The Final Epicycle? A Reply to Blackman

I'm not sure how Dobbs could be the last word.

There's a lot to discuss about the leaked Dobbs draft, but I wanted to respond to my co-blogger Josh Blackman's suggestion that Dobbs could be the end of abortion-related law at the Supreme Court.  I'm not sure how that could be, for two reasons.

First, in the short term, if Dobbs overturns Roe/Casey, you'll presumably have a lot of abortion-related legal issues at the Supreme Court and elsewhere about the scope of legislative and executive powers.  For example, how much power does Congress have to impose national rules relating to abortion?  What are the powers of federal executive agencies to influence abortion-related practices?  What are the powers of states to prohibit out-of-state abortions?  Dobbs could settle some questions, but I would guess it would shift the debate rather than end it.

Second, in the long term, changes in Supreme Court personnel work both ways.  As far as I can tell, those who think Roe/Casey should be maintained also believe that, if Dobbs overturns Roe/Casey, then the Supreme Court should overturn Dobbs at its first opportunity.  That doesn't seem likely in the next few years, as the votes aren't there now. But it's hard to predict the future.  And presumably, someday there will be a Court with a majority of Justices appointed by Democrat-party Presidents.  When that happens, another cycle might begin.

I understand that whether Dobbs would end the debate or merely shift the debate to the next stage isn't the most important question raised in the case and the leak.  But for those interested in that particular issue, I thought I would say why I think the latter is more likely.

Comments

[DWB]

Democrats LOVE baby-killing -- even more than they loved owning black folk.

And Democrats LOVED owning black folk!!!!!!!!!!!

More to come...

[Rev. Arthur L. Kirkland]

"Democrats LOVE baby-killing -- even more than they loved owning black folk. And Democrats LOVED owning black folk!!!!!!!!!!! More to come... "

For those new to the Volokh Conspiracy, who might have expected content befitting an academic blog: That comment reflects the general nature of this blog's bigoted, downscale, right-wing discourse. Just be thankful the right-wingers at this blog didn't use a vile racial slur in this discussion (yet), because they regularly use that word, often just for the sport of it, and they are proud of that.

[Krychek_2]

Arthur, please. By responding to his comment, you dignified it. The proper response was silence.

[Rev. Arthur L. Kirkland]

No free swings. Others are welcome to wallow in political correctness, or appease these right-wing jerks, but I call a bigot a bigot. Accuracy is a virtue.

[Krychek_2]

All right, here’s an accuracy. Every time you open your mouth the other side gains converts.

[Rev. Arthur L. Kirkland]

At this blog, with its audience? That seems daft.

[DWB]

The right Reverend Artie -- keeping murder "classy" since ...

[Snorkle]

Leave him alone, Blackman is busy being in a tizzy. Not only did his Precious get a black eye, his Leo^2-approved stooges are making this long-planned authoritarian turn look bad.

That could lead to maybe some folks who respect civil liberties learning you get away with ignoring law by being brazen.

He'll come off his sugar rush at some point, I'm guessing a Thursday in May.

[Ridgeway]

I agree that abortion is far from a dead letter at the Supreme Court.

One interesting hypo is if Congress were able to pass a law significantly limiting or banning abortion nationwide. Personally I find this unlikely (I doubt the Senate would ever have a filibuster-proof majority of committed pro-life Republicans). Assuming it did happen however, it would be interesting to see if a conservative SCT would strike down the law in order to narrow the commerce clause jurisprudence.

[NToJ]

Ok, I'll bite. What's the conservative argument that a national pro-choice law is not a proper exercise of the commerce clause?

[LawTalkingGuy]

If the conservatives decide to ditch or narrow the "substantially affects" test.

[Ridgeway]

I was talking about a national pro-life law, i.e. a law purporting to substantially restrict the availability of abortion.

The conservative argument is that abortion, like other medical procedures, is strictly local in nature and thus not subject to regulation under the ICC.

That has been the position of most principled anti-Roe advocates all along.

[LawTalkingGuy]

They will absolutely abandon this position in a heartbeat if necessary. Alito certainly will. OR they will adopt a framing that it is an exercise of Section 5 powers under the 14th Amendment. Who cares what Flores says? They don't need to be consistent.

[Ridgeway]

Personally I doubt it. Roe has been infuriating conservative lawyers for 50 years not just because they are personally anti-abortion, but because they see it as so obviously wrong from a legal perspective. The ones I know really do believe it is a state issue, and would gladly trade a nationwide abortion ban for a significant limitation on the commerce clause. In the long run, the CC is where it is at in terms of reining in the scope of the Federal Government

[shawn_dude]

The commerce clause doesn't get the primary voters into the polls like an anti-abortion law will. It doesn't matter what practicing lawyers think as much as what aspiring and practicing politicians think. FOX News stock would take a nosedive if the political classes picked up the commerce clause as their rallying cry.

[Ridgeway]

I was talking about the SCT, not congress. I could see Congress passing a ban if they could get the votes (which is itself doubtful due to the Senate), but it would be the SCT that nukes the law on CC grounds.

[bernard11]

Roe has been infuriating conservative lawyers for 50 years

But so what?

I think that if the Republicans take Congress, or even just the House, there will be enormous, maybe unprecedented, pressure from their voters to pass an anti-abortion statute.

Some wrangling over the Commerce Clause isn't going to change anything. Do you imagine Ted Cruz is going to be concerned about that?

[Brett Bellmore]

I think that if the pro-abort states left it at some sane level, maybe a bit more accessible than in Europe, (Not hard to do, European abortion laws are a LOT stricter than Democrats make them out to be.) but something vaguely like Roe proposed, there might not be a federal law under a Republican Congress. (Because some of the Republican members are secretly pro-choice.)

But what's probably going to happen is that multiple states are going to go batshit crazy, and legalize elective abortion right up to a week or two past live birth. (NY has already effectively done so, by abolishing every protection against it happening, and prohibiting investigating deaths close to birth.) Several states already attempted previous to this to amend their laws prohibiting any prosecution for 'perinatal' deaths occurring as a result of neglect; "Perinatal" means the period AROUND birth, not merely prior to it, so these laws would have allowed babies born alive to be killed by starvation or exposure.

Enough of a fuss was made about this that the bills were amended, but they did attempt it. Now, with hysteria at its peak, I expect they'll do more than just attempt it.

And actual infanticide is going to make it really hard to not act, and for the Supreme court to not allow at least some part of that action, because letting people be killed before birth might not be a clear EPC violation, but letting them be killed afterwards certainly is.

[NToJ]

“That has been the position of most principled anti-Roe advocates all along.”

What a constructive discussion.

[Ridgeway]

I genuinely don't understand this comment

[Intelligent Mr Toad]

Not usually even local! Just twilight sedation is usually enough.

[Josh R]

how much power does Congress have to impose national rules relating to abortion

Give that the right has embraced the national partial-birth abortion ban, I suspect there is little appetite to challenge a national pro-choice law on federalism grounds.

[NToJ]

It doesn't take much appetite, it just takes a plaintiff with standing. And Thomas already said in his Gonzales v. Carhart concurrence that he was waiting for an opportunity to overturn federal abortion laws on commerce clause grounds (though he declined to do so when the federal law was a ban).

[Ridgeway]

Has the Partial-Birth Abortion Ban ever been challenged? I don't recall ever seeing any cases, and always assumed that the pro-choice side didn't want to challenge it given that the facts were likely to be so bad, they would end up with a good test case for overturning Roe as well as the PBA ban.

I viewed it as one of those laws that is unconstitutional, but that is so broadly popular it stays in place -- like the Endangered Species Act.

[Ridgeway]

Whoops -- forgot about Carhart

[Brett Bellmore]

What, are they using white rhino buttons on their work shirts?

[David Nieporent]

He declined to do so because nobody made the argument. Maybe he's unprincipled and would've declined anyway Because Abortion, but that's hypothetical. It's not why he declined.

[ducksalad]

It's not unlikely that the question will be the reverse. Can Congress legislate a national right to an abortion? The idea is already being floated.

I think not, and doubt the current SC would either. But maybe Congress could prevent one state from disallowing their own residents from travelling to another state to get an abortion, on the basis that it's interference in interstate commerce.

[Purple Martin]

Don't get out much? The idea was "floated" decades ago. The proposed legislation has already passed the House and a move to debate, defeated in the Senate (not a vote on the bill, but to debate the bill).

I've seen no serious advocacy of the position you "think" must be true, but am certainly willing to be corrected if you have a credible cite.

[ducksalad]

Sorry if I wasn't clear, that last part is my personal opinion of how the constitution ought to be interpreted. The expression of an such an opinion is its own citation.

On the first part, I think you'd agree that the conservative justices we have now either think (a) Congress could ban abortion but not protect it, or (b) Congress can neither ban nor protect it. Thomas hinted that he thinks (b).

[Krychek_2]

"Second, in the long term, changes in Supreme Court personnel work both ways."

One of the nastier side effects of the 50 year push to overturn Roe that doesn't often get talked about, is that at this point, anything the Supreme Court does on any major issue is going to be seen as partisan hackery rather than dispassionate legal analysis. At the time Roe was decided, most Republicans thought it was correct. The Republican justices who have supported Roe over the years include Potter Stewart, Harry Blackmun, Lewis Powell, John Paul Stevens, Anthony Kennedy David Souter -- the holding in Roe was fairly mainline and mainstream, right up until the conservative fringe seized control of the GOP and made it a litmus test.

I'm old enough to remember when the Supreme Court actually was largely nonpartisan. Those days are gone, and it's a direct consequence of slow-motion court packing over a 50 year period to achieve a desired result. Court bipartisanship will be buried in the plot right next to Roe. It's just one more example of how the radical right has basically destroyed one institution after another.

[Bob from Ohio]

"conservative fringe seized control of the GOP"

AKA majority of the GOP.

The 1980 GOP platform called for a constitutional amendment overruling Roe. In 1981, Joe Biden voted for that amendment.

[Krychek_2]

Yes, the 1980 election was one of the earliest volleys in the conservative fringe taking over the GOP. Being anti-abortion may be GOP mainstream now; it was not in the 1970s when Roe was decided.

[Bob from Ohio]

There was no take over. GOP voters just became pro-life, Democrats like Biden became pro-abortion.

[Brett Bellmore]

You're simply historically wrong about that. It was GOP mainstream then, too. The public was split down the middle at the time, and the GOP was to the pro-life side of that middle.

[California Dreamer]

It has never been split down the middle. From 1973 until now, a large majority of the public has always believed abortion should be legal in at least some circumstances. There are widely differing views on what those circumstances should be, ranging from those who would allow it only in cases of rape or incest to those who would allow it through the end of the second trimester. But only a small minority wants an absolute ban, and only a small minority wants it to be legal in all circumstances. The Republican party seems to have aligned itself with those seeking a total ban, putting it pretty far to the right. But the Democratic party seems to have aligned itself with those who want abortion always (or almost always) to be legal, putting it pretty far to the left. If Roe is overruled, it would be nice if the parties engaged in a debate about when abortion should be allowed, rather than arguing the extremes.

[Social Justice is neither]

That is just you lying to make your pro-abortion at anytime position seem less extreme. Democrats are a death cult.

[Sarcastr0]

I hate this when the left does it, I hate it from the right. Apocalyptical language may make you feel powerful, but it really just makes you look like you're too dumb to deal with people who disagree with your priors.

California Dreamer talked about abortion without exception, which is what Brett was talking about. You are talking about 'abortion anytime' which is not the same thing.

[Bruce Hayden]

The problem was, esp with Casey, that the action was in the 3rd trimester. Roe had essentially said that 3rd trimester abortions could be banned. Casey opened the door to overriding that. A state would ban 3rd trimester abortions, abortion activists would sue, and activist judges would say that they couldn’t ban them. We are talking the killing of perfectly viable babies, even up through a normal birth. Babies that, if born, would likely have lived normal lives. Even in a couple cases, infanticide after delivery was justified. Abortion activists were successful in keeping that legal in parts of the country, despite some >80% abhorrence at the practice.

[Krychek_2]

Don't forget that as Governor of California, Ronald Reagan signed legislation legalizing abortion. I suspect that today that would keep him from getting the GOP nomination.

[Bob from Ohio]

Probably.

Of course that factoid just shows what a mistake Roe was, a brutal wound to the country. It short circuited the political process towards a gradual lessening of restrictions and made it the political issue uber alles.

[Brett Bellmore]

I think it would be interesting to see the details of that legislation... I find that legislation concerning abortion is often very dishonestly described.

[Krychek_2]

Well, if you really are interested in the details, you can go to google. What you'll find is that it legalized abortion on demand in California.

[Bob from Ohio]

"legalized abortion on demand in California."

No it didn't.

[Brett Bellmore]

"What you'll find is that it legalized abortion on demand in California."

Like I said, I find that legislation concerning abortion is often very dishonestly described. Thanks for providing an illustration of that.

[Bob from Ohio]

It was called the Therapeutic Abortion Act. It required a committee of doctors to approve and only when it would "gravely" injure the mother's health, or in cases of rape and incest.

So it broadened access but was hardly abortion on demand as advocated now by "progressives".

[Krychek_2]

You obviously have very little experience with the realities of committees of doctors deciding whether a woman needs an abortion. In theory you're right; in practice it was abortion on demand.

[Bob from Ohio]

So you say.

[Krychek_2]

"Endangering the physical or mental health of the mother" is broad enough language to fly a jumbo jet through. Any woman's mental health suffered if she was forced to carry an unwanted pregnancy to term.

[Bob from Ohio]

"substantial risk" that it "gravely" affected

[Krychek_2]

You're assuming that doctors that mostly believe in abortion rights will read those terms the same way you do. Believe whatever you like, the practical reality is that any woman who wanted an abortion could find a doctor to sign off on her needing one.

[Brett Bellmore]

So? There's what the law actually authorized, and what some doctors illegally did, and they're not the same thing.

[Krychek_2]

Bob, that's the argument against Brown v. Board of Education too: It short circuited the political process and made it the political issue uber alles. And I don't know if you remember the 60s or not, but I can assure you the political upheaval from Brown was every bit as noisy as the political upheaval from Roe.

But if you take seriously the notion of fundamental rights -- women's reproductive autonomy, abolishing segregated schools -- at some point those rights become important enough that you just have to take the political upheaval that follows. Had Roe been decided the other way in 1973, we'd probably be just about where we're going to be now: abortion on demand on the coasts, banned in the South, and middle ground in the rest of the country.

[Bob from Ohio]

Abortion was never a "fundamental right" until Roe, 196 years after independence. Segregation always violated the 14th and 15th amendments, Plessy was wrong from day one.

Abortion is the dominant political issue 50 years after Roe. Opposition to Brown lasted 15ish years at most, and only in part of the country.

[Krychek_2]

So the Ninth Amendment is meaningless? The privileges and immunities clause is meaningless? Sorry, I don't share your cramped reading of individual rights.

[Bruce Hayden]

Read the draft opinion.

[not guilty]

If substantive due process is to be abandoned, will it be constitutional for Congress to reinstate de jure segregation in the District of Columbia? After all, Bolling v. Sharpe is a substantive due process decision.

[Bob from Ohio]

No. "Substantive process" is an oxymoron. Due process means procedure.

Fourteenth Amendment’s Citizenship Clause is where you can ban federal discrimination. Equality before the law is a right of citizenship.

[LawTalkingGuy]

Look who is pretending to care about equality before the law and procedural due process. You don’t even believe in fairness in adversarial criminal proceedings, but here you are pretending that it matters a great deal.

[not guilty]

The right to equal protection of law vis-a-vis the federal government is an incident of personhood, not of citizenship.

[Brett Bellmore]

Right. There are a lot of rights, most of them even, that are incident to citizenship, but equal protection applies to people, not just citizens.

So you can't announce open season on illegal immigrants, so long as you have laws against murder, for instance.

But equal protection doesn't mean being treated the same in all regards, it just means that you can't put people beyond the protection of the law.

[David Nieporent]

If you think opposition to school desegregation was over by 1969, you're clueless.

[DWB]

Brown v. Board of Education had the 14th Amendment backing it up -- Roe was made up out of whole cloth.

[not guilty]

Was Bolling v. Sharpe wrongly decided?

[DWB]

As the 14th Amendment was in effect in 1954 and congress holds constitutional jurisdiction in DC, thus placing the demands of equal protection on them, yes -- it was decided correctly.

PS: Quotas, busing, and other race-conscience government edicts were also unconstitutional based upon the same equal protection.

[not guilty]

Uh, have you read Bolling? It is a Fifth Amendment, substantive due process decision. The Fourteenth Amendment binds the states, but not the federal government.

[ravenshrike]

Bolling being shifted to 14th based would have forced SCOTUS to admit the P&I clause actually meant something. Something it would have been extremely loathe to do since it is apparently allergic to admitting its monumental fuck up regarding the 14th.

[Rev. Arthur L. Kirkland]

" AKA majority of the GOP "

Majority of the GOP, but a bitter, bigoted, half-educated, superstitious, disaffected, dwindling minority of America.

Persuade more Americans to embrace bigotry, backwardness, and superstition, Republicans, or prepare to have your stale, ugly thinking stomped into irrelevance by better Americans.

[Brett Bellmore]

How is that not equally a side effect of the 50 year push to create a right to abortion where none existed? It's like saying there wouldn't be a war if the other side just surrendered.

"At the time Roe was decided, most Republicans thought it was correct."

I seriously doubt that; Roe was a VERY controversial decision, from the very start. Looking at Pew, back in '75,

1994 Sep 6-7

Legal under any circumstances: 33%
Legal under most circumstances: 13%
Legal under only a few circumstances: 38%
Legal under no circumstances: 13%

So, right at the time you had a bare majority clearly opposed to Roe. You think a majority of the part more opposed to Roe actually favored it?

And more recent polling that gets into the weeds show that even the people who say under all circumstances today don't really mean ALL circumstances. They basically only mean 1st trimester and medically necessary after that. Even in the 1st trimester elective abortions aren't very popular.

[Krychek_2]

According to your own link, in 1975 only 22% of the population believed abortion should be illegal in all circumstances. And Roe's holding was that a flat ban on abortion was unconstitutional; not that it couldn't be regulated or, in some cases, even banned. So your own data is consistent with what I said.

As far as it not being a war if the other side surrendered, once your side had lost Roe it had two choices. It could amend the Constitution -- which is the remedy you most often suggest when liberals get a result they don't like -- or it could destroy the institutional integrity of the Supreme Court. It chose the latter. Shame.

[Don Nico]

"According to your own link, in 1975 only 22% of the population believed abortion should be illegal in all circumstances. "
Now that is spin-doctoring, but it is too transparent to be praiseworthy.

[Krychek_2]

So fine, offer your alternative interpretation. You're great at doing hit and runs, without offering any analysis of your own.

[Brett Bellmore]

Prior to Roe, abortion was, indeed, available "under a few circumstances"; It was available when medically necessary to save the life of the mother.

Under a few circumstances plus not at all equaled 51%.

And again, with a bare majority of the population preferring the status quo ante, you think a majority of the party more opposed to abortion favored Roe?

[Don Nico]

"doing hit and runs"
Just because I don't want to offer an opinion on a given topic does not mean that I should not call out completely disingenuous commentary.
You seem to like to dish out plenty of it.

[Armchair Lawyer]

Indeed,

[Bob from Ohio]

C'mon Brett, libs only think lib decisions are valid, others destroy the "institutional integrity of the Supreme Court".

the one way ratchet.

[Krychek_2]

It's not the decision, it's the fifty years of court packing that went into the decision.

[Bob from Ohio]

"court packing"

Normal political process over 50 years [with plenty of squishes] is not "packing". Did FDR "pack" the court when he appointed 8 of 9?

[Krychek_2]

Rushing through Amy Coney Barrett after denying a vote to Merrick Garland is court packing. Did FDR have a litmus test? If he did, he kept it to himself.

[Rev. Arthur L. Kirkland]

Court-packing is as stale a term as the Republican Party platform is a stale exercise.

Court enlargement. Get used to it.

(Court expansion for a change of pace -- and until there are more justices than circuits, increasing the number of justices is nothing more than following established tradition.)

[Brett Bellmore]

No, "Court packing" has a definition, and it's not, "Filled seats that were empty, that you didn't create to fill". It means "Enlarging the Court to create seats to fill".

This is like Democrats declaring that "gerrymandering" just means drawing maps they find disadvantageous, and has nothing to do with weird shapes that look like salamanders.

[not guilty]

You are ignoring the disparate treatment by the Senate of the Scalia vacancy and the Ginsburg vacancy. Mitch McConnell was playing Calvinball, pure and simple.

[Brett Bellmore]

Of course the treatment was "disparate"; It's perfectly normal that an opposition Senate majority treats a President's nominees differently than a Senate majority of the same party would.

We've been over this: The history of Supreme court nominations didn't start in the 1960's, refusing to act on nominees has been routine.

[LawTalkingGuy]

Except: they lied in 2016! They said the American people deserved a voice in February 2016. Then Americans apparently didn’t deserve one in October 2020. You can’t appeal to history or practice when the reasoning in 2016 was based on a lie about caring what Americans thought. They got on the floor and lied. By supporting it you support lying. Own up to it.

[Brett Bellmore]

Yeah, they lied. They're politicians. And fish swim, too.

My only point is that this sort of disparate treatment is perfectly routine, and was certainly precedented in the case of SC nominees.

Dishonesty about why they were doing it was hardly unprecedented, either.

[David Nieporent]

The history of Supreme court nominations didn't start in the 1960's, refusing to act on nominees has been routine.

False.

[Don Nico]

" is court packing."
Of course it is not Court packing. And you know it.
It was plain old power politics. And as a proponent of the spoils system, I am fine with it. Just as I had no problem with Harry Reid going nuclear.
Your self-righteous complaining falls flat.

[Sarcastr0]

That's because you define 80% of modern jurisprudence up to and including Gideon as a liberal decision.

It's not a double standard, it's that only a few decisions make your cut, and they're mostly awful.

[DWB]

If your positions are so damn popular then amending the constitution should be a breeze!

[Krychek_2]

It would be if we had a semi reasonable amendment process.

[DWB]

You are looking in the wrong direction -- the states are the primary body of lawmaking.

The states have WAY too much power over the lives of you and I, though I suspect we disagree slightly where the emphasis should be.

[Brett Bellmore]

You mean, if we had an amendment process that didn't require you to achieve widespread agreement?

[OldCurmudgeon]

Speaking of shifting debate... another interesting moment will be when the final draft is compared to this draft, particularly as those differences will be reasonably-attributed to 'getting Roberts vote.' I don't think we've ever had visibility into the final horse trading behind a case.

[Brett Bellmore]

It is interesting, to be sure. And I expect the visibility of this draft will have a major impact on the editing process.

[Bob from Ohio]

If the supreme court did its job promptly, we would not behaving this discussion. We would be discussing the actual ruling.

The draft was three months ago. The opinions should have already been released.

[Don Nico]

"The opinions should have already been released."
Why do you think that opinions have not shifted to some degree at least, in which case, opinions are not ready to be released.
You've waited for 50 years; hold your horses for another month.

[Brett Bellmore]

No, he's right: On the NORMAL schedule, if they'd had a draft opinion circulating in February, they should have long since issued the opinion. They've been dragging their feet.

[David Nieporent]

You're Dunning Krugering again.

[LawTalkingGuy]

This Court and lower courts have been dealing with this issue in the abstract for so long, where cases involve dec actions against recently passed legislation, that they're probably going to be in for a treat when cases with real humans start popping up.

Can a doctor be held liable for medical negligence or a wrongful death for not terminating a pregnancy because abortion is banned but the mother is clearly dying? Does the mother have a right to self-preservation in that case or does the mother have a duty to die?

Can a legislature mandate medically impossible things like re-implanting ectopic pregnancies?

Is it actually okay to prosecute a minor rape victim for going across state lines to obtain an abortion? Is there a necessity defense to crossing state lines? Duress?

What kind of damages will there be for a rape victim forced to give birth? What if there are complications from the pregnancy? Can causation be traced back to the rapist if say there is a fourth degree tear and the damage is extensive? Who is going to pay for that?

How much authority does the state have to investigate miscarriages as murder?

Pregnancy checkpoints at airports and state-lines...do they violate the Fourth Amendment? Customs declarations under oath that no abortion was obtained overseas?

Can a state be forced to extradite someone who leaves the jurisdiction to obtain an abortion?

How far can they push child-abuse investigations? Does seeing a pregnant person eating a ham sandwich constitute probable cause now? What about ordering a second cup of coffee?

If a state implements a personhood amendment, how does that affect detaining pregnant people...shouldn't the embryo be bonded out? When does child-support start.

They haven't even begun to grapple with this topic. They're going to see some graphic pictures and some heart-wrenching stories. Of course, it'll still be abstract to them. Sam Alito is never going to have to look a 14 year old in the eye and tell them they're going to prison for life for murder because they got an abortion after being raped by their uncle.

[Brett Bellmore]

"Can a doctor be held liable for medical negligence or a wrongful death for not terminating a pregnancy because abortion is banned but the mother is clearly dying?"

I think you have a distorted notion of what "abortion is banned" means in practice. No state bans abortions necessary to actually save a mother's life. No state proposes to. Even the Catholic church doesn't come down on that side of the argument, it's a total straw man.

[LawTalkingGuy]

"No state bans abortions necessary to actually save a mother's life."

They don't need to for this to happen. Is the doctor going to err on the side of saving the life....or avoiding a murder charge if they're not sure? Will a prosecutor agree that the doctor was correct or not? In a civil suit, don't you think the doctor is going to use abortion is banned as a defense?

If you think letting 3000 county prosecutors across the country have discretion for when to decide when an abortion is medically necessary or a capital murder isn't going to result in horrific consequences, then you're just completely delusional. There was already a woman sent to jail over a a self-induced miscarriage in Texas. They dropped the charges...but she was already charged and detained for several days. You think that's not going to happen even more after Roe is dead and these trigger laws are activated?

[Armchair Lawyer]

Person arrested...released because they didn't actually break the law.

Well good thing that woman didn't decide to enter the US Capitol.

[LawTalkingGuy]

They went to jail. They were charged. Their Liberty was taken and their lives suffered. Don’t blow it off as no big deal.

[Intelligent Mr Toad]

Exactly. Where is Lizette Herrera's restitution? Anyone who thinks that being arrested and charged with murder is not substantial harm is an idiot.

[Brett Bellmore]

Here we agree: I think everyone who involuntarily interacts with the legal system, and is not convicted, should be made whole. The costs imposed are the necessities of having a legal system, and the cost of having a legal system should be in the general budget, not imposed on random people.

[Sarcastr0]

Michigan has a law that has no exception for life of the mother; it's just currently in abeyance.

And Texas...well, they're doing some pretty high risk implementation of their law.

[LawTalkingGuy]

Like I don't see how the existence of "life of the mother" protections aren't THE focus of criminal trials in the future, either of the doctor or the woman herself. It'll be like self-defense.

[Brett Bellmore]

You're killing somebody to save a life, of course it'll be like self-defense. It IS self-defense, and nothing else.

[LawTalkingGuy]

So you’re okay with a 15 year old rape victim being detained for several years while facing a murder trial as an adult even with a self-defense claim?

Also: aren’t you the asshole who believes you can kill in defense of property!l? Shouldn’t material interests mean you support abortion on demand?

[Armchair Lawyer]

LTG,

Are you OK with taking a hammer and nail and driving it into the head of the newborn child, during childbirth, just before it exits the womb at 9 months? You know, right when the initial breach occurs?

[LawTalkingGuy]

No dipshit, because that’s not legal under either Roe or Casey. Viability is the test.

[Armchair Lawyer]

So, you're OK with something, so long as it's "legal"?

Is that your definition?

[LawTalkingGuy]

Dude. You are not clever in the slightest. You know as well as I do that the issue is abortion before viability. You pretending not to notice that doesn’t change that.

[Armchair Lawyer]

Do you know what "viability" actually means?

Here's the OED

"vi·a·bil·i·ty
ability to work successfully.
"an interest in the long-term viability of British companies"
BIOLOGY
ability to survive or live successfully.
"pregnancy depends on the viability of the sperm and egg""

Most abortions occur on perfectly "viable" humans.

Perhaps you'd like to refine your definition of what's just and what isn't more precisely?

[LawTalkingGuy]

No. I think I’ll just Ignore you for now and let you pretend to think
that you’re clever for thinking an online dictionary definition solves 50 years of legal, scientific, and moral discussions about the topic of what constitutes viability for a fetus.

[Armchair Lawyer]

More to the point, I'm trying to get you to examine what you really believe....something you seem resistant to.

If you're OK with whatever is legal, then whatever changes should be fine.

If you believe "viability" should be the limit...you may not be aware that there are multiple states where it is just fine for you to abort a 32 week pregnancy if you so desire, for completely option reasons.
What should be done about those states, if anything?

[Sarcastr0]

Semantics are not how you get someone to interrogate their beliefs, AL.

LTG has it right - that's mostly good for the semantic game player feeling clever even if he's not.

[not guilty]

Under existing law, states are permitted -- but not required -- to prohibit abortions after viability and before birth.

[Armchair Lawyer]

Facts not in evidence. Assertions made like this from Sarcastro require evidence and links backing them up.

Sarcastro is "too lazy" to provide such links most likely.

[NoOne]

It's not a straw man at all. There's an example of this exact situation in Poland that resulted in the death of the mother:
https://www.reuters.com/world/europe/death-pregnant-woman-ignites-debate-about-abortion-ban-poland-2021-11-05/

Medical decisions aren't one size fits all and pregnancy can be very complicated. You can try to blame a doctor for malpractice if they don't perform an abortion and the mother dies, but the reality is that if there's any ambiguity a doctor isn't going to risk imprisonment to save your life. And there's often ambiguity.

[JasonT20]

The case of Savita Halappanavar in Ireland was a significant catalyst in that Catholic country overturning its longstanding ban on abortion.

To say that it can’t or won’t happen here is an unwarranted assumption, at best. If I were to be in my most cynical mode I might wonder if some anti-abortion activists that try to say that it won’t happen really just think a few dead women is a reasonable trade to save hundreds of thousands of embryos and fetuses.

Maybe if the same laws that ban or restrict abortion to cases necessary to save a woman’s life will show explicitly how they will make sure that what happened to those two women won’t happen here.

[ducksalad]

Well, LawTalk, many of us were alive back in 1972. There were not pregnancy checkpoints on the roads. Pregnant persons were not arrested for eating ham sandwich or a second cup of coffee, in fact, they weren't even arrested for smoking a pack of cigarettes with their double whisky...on a plane. So we know you're just making s**t up on these.

The rest are easily dealt with and don't present any new questions.

When can a miscarriage be investigated? Fourth Amendment: To ask some questions, when there is objective reason to suspect an abortion occurred. To do a search or seize documents, when there is probable cause.

Can a legislature mandate a literally impossible medical procedure? No different from asking if the legislature can repeal Newton's Laws. The answer is impossible things will not happen regardless of the legislature's actions.

Can rapists be held liable for the results of their actions? Yes before 1973, yes now, yes after this decision.

How far can they push child abuse investigations? Exactly as far as they can push them now. See 4th Amendment above.

The only real questions you have are those involving crossing a state line. On the rest, you and Josh Blackman both need to calm down.

[LawTalkingGuy]

Has it ever occurred to you that this isn't 1972? That people have become more militant about this issue, after calling it murder for decades? That the surveillance state has vastly improved its capacity? And that we live in a see-something say-something culture? Do you even know any women who have been pregnant the past decade? Are you aware of the level of shaming and busybodiness that comes from not just medical professionals but also random people regarding what pregnant people consume and how they behave?

[Purple Martin]

Hmmm ds. Sounds like we can get rid of SCOTUS and just have you make all these simple, nothing-in-doubt, decisions.

[ducksalad]

OK, Purp, I'll bite. Which one of those do you think the SC would rule differently on?

[Purple Martin]

Duck, the words you are looking for are not from a SCOTUS decision, but a certain famous Declaration—"We hold these truths to be self-evident..."

The topics of your questions...are not. Even I could select one or two specific words from each of them, apply a defensible alternate meaning in a set of circumstances different from your assumptions, and end with novel legal questions.

I would say your stated belief that these issues "... are easily dealt with and don't present any new questions," combined with the context of LTG's observations, displays a startling level of naivety.

That is, I would say that if I thought you believed it. You don't, really, do you?

[Dan Schiavetta]

Exactly right, LTG. Abortion will now be the most litigated issue in federal courts. Particularly as to pro-life state vs. pro-choice state issues.

[LawTalkingGuy]

I think its actually going to be state courts first. In addition to the obvious question of whether and how much state constitutions protect the right to an abortion, they're going to be the ones dealing with the prosecutions, fall-out from rape victims having their attacker's kids against their will, whether or not abortions were medically necessary in negligence/wrongful death cases, etc.

[shawn_dude]

Quite a few women voted for Trump and McConnel and a slew of other folks that were very honest and transparent about their goal to kill Roe v Wade. FiveThirtyEight is saying 61% of Americans support the right to abortion in some fashion which seems to overlap with Trump-voting women.

Speaking of rapid backpeddaling... the Loony Tunes "Trying to Run on Air" award goes to... Sen Susan Collins.

[Brett Bellmore]

"in some fashion" is doing an incredible amount of work there, you know. Roe v Wade went way, way past "in some fashion", straight to elective abortion through the majority of the pregancy.

[Stephen Lathrop]

Expect an explosion of free speech, assembly, and travel cases. A state-by-state ban on abortions will trigger an interstate commerce in abortions—followed by intense legal activity focused on that conduct.

Anti-abortion activists from anti-abortion states will start showing up elsewhere, in numbers, to picket abortion providers in states which continue to permit abortions. They will not just picket. They will also attempt to collect identifying information to use in home-state prosecutions against women seeking out-of-state prosecutions. They will try to intimidate abortion-seekers by photographing them. They will be active in their home states, promoting laws to charge the women they photograph with felonies. They will call them felons, and circulate their pictures online.

For their parts, states which maintain abortion is a matter of personal privacy, and legal, will pass laws and use enforcement activities to protect from surveillance women seeking abortions. Questions of 1A freedom about abortion protests will be re-cast. Previous claims that clinic-protest is protected speech, pure and simple, will be newly complicated by manifest legal jeopardy, and no doubt physical jeopardy, for the so-called protesters' targets.

I do not think the full implications of some-states-permit-it/some states-ban-it have been thought through. Expect something more akin to the days of the Fugitive Slave Act.

[bevis the lumberjack]

Seems to me the travel bans related to abortion are clearly unconstitutional. A state can’t prosecute someone for participating in activity in a different state - there’s no jurisdiction. And it’s even more ridiculous if the activity in the other state is legal there.

And the travel assistance thing doesn’t fly either.

[Dan Schiavetta]

"A state can’t prosecute someone for participating in activity in a different state - there’s no jurisdiction."

Incorrect. Within the limits of due process a state can prosecute a woman for going out of state for an abortion. After all, the fetus is an in-state citizen and she's going out of state to murder it.

See, e.g., People v. Betts, 34 Cal.4th 1039 (2005) (jurisdiction where D drove girls out of state and assaulted them out of state).

[Da5id]

US law prohibits, e.g., sex tourism to foreign countries (if minors are involved I guess?)? And it forbids US company officials from issuing bribes in foreign jurisdictions. So the reach of law can apparently go beyond state or even US boundaries. I'd strongly prefer this type of reach not apply to abortions in other states myself though. I think this preliminary SC decision probably is technically right (I'm rather a Roe skeptic), but very much want women who need or wish to get an abortion to have a way to do that.

[Brett Bellmore]

I think maybe there's a treaty hook for the sex tourism thing; Treaties are (Improperly, I think!) understood to allow the federal government to exercise powers it otherwise couldn't. Though I guess there's a "law of nations" argument to the contrary.

[Purple Martin]

They will also attempt to collect identifying information to use in home-state prosecutions against women seeking out-of-state prosecutions.

Search: "data brokers selling location data of individuals visiting abortion clinics."

[Dan Schiavetta]

I'm not surprised! Thanks for this.

[Don Nico]

"followed by intense legal activity focused on that conduct."
That could happen; however, there is no reason why it should happen. If the leaked document resembles the final opinion we shall see.
Far more likely is that the Mississippi law will be upheld in a way that does not strike down Roe abd Casey.

[AmosArch]

Abortion is like the Eucharist for leftoids. I doubt they'll brook even a slight inconvenience like this with out a fight. The integrity of the Republic and even more deaths on top of the 73 million per year abortion already causes is a worthwhile trade for the sacred right to taxpayer funded abortion clinics on every street corner where you can abort full term or sometimes even already born babies like you're ordering a burger. A right so fundamental it trumps all other rights including speech and the emergency nonsense that justified all the covid violation s of bodily autonomy that's only matter when it comes to abortion

[Squirrelloid]

73 million deaths per year in the US? Bullshit. You're seriously arguing that darn near every woman capable of getting pregnant in a year has an abortion. You're off by several orders of magnitude.

[AmosArch]

I didn't say the US although the US alone is still a considerable number. More than covid that we supposedly need to sacrifice all our rights for.

[Jason Cavanaugh]

"I doubt they'll brook even a slight inconvenience like this with out a fight."

Excellent way to prove that you're being deliberately disingenuous.

"The integrity of the Republic and even more deaths on top of the 73 million per year abortion already causes is a worthwhile trade for the sacred right to taxpayer funded abortion clinics on every street corner where you can abort full term or sometimes even already born babies like you're ordering a burger."

Hyperbole is an indicator that your argument is bullshit.

Does anything you say sound better in your native language, or is it partisan bullshit in that form too?

[Sarcastr0]

Choice is that we want, not abortion. But you go off on your Weirdly religious Pizzagate nonsense.

[Bob from Ohio]

We can read the text of the so-called "Women's Health Protection Act" that eliminates all limits on abortion, nationwide.

We can also read all the articles and columns celebrating abortion. Nobody on your side talks about "rare" anymore.

The "pro-choice" scam may have worked once upon a time, it is a lie

[LawTalkingGuy]

Imagine being you and caring if something is a lie.

[Sarcastr0]

Harm mitigation means you don't talk about rare anymore.
A doomed messaging bill I've not read (and I'd wager you haven't either) is not a sign of how liberals secretly think.

You've got an outcome you want, and you're working towards it. And, as usual, it's that everyone whose positions interferes with your simplistic Manichean worldview is lying.

[Brett Bellmore]

The rare part was apparently a lie from the start.

[Sarcastr0]

Apparently!

[Brett Bellmore]

Yeah, "apparently". I'm open to the possibility they actually meant it at the time, and later changed their minds. The evolution from "This is awful, but we've got to permit it." to "This is just fine." to "We should celebrate this." is quite natural; People are uncomfortable admitting themselves they're permitting awful things to be done.

[dwb68]

Honestly, I am not even sure that the opinion means what the anyone thinks it means. It ends with abortion subject to rational basis review. We do'nt even know the rest of the opinion or the holding.

There is some line between 6 weeks and 15 weeks when a complete abortion ban interferes with the fundamental right to beget a child. My guess is that that bans <9 weeks will still be struck down. For those who have never had children, determining the age of the fetus is guesswork and based on when the woman had her last period. The obgyn cannot determine accurately. whether the fetus is 6,7,8 weeks. Women can lie and say they only skipped one period when they skipped two, and a lot of doctors will wink/nod and hand over the mifepristone and misoprostol.

idk, I do not see the hysterics. Most women I know, know that they've missed a period. Pregnancy tests are extremely accurate. Women will still be able to get abortifacients, which are effective for abortion up to 13 weeks, or so I read in the literature.

[Aunt Teefah]

" My guess is that that bans <9 weeks will still be struck down."

That's not what rational basis review means. At all. States could pass laws banning any abortion from Day 1 onward, and they will be sustained as rationally related to that state's purported interest in protecting fetal life.

[dwb68]

Laws do get struck down under rational basis. Rarely, but it happens. Courts may adopt "rational basis with bite," which is more like intermediate-scrutiny-lite. Courts will still have to balance fetal life with a woman's right to privacy under Griswold. The issue does not go away because Alito waves a magic wand.

[Sarcastr0]

You love to make awful predictions.

Did you read the rest of the opinion? It lays out what it thinks is rational basis, and I got bad news about you 9 week line, buddy.

[shawn_dude]

Texas is banning abortifacients after 7 weeks. It's waiting on the governor's signature.

The legislation would limit patients’ access to abortion-inducing pills, preventing physicians or providers from giving abortion-inducing medication to patients who are more than seven weeks pregnant. Current law allows practitioners to give these pills to patients who are up to 10 weeks pregnant.

[Brett Bellmore]

Well, I don't see how you limit abortions to medically necessary cases, while allowing people to DIY without a medical evaluation, so, yeah, obviously you're going to restrict abortifacients.

As I've pointed out, there are a lot of drugs and formerly OTC supplements I'd like access to, that are restricted/banned for far more trivial reasons.

[Da5id]

I can't see how it will be the last word either. Maybe with the main question out of the hands of the courts the state legislatures will converge on something close to what their people want. Maybe. Which in many states is circumstantially legal abortion but not unrestricted access. And in some states is clearly no abortion allowed at all. I hope restricting interstate travel for an abortion is not found to be a legitimate use of state law, but who knows?

[Rev. Arthur L. Kirkland]

"Justices appointed by Democrat-party Presidents"

Democratic, not Democrat.

The low-grade partisanship around here is so great it overcomes even Prof. Kerr's customary good nature and familiarity with standard English.

On a more pleasant and practical plane, Roe's endurance was measured in decades. The durability of the decision overturning Roe seems likely to be expressed in (relatively few) years. When a majority of the Court (Court of whatever size) is ready to protect anew the rights of women, on what principled argument could the clingers of the Court rely in objecting to the reversal -- especially after they and their ideological allies have switched to pushing a national ban on abortion?

[DWB]

So, your Democrat party is NOT down with stare decisis -- so wishy washy, Rev!!

[Rev. Arthur L. Kirkland]

I see no reason the Democratic Party should be any more devoted to stare decisis than are the lying, bigoted, superstitious yokels of the Republican Party, at least not with respect to this issue.

And no, I am not just talking about Republican Supreme Court nominees.

[DWB]

They didn't even use your own standards (that would find the constitution actually outlaws abortion) and still you SQUEAL!!!!

Finding the clinging a tad bitter, Rev????

[Rev. Arthur L. Kirkland]

Open wider, DWB.

You didn't really believe the disaffected squealing and disingenuous ankle-nipping at the Volokh Conspiracy was going to change the general trajectory of American progress and the culture war, did you? Surely you are not that gullible.

I am content to let time sift all of that. Of course, that's easy to say when you are on the right side of history and the established winning side of the culture war. If a reversal of Roe stands for a substantial fraction of the time Roe stood, I will be surprised. Getting stomped in a culture war has consequences; good luck defending this one as America's electorate improves.

[DWB]

As your sock will never need an abortion I realize the opinion will not personally affect you, but your denial thrills me -- open wide indeed!!!

[Rev. Arthur L. Kirkland]

Are you predicting conservatives are going to diminish the tide of the culture war, DWB?

Are you predicting conservatives are going to pull even with better Americans in that culture war?

Are you predicting conservatives will reverse the tide of that culture war?

When, in your judgment, is this remarkable realignment, after a half-century of better Americans shaping our national progress against the efforts and preferences of conservatives, going to occur?

Let us know, so we can alert the media.

[DWB]

"Slavery is normal, natural and will never be abolished!"

Until it was.

"Roe will NEVER be overturned!"

Until it was.

[Rev. Arthur L. Kirkland]

I sense Roe will be overturned.

But not for long.

There just aren't enough roundly bigoted, poorly educated, unbelievably gullible and superstitious, backwater hayseeds left in our improving country to prevent the liberal-libertarian mainstream from repudiating a Dobbs decision in relatively short order.

You guys be sure to pray on it a spell, though, and maybe baby Jesus (Talladega Nights edition, the one singing lead for Lynyrd Skynyrd) will preserve this Dobbs ruling by miracle.

[Rev. Arthur L. Kirkland]

Are you going to correct that "Democrat-party" error, Prof. Kerr?

Or did you intend the epithet?

You are far too smart, educated, and informed to plead ignorance.

[not guilty]

For too many, the impulse to channel Joe McCarthy is irresistible. I am surprised to see Professor Kerr cast his lot with the mouth breathers.

[Rev. Arthur L. Kirkland]

Watch it. Prof. Volokh sometimes censors liberals (and libertarians) who disparage conservatives at this movement conservative blog. “Mouth breather” might be too similar to “sl_ck-j_wed,” which was among the words that led Prof. Volokh to silence his side’s critics.

Just a friendly warning for those who might be unfamiliar with the Volokh Conspiracy’s record on viewpoint-driven censorship and therefore mistake this white, male, right-wing blog for a free speech zone or anything associated with libertarianism.

[Ben_]

It will be good when the new cases are about what the constitution says rather than Roe's made-up nonsense.

Maybe it will even eventually lead to opinions that the commerce clause is only about actual commerce between states instead of the you can’t categorically rule out the possibility that interstate commerce might somehow be affected standard we seem to have now.

[Sarcastr0]

I get that you think there is no right to abortion in the Constitution. I very much disagree, but that's as far as it goes.

But you insist the Constitution is exactly as you have decided, and disagreement is illegitimate and lying.

I hate how the left is turning this direction, but the right long ago mastered the politics of delegitimization, as corrosive as it is in a pluralistic republic.

[Brett Bellmore]

"I get that you think there is no right to abortion in the Constitution. I very much disagree, but that's as far as it goes."

We could always both read the thing, if that's not too outrageous. I'll bet you it's not there.

[Purple Martin]

Brett, aren't you a little ashamed to be using the disingenuous "I'll bet you it's not there" argument?

Go read the Constitution and show me the right to opposite-sex marriage. I'll bet you it's not there.

[Ben_]

Did anyone say it was? The constitution was never meant to be an exhaustive list of rights.

It does not say that states may not prohibit or regulate abortion. It’s not a decision that was already made when the document was written. It’s our decision, here and now.

And it’s not legitimate for justices to pretend otherwise because they have a personal preference.

[Sarcastr0]

Ben: The constitution was never meant to be an exhaustive list of rights

Also Ben: It does not say that states may not prohibit or regulate abortion

Dude, your first sentence rendered your second irrelevant.

[Ben_]

You just have poor reading or reasoning skills.

The existence of unlisted rights doesn’t imply that states have no say. Justices are not kings or gods to decide everything for everyone.

It’s government By The People, Sarcastr0.

[Sarcastr0]

...How do you think rights work?

[Ben_]

I don’t think that judges get to randomly decide for everyone in the US that they think some new thing is a right.

If you want to amend the constitution, there’s an amendment process.

If you want to assert that some new thing is a right, you need to convince the public. Not 5 specific guys.

[Sarcastr0]

So the 9th Amendment is just a lark.

The *point* of rights is that they're counter-majoritarian.

Your system is tyranny of the majority.

[Rev. Arthur L. Kirkland]

That level of level insight suggests Ben might be a proud graduate of the South Texas College Of Law Houston.

[Ben_]

Did Roe cite the 9th Amendment? Do you really think that 5 justices can whimsically decide that anything they like is a 9th Amendment-guaranteed right and that statehouses thereafter have no say in the matter?

Rights are counter-majoritarian, but that doesn't empower judges to dream up new so-called rights and impose their preferences on everyone.

[Purple Martin]

Ben, did you mean to direct that to Brett? If not, why not?

[Brett Bellmore]

Sure thing. Right there in the 9th amendment, as opposite sex marriage was an established practice at the time of its ratification, while abortion was widely illegal at that time.

[LawTalkingGuy]

Was it though?

https://twitter.com/aarontanglaw/status/1521535142749106177?s=21&t=tucp1wr90YYxDW20e6k9Fw

[Brett Bellmore]

Yes, it was, at least after the point in pregnancy where it could be objectively verified. And "widely" and "universally" aren't the same thing.

It was treated as something subject to ordinary legislating, not a right. And legislation varies from place to place.

[Sarcastr0]

I am reading the thing. Including judicial opinions about it. Because I respect institutions, and understand original intent.

You can get bent with your appeal to essentialism, as though the Founders were children.

[Ben_]

Too bad the institutions were populated with people who chose their own preferences and their personal self-regard over following the rules they were sworn to uphold.

[Sarcastr0]

Yes, I know you think people you disagree with must be operating in bad faith. You're really boring about it. Makes me wonder about your own sense of integrity, really.

[Ben_]

That’s backwards. I disagree with people who seem to be operating in bad faith.

[Sarcastr0]

Your entire proof is that you disagree with them.

You literally think all liberals are operating in bad faith. Condemning that many people as lying to you is a tell your worldview is not aligning with reality.

[Ben_]

Not liberals, no.

We all saw the Hunter laptop "Russian disinformation" lies and the Kavanaugh nomination smear. People who claim not to see bad faith there are exhibiting what looks a lot like bad faith. There’s a pattern.

[David Nieporent]

What Hunter laptop Russian disinformation lie? If you're under the impression that there's a laptop out there that is confirmed as Hunter Biden's, you're mistaken.

[DWB]

Power corrupts and we humans are already corrupt enough -- the constitution is a contract and if we can't have reasonable agreement on what it means it cannot hold.

[David Welker]

I don't know. I am pretty sure that the Dred Scott decision finally ended the debate on slavery.

The Supreme Court is really good at issuing decisions that finally end debates.

[ReaderY]

I agree wirh Professor Kerr that this will bu nomeans be the last word from the Supreme Court on the subject of abortion.

[ReaderY]

I would like to point out what I think is a flaw in the Alito draft opinion.

The opinion uses the Bowers v. Hardwick standard for determining what constitutes a fundamental right, “implicit in the concept of ordered liberty” and “deeply rooted in this nation’s history and traditioj.” The opinion cites Glucksburg for the standard. But that’s not the real source. Glucksburg simply used Bowers v. Hardwick for the standard and cited the case.

The real problem is that the Supreme Court explicitly repudiated not just the Bowers v. Hardwick result, but the Bowers v. Hardwick standard, in Lawrence v. Texas and Obergrfell v. Hodges. In Obergefell, for example, the Court said for example that “history and tradition guide the inquiry but do not ser its outer boumdaries.” This and other language explicitly repudiated and disclaimed the standard the Alito opinion is based on.

Thus the Alito opinion not only relies on the Bowers standard, but characterizes it as the standard it has always used, without addressing the fact that that very standard had been explicitly overruled. In effect, the opinion overrules the Obergefell standard sub silentio and returns to the Bowers standard without saying that this is what it is doing. It gets around the fact that the standard it is relying on was overruled simply by citing a different case, as if only the Bowers result, and not the Bowers standard, had been at issue in Lawrence and Obergefell.

There may be good reasons for this. But an opinion like this, in a decision like this, had best be clear about what it is doing. The court majority, if this is what the Alito opinion represents, need not address all the implications. But it should at least acknowledge that is returning to a standard the court overruled in Lawrence and Obergefell, thereby implicitly if not explicitly undermining the basis of those decisions.

The opinion also manages to bring in much of the gist of Justice White’s statements in Bowers regarding the legitimacy of the Court without doing so explicitly, by quoting various other opinions Justice White gave in dissents in other cases that were similar in character.

[Publius]

There's a big difference between repudiation and deemphasis. Lawrence and Obergefell did not repudiate the "deeply rooted" methodology--it sought to cabin it as a "starting point" rather than an ending point to accommodate evolving conceptions of liberty.

The phrase originates from Moore v. City of East Cleveland, 431 U.S. 494 (1977), a pre-Bowers case, where a state zoning ordinance was struck down for preventing certain family members from living together.

[ReaderY]

I agree that under Lawrence and Obergefell deeply rooted and evolving concepts of liberty become effectively alternative methodologies, and justices get to pick which one they prefer. Timbs v. Indiana for example is a post-Obergefell deeply rooted case. But the key point of both Lawrence and Obergefell is that deeply rooted, while remaining an option, is not the only option. It’s simply one of multiple. Deeply rooted can continue to be used for things that are deeply rooted. But evolving concepts of liberty is another equally valid option that can be relied on for things that aren’t deeply rooted.

But the Alito opinion makes deeply rooted the only option. Not deeply rooted, not a fundamental right. It therefore repudiates exactly what Lawrence and Obergefell established.

[ReaderY]

OK, I realize on reflection that you caught in a mistatement. Lawrence and Obergefell did not repudiate the Bowers standard, they supplemented it with additional alternative standards. But what they did repudiate is Bowers’ statement that its deeply rooted standard is the only standard. That’s what they repudiated.

The Alito opinion makes clear that the deeply rooted standard is once again, as in Bowers, the only standard. Or at least it’s the only standard abortion gets judged by. That’s what I mean by repudiating the Lawrence and Obergefell standards sub silentio.

[NToJ]

I hate to judge before all the facts are in, but it does appear as if this draft opinion departs from current constitutional jurisprudence.

[Sarcastr0]

😀

[Ridgeway]

"... and sug -- don't forget to say your prayers."

[Sarcastr0]

This is a decent point - I see a lot of echoes of White's language in Bowers here.

Not sure it matters legally, but Alito, man, you gotta file those serial numbers off better.

[David Nieporent]

Glucksburg simply used Bowers v. Hardwick for the standard and cited the case.

This would be a more compelling argument if it were true; Glucksberg never cited Bowers. (And while Bowers did mention those, neither one came from Bowers.)

[Greg J]

For example, how much power does Congress have to impose national rules relating to abortion?
None

What are the powers of federal executive agencies to influence abortion-related practices?
None

What are the powers of states to prohibit out-of-state abortions?
None

Second, in the long term, changes in Supreme Court personnel work both ways. As far as I can tell, those who think Roe/Casey should be maintained also believe that, if Dobbs overturns Roe/Casey, then the Supreme Court should overturn Dobbs at its first opportunity.
Once Roe is gone, and the world does not end, it won't be coming back.

It's been kept going by Fear, Uncertainty, and Doubt.

Once the Left demonstrates that they have no actual legal or historical arguments to defend Roe (all you pro-Roe types, please feel free to share with us what Alito got legally wrong in the released decision), and the world doesn't end when States get to make their own abortion laws, and everyone gets to move to a State with the laws they like, rather than being forced by 5 black robed thugs to follow one insane set of "rules", people aren't going to want it to be a Federal issue

[Sarcastr0]

How do you manage to move, with an inability to see perspectives at all?

[LawTalkingGuy]

Not that you’ll care, but a bunch of historians have pointed out that he gets his history of abortion and it’s restrictions in America completely wrong, and that since he’s using a “deeply rooted in history or tradition” test, then his legal analysis makes no sense.

[NToJ]

Everything you just said is stupid and wrong.

[Social Justice is neither]

Breathtakingly coherent rebuttal devoid of facts or content beyond what you'd get on a playground. I'm sure one day you'll have a thought.

[M L]

I can't speak for other "conservatives" or what judges would do, but I have no problem with the federal government having no right to regulate abortion. It seems probably right as a matter of original constitutional meaning as well. Of course under current precedent they have ample power to do so. Not just under the commerce clause, but probably under the equal protection clause and the privileges or immunities clause as well.

Did the federal government originally have the power to enact criminal laws for crimes such as murder (other than piracy and felonies on the high seas, counterfeiting and treason)?