POLITICO is reporting that Roe v Wade will be struck down. From their report earlier this evening:
The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.
The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.
“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
This is really fucking it.
Protests are being organized across the country for later today (Tues, that is). I will update this post with information about the protests as well as providing suggestions as to good groups to donate money to.
Please post any reliable information you have about any of this in the comments.
Open thread. No trolls.
Follow me on Mastodon.
Send tips to dfutrelle at gmail dot com.
We Hunted the Mammoth relies on support from you, its readers, to survive. So please donate here if you can, or at David-Futrelle-1 on Venmo.
Alito seems to have forgotten that the Constitution doesn’t say a damn thing about abortion. EDIT: Wait, it’s more like he assumes that the constitution saying nothing means that the right shouldn’t exist, because clearly the lack of imagination of some dead folks nearly 300 years ago justifies anything. They really ought to learn that when all is said and done, the constitution they fetishize is just a piece of paper (ironically, Bush said this too but for entirely different reasons).
Honestly, I’d prefer the state stay out of it in the sense that the state by its own nature can only exploit and oppress people and the “rights” it allows people to have only exist as long as the state feels like it, but as long as I have to put up with the state’s continued existence I would prefer that it exerts the least amount of tyranny possible- part of which entails that a woman can do whatever she wants with her womb and the contents thereof.
1) The worst part of this is of course the impact on pregnant people in America.
2) The second worst part is how this shit spreads out of America (other than global gag rule which is either on or off, depending on who is a president); our own shitpants white supremacists have been eagerly passing around texts moaning about “white replacement theory” and other similar bullpuckey, and these days it seems that the only way they can feel pleasure is to have someone not-them suffering.
So… expect similar things elsewhere as well.
It took many years for something like Satanic Panic to land in Finland, but it sure did, decades ago; these days it is nothing but a blink of an eye…
[Originally posted on previous thread; written before reading this one]
My response to the opinion draft is “Too Long; Only skimmed the first quarter of it” maybe I’ll go back and read it in the entirety at some later point, but really not in the mood. I do note some things, based on what I saw while skimming and people’s comments elsewhere:
1.) At the time Roe v. Wade occurred, the general thrust of Supreme Court rulings was that in cases where a person’s legal status or legal options affecting their quality of life is majorly affected by the state which they live in, that’s a violation of their equal rights as an American citizen. This is very much a liberal argument, though. Conservatives have always been for stratifying society, and “equal rights” to them only means equal within a particular social strata.
2.) There’s this argument that there was “no longstanding right to abortion” back when Roe v. Wade happened (1973). Basically, that the idea people should have a right to abortion was a fairly new concept (for some value of new; it’s not unheard of for conservatives to consider anything which happened several decades prior to be “new”). I don’t know if that’s true, but I do note that the legal cases being used to support this argument were mostly from the 1700s and 1800s. But let’s say that it’s true. RvW was 49 years ago. What about now?
2½.) Also a handful of white men who have been dead a century or two found abortion icky; therefore the 70% or so of people alive today who want abortion with minimal to no restrictions don’t count.
3.) And then there’s the argument that, at the time, only 6 countries had a legal right to abortion (I suspect that means “legal in theory but not spelled out in law” for a lot of places if true). Okay, but what about now? Actually I looked this up and it turns out that nearly every country in the Northern Hemisphere (and this includes China and Russia) allows abortion with minimal to no restrictions. It’s mostly the equatorial countries and southern hemisphere where abortion is heavily restricted or banned.
4.) Basically there’s a whole lot of “Things were different in the past, therefore the present doesn’t matter”. Which doesn’t make sense in itself, but they’re trying to frame it that way in order to make the case that RvW was invalid at the time it was written, so therefore it should be overturned. Which still a really weak argument, because if it’s valid *now*, then overturning it on that basis will just cause unnecessary disruptions (and unnecessary misery, not that they care about that) for a few years while a new version replaces it.
5.) Alito seems to be arguing that people have a right to determine the moral character of the region where they live and put that into law (basically, a particular version of “State’s Rights”). Regardless of what one thinks of this, political developments in recent years have put a bit of a crimp in this idea; some conservative state governments have taken the position that the people don’t decide anything, the government decides for the people, and also the state government should be able to choose its own members (and federal Senators/Representatives) if it doesn’t like who the people chose. It would be deeply ironic if people supported State’s Rights thinking that it means they’re mostly free from the “tyrannical” Federal Government only for some of them to end up with an actually tyrannical state government.
TL;DR If you look up “regressive” at dictionary.com, you’ll find a link to this opinion. 😅
I’m 56 pages into the 98 page draft decision. I don’t think I can finish tonight. Too brain dead.
That said, the focus on historical facts is consistent with past precedent, but I’ve never liked that precedent either, for lots of reasons, and sure as hell wasn’t happy with how things happened in Washington v. Glucksberg in 1997.
When we fight to overturn this shit, we need to overturn not just this bullshit decision, but we have to overturn the entire line of cases that allow SCOTUS to use a history of abuses to justify a contemporary denial of freedoms.
I’ll close with what I said elsewhere:
Ugh, it’s even stupider than I first thought.
Basically: If there’s no “longstanding precedent” for a legal right, then that right can never be granted, and must be overturned if granted anyway. Logically, this would imply that legal rights can never exist at all. I’m sure, of course, that things going far enough back would get grandfathered in… but knowing Alito, only up to the Bill of Rights (1st through 10th Amendments), and as interpreted through a modern conservative lens. He’s said as much in the past.
So, likely ideal: No abortion, no same-sex marriage, no civil rights, no LGBTQIA+ rights, no women’s rights, none of those anywhere in the US. Only
land ownerswhite men [because modern conservative reinterpretation] can vote. States can decide if slavery is legal, ditto with mixed-race marriage, non-christian and/or mixed-religion marriage, no-fault divorce. Probably a few other important things I’m missing. It’s frozen that way forever, because in order for such rights to be legal again, they paradoxically have to have already been legal for centuries. What the people want don’t matter, what really matters is keeping the hacky mess which most of the Founders hoped future generations would fix, without any of the future generations’ fixes. Because, I’unno, respect for the dead or something.I’m pretty sure that accomplishing even a quarter of that will cause either the breakup or the collapse of the US. Even a lot of conservatives wouldn’t like living in a country run on a heavily bastardized version of late-1700s morality and legality.
And, come to think of it, one wouldn’t have a right to own a car, or plane, or a computer, or a phone, to say nothing of the internet. Maybe someone should tell Alito that?
Alison & Co’s commitment to “the people’s right” to decide the issue through legislation will last right up until a state passes a law that protects abortion rights rather than suppressing them.
Just like what happened with same-sex marriage.
@Snowberry
And this is why I ended up being an an anarchist. It’s futile to expect the government to save you from the dilemmas it was directly responsible for creating, and as I said before it was never meant to preserve freedom- it can only suppress it. “Legal rights” really don’t exist, in the sense that they survive only as long as whoever in charge finds it convenient that they do so.
Both Obama and Biden ran on promises to codify RvW. Both subsequently did fuck all about this.
https://twitter.com/Tomek_NB/status/1521412207250137090
@Moggie
In hindsight that was inevitable. The Democrats, for all their talk, are still mainly the party of the status quo. (Compare with the more openly regressive GOP…or don’t, in practice it’s the same stagnation to a different degree.)
I’m not qualified to comment on the legal side of things, but from the healthcare perspective … there are so many procedures and medications that are associated with abortion, but are not exclusively used for abortion. We’ve already seen state laws attacking a patient’s right to misoprostol, to name one. It doesn’t matter what it’s been prescribed for – the state will try to override your healthcare provider’s prescription.
Or take a D&C. Yes, it can be used for the purpose of an abortion. It can also be used for diagnostic purposes (such as to answer the question “why can’t I get pregnant?”) or to address dysfunctional uterine bleeding. I’ve had a D&C. As far as I know, there were no “products of conception” (to use the correct term) involved, BUT THAT DOESN’T MATTER. I needed it, my doctor performed it, and I didn’t have to worry about getting arrested at the hospital. Everyone who needs a D&C should have the same rights I did.
I cried myself to sleep last night for the first time since I was in grade school (that’s over fifty years ago). I haven’t been this upset since my dad passed. I think we are well and truly fucked.
Now I have to wait for this overwhelming wave of hopelessness and despair to pass over me while I remind myself that “well and truly fucked” is actually not a permanent state and never has been.
I wonder how long that will take this time?
@Moggie, Anonymous
But I remind you, RvW IS the status quo now. 59% of Americans say abortion should be legal in all or most cases, and 59% of Americans are not Democrats. There will be a bad few years and I wouldn’t make the case that this is good since good would involve some people not being catastrophic shitheels attempting to sabotage women’s rights; but it will most likely move the needle forward on women’s rights, putting them in the constitution instead of the courts, as everyone can now see that such protections are necessary.
I want to think that this will have a salutory effect on the midterms, but don’t believe that for a second. The misogyny is too strong for a women’s issue to turn out the vote.
The Nazis only needed to get 37% of the vote in 1932 to get enough power to set the wheels of atrocity in motion.
It won’t matter if 59% of the population agrees that abortion should be legal if those 59% aren’t going to do what it takes to fight the minority who will resort to any means to strip rights and autonomy away from others.
And given the responses that the Democrats have so far given to this attack (i.e. “well there’s nothing we can do about that, hey make sure you give us money and vote us in again, maybe we’ll actually do something in the next election cycle”), relying on politicians and voting alone to fix this is at best incredibly naive.
To reply to Unty M on the last post:
Yes, it is probably all of the above. It’s not necessarily a war against women, or against POC, as such… it’s a war against ‘everybody who is not the chosen people, a.k.a. us’. See also how the definition of what counts as ‘white’ has historically been quite flexible, depending on who it is useful to include (to increase the numbers) or exclude (to prevent them from exercising their differing opinions).
And as other people have pointed out already, rich people will still be getting abortions and see absolutely no problem with the fact that they’ve forbidden poor people from getting them, because it’s never been a matter of general principles to them. As Frank Wilhoit said:
Or, as the version of Loki in the webcomic Order of the Stick put it: “It’s hard to be a hypocrite when your guiding philosophy is ‘Do whatever’s best for you’.”
@Big Titty Demon
It is, but only in the sense that the status quo was a form of “don’t say anything and hope the problem goes away on its own”. The decision, and as we can assume any decision that wasn’t made in the dead past, can just be overturned at will because “precedent” (or more precisely, ancient traditions) doesn’t say anything about how the ancients dealt with such things. (For the record, they performed abortions too, they just lied about it when it was convenient.)
As Catalpa said, they might be distressed by it but I don’t know how many will be willing to do what is truly necessary to preserve their rights- that is to say, to give up their faith that their politicians will do anything and accept the fact that if a right is worth having then it is worth dying for.
@Catalpa
While I understand your point, that’s a bit of a false equivalence, as that was a multiparty system and America has only 2 functional parties. A majority is needed to exercise power, as demonstrated by the court majority. My point in saying it was the status quo is that that institutional weight now works in RvW’s favour. People resent losing something they had and will fight to get it back much more than they will struggle for something new.
I’m glad I ain’t recommended that then, wouldn’t want to appear incredibly naive. I said there would be bad years, and that I believed that a women’s issue would not even turn out the vote for the midterms, implying of course that we would not even get the votes or the politicians to fix it. But despite the image of the court not being persuaded by public opinion, in fact, they are, and they get slapped down when they get too far out of step with it. By all means though, protest, donate to abortion providers, help women directly. I am. Post your ideas of how to help. This is how the message gets across to them that they are out of step and we get through the bad years.
Or maybe you’re right, maybe it’s Nazis all the way down and the wheels of atrocity are in motion.
@snow:
This isn’t exactly true.
They’re using a particular line of reasoning for unenumerated rights. Slavery is specifically mentioned, and therefore this line of reasoning would not apply.
This is also a Substantive Due Process case, not an equal protection case. This further distinguishes it.
Brown v. Board of education is at risk, I grant you, but Brown is an equal protection case, and if/when they overrule Brown they have to do it using reasoning that doesn’t rely (or doesn’t solely rely) on the argument here in Dobbs v. JWH.
there’s a TON of bad, a sheer mountain of bad in this draft decision, but I’d like us to all freak out for the right reasons.
Yes, the Republicans may be coming for all of those rights, but NO Dobbs (and its reasoning) aren’t going to be the basis for overturning civil rights legislation.
Dobbs and its reasoning change the landscape for Griswold, but not necessarily for Reed v. Reed, (etc. etc.)
Curiously, since much of what you’re discussing either hinges on equal protection analysis or on the Commerce Clause, the First Amendment case Texas v. Johnson seems to me to be a more logical precedent to overturn next if the court wants to continue moving in the same direction displayed in Dobbs.
@Big Titty Demon
In addition to what you’d said, I’d be inclined to give women the tools they need to control their bodies more effectively than they do now- not just birth control but far more drastic measures will likely be needed at this rate. The Lysistrata gambit could work, but given that most of the people pushing for the ban have no sex life anyway even that might not be enough.
No major change or reform can get off the ground unless its adherents are willing to shed blood for it, after all. I expect this will be no different.
Ugh. shivers . Unfortunate that this will have to be a battlefield that is fought over again… not that we ever really stopped.
My only silver lining is that it absolutely puts the lie to any respect for stare decisis and any notion that conservatives ever tell the truth about their agendas.
A majority is theoretically needed to exercise power, sure. But the majority in the court that you refer to has 5 of the 9 justices appointed by Republican presidents who did not win the popular vote. The people in power do not need the consent of the majority to exercise their power, they only need to be able to take advantage of the system that was rigged in their favor from the start.
The way that union power has been systematically dismantled for decades (and the resulting stripping of workers rights) does not give me much faith in that assertion, I’m afraid.
Your statement implied that the solution to this problem was to have reproductive rights enshrined in the Constitution, and that the situation would be improved if this issue galvanized a large number of people to vote for Democrats.
While I would certainly like to believe that the system will right itself, that inertia and precedent will protect human rights, I cannot. I do not believe that the Democrats will act to implement any constitutional protections when they have not done so during any time when they held a majority or a supermajority despite their promises, when they can only provide excuses for why they cannot act despite supposedly having a majority that is supposed to allow them to exercise power. That’s how the two party system works, as you so claim, correct?
I do not believe that any parts of the system will cede power to the people unless put under constant, unrelenting pressure by the public.
When did this happen? I’d genuinely like to know.
The fascists do not care that they are out of step or that the majority does not agree with them. They only care about being able to exercise power and enforce their hierarchies. They will not listen to a message unless the message is accompanied with consequences.
Protesting, supporting and protecting abortion providers, and other forms of direct action are the way that this effort needs to be fought. Having more Democrats than Republicans will make the fight easier, certainly, but the Democrats will not do a single thing to help unless they are forced to.
https://crimethinc.com/2017/03/14/direct-action-guide
I mean, the wheels of atrocity are indeed in motion, the overturning of Roe and the subsequent criminalization of abortion will result in a staggering number of deaths of pregnant people. Not to mention the worsening poverty of struggling families or entrapment of people in abusive relationships.
In addition to that, the precedent of privacy being a right is also the basis on which multiple other rulings hinge, such as those permitting same sex marriage, contraception, interracial marriage, homosexual sex, etc. If Roe is overturned, those rights are the next ones on the chopping block. This thread explains it in more detail:
https://mobile.twitter.com/a_h_reaume/status/1521316453944758273
I am not making the Nazi comparison lightly. Fascism has been gathering power in the US for years now. I am not saying this to discourage people, nor am I arguing that we should give up. I am saying that direct action, community organizing, and solidarity between people is more necessary than ever, and that it is not enough for a majority to passively support human rights, we all need to actively fight for them.
@ crip dyke
You’re our resident constitutional law expert; so could I invite your thoughts on something I’ve got stuck in my head?
Could Congress pass legislation with the effect of overturning Madison -v- Marbury?
I mean I can obviously see how messy the fallout would be; but in principle is there anything to stop the legislature making law that had the effect of negating a court ruling?
That’s not a novel idea; legislatures do that all the time around the world, so presumably the US Govt can.
People say codifying Roe v Wade by making a law that says the same thing it says will help, and I want to believe it could help, but wouldn’t that just result in another court case and the Supremes overturning that law?
Alito is gaslighting nearly 50 years of jurisprudence. For a great breakdown, please listen to Opening Arguments.
Emergency Episode: Roe To Be Overturned
Yay the Rules Don’t Matter we all get fucked over
I’m hearing from some quarters that this is not actually the final decision, just an advance write-up of what Alito believes will be the final decision. There’s speculation that 5 of the 6 conservatives had already made up their minds even in advance of hearing the case, so he has very good reason to be confident. (There’s little reason to believe that Roberts would vote for it.)
If the “not the final decision” part is true but the “5 of 6” speculation isn’t necessarily so, then there’s still a faint hope that Gorsuch might defect. I mean, he is a Federalist Society member, but he does vote against what the Federalist Society wants. Occasionally. And he did say that RvW was settled law, not that we can entirely trust that.