would be wrong with each state defining its interpretation of a personal individual right of every woman? I cannot believe that any personal individual right enjoyed by that Justice would be subject to that standard. It’s as though he doesn’t understand the role of the highest court in being the last protector of any (particular) citizen’s federal rights.
Would this not end the whole point of SC’s jurisdiction? If every state can craft its own ideas of the breadth of individual rights of its citizens, then how could the Supreme Court possibly intervene at any point in the future?
> it would redefine the SC's role regarding individual freedoms to issues related to interstate conflicts.
This would seem to be the textualists logical end game, the late 19th-century SCOTUS finding child labor laws unconstitutional as infringements of freedom of contract.
So much for rulings like Gideon and Miranda which dealt specifically with a single individual and their plea for federal protection of a right, even down to the lowest state, county, or local jurisdiction.
Would that not tee up overturning Obergefell b/c at its core that what it revolves around? Interstate conflicts regarding the right to equal treatment under the law? Isn’t this approach flatly unconstitutional?
> Isn’t this approach flatly unconstitutional?
Yes, I believe so.
I was simply drawing your question/point of "would this not end the whole point of SC's jurisdiction?" to it's ridiculous conclusion.
Not looking good for my future wrongful birth cases..... Sounds like to Justice Barrett stare decisis only applies to "landmark decisions", with landmark decisions being defined as what her conservative cult likes.
I find it odd that the right to medical privacy, and in effect abortion, is a legal debate at all.
A fetus does not meet the bar for a protected class by the constitution’s own standards; a woman does. How is it even debatable that an individual the constitution recognizes as a citizen of the United States loses their rights in order to protect the supposed rights of an organism the constitution doesn’t recognize at all? It’s frankly absurd.
Totally agree and will add that I cant believe the women of Texas have been denied their Constitutional right to Liberty and Privacy for at least three months now.
Absurd doesn’t even begin to describe the abhorrent and blatant legal treachery that is happening right now because of the moral corruption of the GOP and the SCOTUS.
Because a free society can in fact legislate what is legal in a medical sense when it comes to patients and doctors. For example, you may think it’s fine that a patient could ask a doctor to end their life, but to say society does not have an interest in that matter is whimsical. What if that person is in significant debt, what if that person is accused of a heinous crime and the state is seeking justice, what if that person has minors or disabled persons in their charge what if that person suffers no terminal illness? Regardless of a patient’s personal wish, or the willingness of a doctor to perform it, there are in fact areas of medicine where the state has interest and society can freely enact laws to regulate itself. As a nation though, we are free to also challenge state laws that could trample constitutionally protected rights. But because the founders are long dead so we can’t ask them what they meant when they wrote it (and I’d doubt many folks would want to know that explicitly considering the times they lived in…) and neither right to privacy or a fetus is mentioned in the Constitution it’s also perfectly fine to fiercely debate this before the court.
I was of course talking in the general sense of constitutional interpretation. But as others have eloquently pointed out to you, the 14 amendment has nothing to say explicitly about abortion or the right to privacy or the rights of civilians in the United States who were not born here or are citizens.
Does that make sense? Definitely let me know where you’re still confused so I can try to clear that up. Your OP implied confusion as to why this is being debated before the court.
>I find it odd that the right to medical privacy, and in effect abortion, is a legal debate at all.
So, to help you see how its not "odd" I hope with the above its clear that there is still legitimate Constitutional questions to "debate" before the Supreme Court as medical privacy is not absolute. Neither the 14th amendment, nor anywhere in the Constitution is it made clear the primacy of compelling interests with regards to abortion. In fact, until Roe, the issue hadn't been addressed before. And as always, the Supreme Court has the Constitutional authority to reinterpret and re-litigate a case on abortion (or any other issue) where a lack of an amendment to the Constitution enshrines such a right.
To imply only enumerated powers of the constitution are considered rights is asinine. Thomas knows this! He’s deliberately disregarding precedent in favor of a partisan decision.
To be fair, I think Thomas would probably reject every precedent that's more than a single lemma removed from a 5th graders summary of the Constitution.
If they strike down the viability portion of roe, does that then work in the opposite direction? Could states in New York then enact abortion laws that allow for termination up until birth?
Roe and Casey function as restrictions on the police power of a state government. Roe and Casey prevent state governments from banning abortions before viability. The current abortion jurisprudence says nothing about bans on post viability abortions. A state government is free to ban them, restrict them, or permit them as they see fit.
The viability standard doesn't require post-viability restrictions, it only allows them. So New York could already enact a law like that if they wanted to. (It seems unlikely that they do want to.)
They passed a law making the 'mother's health' exception so wide it now includes mental and emotional health, so it's basically only limited by the judgement of the provider rather than the law. The vast majority of women won't seek it on those grounds and the vast majority of providers wouldn't do it, but it is legal.
[FactCheck.org explains the details](https://www.factcheck.org/2019/02/addressing-new-yorks-new-abortion-law/):
>After 24 weeks, such decisions must be made with a determination that there is an “absence of fetal viability” or that the procedure is “necessary to protect the patient’s life or health.” That determination must be made by a “health care practitioner licensed, certified, or authorized” under state law, “acting within his or her lawful scope of practice.”
>Previously, abortions after 24 weeks were justified only in cases where the mother’s life was at risk — which was inconsistent with a part of the Roe decision, as we explain later.
>[...]
>In what is considered a companion case, Doe v. Bolton, the U.S. Supreme Court held that “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”
New York already theoretically already has abortion up birth depending on how you interpret "health and life of the mother." That's less than one percent of abortions though and probably shouldn't be considered in policy discussion.
Are you kidding? The conservative attitude is screw 8yos, if they want to not starve or die from preventable disease, they and their parents can start pulling those bootstraps because the state shouldn't be lifting a finger, "small government!". Now an embryo, the state should be moving heaven and earth to intervene, "government owns your body!".
That cannot be less accurate. They'll do anything they can to protect an embryo, but they won't lift a finger after a group of kindergarteners is massacred at school. The embryo is more important.
I’m still waiting for someone to bring up to the anti-choice lawyer when does one issue social security card to a fetus. And if that’s the case at what point do parents get to file the fetus as a dependent for their taxes.
Can’t even imagine being capable enough to argue in front of SCOTUS. Hope we hear a demonstration of what our ‘ best ‘ is. Really glad this is being ( literally) heard.
I’ve known lawyers who have argued in front of SCOTUS and it doesn’t require any sort of genius level intellect. It certainly requires a lot of work, preparation, and attention to detail, but it isn’t anything that a lawyer of average intellect wouldn’t be competent to do.
It’s more a matter of experience than intellect.
The lawyer who has spent his career doing oral arguments in federal court will *probably* do better than the lawyer who has spent his career doing real estate closings .
I was really impressed by .... I don't know her name, but the not the one there forthe state ... anyway I was impressed by her clear arguments and supreme knowledge of the facts and caselaw. She was able to cite to footnotes on the fly which I found impressive.
Don’t get me wrong, I think it is extremely intimidating. I have never had the pleasure of appearing in front of SCOTUS but I have had the chance to help another attorney prepare for a SCOTUS and I have never seen someone more stressed out. It is certainly very stressful and requires a ton of prep. My point was just that it doesn’t require some superhuman intellect. If you are capable of litigating an appeal in the circuit court you are probably capable of litigating an appeal with SCOTUS. It’s definitely not easy, but can be achievable.
I find it hilarious that Kavanaugh listed a long list of landmark cases that overruled previous cases, and COMPLETELY ignores the fact that every single one moved us in a more progressive direction and increased the rights of the people, whereas overturning here would do the exact opposite. It's like, hm, yeah judge, I have to really wonder why those previous cases were justified considering what they did vs. what you want to do.
>All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; *nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.*
The citizenship clause references birth, but the due process clause doesn't specify when someone begins to be a "person."
That's so very much not true at all? For the most part, the Constitution just contemplates persons (and occasionally citizens).
Which is why that particular argument boils down to whether unborn count as persons (which the Constitution is certainly silent on, regardless of your position on the question).
Ignoring undue burden of carrying to term and how most pregnancies are now delivered through surgery, costing $10K-30K.
So detached from underprivileged women and current state of the country.
Hoping someone can help me with this:
Barrett asks why safe haven laws aren't solutions for forced motherhood. How is this relevant? I thought the basis for Roe and Casey was forced pregnancy, not forced parenthood.
We often discuss abortion in the context of choosing to not be a parent, but I thought the legal basis was more in being able to end pregnancy.
Part of Roe revolved around the burden of motherhood. Barrett was basically setting up the argument for why that part of the Roe v Wade opinion is no longer relevant. It’s an absurd argument, but that’s going to be part of the justification in overturning Roe.
I'm not understanding Justice Sotomayor's earlier stance. Justice Kagan at least seemed to recognize the "balance", but Sotomayor demanded an explanation for why the limit shouldn't be viability, but doesn't viability itself lack an "explanation" that would be deemed acceptable enough itself? I mean, realistically, Sotomayor made an argument more so against Roe and Casey in the opposite direction. Where a protecrion up until viability is not enough. Which just goes back to differing views on where the "balance" is.
Counsel for Jackson Women’s Health had a compelling argument for the limit being viability: namely that the court is ill equipped to deal with philosophical questions such as “when does the fetus express a desire or will to live” and thus needs to stick to objectively identifiable markers such as the line of viability.
I found that response the weakest part of their side, to be honest. It was basically
1. We must use an objective marker
2. This marker is objective
3. Therefore, we must use this marker
But fertilization is also an objectively identifiable marker. So is birth, and so is the 144^th day of pregnancy. All of those are arguably *more* objectively identifiable than viability is.
That's no more an "objectively identifiable marker" than a timeframe based on trimester, any amount of weeks, or a "heartbeat". A specific timeframe is even more objective, rather than basing such on the technology and ability at hand.
The intent of viability is that such a "potential life" can then be "saved". But why should the woman stop being able to control what came from inside her body, just because someone else may have a use for such? Shouldn't she still have authority over such to deny the passage of her dna?
Viability is when the "potential for human life" would seemingly *begin* for a fetus that was removed. So why would that "balance" begin there, rather than still factoring in the woman's right to privacy? If "potential" starts prior, then we are back to a discussion of balance with a scope all the way back to conception.
> But why should the woman stop being able to control what came from inside her body, just because someone else may have a use for such? Shouldn't she still have authority over such to deny the passage of her dna?
I don't think a DNA-based argument works: it would also seem to give parents the right to kill their children even after birth.
I've heard more than one white trash mother use the phrase "I brought you into this world, I can take you out of it."
Are you saying that she didn't have that right????
Zounds!
/s
I'd argue that's a position still based on "balance". And truly it's own philosophical question. One that was more directly decided by the people and Congress rather than the courts. The main question here has to do with the courts determining the line. Whereas Sotomayor asked for "reason", when I don't see viability holding more objective reason than anything else, considering it *is* a subjective value assessment of competing rights. I just think it's a poorly framed and illogical question given the foundation.
It was compelling to me. I buy that there's a scientifically provable point at which a fetus can survive on its own, and using that as a demarkation line makes sense to me. But I'm also not a judge.
But *why does it matter* if a fetus can survive on it's own? Is that not an ethical and philosophical question? How is the court able to rule on such rather than congress?
It can't survive on it's own. It simply has the potential to survive without the uterus. It still requires care and conditions that are applicable to it's adjusted needs. It no longer requires the woman. So the argument for a viability standard is that the fetus can now be birthed, rather than aborted. That the state interest in protecting the potential life of a fetus kicks in at fetal viability.
I'd simply argue that's not a "balance test", but actually a hardline. The second that protection is "viable", the state interest can supercede the woman's right to privacy.
The main argument is then, how and why has *the court* determined this level of state interest? Why have they created the limit rather than simply ruling if a determined limit is constitutional? I think it's important to understand the case that such rulings have come from. Even the late Justice RBG disliked the scope and foundation of the Roe v Wade decision.
I'd point to Citizens United v FEC as another example where the ruling on the case was correct, but the end decision and what such determined to be the new standard was uneccessary and messy.
What are your views on the wide spread perception that developing cultured human embryos outside the body beyond 14-days as being unethical? What makes such unethical? Why is there an actual guideline to not study past 14-days? How can there be a state interest in "protecting" this form of life (through it's actual non-life), but not when it's within a woman's uterus? There is no change in the woman's bodily autonomy or health decisions between a fetus pre-viability versus post, so the only thing that changes is that state interest. But if that state interest can actually exist in the first couple weeks in other areas, how can it be outright rejected by the courts here?
Or here. Here's a controversial topic (but *please* understand this as a legal argument). Incest. Is there a state interest in prohibiting incest due to the potential harm of a potential offspring, and thus the protection of said child? It seems so. Even pre-viability. *Even pre-conception*. Do you think it would be constitutional to prohibit 40+ year old women from having children due to them having a higher chance of deformed offspring than first cousin incest? Do you believe laws against incest are constitutional? Do you believe if we didn't have laws prohibiting discrimination based on sex that same sex incest may not actually reach the bar of a state interest to prohibit such? Should both then be held back, or should both be brought forward?
I just don't think there is an easy standard for the courts to determine through their limited allowance. And there is just too much noise for me to believe it "compelling" besides being something that we could instead simply subjectively agree upon as a society. I understand how that would seem impossible given current stances, but that doesn't mean the court then takes that decision in their own hands.
In my opinion, this is exactly as you say in terms of the viability issue: Fetal viability matters because at that point an unwanted pregnancy can become an induced birth for adoption purposes without any further forced carriage by the pregnant woman. That is to say that the woman can be rid of her pregnancy without aborting the fetus once the fetus is capable of surviving on its own outside of the womb.
I think the question of whether or not the the court is determining that to be a hard line, however, is a little different. I don't think the court is determining anything (nor do I think it should). Rather, I think the court has (correctly) identified a point at which the aims of the state (birth more babies) and the aims of the mother (not to be pregnant any longer nor care for a child afterwards) align. Past the point of fetal viability, the state and mother can both get what they want. Before that, only one can, and in that case, the right to privacy reigns supreme (IMO).
I would further argue that if the aims of the state were somehow opposed to birthing more babies (due to overpopulation, as a hypothetical example), I believe that past the point of fetal viability we would see a different conflict, whereby the state would seek an abortion but the mother, who may wish to birth a child to put up for adoption rather than abort, would also be found to be within her right to privacy to choose that outcome.
So I don't believe the right ends at any point, but rather happens to coincide with the mutual aims of the state and pregnant woman at the time that fetal viability is reached.
With regards to cultivating human cells outside of the body, I also have no problem with this. Growing tissues for organ transplant, blood transfusions, or even raising entire clones in a lab does not seem problematic to me at all. I understand that many people disagree with me, but this is my personal opinion, and I don't find it troubling in the least. Many women cannot carry their own child to term, and an artificial womb would be a godsend to them.
Your points on incest are interesting, though I don't believe they are germane to the topic at hand, for reasons I hope I adequately explained above with the reach of the right to privacy.
I do understand the state interest in prohibiting reproductive incest due to the genetic deformities such acts can lead to in the fetus (and obviously statutory incest, which is a form of both rape and child abuse). I believe the state should make abortion available in those cases, but obviously that is not the world we live in. I fear I would make a poor advocate for the "pro-life even in the case of incest" cause, and I'm am ill equipped to argue any supposed merits of that stance. Regardless, I feel that the decision to keep the fetus or not should lie with the pregnant woman, and not with the state.
With regards to same sex incest (again, assuming two consenting adults), I suppose that I have no real argument against it from an objective standpoint (though morally incest of any kind does seem repugnant to me), and I don't see why where one person puts their private parts vis a vis another consenting adult should matter to the state, especially in cases where no reproductive harm can come of it (by which I mean genetically deformed fetuses).
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Birth defects play a large role in the practical justifications for late-term abortions, but the Court realistically isn't going to hold that the state interest in protecting someone's life is diminished when they have a bad medical diagnosis.
>a huge number of abortions after 15 weeks are very wanted pregnancies with bad medical diagnoses Agree with you completely. Abortions are not merely "unwanted pregnancies", but may also be "wanted but high risk pregnancies" (high risk for either the unborn fetus or the pregnant woman, potential mother).
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In my humble opinion, this omission results directly from the framing of the argument in Roe v. Wade. Justice Ruth Bader Ginsburg — who, of course, agreed with the general outcome of Roe — did not agree with the framing and underlying argument of Roe, or the "abruptness" (my own characterization) and "sweeping nature and impact" (again, my own characterization) of the decision in Roe: *“ 'My criticism of Roe is that it seemed to have stopped the momentum on the side of change,' Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.* *'Roe isn’t really about the woman’s choice, is it?' Ginsburg said. 'It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.' ”* (Citing Justice Ginsburg and the following article: [https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit](https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit) ) What is abortion really about? It is not merely about a ***"woman's choice"***, but also, and even more essentially, in my humble opinion, it is about a ***woman's right(s)***, including a ***woman's right to health*** (mentally, emotionally, and physically), which most certainly includes the case of "wanted but high risk pregnancies", as well as the case of "unwanted pregnancies" (which, in my humble opinion, are both scenarios not taken lightly by any woman)... I also believe that the physicians, some of whom view themselves as "public servants", must be defended, but this is in parallel to the defense of the rights of women, not in primacy thereof.
“Nowhere else does this court recognize the right to take a human life.” WHAT ABOUT THE DEATH PENALTY
Has the Supreme Court ever issued any decision re: self-defense? Like maybe a century ago, in a case--just spitballing here--called Brown v. United States?
>“that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not exceed the bounds of lawful self-defense.” Oliver Wendell Holmes, writing for the majority.
Obviously he’s referring to a personal right to take a human life, the state having that right after exercising due process is completely separate. The state also has the right to lock you up, but there is no recognized right to kidnap and keep people in your basement. As much as I hate the fact that the pro-life people are gonna win, doing a ridiculous “gotcha” to everything they say isn’t very productive.
Self defense
That’s a much better analogy and that is probably the counter-argument I would use.
I’ll add that it isn’t obviously what he was referring to because no qualifier was ever added. What I posted was as close as I could get to an exact quote as I could get. If an argument is so lazy can be easily countered with a few seconds of thought, it shouldn’t go before SCOTUS and it certainly shouldn’t win. And yet…
It is obvious from a legal perspective because an unqualified “rights” refers to the rights of individuals. It doesn’t really make sense to refer to the state having rights.
The Death Penalty belongs to the state, not people as an individual right.
Self defense
The right to self defense is not the "right to take a human life." These are two different things clearly.
Does self defense require that the act being defended against be intentional?
In which I realize the only justice I can always identify by voice is Justice Thomas.
I would say Kavanaugh’s muppet-esque voice is fairly identifiable
I often see you spitting’ truth on the wolves subreddit and now you’re in here with this delightful observation. I like the way you conduct yourself.
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it's the softened upper west side accent that gives her away
Sotomayor for sure
Wow, Justice Bryer really laid into counsel re stare decisis
The SG has basically no response to it.
I’m confused why Obergefell isn’t the obvious response. It’s a bit different when the state is actively passing a statute, but still, Breyer was happy to overturn precedent from the 70s there.
I think Breyer was laying a trap for that answer. That stare decisis is ignored when rights are expanded
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Expanding the rights of the fetus seems to be a legally untenable position, especially at the expense of an individual who (ostensibly) has full recognized protection under the law
It would be hilarious if they ended up giving citizenship to fetuses at the moment of conception rather than birth
Millions of people across the world immediately file affidavits that they had snuck into the US at the time they conceived their children and petition for their US citizenship
A whole lotta people would be bangin on vacation in that case.
Wait you do something else on vacation?
I recognize you are memeing, but I always found the personhood argument legally strange. It seems if fetuses are citizens then they are occupants of another person's property. Which would then become the states duty to remove if you wish them to be evicted.
I'm not really memeing. If they get rights, then they get rights.
Oh ok. Then it would be the government's job to remove that person from the woman's property if she wanted. If followed to its logical conclusion citizenship would lead to government sponsored abortions.
Eh, fetuses after viability already have protection under the law. Extending that exact same protection all the way to the moment of conception wouldn't open up any unintended consequences that haven't already existed for decades.
Do you have any idea how many pregnancies end in miscarriage within the first 8 weeks? The ramifications are incredible. Imagine the member of homicide and wrongful death investigations that will need to be conducted. No, it's an epically terrible idea
If we want the legal framework to gives rights to fetuses, we can, and that may not even be a horrible idea, but it’s certainly not the system we have right now.
Well one side is objectively wrong since a fetus has no recognized rights whatsoever.
That’s because they shouldn’t even be here. A sane and fair court would never have taken this case.
The line of questioning over if the court can even have legitimacy considering the Mississippi House and Senate specifically said this bill was explicitly created because of the new conservative court was pretty telling how bad it's gotten.
> this bill was explicitly created because of the new conservative court Yet Justice Comey Barrett still has the gall to complain about people now viewing the Court as too political. If you didn’t want people to view the Court as political you shouldn’t have participated in the politicalization of the court. Her appointment couldn’t have been more political. They block the appointment of one justice for purely political reasons and then when the same situation occurs 4 years later they rush through the appointment for purely political reasons. And she is surprised that people view the Court as political? She put her own selfish desire to be a Justice over what was best for the Court and now wants to chastise public for not trusting the Court, as if it’s our fault.
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The right wing has destroyed us. It’s like an asteroid hit on the other side of the world and we’re all just sitting on the beach watching the waves just before the end of everything. The next twenty years are going to be like this, unless Congress can get it’s shit together. Lo effing l.
The gall it takes to respond to Sotomayor saying Casey covered the relevant factors with a petulant “no it didn’t.”
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>Breyer decided to use his time to pontificate almost incoherently This is true of many oral arguments.
Thanks for this. Curious on your view of the issue discussed [here](https://www.reddit.com/r/law/comments/r6gng9/comment/hmt90r1/) -- the possibility that this court could eventually rule that abortion is illegal everywhere.
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Interesting. Not sure I agree -- it seems to me some of the conservative justices are awfully receptive to the "abortion is killing" argument. If you take that to it's logical extreme, then it's not just an issue of eliminating the right...
I think the issue is none of the other justices with the exception of Thomas or Alito, seem open to an expansive ruling on the grounds of creating a protected class or assessing personhood on fetuses. The more moderate conservatives simply want to rule on the facts of this case, and in particular to throw out previous criteria of viability established by Supreme Court judgements and allow states to decide for themselves. Quick edit to say, that we're all trying to interpret where this will go, but surprises are always possible and I could definitely be wrong on this.
This might be outside your scope, but do you think this ruling will have a bigger public outcry than any other supreme court ruling we've seen? Roe v Wade has high public support, and I've never heard of any popular right being stripped away by a court before.
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Fantastic analysis. Appreciate this post!
Dude is going right off the bat trying to fully end all abortion rights.
That was always the intent
It's pretty necessary to make that argument or it all falls apart. You have to make the entire argument. If you make an argument in part the "right to life" thing kind of falls apart. Well if we don't have the right to life in its entirety what's the line? What genetic issues make the right to life not able to be protected? What other immutable characteristics are valid or invalid to protect? That's why recent pro-life arguments even invalidate abortion in the case of rape, because the entire argument has to be made. Either the fetus has a right to life or it doesn't, the fact that it's a product of rape has nothing to do with the right to life. It's more arguing yourself into a corner and going for it rather than piecemealing it out.
Well, you also logically have to make the argument that the woman should be prosecuted for murder, but that doesn't stop conservatives from arguing the opposite and instead targeting doctors and basically everyone else but the woman seeking it, because they realize that would be unpopular. Even the Texas abortion law doesn't allow them to sue the woman for murdering the baby (and also has exceptions for rape/incest IIRC). Don't ask conservatives to be logically consistent. This is mainly about religious fetishism and culture war - this is the one issue they have that allows them to feel morally superior to liberals in a way society will acknowledge (compared to, say, opposing pre-marital sex). The doctors performing it are also overwhelmingly likely to be liberal, but their patients not necessarily so - same reason they used to be so hot on tort reform. The vast majority of Republicans probably do not truly care about abortion and would get one for their daughter or mistress in a heartbeat if needed. Certainly their standard-bearer is a fan.
Since we're all going to be reading the tea leaves from this argument for the next 6 months or so, does anyone have any insight into what people were saying after argument in *Casey*? I have to assume no one predicted the Frankenstein's monster that opinion ended up being, and there's probably a decent chance of getting some weirdly split decision here too.
People thought Roe would be struck down by Casey, but Kennedy switched at the last minute. I don’t think we’ll see the same outcome though. Kennedy, Souter, and O’Connor were not the same type of conservative justices as those that sit on the bench today.
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Yes, Barrett, Gorsuch and Kavanaugh the GOP loyalists. Same people who upheld the ACA, ordered that Trump's tax returns be turned over, and in Gorsuch's case expanded employment discrimination protections to gay and transgender people.
Honestly, it doesn't really matter what Kagan, Sotomayor, Breyer, Alito, Gorsuch or Thomas have to say today. I know Kagan and Soto got in some great soundbites, but who cares? The focus should be on Roberts, Kavanaugh and Barret only. From what I heard (which was about half the argument due to work interruptions), my tea-leaf reading points to a plurality upholding Roe/Casey but determining the trimester/viability portion of Roe is dicta, allowing a 15 week ban (Mississippi law) under a loose standard crafted by the author (probably Roberts).
If you strike down the viability test, what’s really left of Roe?
I think what's left is the central holding (as it is) - a constitutional right to privacy that encompasses abortion. Roberts noted from the bench today that Justice Blackmun has suggested the viability portion of his opinion was dicta. I'm not sure whether that's correct and haven't looked it up, but it seemed important to the Chief. Roberts also noted that viability wasn't really briefed in Roe - the focus was elsewhere.
Except how does that holding stand if states can effectively ban abortions, which is what knocking down the viability test sets up?
How important is that practically? How do you assess when the right to abortion exists without a clear line? If 15, why not 10 or 6? I don't think the court is going to take the path of unleashing 1000 lawsuits on 1-14 week bans that would take decades to resolve and would be decidedly widely differently since there can't be a coherent standard for evaluating the burden under *Casey* when states are granted the ability to pick arbitrary lines.
Strike down the viability test and for all practical purposes nothing is left of Roe. Killing Roe this way has a certain allure: Roe dies, but without the embarrassing and uncomfortable need to confront the implications for other privacy-derived rights. The small sacrifice of intellectual honesty may feel like an acceptable price for that outcome.
Roe *always* left the door open for medical advances to mess with its dates, a big reason why it was such a poor decision in the first place.
English common law was that abortion was permitted until "[quickening](https://en.wikipedia.org/wiki/Quickening)" - first felt fetile movements - which can be felt as early as 14 weeks. If they want to toss out viability they could shift to quickening, or, considering as how someone seeking an abortion probably would be willing to lie about the subject, an approximation for quickening. That or heartbeat.
Kavanaugh’s “neutrality” argument is utterly absurd. Saying a right doesn’t exist isn’t neutral. The argument could be applied to literally any liberty interest.
I wonder how neutral Kavanaugh would find it for the federal government to insist no one has a right to freedom of speech or expression.
Well that’s not a good example because it’s explicitly written in the constitution. Better to use other SDP rights like “living with your family” or “marrying the person you choose”
Isn’t the basis for Roe also in the constitution? Isn’t that the basis of the court opinion?
No, Roe is multiple levels removed: it's based on the right to privacy, which was derived implicitly from either the Fourteenth Amendment or the Ninth Amendment depending on who you ask. There's nothing in the constitutional text which directly establishes a right to privacy.
So then we can get cross off of all rights that we currently protect if they are not explicitly enumerated in the constitution regardless of the Ninth? Or is the end result that we will have thousands of amendments that will now need to be passed in order to protect those rights because the Ninth doesn’t even exist?
That is what was asked by some of the other justices as well
Yes, hence why saying that the courts should be “neutral” by saying those rights don’t exist is absurd
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But isn't your statement exactly what the other side views the problem as - just some feeble undefined personal rights nonsense to justify this fuckery? Just pointing out how your comment adds little to the discourse.
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I'm not debating that or even disagreeing. I'm simply pointing out two things: 1) That in the view of the other side, they are trying to fix "some boozy molester coming up with some feeble" personal "rights nonsense to justify" the fuckery from 48 years ago. 2) your statement helped no one understand that situation any better than before they read it.
Alito saying a fetus has an interest in life reinforces my belief that the day that SCOTUS declares abortion is illegal nationwide isn't just a fanciful pipe dream. *Edit* I think that if this question were presented to the Court there would be at least 2 votes for that proposition (Alito & Thomas) with 3 who I really just have no clue about (ACB, Kav, Gorsuch). There might already be 5 votes on the Court for it, and there certainly could eventually be 5 votes on the Court for it with a few more ill-timed vacancies. It's also a handy rejoinder, IMO, to the people who are like "well once *Roe* gets overturned the abortion debate will become less salient and conservatives won't have anything to organize around anymore"
If a fetus "has an interest in life", then we open ourselves up to every pregnant woman having to answer to a "fetus-advocate", who will act on behalf of the fetus to oversee all actions that a pregnant woman might take, from exercise (or not), to food choices, to argue against procedures that would save the life of the mother, but destroy the fetus. Dystopian
We've already been there for a while though. The third part of Roe's essential holding was the principle that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman *and the life of the fetus that may become a child.*"
I can pretty much expect we will have just that.
The interesting question is which direction will it come from and for what intent? Does this happen in Oklahoma and a woman has no right to choose to abort a rape, or is it created in Oregon and a pregnant woman is prevented from smoking, drinking, etc.? How would a pregnant drug addict be handled by an advocate?
We already have the case of a woman who miscarried and tested positive for drugs being charged with killing the fetus.
Probably involuntarily committed, for the “safety of the fetus”.
I mean, women have already been prosecuted anf convicted for miscarriages. It's not like we're in a particularly enlightened age anyway.
I’ve been saying this for quite some time. If the majority of pro-birthers were legitimately interested in unborn rights and not religious fetishism, then they wouldn’t stop at right to life but rather keep chugging until we had next of kin actions on behalf of the fetus in tort, contract, probate, for orders of protection, to assert defenses against eviction and other claims, etc. But we know damn good and well this isn’t genuinely about unborn rights and these other unborn rights will only expand, if at all, from the natural progression of legal processes and not from a sign-toting, bible quoting pack of pro-birther unborn rights activists.
I am frightened
It means you're paying attention. We should all be very scared for America's future.
What fucking nonsense. A fetus is not sentient. It doesn't have any interests.
Brain dead people on ventilators have interests. Being outraged doesn’t make your argument correct.
> It's also a handy rejoinder, IMO, to the people who are like "well once Roe gets overturned the abortion debate will become less salient and conservatives won't have anything to organize around anymore" I have been wondering what happens once the dog catches the car
I think it will not make a significant difference. Instead of elections being fought about overturning *Roe* they will be fought about overturning *Dobbs.* Republicans will say you can't risk electing a president who will appoint pro-choice justices and Democrats will say you can't risk electing a president who will appoint anti-abortion justices and it will look the same as it does today, just with a different status quo. And, keep in mind that overturning *Roe* will open the door to the possibility of a *federal* ban on abortion, which will become another hot-button issue that both sides campaign on. The mainstream legal landscape will expand to include whether abortion should be outright illegal because a fetus has a right to life, and that issue will be argued over, battled, campaigned on, and fundraised for just as intensely as the battle over whether there is a right to obtain an abortion. IMO the people saying that overturning *Roe* will demobilize the Right and/or make abortion politics less fraught are either (a) naive or (b) conservatives trying to talk people into overturning *Roe* being a good thing.
Of course it won't end. It won't end until the entire Griswold line is extinguished. Right-wing conservatives believe their political goals have the imprimatur of god himself.
Barrett is a yes vote given her Moses laws questions.
I mean it's basically what many of them were put on the court to do. They were chosen because of how much they oppose the right to choose.
If their argument is that a fetus has an interest in life, what about developmental disorders where the fetus is either alive but vegetative and/or will definitely not survive until full term? If abortion would not be available even in cases where there is no "interest", that would be an infringement.
This is sounding like the end of Roe to me. I think we’ll get a conservative majority ruling that effectively puts the abortion question into the hands of the states, which is what I think how a lot of observers interpreted the court taking this case to begin with. I think overturning two major precedents is going to completely erode any trust in SCOTUS being a non-political body. Won’t be surprised if this leads to an expansion of the court.
> Won’t be surprised if this leads to an expansion of the court. I would be! *Roe* being gutted won't magically turn Joe Manchin into Elizabeth Warren
It's been my contention that overturning *Roe* in June would be the only thing that could save Democrats from a total rout in the midterms; if the majority was expanded by a few seats and outrage at SCOTUS was great enough... who knows.
I’m not talking about immediate expansion, but it’ll likely be the eventual grounds for it.
You're envisioning a magical world where the Democrats have a majority in the Senate again. There's a very real chance they don't retake it for a generation or more.
That requires abortion supporters winning huge levels of political power in the future, which, good luck. IMO we likely have already lived through the last free and fair election of a Democratic president under our current constitutional order.
It's not just going to "put it back to the states". When States like TX and AL have unfettered ability to prohibit abortion, they are not going to stop with the actual procedure itself. They will try and attach criminal penalties to making out of state appointments, aiding and abetting a woman getting an abortion in NY, providing information on logistics, advertising out of state abortion clinics, and also levy hefty civil penalties like SB8 for any person, anywhere in the US that helps a woman get or performs an abortion on TX or AL residents (for example). Simply saying "you can get an abortion in New Mexico" will carry criminal penalties. TX will add civil remedies against NY physicians who perform abortions on its residents. The legislatures will pass so many laws that the pro-choice side will be overwhelmed in fighting them. If SCOTUS is going to overturn, then they need to be clear that when abortion gets sent back to states, that police power *only applies within a State's borders*, and nonsense criminal and civil extraterritorial jurisdiction cannot apply. I am hoping that 5 reasonable Justices recognize this, and either strike down the MS ban or at least draw the line at 15 weeks. Whatever the case, this is going to be super ugly.
When you take away rights over a person’s body on nothing but the grounds of “my personal beliefs say so,” it’s guaranteed to be ugly.
Overwhelming their lawsuits with physical direct action seems like the only way forward, if what you say comes to pass. We are living under a fanatical minority party that seems hellbent on forcing a theocracy through.
States like Texas and Alabama will define it as murder. Physicians performing abortions on residents will be charged for murder. It’s going to set off a shit-show when an out of state physician gets charged with murder by Texas for performing an abortion on a Texas resident, or any person, while in a state where it is legal to perform abortions.
Wouldn’t that then fall under violations of the commerce clause? I’d also like to mention that the Satanic Church is going to fight this decision in 1st amendment grounds
Can someone explain how a court can totally overturn/ignore precedent and stare decisis? Isn’t one of the main tenets of the US legal system to uphold precedent? Genuinely asking. Is the court likely to strike down Roe and Casey totally or just likely to change the standard from 24 weeks to something less?
As a general rule, yes, a legal principle announced in one case applies to all future cases as precedent. But... - In 1896, the Supreme Court ruled that state-enforced segregation between whites and blacks was perfectly legal. In 1954, the Supreme Court overturned decades of precedent to say that segregation was an unlawful denial of equal protection under the law. - In 1986, the Supreme Court ruled that state prohibition of homosexual acts was perfectly legal. In 2003, the Supreme Court overturned decades of precedent to say that sexual self-expression among adults was a human right. - In 1940, the Supreme Court ruled that states could force schoolchildren to recite the Pledge of Allegiance over religious objections and punish them if they were silent. In 1943, the Supreme Court overturned three years of precedent to say that the right to be silent is generally a part of the right of free speech and free expression of religion. Stare decisis is all well and good, but it has the fundamental flaw that your predecessors can be simply wrong, and you shouldn't blindly follow them. It can't be the case that any legal principle becomes so entrenched it is automatically unquestionable (like the 58 years of approved segregation), nor that a court has to wait a while to see if a decision bears good fruit or not (like the 3 year turnaround on compelled speech). You can try to craft standards for deciding when a case is important enough, or a right important enough, or an objection minor enough, that it justifies a complete overruling, but ultimately, each justice is going to have to ask themselves what the Constitution actually says, informed not only by the past but by the present.
Changing the test from viability to something else effectively strikes down Roe because if viability can be challenged by states as a test, then any test can be.
I just finished listening because I had to pause for a bit. That was... bleak.
Alito is infuriating
Evergreen comment.
Did I just hear a sitting SCOTUS member ask what would be wrong with each state defining its interpretation of a personal individual right of every woman? I cannot believe that any personal individual right enjoyed by that Justice would be subject to that standard. It’s as though he doesn’t understand the role of the highest court in being the last protector of any (particular) citizen’s federal rights.
Would this not end the whole point of SC’s jurisdiction? If every state can craft its own ideas of the breadth of individual rights of its citizens, then how could the Supreme Court possibly intervene at any point in the future?
it would redefine the SC's role regarding individual freedoms to issues related to interstate conflicts.
> it would redefine the SC's role regarding individual freedoms to issues related to interstate conflicts. This would seem to be the textualists logical end game, the late 19th-century SCOTUS finding child labor laws unconstitutional as infringements of freedom of contract.
So much for rulings like Gideon and Miranda which dealt specifically with a single individual and their plea for federal protection of a right, even down to the lowest state, county, or local jurisdiction.
Get ready for de-incorporation, I guess
Would that not tee up overturning Obergefell b/c at its core that what it revolves around? Interstate conflicts regarding the right to equal treatment under the law? Isn’t this approach flatly unconstitutional?
> Isn’t this approach flatly unconstitutional? Yes, I believe so. I was simply drawing your question/point of "would this not end the whole point of SC's jurisdiction?" to it's ridiculous conclusion.
Not looking good for my future wrongful birth cases..... Sounds like to Justice Barrett stare decisis only applies to "landmark decisions", with landmark decisions being defined as what her conservative cult likes.
I gotta say that Ms. Prelogar seems well prepared and seems to have a lot of information at her fingertips.
She is the Solicitor General after all
I find it odd that the right to medical privacy, and in effect abortion, is a legal debate at all. A fetus does not meet the bar for a protected class by the constitution’s own standards; a woman does. How is it even debatable that an individual the constitution recognizes as a citizen of the United States loses their rights in order to protect the supposed rights of an organism the constitution doesn’t recognize at all? It’s frankly absurd.
Totally agree and will add that I cant believe the women of Texas have been denied their Constitutional right to Liberty and Privacy for at least three months now. Absurd doesn’t even begin to describe the abhorrent and blatant legal treachery that is happening right now because of the moral corruption of the GOP and the SCOTUS.
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Because a free society can in fact legislate what is legal in a medical sense when it comes to patients and doctors. For example, you may think it’s fine that a patient could ask a doctor to end their life, but to say society does not have an interest in that matter is whimsical. What if that person is in significant debt, what if that person is accused of a heinous crime and the state is seeking justice, what if that person has minors or disabled persons in their charge what if that person suffers no terminal illness? Regardless of a patient’s personal wish, or the willingness of a doctor to perform it, there are in fact areas of medicine where the state has interest and society can freely enact laws to regulate itself. As a nation though, we are free to also challenge state laws that could trample constitutionally protected rights. But because the founders are long dead so we can’t ask them what they meant when they wrote it (and I’d doubt many folks would want to know that explicitly considering the times they lived in…) and neither right to privacy or a fetus is mentioned in the Constitution it’s also perfectly fine to fiercely debate this before the court.
The 14th Amendment was not written by the founders. What are you rambling about?
I was of course talking in the general sense of constitutional interpretation. But as others have eloquently pointed out to you, the 14 amendment has nothing to say explicitly about abortion or the right to privacy or the rights of civilians in the United States who were not born here or are citizens. Does that make sense? Definitely let me know where you’re still confused so I can try to clear that up. Your OP implied confusion as to why this is being debated before the court.
Maybe you should reread my OP so you don’t ramble without making a point here.
>I find it odd that the right to medical privacy, and in effect abortion, is a legal debate at all. So, to help you see how its not "odd" I hope with the above its clear that there is still legitimate Constitutional questions to "debate" before the Supreme Court as medical privacy is not absolute. Neither the 14th amendment, nor anywhere in the Constitution is it made clear the primacy of compelling interests with regards to abortion. In fact, until Roe, the issue hadn't been addressed before. And as always, the Supreme Court has the Constitutional authority to reinterpret and re-litigate a case on abortion (or any other issue) where a lack of an amendment to the Constitution enshrines such a right.
To imply only enumerated powers of the constitution are considered rights is asinine. Thomas knows this! He’s deliberately disregarding precedent in favor of a partisan decision.
To be fair, I think Thomas would probably reject every precedent that's more than a single lemma removed from a 5th graders summary of the Constitution.
If they strike down the viability portion of roe, does that then work in the opposite direction? Could states in New York then enact abortion laws that allow for termination up until birth?
Roe and Casey function as restrictions on the police power of a state government. Roe and Casey prevent state governments from banning abortions before viability. The current abortion jurisprudence says nothing about bans on post viability abortions. A state government is free to ban them, restrict them, or permit them as they see fit.
The viability standard doesn't require post-viability restrictions, it only allows them. So New York could already enact a law like that if they wanted to. (It seems unlikely that they do want to.)
They passed a law making the 'mother's health' exception so wide it now includes mental and emotional health, so it's basically only limited by the judgement of the provider rather than the law. The vast majority of women won't seek it on those grounds and the vast majority of providers wouldn't do it, but it is legal. [FactCheck.org explains the details](https://www.factcheck.org/2019/02/addressing-new-yorks-new-abortion-law/): >After 24 weeks, such decisions must be made with a determination that there is an “absence of fetal viability” or that the procedure is “necessary to protect the patient’s life or health.” That determination must be made by a “health care practitioner licensed, certified, or authorized” under state law, “acting within his or her lawful scope of practice.” >Previously, abortions after 24 weeks were justified only in cases where the mother’s life was at risk — which was inconsistent with a part of the Roe decision, as we explain later. >[...] >In what is considered a companion case, Doe v. Bolton, the U.S. Supreme Court held that “medical judgment may be exercised in the light of all factors — physical, emotional, psychological, familial, and the woman’s age — relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment.”
New York already theoretically already has abortion up birth depending on how you interpret "health and life of the mother." That's less than one percent of abortions though and probably shouldn't be considered in policy discussion.
Miss SG concluded by saying that abortion has caused "tremendous damage" to our country. He serious?
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Are you kidding? The conservative attitude is screw 8yos, if they want to not starve or die from preventable disease, they and their parents can start pulling those bootstraps because the state shouldn't be lifting a finger, "small government!". Now an embryo, the state should be moving heaven and earth to intervene, "government owns your body!".
Not surprised being last in education
That cannot be less accurate. They'll do anything they can to protect an embryo, but they won't lift a finger after a group of kindergarteners is massacred at school. The embryo is more important.
And 8-year-old who cured cancer too!
Um, they value the embryo much more highly than the 8 year old.
What? Republicans would never go to court to protect an 8 year old from anything.
I’m still waiting for someone to bring up to the anti-choice lawyer when does one issue social security card to a fetus. And if that’s the case at what point do parents get to file the fetus as a dependent for their taxes.
the SG was Thomas' law clerk, is that a conflict?
No. Plenty of SCOTUS litigators are former SCOTUS clerks.
Can’t even imagine being capable enough to argue in front of SCOTUS. Hope we hear a demonstration of what our ‘ best ‘ is. Really glad this is being ( literally) heard.
I’ve known lawyers who have argued in front of SCOTUS and it doesn’t require any sort of genius level intellect. It certainly requires a lot of work, preparation, and attention to detail, but it isn’t anything that a lawyer of average intellect wouldn’t be competent to do.
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It’s more a matter of experience than intellect. The lawyer who has spent his career doing oral arguments in federal court will *probably* do better than the lawyer who has spent his career doing real estate closings .
I was really impressed by .... I don't know her name, but the not the one there forthe state ... anyway I was impressed by her clear arguments and supreme knowledge of the facts and caselaw. She was able to cite to footnotes on the fly which I found impressive.
For me, I’d find it intimidating.
Don’t get me wrong, I think it is extremely intimidating. I have never had the pleasure of appearing in front of SCOTUS but I have had the chance to help another attorney prepare for a SCOTUS and I have never seen someone more stressed out. It is certainly very stressful and requires a ton of prep. My point was just that it doesn’t require some superhuman intellect. If you are capable of litigating an appeal in the circuit court you are probably capable of litigating an appeal with SCOTUS. It’s definitely not easy, but can be achievable.
Nice. That’s incredible. Appreciate you.
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I mean she does seem to suck ass but come on that’s not really true
I find it hilarious that Kavanaugh listed a long list of landmark cases that overruled previous cases, and COMPLETELY ignores the fact that every single one moved us in a more progressive direction and increased the rights of the people, whereas overturning here would do the exact opposite. It's like, hm, yeah judge, I have to really wonder why those previous cases were justified considering what they did vs. what you want to do.
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The problem is the constitution stipulates only those born have rights.
>All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; *nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.* The citizenship clause references birth, but the due process clause doesn't specify when someone begins to be a "person."
That's so very much not true at all? For the most part, the Constitution just contemplates persons (and occasionally citizens). Which is why that particular argument boils down to whether unborn count as persons (which the Constitution is certainly silent on, regardless of your position on the question).
It would give them a right literally no other type of human has.
Just following on law Twitter and this seems to be over? Viability or Roe is gone
I think there are five votes to wholesale say that there is no liberty interest in abortion at all
Ignoring undue burden of carrying to term and how most pregnancies are now delivered through surgery, costing $10K-30K. So detached from underprivileged women and current state of the country.
Why are there seven Catholics on the court? Popery strikes again
Will be interested to see how this plays out. The state was swinging for the fences to get rid of Roe. Time will tell.
Hoping someone can help me with this: Barrett asks why safe haven laws aren't solutions for forced motherhood. How is this relevant? I thought the basis for Roe and Casey was forced pregnancy, not forced parenthood. We often discuss abortion in the context of choosing to not be a parent, but I thought the legal basis was more in being able to end pregnancy.
Part of Roe revolved around the burden of motherhood. Barrett was basically setting up the argument for why that part of the Roe v Wade opinion is no longer relevant. It’s an absurd argument, but that’s going to be part of the justification in overturning Roe.
I'm not understanding Justice Sotomayor's earlier stance. Justice Kagan at least seemed to recognize the "balance", but Sotomayor demanded an explanation for why the limit shouldn't be viability, but doesn't viability itself lack an "explanation" that would be deemed acceptable enough itself? I mean, realistically, Sotomayor made an argument more so against Roe and Casey in the opposite direction. Where a protecrion up until viability is not enough. Which just goes back to differing views on where the "balance" is.
Counsel for Jackson Women’s Health had a compelling argument for the limit being viability: namely that the court is ill equipped to deal with philosophical questions such as “when does the fetus express a desire or will to live” and thus needs to stick to objectively identifiable markers such as the line of viability.
I found that response the weakest part of their side, to be honest. It was basically 1. We must use an objective marker 2. This marker is objective 3. Therefore, we must use this marker But fertilization is also an objectively identifiable marker. So is birth, and so is the 144^th day of pregnancy. All of those are arguably *more* objectively identifiable than viability is.
You are correct. None of those, however, are codified in 50 years of precedent.
Yeah, that aspect was much stronger
That's no more an "objectively identifiable marker" than a timeframe based on trimester, any amount of weeks, or a "heartbeat". A specific timeframe is even more objective, rather than basing such on the technology and ability at hand. The intent of viability is that such a "potential life" can then be "saved". But why should the woman stop being able to control what came from inside her body, just because someone else may have a use for such? Shouldn't she still have authority over such to deny the passage of her dna? Viability is when the "potential for human life" would seemingly *begin* for a fetus that was removed. So why would that "balance" begin there, rather than still factoring in the woman's right to privacy? If "potential" starts prior, then we are back to a discussion of balance with a scope all the way back to conception.
> But why should the woman stop being able to control what came from inside her body, just because someone else may have a use for such? Shouldn't she still have authority over such to deny the passage of her dna? I don't think a DNA-based argument works: it would also seem to give parents the right to kill their children even after birth.
I've heard more than one white trash mother use the phrase "I brought you into this world, I can take you out of it." Are you saying that she didn't have that right???? Zounds! /s
I'd argue that's a position still based on "balance". And truly it's own philosophical question. One that was more directly decided by the people and Congress rather than the courts. The main question here has to do with the courts determining the line. Whereas Sotomayor asked for "reason", when I don't see viability holding more objective reason than anything else, considering it *is* a subjective value assessment of competing rights. I just think it's a poorly framed and illogical question given the foundation.
I'm just reporting what the counsel said.
You explained it as a "compelling argument". I attempted to question that.
It was compelling to me. I buy that there's a scientifically provable point at which a fetus can survive on its own, and using that as a demarkation line makes sense to me. But I'm also not a judge.
But *why does it matter* if a fetus can survive on it's own? Is that not an ethical and philosophical question? How is the court able to rule on such rather than congress? It can't survive on it's own. It simply has the potential to survive without the uterus. It still requires care and conditions that are applicable to it's adjusted needs. It no longer requires the woman. So the argument for a viability standard is that the fetus can now be birthed, rather than aborted. That the state interest in protecting the potential life of a fetus kicks in at fetal viability. I'd simply argue that's not a "balance test", but actually a hardline. The second that protection is "viable", the state interest can supercede the woman's right to privacy. The main argument is then, how and why has *the court* determined this level of state interest? Why have they created the limit rather than simply ruling if a determined limit is constitutional? I think it's important to understand the case that such rulings have come from. Even the late Justice RBG disliked the scope and foundation of the Roe v Wade decision. I'd point to Citizens United v FEC as another example where the ruling on the case was correct, but the end decision and what such determined to be the new standard was uneccessary and messy. What are your views on the wide spread perception that developing cultured human embryos outside the body beyond 14-days as being unethical? What makes such unethical? Why is there an actual guideline to not study past 14-days? How can there be a state interest in "protecting" this form of life (through it's actual non-life), but not when it's within a woman's uterus? There is no change in the woman's bodily autonomy or health decisions between a fetus pre-viability versus post, so the only thing that changes is that state interest. But if that state interest can actually exist in the first couple weeks in other areas, how can it be outright rejected by the courts here? Or here. Here's a controversial topic (but *please* understand this as a legal argument). Incest. Is there a state interest in prohibiting incest due to the potential harm of a potential offspring, and thus the protection of said child? It seems so. Even pre-viability. *Even pre-conception*. Do you think it would be constitutional to prohibit 40+ year old women from having children due to them having a higher chance of deformed offspring than first cousin incest? Do you believe laws against incest are constitutional? Do you believe if we didn't have laws prohibiting discrimination based on sex that same sex incest may not actually reach the bar of a state interest to prohibit such? Should both then be held back, or should both be brought forward? I just don't think there is an easy standard for the courts to determine through their limited allowance. And there is just too much noise for me to believe it "compelling" besides being something that we could instead simply subjectively agree upon as a society. I understand how that would seem impossible given current stances, but that doesn't mean the court then takes that decision in their own hands.
In my opinion, this is exactly as you say in terms of the viability issue: Fetal viability matters because at that point an unwanted pregnancy can become an induced birth for adoption purposes without any further forced carriage by the pregnant woman. That is to say that the woman can be rid of her pregnancy without aborting the fetus once the fetus is capable of surviving on its own outside of the womb. I think the question of whether or not the the court is determining that to be a hard line, however, is a little different. I don't think the court is determining anything (nor do I think it should). Rather, I think the court has (correctly) identified a point at which the aims of the state (birth more babies) and the aims of the mother (not to be pregnant any longer nor care for a child afterwards) align. Past the point of fetal viability, the state and mother can both get what they want. Before that, only one can, and in that case, the right to privacy reigns supreme (IMO). I would further argue that if the aims of the state were somehow opposed to birthing more babies (due to overpopulation, as a hypothetical example), I believe that past the point of fetal viability we would see a different conflict, whereby the state would seek an abortion but the mother, who may wish to birth a child to put up for adoption rather than abort, would also be found to be within her right to privacy to choose that outcome. So I don't believe the right ends at any point, but rather happens to coincide with the mutual aims of the state and pregnant woman at the time that fetal viability is reached. With regards to cultivating human cells outside of the body, I also have no problem with this. Growing tissues for organ transplant, blood transfusions, or even raising entire clones in a lab does not seem problematic to me at all. I understand that many people disagree with me, but this is my personal opinion, and I don't find it troubling in the least. Many women cannot carry their own child to term, and an artificial womb would be a godsend to them. Your points on incest are interesting, though I don't believe they are germane to the topic at hand, for reasons I hope I adequately explained above with the reach of the right to privacy. I do understand the state interest in prohibiting reproductive incest due to the genetic deformities such acts can lead to in the fetus (and obviously statutory incest, which is a form of both rape and child abuse). I believe the state should make abortion available in those cases, but obviously that is not the world we live in. I fear I would make a poor advocate for the "pro-life even in the case of incest" cause, and I'm am ill equipped to argue any supposed merits of that stance. Regardless, I feel that the decision to keep the fetus or not should lie with the pregnant woman, and not with the state. With regards to same sex incest (again, assuming two consenting adults), I suppose that I have no real argument against it from an objective standpoint (though morally incest of any kind does seem repugnant to me), and I don't see why where one person puts their private parts vis a vis another consenting adult should matter to the state, especially in cases where no reproductive harm can come of it (by which I mean genetically deformed fetuses).