SCOTUS double-speaking on Roe: Does it matter?

Politics & Elections
21

Maybe. Ten years ago, I would agree entirely, but this is now, and things have changed.

Part of it is that conservative voters may get upset if, once again their goal of ending abortion is yanked away while they are in power. Conservative politicians have been holding this one back since Reagan days, never quite pulling the trigger. Maybe their constituency will wise up and realize that it is used as a wedge issue, and as such, is something that is not likely to get done, no matter how powerful the conservatives are in government. they may not appreciate being cynically strung along for political posturing while all these babies are being murdered. Or maybe they won’t and they will continue to buy the republican’s line that next time, we promise, really, that next time they control all branches of the govt, they will end abortion.

There is also momentum involved. Conservatives have been getting the things that they wanted. Regulations are dropping, leaving our environment, our economy, and our government at risk, but this is what they wanted. Racism is becoming mainstream again. Xenophobia is winning out with the party, not just illegal immigration, but legal immigration is being shut down. Natural citizens are having the validity of their birth credentials questioned due to the color of their skin. All the things that the party thought would be toxic to it, that would turn off voters, instead seems to be rallying them to their cause.

Overturning Roe would just be the icing on the cake that doesn’t have to be sold for a SSM because Obergefell is overturned too.

Progressives may turn out, but the problem with progressives is that they all have different ideas for the future, different goals and ways of achieving those goal, and so do not form a cohesive block in the face of obstructive competition well. Conservatives may not agree with much, but they all agree that, at most, the status quo should be maintained, and that preferably, things turn back to how they used to be.

22

You mean like the wised up about deficit spending? But it really doesn’t matter if conservatives get what they want. It’ll still be disastrous for the party since a solid majority of Americans favor legal abortion. The more likely scenario is that the court chips away at Roe, weakening it around the edges. As it stands now, a solid majority of Americans are OK with some further restrictions on abortion, so that will likely not damage the Republican party.

23

Yeah, that’ll work. The knuckle walking right get enough of a victory to string them along, but not enough so they can say “Well, we won, that one’s over, no need to write any more checks!”.

24

No response for me? OK, noted.

25

Incorrect. The country is quite evenly split on the issue.

And from later on in the same article:

And that is PRECISELY what would happen if Roe is reversed. The issue would once again be up to the states to decide.

In other words, reversing Roe would give the people what they want.

26

(Sorry if I’ve screwed up some of the quoting – I’m not sure how to import the original quoted material into my reply, so I did it manually)

Can you explain how Roe being reversed would lead to PRECISELY “abortion being legal under certain circumstances”? Just leaving it up to the States wouldn’t accomplish that – it would be banned in many states immediately. In fact, many States already have laws banning abortion on the books just waiting for Roe to be reversed.

I honestly don’t see how your statement follows from that Gallup quote. Unless you mean “certain circumstances” means living in some specific states? Or, you mean, unless the woman’s life is in serious danger? We already know that’s not always enough (see that Irish case).

We already know that abortion laws, even with Roe in place, can lead to miscarriages being investigated, with women sometimes charged. I find it difficult to believe that’s the “middle of the road position” and that wouldn’t get better if Roe were overturned.

27

There are people who self-identify as pro-life but still don’t want abortion to be illegal. You are conflating being evenly split on the label with being evenly split on the issue. Your own cite explains that.

It would give some people what they want, but it would create a situation that most Americans don’t want-- that is, abortion being illegal in certain states. There are plenty of folks in CA who don’t want abortion to be illegal in AL.

Overturning Roe would create big problem for Republicans in national politics even if it might help, or not hurt, many local politicians. This would be especially true of presidential politics. The Republicans would have a difficult time winning the WH if Roe were overturned.

28

I’m one of those who think Californians should have a fairly limited say about what goes on in Alabama. I’m not really convinced it would be all that bad for Republicans either, if Roe were overturned. Hopefully we both get the chance to find out.

29

Then what you are arguing is that Roe v. Wade would be overturned. The whole point of Roe was whether or not states could pass anti-abortion laws, and the decision was that they can’t.

If the Court turns over the issue of abortion to the states, then it has overturned Roe.

30

I am, too. And vice versa. Especially vice versa. I was speaking about Americans as a whole, not my own personal views.

31

Can we all agree that Roe was the worst Supreme Court decision since Dred Scott? It’s unbelievable to me that 45 years later, our politics are largely dominated by this issue and I’m not entirely sure that if Roe hadn’t been made that things would be remarkably different. Blue Staters would still find it easy to get abortions and Red Staters really have a tough time getting them anyway. If the pro-choice movement had followed a gay rights model of gaining ground in legislatures and popular opinion rather than attempting a judicial end-around, I think it’s even possible we’d be much farther left as a country today. It’s even vaguely possible that we would still view the Supreme Court as a somewhat neutral interpreter of law rather than as simply another political body to elect via the Presidency. There’s absolutely zero doubt in my mind that Roe directly resulted in Trump.

32

Well, yes. Legally perhaps. The writers of the decision had extraneous considerations reaching beyond the issues at hand in the case and indeed the limits of judicial discourse. They wanted to “finally decide” a controversial issue of the day. Taney with slavery and Blackmun abortion. In each case, the “settled decision” turned out to not be.,and instead of settling the issue, made it grow. Both rest on frankly spurious reasoning; Roe needed the crutch of Casey. They should serve as warnings to Judges who try and be arbiters on social and political issues.

But landmark decisions have both a legal and social outcome. The social outcome of Roe has been overwhelmingly positive, unlike Dred Scott.

33

It was a bad decision, IMO. Just how bad, I don’t know.

But what on earth makes you think the “gay rights model” wasn’t about getting judicial decisions on the ground before public opinion switched in favor? In the case of SSM, public opinion moved very quickly, arguably unprecedentedly quick. But the courts were a leader, not a follower. It just didn’t get to the SCOTUS until after public opinion moved simply because public opinion moved so very fast.

34

I’ve been under the impression that people who want to overturn Roe want all abortions to stop. This of course will not happen, even in states that outlaw all abortions.

I once tried to determine how many abortions were performed pre-Roe, but I had no luck in coming up with any real numbers. This makes sense given that since abortion was a crime many who had gotten one wouldn’t want to publicly admit it. But any woman old enough to remember those days will tell you that how one might get an abortion if needed was frequently discussed among women.

Add to that the development of abortifacients. I predict if states outlaw all abortions, there will be a strong black market for such drugs.

If people who claim to be against abortion really have the great reduction in number of abortions performed as their goal, they will do two things:

  1. Set up the health care system so that birth control is readily available and free to all those who want it, and

  2. Establish strong safety nets so that those women who do find themselves pregnant can have their babies without destroying their lives (and perhaps the lives of the children they are already struggling to support).

I think that at some level they realize this, but for many the moaning about those poor dead fetuses has little to do with babies and much to do with controlling women.

35

And, before some pro-endangering-women, anti-choice, your-government-knows-better-than-you-and-your-doctor person comes along (Hi, Shodan!), we know that condoms are pretty easy to come by, but (1) they are not as effective as the below, and (2) they are not much fun. Really effective birth control is always ready, such as the pill, or even better, Norplant or an IUD. If you made that kind of semi-permanent BC available for free, you’d really see the abortion rate come down.

Apologies in advance to those pro-life people out there, but I’m being shown the way by Shodan.

36

I fully agree. If not for Roe, we would be in line with the UK right now.

37

Not at all. Putting aside the moral comparisons, Dred Scott was simply bad law. The question put before the court was whether an enslaved black man becomes free if he is brought into a state or territory where slavery does not exist. It’s worth noting that Scott was not seeking to create a new precedent; other slaves had filed similar suits and won them.

Taney said it was a moot point. He declared that Scott didn’t have a right to file a lawsuit over the issue because he was a slave. That was begging the question which had been put before the court. If Scott’s case was valid then he wasn’t a slave when he filed the suit.

Taney then went on to make some other pronouncements that were only tangentally related to the case. The most notorious was his declaration that no black person, even a free one, could ever be a citizen. There was obviously no constitutional basis for this. Taney instead claimed that this was some universally recognized truth and had always be seen as such throughout American history. Which was factually wrong; there were numerous examples of black people having legal rights as citizens in American history. Taney just chose to ignore them.

Taney then went on to overturn the Missouri Compromise of 1820 - a law whose validity hadn’t been questioned by any party in the suit. Taney invoked his power of judicial review to declare the law unconstitutional; a power that had only been invoked once before fifty-four years earlier. I think it’s safe to say nobody saw this coming.

Taney’s argument for doing this was his declaration that Congress did not have the power to prohibit slavery in territories. Which had no basis in the Constitution or legal precedent. The law said that Congress had the same power to enact legislation in territories that state legislatures had in their respective states. There was no exception given regarding slavery.

Taney declared that Congress’ authority of territories acquired after 1776 was somehow different than it was over the territories that existed before 1776. Taney made no attempt to explain what the basis was for this.

Th Roe decision, on the other hand, was based on actual law although you can argue with the decision.

The Ninth Amendment says the unenumerated rights exist. That’s the clear and explicit text of the Constitution. The Federal District Court had declared that a Right to Privacy is one of the rights which exists under the Ninth Amendment and therefore the Texas law which prohibited abortions was a violation of that right and therefore overturned.

Blackmun and the Supreme Court upheld this decision (although they argued the Right to Privacy was found in the Fourteenth Amendment rather than the Ninth - a decision I disagree with).

So you can argue that while the Ninth Amendment does say unenumerated rights exist, the court was wrong in its belief that a Right to Privacy was one of them. Justice Rehnquist said this in his dissent. But it’s not an issue where you say there is an objectively factual answer. Even Rehnquist acknowledged that the court had the authority to make such a decision even though he disagreed with it.