End the Epicycles of Roe

The only way to shut down the "ad hoc nullification" machine is to overrule Roe

With the geocentric model, the earth is at the center of the universe, and the planets rotate around the earth. But from the outset, this model was flawed. Astronomers observed that the planets do not move across the sky in a straight fashion, as would be expected if the earth was stationary. Rather, the planets moved forward, and then backward. How could this retrograde motion be explained? Defenders of the geocentric model conceived of the so-called epicycles. In fact, the planets that orbited the earth also orbited within a small circle. This orbit-within-an-orbit explained the retrograde motion of planets. But why would the planets orbit within the epicycle? Who cares! The elites found a way to defend the geocentric model of the universe. And the geocentric model of the universe is dogma.

The geocentric model of the universe is a good analogy for Roe v. Wade. From its birth, the case had no grounding in the Constitution. None. And that flaw was patent to everyone. But in order to defend this new-found right, the Supreme Court had to distort countless other areas of the law. Justice O'Connor's observation in Thornburg v. ACOG was prescient: "no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion."

Five decades later, we are stuck spinning in a never-ending series of epicycles. Consider a few examples of how Roe has distorted our law:

• Stare Decisis: "The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the 'central holding.' It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version." Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 993 (1992) (Scalia, J.).
• Freedom of Speech: "Today the ad hoc nullification machine claims its latest, greatest, and most surprising victim: the First Amendment. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting).
• Freedom of Speech: "What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the 'ad hoc nullification machine' that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice." Hill v. Colorado, 530 U.S. 703, 741 (2000) (Scalia, J., dissenting).
• Facial Challenges: "In fact, it is not clear that any woman would be deprived of a safe abortion by her inability to obtain a partial birth abortion. More medically sophisticated minds than ours have searched and failed to identify a single circumstance (let alone a large fraction) in which partial birth abortion is required. But no matter. The 'ad hoc nullification' machine is back at full throttle." Stenberg v. Carhart, 530 U.S. 914, 1020, (2000) (Scalia, J., dissenting).
• Tiers of Scrutiny: "These more recent decisions reflect the Court's tendency to relax purportedly higher standards of review for less-preferred rights." Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (Thomas, J., dissenting).
• Severability: "H.B. 2 contains what must surely be the most emphatic severability clause ever written. . . . [JB: S.B. 8 said hold my beer.] But despite this language, the Court holds that no part of the challenged provisions and no application of any part of them can be saved. . . There is no possible justification for this collateral damage." Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292, 2331 (2016) (Alito, J., dissenting).
• Third-Party Standing: "And the idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion." June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2153 (2020) (Alito, J, dissenting).

Perhaps the biggest epicycle is Casey itself, which purported to "reaffirm" the "central holding" of Roe while at the same time gutting the case's central trimester framework. Sadly, Justice O'Connor fell victim to the "ad hoc nullification" machine.

Now, the Texas cases are poised to create new epicycles for sovereign immunity, Article III standing, Ex Parte Young, In Re Debs, or countless other doctrines.

The only way to end these vicious epicycles is to repudiate the geocentric model. Enough emanations and penumbras. I didn't used to think Roe must be overruled. But the oral arguments in the S.B. 8 case convinced me of this path. Otherwise-sober judges were forced to contort themselves to find a way to save this rule. The slippery slope arguments are red herrings. In the wake of RAV v. St. Paul, no state thought to ban hate speech through private enforcement action. In the wake of Citizens United, no state thought to ban political contributions through private enforcement action.  In the wake of Heller, no state thought to ban handguns through private enforcement action. Indeed, prior to Heller, only D.C. and Chicago banned handguns. And if the Court is so worried about protecting AR-15s, they should grant a case concerning that issue.

Everyone knows this issue is only about abortion. Five decades of Roe led to S.B. 8. Justice Kagan inadvertently made this point

Isn't the point of a right that you don't have to ask Congress? Isn't the point of a right that it doesn't really matter what Congress thinks or what the majority of the American people think as to that right?

This putative "right" has no basis in the Constitution, and was manufactured by the Supreme Court–in spite of what the majority of people think. To paraphrase Judge Easterbrook, "this case pits the principle of self-representation, which appears in the Constitution, against the 'right to abortion,' which does not." In hindsight, Kagan's jab was a self-own.

What happens next? The Court should hold the Texas cases, overrule Roe in Dobbs, and then DIG both Texas cases. At that point, Texas's pre-Roe abortion law would be reanimated, and S.B. 8 becomes irrelevant. The Due Process Clause jurisprudence will be restored, and federal courts jurisprudence will be maintained. The political fallout will be severe. Let the people settle these issues.

Comments

[IPLawyer]

Dude, put the keyboard down.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Oops! he did it again!

[Gandydancer]

Poor Josh. The scales slipped from his eyes and he saw ACB and Kaveaugh for the first time for what they really are and… his world changed. Somehow he’s still bleating about overturning Roe, though, despite having maybe three votes.

[Jimmy the Dane]

I just had to endure liberals talking about the “rule of law” for years when anything came up about Orange-Man-Bad. Great libs. Glad you are so much into law and order these days. Time to suck it up and acknowledge Roe and its progeny have no basis in constitutional law. It was an ends-justify-the-means decision which was poorly reasoned and has resulted in a parade of horribles ever since. If you want abortion to be a protected right either bring forth legislation in the various states to protect it or make your case in a constitutional amendment (either state and/or federal level). Then I will finally believe that you truly care about the “rule of law.”

[c141nav]

Has the Supreme Court used “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” in cases involving the Second Amendment? Or any other for that matter.

[Queen Amalthea]

Once again, ‘penumbras and emanations’ is not part of Roe. It’s Griswold.

[Gandydancer]

It’s Roe, too, even if they didn’t use the much-derided words.

[Carl_N_Brown]

Griswold v. Connecticut, 381 U.S. 479 (1965)
William O. Douglas: “The foregoing cases* suggest that specific guarantees in the Bill of Rights have penumbras [shadows], formed by emanations [auras] from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

Griswold v Connecticut (1965, liberty of married couples to contraceptives) led to:
Eisenstadt v. Baird (1972, birth control for unmarried adult couples) which led to:
Roe v. Wade (1973, right to abortion for any woman) which led:
Carey v. Population Services International (1977, birth control for teens) which led to:
Lawrence v. Texas (2003, decriminalizing consensual gay sex) which led to:
Obergefell v. Hodges (2015, permitting same-sex marriages).

So here we end up, careening to Hell in a basket along with millions of bluenoses out of joint concerned citizens deeply concerned.

Penumbras and emanations … SCOTUS holding seances?
_______________
*[cnb eg: Meyer v. Nebraska and Pierce v. Society of Sisters finding an unenumerated right to parental control over childrearing]

[not guilty]

I suppose the reliance interest of one in four women of child bearing age counts for nothing.

[jst1]

A reliance principle of 10 months seems pretty easy to overcome.

[not guilty]

Non sequitur. Like it or not, society since Roe has structured itself to account for the availability of abortion prior to fetal viability. Some things are none of the government´s freaking business. As Justice Brennan wrote, ¨If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.¨ Eisenstadt v.Baird, 506 U.S. 438, 453 (1972).

[Brett Bellmore]

And can restructure itself again to account for abortion returning to the normal political give and take.

[Queen Amalthea]

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.¨ “

[Lee Moore]

Controls on abortion do not affect the freedom to make this decision. They merely insist that once you have voluntarily decided to proceed with procreation, or to proceed with activities reasonably expected to result in procreation, you may not step off the carousel until the music stops. For once you have voluntarily procreated the procreatee, you have assumed responsibility for it.

This is hardly revolutionary – the decision to bear or beget a child compels the decision to raise a child. And notwithstanding the enormous inconvenience that raising a child entails, you are not allowed to leave it on the kerb, or put it in the trash when it becomes tiresome.

This is not limited to children either. It also applies to your parrot, your dog, your dog’s poo, and even your chemical factory. You took it on – you’re responsible for tidying up the mess.

[jb]

A bunch of people (including the authors of SB8) think that you should be stuck with this responsibility if you involuntarily became pregnant. By this logic if someone sneaks a parrot into your apartment at night you should be stuck taking care of it for the rest of your life.

[Lee Moore]

Yes, but lots of other efforts at abortion regulation make rape exceptions.

Incidentally, should someone sneak into your apartment and leave a new born baby, rather than a parrot, on the kitchen table, where exactly do you stand legally ?

OK to ignore it and go to work ? Pop it on the step outside the apartment building and then go to work ? Sneak into an empty apartment and leave it there ? Leave a message on the super’s phone and go to work ?

[Lee Moore]

you should be stuck taking care of it for the rest of your life

Not sure that’s your best line of argument. Being stuck with 16 years of child support is normal operating procedure for the spermy parent, and he gets no option to back out.

Non voluntary fatherhood is rare of course, but it has been known to happen occasionally.

[Brett Bellmore]

So, warranted intrusion is perfectly fine, then? Thought so.

[iowatwo]

Or own another human.
Ignore the life snuffed out, and it really simplifies stuff.

[Sarcastr0]

You can believe what you want about when life begins. You cannot believe everyone else secretly agrees with you.

[Lee Moore]

Just for the avoidance of doubt, you mean “morally significant life.”

Anyone who doesn’t believe the life of a human, or indeed any organism generated by sexual reproduction, begins with zygotehood was playing hooky during biology class.

[Josh R]

Everyone uses “life” in this debate to mean personhood.

[M L]

Not true.

[Josh R]

Do go on M L …

[M L]

Not sure what to say. There’s no remotely intelligent or coherent debate where people try and deny the simple scientific fact that a fetus is alive, that it is a life. Of course many people are ignorant or just speak imprecisely about an issue of “when life begins,” but even there, they will immediately recognize, if they are interested in honest discussion, that it is a life and will move on to the concept of personhood. There is no purpose in intentionally conflating the two except to distort and mislead.

[Lee Moore]

Well, though I entirely disagree with Josh as to how everybody uses “life” I think we need to appreciate that the rhetorical dynamic is double edged.

Pro lifers are keen to emphasise that the new creature is alive from day one, because they think that puts the onus on the other side to justify a departure from the now fairly well accepted principle of moral equlity of humans. Can’t use “not really proper humans” for serfs, or Jews, or black people, or even Yankees fans. You have to come up with a plausible discriminating feature for why this type of human don’t got no rights. So it puts the pro lifers on the oppo’s 40 yard line.

There’s then a strong temptation among sharp practising pro-lifers to claim that this start of life thing ends the moral argument. Thank you and good night. But this is of course wrong. That it’s alive does not conclusively prove that it has the moral right to go on doing so.

On the other side, there is recognition of the rhetorical disadvantage of admitting that the life has already begun. Just as with Jews etc, if you don’t concede that a human life is at stake, then you don’t have to justify why it’s OK to squish it. So pro choicers often prefer to elide the step from life to morally valuable life, and coming up with a useful but highly idiosyncratic new meaning of “life” is one way of doing it.

Since it’s Josh and he’s a pretty honest debater I’m not going to call this sharp practice. I’ll just call it preparing the rhetorical battlefield.

But this battlefield preparation should be resisted, and the fact that the creature is an actual live human should be insisted upon – as I did – so as to prevent pro-choicers avoiding the question otherwise elided by the for-the-abortion-debate-only special meaning of life.

In the same way pro-lifers who elide the corresponding distinction by going straight from “it’s alive” to “shut up” should be corrected.

[grb]

M L : “Not sure what to say”

No doubt. But speaking of people who deny “simple scientific fact”, here’s an an eye-opener for me about the anti-abortion industry. They decided to define abortion as anything preventing a fertilized egg from implanting in the uterus. Given many (if not most) eggs fail to do so naturally, this runs counter to the common scientific definition of pregnancy, which starts at implantation. But the anti-choice cabal clearly wanted to maximize their “victims”, so chose the broader definition – even at the cost of making God the world’s most prolific abortionist by far.

Fine. Religions get to define their terms, even if the process can be an obvious fraud, as we see in the sudden proliferation of “religious exceptions” to vaccines. But here’s where it gets interesting: Scientific studies proved some forms of birth control, like the morning-after pill, don’t work by preventing implantation. So how did the anti-abortion consortium react upon learning they don’t meet their OWN definition of abortion? Were they ecstatic so many little cellular Biffs, Sallys, and Jimmys weren’t being “murdered” per their self-professed creed?

Of course not. Remember: The maximum number of “victims” equals the maximum return of “piety” back to them. There’s one thing to always remember about the anti-abortion industry: It’s the most perfect consumer-friendly piety available in the marketplace today. Cherubic proto-baby zygotes vs wanton hussies who can’t keep their legs closed. What “righteousness” could be easier and more user-friendly? No difficult questions, hard turns or painful choices.

Of course the anti-abortion industry ignored the science and still claims the morning after pill as an aborticide. This is a business marketing a wildly-popular mass-market product. What do businesses always want to do? Expand….

[M L]

Good comments Lee, I agree.

grb, nothing you said was interesting or particularly coherent. I think abortion is properly defined as a procedure that intentionally terminates the life of the fetus and is done for that purpose. It’s in the name, “abort.” I have no doubt there’s all kinds of inconsistent politics and hypocrisy that you find interesting. But none of it holds a candle to the bloody multi-billion dollar government-funded abortion industry that kills 1 million per year.

[Lee Moore]

They decided to define abortion as anything preventing a fertilized egg from implanting in the uterus.

Strictly they decided to stick with the original meanings of pregnancy and abortion, and not go along with the 1960s pro choicers redefinitions to define them in terms of implantation. Since the pro-choicers are in charge of the medical dictionaries they have a big advantage in rhetorical battlefield preparation. Since Josh was not responsible for this I have no difficulty in describing this as sharp practice. So sharp that some young pro choicers aren’t even aware that the medical definitions were changed for wholly political purposes.

There is of course no good medical or scientific reason to flip the definition of pregnancy (and consequently abortion) to an implantation based one. Even though we outsiders can’t see it, Mom’s body is well aware that there’s a crittur in there – the blastocyst is already interacting hormonally with the mother’s body well before implantation.

[Josh R]

There’s then a strong temptation among sharp practising pro-lifers to claim that this start of life thing ends the moral argument.

I they think they use “life” knowing that most people hear personhood.

On the other side, there is recognition of the rhetorical disadvantage of admitting that the life has already begun

I agree, but only because people hear personhood. Everyone should stop using “life.” It confuses the debate.

[shawn_dude]

“…people try and deny the simple scientific fact that a fetus is alive, that it is a life.”

No, they don’t. Josh R has it right here.
Cockroaches are alive. SARS-COV-2 is alive. Cows are alive. Even tumors are alive. Merely calling something “alive” does not appear to provide a moral shield from humans wanting it not alive.
So why is the pro-life crowd worried only about this one type of life? Because it will eventually become a person.

Just call it what you think it is: a person. Then move forward with your argument.

[Lee Moore]

Everyone should stop using “life.” It confuses the debate.

I disagree. It clarifies the debate as it makes it clear what the basic facts on the ground are. Why should the pro lifers agree to eschew it ? It’s not as if it’s a contorted new usage exquisitely concocted for rhetorical purposes. It’s the normal usage.

“Life” is an accurate term, and it reasonably puts pro choicers on notice to justify why Live Human 1 should be allowed to kill Live Human 2. With the assistance of Live Human 3.

A more reasonable demand would be to request that pro choicers abandon their exquisitely concocted new usages of pregnancy, abortion, contraception etc – because they really do confuse the debate. see grb’s contribution. He/she/it launches off onto religion because he/she/it is presumably unaware that there’s no scientific confusion about what is going on, just semantic confusion deliberately inserted by his own team, precisely to try to avoid having to acknowledge that as matter of biology life does begin at conception.

[Lee Moore]

shawn_dude :So why is the pro-life crowd worried only about this one type of life?

Because it’s a human life. The pro-life crowd is against killing humans. I don’t think they have a position on cows and cockroaches

Because it will eventually become a person.

No. It’s because they think it already is a “person.”

Person is of course a vague term, which to borrow Josh’s expression, confuses the debate. Whether it is called a person, or a human being or an unborn child or whatever, the question in neutral terms is whether it is – at what stage in its life does a human become “morally valuable” ?

Pro lifers think the answer is “right away – as soon as it exists as a live human”

Pro choicers think the answer is “after it’s been born”

And then there are folk – probably a majority – with intermediate positions pointing to various points between the two extremes. (To be complete, the philosopher Petet Singer is willing to go past birth for his cut off point.)

[Josh R]

Why should the pro lifers agree to eschew it?

It has no relevance to their argument unless they are arguing the zygote/embryo/fetus is a non-person human life, which I highly doubt.

It’s the normal usage.

In this context, I strongly disagree.

[not guilty]

Are you really comfortable with folks like Andrew Cuomo making reproductive decisions for half the populace?

[Jimmy the Dane]

I know Cuomo got around, but I didn’t know his partner count was up to half the populace? That guy must be busy. No wonder he didn’t have any time to actually govern.

[Moderation4ever]

Taking abortion out of the give and take has been beneficial to the Republican Party. They could whine about abortion without having to address the issue. If RvW is overturned the Republicans will no longer have that luxury.

[Lee Moore]

True, but should we consider all matters of public policy solely from the perspective of whether it is good or bad for the Republican Party ? Perhaps whether it is good or bad for the public is at least tangentially relevant ?

[Brett Bellmore]

That’s the way the Republican establishment thinks, but there’s a reason the GOP is known, internally, as “the Stupid party”.

People eventually notice that you’re constantly talking about doing something, but never doing it. And stop believing you. You have to occasionally deliver on your promises for anybody to rely on them.

[Sarcastr0]

You do know who first came up with the idea of ‘those are the evil party, and my side is the stupid party.’

I’m not proud of that essentialism, but don’t pretend it’s anything but the view of all those on the ideological edge of a party.

[Gandydancer]

If society has “structured itself” to count on the free availability of abortion prior to fetal viability society can presumably convince its elected servants to pass State laws with the same result.

As to “the decision whether to bear or beget a child” you can make that a negative by taking the Pill or wearing a rubber and not creatimg a third party with an aerguably overriding interest in the question.

[M L]

“Some things are none of the government´s freaking business. ”

Right. For example, maybe it’s none of the federal government’s business what the States are doing with regard to the killing of unborn humans.

[Doug Heffernan]

If you’re feeling stupider after breathing in more of the blackman kid’s hot air, just read Ilya Somin’s thoughtful post to this blog, posted less than an hour before the blackman kid’s pile.

What a narrow view of the world it must take to believe that a legislative methodology that has broad general implications is identical to one case, and that such methodology will just go away once certain precedent is killed off.

The S.B. 8 cat is out of the S.B. 8 bag. There is no way to unlearn this method. The method will not die with Roe. If judgment is deferred or circumvented on the methods of S.B. 8 directly, it won’t be the end of it.

But this might be hard to see if one’s eyes are laser locked on the prize of killing off Roe.

[Gandydancer]

Somin is an idiot, as are you. SB8 is a nothingburger that accomplishes nothing except excite hysteria in the likes of you two.

[Lee Moore]

I agree. To the extent that the SB8 methodology is a problem, the problem is not solved by killing off Roe, which would deal only with the abortion manifestation of SB8 technology.

That said, though SB8 technology does look somewhat uncomfortable I’m not at all keen on SCOTUS inventing stuff out of whole cloth just to squish it. That looks very like ends-based judgin’, which is a much worse evil than SB8.

Presumably there’s no barrier to Congress passing SB8-technology squishing legislation – at least in respect of lawsuits involving matters within Congress’s powers – eg commerce. A legislative fix for the probem, once the problem has been clearly defined, would be much better.

I also don’t think it would be at all difficult to get at least 10 GOP Senators on board with such a fix, given the non abortion ramifications of SB8. Indeed probably a 90-10 thing in the Senate.

But I fear SCOTUS will simpy invent a dog’s breakfast to solve this immediate political need, which will rapidly turn into a dog’s vomit.

[Sarcastr0]

Presumably there’s no barrier to Congress passing SB8-technology squishing legislation – at least in respect of lawsuits involving matters within Congress’s powers – eg commerce

You think the federal government can legislate the way a state government can pass their laws?

[Lee Moore]

No but it can legislate the way federal courts work and it has power to regulate interstate (now apparently meaning any) commerce.

Thus it could pass a law forbidding private persons from interfering in third parties conduct of [interstate] commerce where such private persons have no personal interest in the commercial transactions concerned.

And where State law permits private persons to so interfere by initiating lawsuits in State court, Congress could make the State law plaintiff liable to the State law defendant for federal damages equal to any State awarded damages plus costs.

[Armchair Lawyer]

Indeed. Congress has passed similar laws before, in regards to firearms and lawsuits.

Doing so for Abortion would be fairly simple

[SimonP]

That said, though SB8 technology does look somewhat uncomfortable I’m not at all keen on SCOTUS inventing stuff out of whole cloth just to squish it. That looks very like ends-based judgin’, which is a much worse evil than SB8.

You don’t seem to grasp that the “loopholes” on which S.B. 8 relies are themselves just Supreme Court holdings interpreting the scope of judicial power under the Constitution. These decisions were all “ends-driven,” too, with an eye toward properly constraining the judicial power vis-a-vis the other branches.

That being the case, it doesn’t seem to be that problematic to assert that the Court ought to step in and correct a problem its own cases have created – specifically, this mechanism for avoiding timely judicial review.

[LawTalkingGuy]

I actually kind of like the epicycles metaphor. But there are a lot of other things I’d apply it to before abortion jurisprudence.

[Dilan Esper]

Blackman has been cheering on SB8 from the start, and now says “if SB8 is wrong, it really indicts Roe because Roe was what gave rise to SB8”.

This is like saying that Jodie Foster was responsible for the assassination attempt against Reagan.

[LawTalkingGuy]

It’s like Texas v California. He’s so committed to the idea of magical and clever work-arounds that he’s kind of going over the top with frustration when he realizes it might not be working.

[Rev. Arthur L. Kirkland]

To the incel audience, Jodie Foster is a she-devil.

[Gandydancer]

So, that’s the way you see her, asshole?

[Rev. Arthur L. Kirkland]

I can’t tell whether (1) you like the taste of the soles of your betters’ shoes, and are trying to provoke even more stomping of your right-wing preferences, or (2) you hate that taste, and are stupid enough to believe that whining about it will stop the pain associated with continuing loss in the culture war.

[grb]

Dilan Esper : This is like saying that Jodie Foster was responsible for the assassination attempt against Reagan.

True enough. It’s also like saying the debate on gun control surely warrants sending vigilante posses after people who buy AR-15s. A finely crafted law to shut down gun dealers would be justified given 2A court victories.

Can’t you see? They brought it on themselves……

[Purple Martin]

…or like establishing a citizen-enforced bounty to support “…prohibiting the free exercise of religion.” But the citizen’s civil suit would not be against a person exercising a religious right, but only to those aiding or abetting a person exercising a religious right.

[Gandydancer]

Not seeing any of these posses going after abortionists. You (and the bluk of SCOTUS, apparently, if I am to believe reports of the oral argument) have a wild imagination.

[Gandydancer]

* bulk

[ReaderY]

This is fantasy land.

The Justices have sent a clear message they will evaluate SB8’s enforcement scheme before they will reconsider Roe, and when sB8’s fate is decided Roe will remain the law. Only states with regular enforcement schemes, like Mississippi, will be allowed to challenge Toe directly.

Professor Blackman, I’ve accepted you write these blogs as an advocate, and not in any way as a scholar in the traditional sense. But even an advocate has to be somewhat realistic in advising clients about what strategy to take.

When your clients’ talking points are facing a brick wall, simply harping on them is not going to work.

[Queen Amalthea]

“But even an advocate has to be somewhat realistic in advising clients about what strategy to take. ”

How is that going to advance him in conservative circles?

[UVaGrad]

Professor Blackman, I’ve accepted you write these blogs as an advocate, and not in any way as a scholar in the traditional sense. But even an advocate has to be somewhat realistic in advising clients about what strategy to take.

The first sentence is the reason he teaches at the South College Texas of Fleecing Borderline Literate People From Their Student Loans or whatever the third-tier toilet that gave him tenure is called.

The second sentence is why he doesn’t practice law.

[Gandydancer]

Only a moron would conflate Blanckman’s blog posts with “advice for clients”.

Thanks for outing yourself.

[Gandydancer]

* Blackman’s

[David Nieporent]

This certainly takes cynicism to a whole new level: Roe has to be overruled because Roe’s opponents are spending too much time trying to figure out how to circumvent it.

[Gandydancer]

That isn’t even a plausible misrepresentation of what he writes, just a lie by a familiar inveterate liar.

[Brett Bellmore]

I agree that Roe is distorting constitutional jurisprudence, on account of being textually unsupported, and yet protected. Because it’s neither textually supported nor has any supporting history, there’s no objective basis upon which the Court can ground the details of the right.

And because it was never accepted as legitimate, it has been under continual democratic attack.

[Magister]

Under anti-democratic attack, actually. Kinda like the results of last year’s election.

No heckler’s veto for extremists.

[not guilty]

The reasoning of Roe v.Wade is result oriented, no doubt. But the decision is not cut from whole cloth. The doctrine of unenumerated substantive due process rights predates Roe considerably.

SCOTUS opined in 1923 that the liberty protected by the Fourteenth Amendment due process clause ¨denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.¨ Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Procreation was recognized as a fundamental constitutional right in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). A right to marital privacy broad enough to avoid procreating was recognized in Griswold v. Connecticut, 381 U.S. 479 (1965). That right to avoid procreation was extended to unmarried persons in 1972. ¨If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.¨ Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).

It is not too great a leap from these historical antecedents to Roe.

[WPHDM]

Where exactly does the male of the species have a right to these things, one way or the other? Avoid becoming a parent without intent when the mother decides to carry pregnancy to term. Becoming a parent with intent, i.e. procreate, when a supreme court has given the fetus mother the unilateral right to arrange for the extermination of the fetus prior to viability?

To be intellectually honest, don’t we have to acknowledge that the abortion rights created by the Supreme Court are sex-specific rights that operate against legitimate interest of the opposite sex in a number of fact scenarios, namely those in which the procreational interests of the two participants in heterosexual intercourse are not aligned?

By the same token, a more restrictive abortion policy makes the procreational and parental playing field more equal between men and women, and thus advances the principle of sex equality.

[grb]

Brett Bellmore : “….nor has any supporting history….”

I guess you could always look back to the understanding at the time of the Founders, when abortion was common, accepted, and perfectly legal before “quickening”. Indeed, if people sought original intent-style justification with the zeal of gun nuts (and their “well regulated militia”), the womb-control-Statists wouldn’t have a leg to stand on. It wasn’t until the late 1800s that the Government (capital “G”) sought to assert full power over women’s childbearing decisions.

[Moderation4ever]

I agree here. The fact is that the Constitution does not in any way address any medical issues. Yet there are basic idea that we believe relate to medicine and one of those is a certain measure of privacy in our medial decisions.

The epicycles are not from those supporting the right to private decisions, but rather from those attempting to justify that right of privacy.

[Ben_]

You could. But some once upon a time happenstance doesn’t somehow automatically create a constitutional guarantee of a right.

“Gun nuts” have a constitutional amendment to point to for guarantees. You have stories.

There’s a constitutional amendment process you could use if you wanted to bring about your guarantee the honest way.

[Sarcastr0]

Ben, you can’t argue originalism and then argue against originalism.
If the logic of ‘guns were allowed so the right is individual’ the logic should work the same here.

Well you can switch your thesis for outcome-oriented convenience, but it makes you look like an unprincipled tool.

[Lee Moore]

Sarcastro : “Ben, you can’t argue originalism and then argue against originalism.

He isn’t. The thing is, you can’t use originalism in construing the constitutional text governing the right to abortion because there is no text !

The question of 2A is what it’s original meaning was, and whether the 18th century meaning could differ materially from its 21st century meaning. There’s no evidence that it does, and the 18th century practice of gun laws is advanced merely to show that there’s nothing in that which would lead us to doubt it.

Whereas the question of abortion rights has nothing to do with an original text – it’s simply a search for evidence that abortion was once regarded as a fundamental right, such that – eg – it is “retained” under 9A. That abortion up to quickening was legal in the 18C does not mean that it was regarded as a fundamental right.

In Georgia, up to 1995 it was legal for a man to have sex with a (consenting) fourteen year old girl, a matter certainly touching on intimate private matters and the liberty – trumpeted elsewhere in this discussion – to make procreative decisions unimpeded by the government. But now it’s not legal. And an argument in court that there must have been a constitutional right because it was legal in 1995 (and at all times before then) would fare poorly in court, I suspect.

Although quickening-as-ensoulment and therefore the moment of the divine gift of life was part of the justification for quickening being the legal cut off, that was not the only justification. The purely practical consideration that only from quickening could the life of the unborn could be demonstrated as a matter of evidence was also important. But now of course we can do heartbeats.

So the 19C history of tightening abortion restrictions is entirely consistent with pre 19C law on abortion being based on the religious idea that the child was not “alive and ensouled” before quickening, and that even if it was alive, that fact could not be proved in court before quickening. Once 19 science had a closer look, the evidence threshold moved back.

Which is not to say that pro-choicers shouldn’t look for historical evidence of abortion being considered a fundamental right. It’s just that evidence that it was legal in some circumstances is not such evidence. But either way – it’s not an exercise in originalism. Because there’s no original text to construe.

[Gandydancer]

…at the time of the Founders, when abortion was common, accepted, and perfectly legal before “quickening”.

Where can I find this alternate universe where D&C was widely practiced in 1789?

[grb]

Gandydancer : “Where can I find this alternate universe.. (gibberish)”

Do a little research and you’ll find the factual true universe where “at the time of the Founders, abortion was common, accepted, and perfectly legal before “quickening”.

A little research would do ya some good. It would be a new thing for you. Hell, you might discover facts and truth to be a invigorating and pleasant sensation. Dare we hope the experience might change your life?

[Gandydancer]

The fact that you are ignorant doesn’t change the words you read into “gibberish” for anyone but you.

Checking, duckduuckgo-ing “D&C” turms up as the first result exactly what I meant by that common term. I will therefor change my opinion of you from “ignorant” to “determinedly ignorant”.

[Moderation4ever]

I think you will find that at that time abortifacient agents were commonly used as well early surgical techniques for pregnancies that were further along.

[Gandydancer]

The idea that the fact that fetuses were not reliably recognized as deserving protection before quickening is somehow “supporting history” for Roe v Wade is retarded. Full stop.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I don’t understand. The problem I hear most about SB8 is not that it attacks Roe v. Wade, but that it opens the floodgates to attacking actually enumerated rights. How would reversing Roe v. Wade change that? That’s like saying a cancer is dangerous because it might metastasize at any moment, so let’s surgically remove the organ it threatens right now, but leave the cancer in place.

[Jason Cavanaugh]

Because as much as he writes otherwise, Blackman has been cheering on SB 8 from the very start precisely because of the right it targeted.

Nobody here – and I say this generously, is stupid enough to think that any law blogger, even one from South Texas College of Law Houston, would be cheering about an attempt to circumvent the 1A and punish/sue people for writing books.

Abortion though? That’s worth throwing his principles into the trash over.

[Lee Moore]

I doubt you’re right about the law blogging fraternity’s commitment to the 1st Amendment. You may have missed Eugene V’s regular exposures of actual 1A offending statutes/regulations/as applied offenses etc from around the nation. It is not as if 1A is very strongly embedded in the consciousness of public officials.

But fortunately, at least legal academia – the blogging classes – is 100% all in on 1A. Never a peep from them about the horrors of hate speech, the need to discipline Professors, students etc for “discriminatory” speech, views, lectures, hand movements.

Bwhaahaaaa !

You have obviously just stumbled out of a Burmese jungle, in which you have been hiding since 1945. Things are no longer quite as you remember them.

We won btw. Prices are up though. You’ll find out about girls and boys soon enough – that’s changed too.

[Gandydancer]

Yes, you determinedly don’t understand if you think SB8-like laws open the floodgates to actually attacking anything.

[Dave_A]

Nullification laws are a menace regardless of the federal action they proport to nullify.

Period.

If you don’t understand this, well… Perhaps you would be better off in the America we had prior to 1789, under the Articles.

[Armchair Lawyer]

Realistically, there are two ways to solve this.

1. Have a real lawsuit. Have a doctor violate the law, have someone sue them, and have it all brought to court. No “pretend” plaintiffs, no pre-emptive injunctions, etc…

2. Have Congress pass a law protecting the right to an abortion before 20 weeks (or whenever_.

[Intelligent Mr Toad]

It’s already underway. The doctor defying it is Alan Braid, who is old enough to remember the days before Roe v. Wade.

[WPHDM]

It’s gran omerta for these three SB8 cases against Braid, which are pending in state district courts; — one even in a court for which Defendant District Clerk Clarkston in Whole Women Helath v. Jackson also serves as clerk.

No word in oral argument that these cases are in the pipeline, and would be adversely affected by an anti-suit injunction, whether against judges or clerks.

Also just very brief mention of the 14 state-side pre-enforcement challenges, which the Texas MDL Panel got to have a look at and has recently sent to a single judge. One of the amici brought up the stay (to butress the argument that state litigation was inadquate), but the stay is over because the motion for consolidated pre-trial treatment by an appointed MDL judge was granted.

Docket here: https://search.txcourts.gov/Case.aspx?cn=21-0782&coa=cossup (copies of all petitions in the record).

[Gandydancer]

Thanks.

So, still only three cases.

Does the Federal case in IL purporting to decide who gets the nonexistent $10k pose any obstacle to proceeding here?

[Armchair Lawyer]

And indeed, the results of those lawsuits should be waited for, as it appropriate.

I will say, one of the problems with 2 of the plaintiffs is that they are “pro-choice”. It leads to an issue where there’s no real dispute between the parties.

[Rev. Arthur L. Kirkland]

That argument relies heavily on quotations from the culture war’s losers, obsolete and disaffected men whose ideas have been rejected by modern America and will continue to diminish in our culture for so long as any of us will live (although the trajectory will remain a bit uneven, giving misfits occasional delusions of relevance and adequacy).

Other than that, though, great work!

[Gandydancer]

Your declarations based on gazing into your shit-caked crystal ball are really tedious, asshole.

[Intelligent Mr Toad]

If Josh’s theory (SB8 is a result of Roe v. Wade), then why didn’t we see it until Roe v. Wade is on the point of being overturned?

[Gandydancer]

Because SB8 does nothing except excite gormless partisans on either side. Good for fundraising, but nothing else. Your premise is anyway wrong. There are maybe 3 votes to change Casey in any substantial way, so it’s in no danger of happening.

[Dave_A]

Because nullification laws (which seek to override existing federal law/precedent – on guns, immigration – and now abortion) have been gaining popularity as more states become subject to non-competitive single party rule.

[SimonP]

Josh, you are a bad lawyer and a bad law professor.

But you are also a bad person, since I don’t think you actually have a problem with abortion per se. I think these posts are really more about your ambition to be instrumental – or to have your arguments vindicated, at any rate – in overturning Roe. That’s all you want. Historical significance. Principle be damned.

[grb]

SimonP : “Historical significance. Principle be damned”

I think you’re being way too kind. Career significance is more like it.

[Gandydancer]

Thanks for sharing your baseless insights, shithead.

[Rev. Arthur L. Kirkland]

Prof. Blackman may be at a school tied for next-to-last in the national rankings, but he will always have Gandydancer.

[questioner7]

“The slippery slope arguments are red herrings… In the wake of Heller, no state thought to ban handguns through private enforcement action” — maybe because no one had that idea? Or no who had it, thought SCOTUS would bless it? With the idea out there and a SCOTUS blessing, the slippery slope is very much there.

[Gandydancer]

There is no SCOTUS blessing in view for substantial changes to either Casey or Heller, so no.

[UVaGrad]

I agree. Overrule Roe and make Walter Block’s evictionism the law of the land.

[Gandydancer]

Dream on.

https://en.wikipedia.org/wiki/Evictionism

[Intelligent Mr Toad]

RE: “The only way to end these vicious epicycles is to repudiate the geocentric model.”

I tried to date a geocentric model once, long ago, but she repudiated me.

[Gandydancer]

At that point, Texas’s pre-Roe abortion law would be reanimated, and S.B. 8 becomes irrelevant.

Serious question: Aren’t they still animate against post-viability abortions? Or are spurious “mother’s health” claims proof against any enforcement whatsoever?

And while the TX Legislature might repeal SB8 if TX crim laws were “reanimated”, there is no barrier to filing both crim & civil (SB8) suits.

[Commenter_XY]

Maybe the question to ask is this: What are the specific reasons for abortions that occur after the fetus is viable? Do we actually know?

That objective data would really inform the debate here. Personally, that is where I get very troubled: abortions that occur post-viability. Abortions after viability are something that need to be looked at differently, IMHO. To me, the question of abortion has always been a 9th amendment (the individual’s right to procure an abortion) and 10th amendment (the states right in placing restrictions on abortion) issue. I thought that is why we had the 9th and 10th amendments in the first place. The Founders did not enumerate all natural rights, but they knew those rights existed and passed the 9th and 10th amendments to protect those unenumerated rights.

[Zarniwoop]

For sample size of 1, I’ve been involved in precisely one abortion in my life, somewhere around viability … due to immediately-lethal-at-birth developmental defects. We wanted to have that child – she would have been our first – but rolled a critical fail on the genetic dice. So her ashes are in the roots of an oak tree on the family farm, and the next two daughters are also growing like trees.

In case it’s not obvious, I am vehemently against the anti-choose movement (by some folks, not all) to lump that sort of devastating, horrible medical decision in the same category as elective abortions. Don’t even go there.

[M L]

Just to be clear, the movement to lump all abortions in the same category as certain rare medical situations (which are not even properly described as abortions) is entirely on the side of the pro-abortion, pro-choice side. Or the anti-life side, as one would call it if one were to adopt the mirror image of your partisan vernacular.

[M L]

Commenter_XY, I agree that the regulation of abortion should be left to the states, as with most things, and that this is consistent with Constitutional design.

With regard to late term abortions, there is one thing that needs to be clarified due to a large volume of misleading propaganda: Abortion is never necessary to save a woman’s life or health, or otherwise medically necessary in anyway whatsoever. Sometimes a preterm delivery is necessary. But what abortion advocates like to obfuscate is that a preterm delivery, even if very likely to result in the collateral effect of the death of the fetus, is not the same thing as an abortion. They are fundamentally different procedures done for different purposes.

[Jason Cavanaugh]

“With regard to late term abortions, there is one thing that needs to be clarified due to a large volume of misleading propaganda: Abortion is never necessary to save a woman’s life or health, or otherwise medically necessary in anyway whatsoever.”

Thank goodness a random internet commenter with absolutely no history of partisan nonsense is finally here to settle a medicinal question.

Can you share where you obtained your medical degree and how long you’ve been practicing?

[Carl_N_Brown]

If you ban something when millions of people feel
_ that their use benefits them,
_ that their use does not harm others, and
_ that it’s really nobody else’s business,
whether it’s alcohol, marijuana, guns, abortion, erotica or any other moral malum prohibitum (banned because it can be abused), you create conditions where you have a black market not only supported by abusers but also by a large segment of otherwise law abiding citizens. That degrades the dignity of the law.

[M L]

So go with what is obviously right instead of piling on more layers of cowardly horse shit?

I figured that kind of talk would get you fired from legal academia.

Good on you, Professor Blackman.

[Squirrelloid]

Why is Sovereign Immunity worth preserving? It’s not in the Constitution. Sovereign Immunity is another judge-created idea with no basis in our founding documents. I’d rather see that get axed than Roe. Indeed, the 14th amendment doesn’t seem to believe in sovereign immunity.

(And no, the 11th amendment doesn’t smuggle in state sovereign immunity. It still permits suits from citizens of a state against their own state).

That abortion has been improperly sourced in the constitution does not mean it’s not a right. The 9th amendment protects unenumerated rights. The court should do the hard work of explicating what makes something a right, so that the 9th amendment isn’t written out of the Constitution.

[Lee Moore]

The 9th amendment protects unenumerated rights. The court should do the hard work of explicating what makes something a right, so that the 9th amendment isn’t written out of the Constitution.

Excellent point.

Though I don’t think they’re in the business of setting out the rules in such general terms. The difficulty with the 9th though is that “what makes something a right” is a really hard question – unless you’re a judge and you’re happy with the answer “me saying it is.”

That something was legal in the 18th century is no good evidence that it was a right – lots of things that used to be legal aren’t legal any more. We’d hardly be able to have our wonderful government regulating barbers otherwise.

Really you need something which everybody said was a right back then….but didn’t bother to put into the costitution as an enumerated right. But probably if they’d thought of it enough to agree it was a right – they’d have put it in.

Otherwise you’re left with “but obviously this is a right.” In which case you’d expect a large majority of the population would agree that it’s obvious. Maybe we could have an Amendment so that Congress could convert its idea of a 9th Amendment right into an enumerated right by legislation with say two thirds majorities in both chambers.

[Lee Moore]

Or to keep it out of the hands of the Feds, maybe two thirds of the States could do it. A sort of Constitutional Amendment lite.

[Squirrelloid]

Nonsense. We have plenty of writings about what rights are from authors who would have been read by the founders, not least of which is John Locke. General principles should not be impossible to elucidate. (I didn’t say easy, but why should SCOTUS have an easy job?)

The fact that some rights are unpopular is precisely the reason the court needs to protect them.

[Lee Moore]

I have no recollection of John Locke mentioning a right to abortion, though I admit I haven’t read him since Jimmy Carter was President.

But assuming Locke didn’t in fact say anything about abortion, how are we to persuade folk, many of whom are not naturally inclined to take the word of dead white males as gospel, that there’s no right to abortion tucked away in the 9th ?

Choosing a non slaveowning one is tactically sound, but I doubt it’s enough.

[Squirrelloid]

General principles are not specific enumeration of rights. But if you have general principles, you can then determine if a specifically claimed right is in fact a right according to those general principles.

More specifically, they should be general principles that the founders were aware of and likely agreed with, since we’re trying to interpret what they meant by ‘rights’ in the 9th amendment. Hence Locke is a good source. (We know Jefferson, at least, had read Locke, and I’d lay pretty good odds many if not most of the founders had).

On abortion, specifically, I think any right will depend on when the fetus becomes a ‘person’ under the law, which is another question the court should resolve. (If a given fetus is a person, it has rights. If it’s not a person, it doesn’t have rights, and the mother’s rights are the only consideration. And where that line is drawn is fraught, but absolutely essential as a matter of law. I would reasonably entertain anywhere from 16 to 24 weeks).

[Lee Moore]

I agree that Locke is an excellent source, but he’s mostly a source for what rights Locke thinks we ought to have, not necessarily for what rights we did have in 1791.

As to abortion, the (legal) relevance of “person” is the 14th Amendment and its “nor deny to any person within its jurisdiction the equal protection of the laws.” If a fetus was, at some point in its development, found to be a “person” then the consequence would be that laws permitting abortion would be unconstitutional past that point (subject to self defense considerations.)

But that’s not at all the same thing as a woman’s constitutional right to an abortion, which is either one of those unstated retained rights hidden within the 9th Amendment or else some kind of textless emanation from the 14th. I think most people on most sides think the 14th route is fanciful.

Anyway, the point is that the “personhood” of the fetus is only relevant to the fetus’s constitutional rights to be protected by the equal protection of the laws, from being killed. But even if it were not a “person” and had no constitutional rights whatever, that would not create any constitutional right to abortion. The State legislature can make it a crime to kill a dog, and dogs are not persons.

So the hunt for a constitutional right to abortion isn’t a matter of parsing “person” it’s a hunt for some kind of evidence that it’s a right retained under 9A.

So far the best effort at this is that abortion up to “quickening” was generally not criminal under the common law. But that is pretty weak sauce. That something was legal in 1791 does not mean that it was regarded as a “right.”

[M L]

If the 9th amendment protects unenumerated rights specifically by enabling the federal judiciary to divine and enforce them, it only enables them to do so as against the federal government.

[Squirrelloid]

The Bill of Rights should have been incorporated (nearly) wholesale against the states, not piecemeal. (Obviously excluding the 10th).
But incorporation has happened, and the 9th should be similarly incorporated (if it existed at all in the court’s jurisprudence). The privileges and immunities clause should cover the 9th as well as the others.

[Dave_A]

Except that the 9th largely doesn’t exist in the court’s past precedents – it has been treated as a box-best-not-opened for the entire history of this country….

[M L]

Squirrelloid,

First you say, well it should be based on the 9th, not the 14th. Then I point out the 9th absolutely doesn’t get you there by itself, and you’re back to the 14th.

As Dave_A mentioned, the 9th amendment doesn’t exist in the court’s jurisprudence. It has been described as an “inkblot.” It is highly doubtful that the 9th amendment is a source for federal judges to concoct or enforce rights, especially if they were not very well established legal rights at the time of the founding. More likely, the 9th is similar to the 10th, in that it reserves potential protection of unenumerated rights to the people and the states in the same way the 10th reserves unenumerated powers.

But even if the 9th were a source of unenumerated rights to be enforced by federal judges, it’s not the case that such would be incorporated against the states. Incorporation of any sort is dubious from an originalist perspective. At best, though, incorporation applied to “the first eight amendments to the Constitution of the United States” in the exact words of John Bingham.

That said, I understand why many people say “incorporation happened” so we should apply it consistently or not at all. 2A supporters, for example, don’t want to unilaterally disarm while their opponents gut disfavored rights and basically dream up whatever policies they want as mandated by the Constitution. But it should only apply to enumerated rights.

[Dave_A]

Except that the 9th has largely been relegated to a symbolic statement by the court’s activities over time.

Essentially all of the significant social-issues cases – and many of the major criminal-justice ones (Gideon, Miranda, etc) COULD have been written based on the 9th. They weren’t. In fact, the reasoning used seems to go to great pains to achieve a 9th-ammendment outcome (judicially creating new individual rights) without actually invoking the amendment itself…

All ‘sides’ of the US judiciary, across hundreds of years, seem quite content to leave that specific box unopened…

[fafalone]

The Constitution was *very* clear that your rights are not limited to the enumerated ones. Not being explicitly named simply doesn’t mean the government is free to infringe upon a right. If anything, we need MORE rulings that protect unenumerated rights.

“The geocentric model of the universe is a good analogy for Roe v. Wade. From its birth, the case had no grounding in the Constitution. None.”

This is just a very disappointing level of intellectual dishonesty. If you wanted to make an argument it wasn’t grounded in caselaw up until that point, fine, that’s a good argument. But no grounding in the Constitution? Bull. The way they justified the ruling under the 14th amendment rather than the 9th was shaky, and would seem to me as done so future justices and people like Josh can continue to pretend you have zero rights beyond limited versions of the enumerated ones by nullifying that amendment.

[Dave_A]

Leaving aside the fact that this is a nullification case…

The courts have been rather reluctant to start creating 9th Amendment rights, simply because essentially nobody wants to open the floodgates & unleash a world where anything and everything could be a ‘constitutional right’ in each circuit if you could just get 2 members of a 3-judge-panel to agree that it should be.

[Squirrelloid]

Hence why i said above that the court needs to do the hard work of elucidating general principles of rights. Or rather, incorporating those principles into the law as a framework.

It should obviously not be ‘2 of 3 judges think it is’.

It may also involve revolving some other fraught questions, like when some cells become a person, but frankly, it’s the courts job to determine what the law is, not pass the buck forever.

[Squirrelloid]

*resolving, obviously.

[Dave_A]

Which is why an ‘active’ 9th Amendment is a Pandora’s-box.

From the time that you permit plaintiffs to claim a ‘9th Amendment Right’ to (whatever), until such point as the Supreme Court bashes it’s way through a huge pile of cases and creates a ‘9th Amendment Test’ of some sort that limits what can be a ‘non-enumerated right’…. You get a free-for-all.

The bigger issue here, is that people are so fixated on the abortion issue that they miss the real question at hand: Should single-party-rule states be able to enact state-law that overrides or circumvents the US Supreme Court on subjects where the state-of-the-law is at odds with the state’s political-majority viewpoint.

[Dave_A]

The issue here is NULLIFICATION, not abortion – it is about permitting a state to ignore a putative constitutional right through legal slight-of-hand.

It doesn’t matter that Roe was a BS decision – as that ‘argument’ can be made about any precedent a given faction disapproves of…

What matters is that once you grant single-party-rule states a way to circumvent Supreme Court rulings which offend their partisan sensibilities, the US is one step closer to dissolution. Which is not a good thing…

And the subject of those partisan sensibilities must not matter when dealing with this sort of case… After all, either something is a right… Or it isn’t… Regardless of what ‘it’ is…

Nullification must not prevail.

[SgtDad]

The big question being dodged is: when is a baby a “person” under 14A? And the reference to geocentric dogma is quite apt, except it leaves out The Inquisition.

In my view, abortion is an issue reserved to the states under 10A. Until the baby is a “person” under 14A.