I think this is very likely to happen.
People who support abortion rights haven’t had to worry about the issue since 1973. It’s the people who opposed abortion rights that have had something to vote for.
I think the Republicans are going to be caught by surprise at how many people vote in favor of abortion rights (and against the Republicans for opposing it). They’ve only seen one side of public opinion on this issue for the last fifty years.
So vote for the party that is actively and gleefully doing this to us and refusing to allow a legislative vote to fix it? That’s the solution?
There is no 3rd option my dude. The Democrats do not have absolute power right now. The Democrats also represent the coalition of literally everyone other than the right wing authoritarian fascists. There are centrist and conservative Dems. The only way to ensure we can do what you want is to elect more Democrats so that the few that refuse to do it won’t matter anymore.
Don’t underestimate how important the right of women to get abortions is to a lot of men. Without abortion rights, my life would have taken a much different path.
They could? Besides the practical difficulty, is it really possible to “negate” a draft opinion in that way?
As long as it’s a draft opinion, it could be changed. If not, it could just be overturned almost immediately, with some scathing asides about the egregiously wrong reasoning of the until-recently-majority.
IMHO the common theme is authoritarianism.
The Democrats would need a majority vote first to end the filibuster, then pass legislation packing the court, then fill x number of new seats. Manchin is rock solid that he will never vote to end the regular legislative filibuster, and he has also said he will not vote to pack the court, and while he isn’t strictly pro-life, he has a middle position on abortion that is mostly pro-life. He is philosophically against abortion but has voted for the pro-choice “side” of limited legislation here and there.
The Democrats simply do not have the requisite number of votes to do that, so blaming them for not doing it now would seem…sketchy. Almost like something someone would do if they wanted a person to vote for Republicans or stay home in November.
By justices who weren’t even part of the court until the day before? Who didn’t hear one second of oral argument and didn’t have one second of general discussion with the other justices? That would surprise me.
Overturned? Nobody can overturn the SCOTUS other than a future SCOTUS, unless you’re proposing Biden pull an Andrew Jackson.
The main thing it would require is 2 or more people to agree to not do the normal thing and recuse from cases that are already being heard when they join the bench.
Nah, the Supreme Court has operating rules, justices who weren’t seated during the term and weren’t part of deliberations don’t get to vote. For example this will be a decision that has Breyer in the minority, not Justice Jackson–because she was not on the court when the case was heard.
Technically you can overturn it via a constitutional amendment, there are also a few more esoteric nullification options that have been constitutionally tested in the past, but are seen as “norms violating.” Jurisdiction stripping is one of the key ones, and was used a bit in the years after the Civil War and sparingly since.
Cite:
But, that’s just those women with personal experience of actually getting one. There are also their husbands and boyfriends, who likely know, possibly other family members. And then, there’s all the people who understand the reasons why it should be legal anyway. Your post made it seem like it was really rare. It’s just not that rare.
An amendment would require approval from 38 of the states. Meaning states like Texas, South Carolina, Florida, Missouri, Georgia, Alaska, and Montana would all have to turn solidly blue at the state level, not just getting lucky with a senator or two at the national level due to a lucky combination of favorable circumstances. I don’t see that happening any time soon. Maybe by the 22nd century?
If these are seen as big issues then they will probably end up before the Supreme Court. And at that point, the Supreme Court may declare people have a constitutional right to buy cakes from any baker. Or they may declare that people have a constitutional right to refuse to sell cakes to any customer. Or they may declare that there are no constitutional rights involved in this dispute.
This is a real issue and has no magical answer. I am philosophically pro-life, but have gone back and forth on the jurisprudence of Roe. I think Roe has some problems and is a messy decision. I also think the finding that a right to privacy exists, as it was held in Griswold and a number of other precedents, is pretty persuasive. While unenumerated rights are “messy” the solution has never been “so that means they don’t exist”, it tends to mean that…it’s going to be more complicated how we work out what they are.
The right to privacy, particularly from the government, seems logically found–we have a right to property, we have a right to liberty, we have a right to be secure in our private possessions unless a court issues a search warrant, and to do that they need to have good cause. That to me suggests that the conception of privacy does in fact, live within already enumerated rights, even if no one specifically said “you have a right to privacy.”
I think the core holding in Griswold, that said right to privacy also means the government cannot interfere in your medical treatment in regards to getting contraceptive pills, and the private decisions between a man and wife as to whether they wish to conceive a child or not. It is difficult to imagine a right to privacy that would allow that. The fact that we did allow government to do just that for a number of years is not any particular proof that that was the constitutionally correct situation, we have had many constitutionally defective situations in our history.
Where I think it gets stickier is in Roe itself–the court in Roe uses the same right to privacy logic of Griswold to essentially say the State can’t be in the business of regulating abortions, but that because the State did have an interest in fetal life, it could regulate them after viability. This is a more difficult decision, because unlike with contraception, a life is being destroyed in an abortion. Note I said “a life”, not necessarily a “person” or a “human person”, even a cellular lifeform is life. There is a long history of precedent for the State taking interest in fetal life–while a spate of abortion bans didn’t become common until the late 19th century (the practice was not really condoned before then, but it wasn’t done openly or talked about, and there was limited legislation on it–also actual techniques of abortion were cruder and less professionalized at that time), there is a longer history of the State punishing the destruction of a fetus in for example a murder case where you murder a pregnant woman, or assault a pregnant woman and cause her fetus to die. That suggests that whatever the pro-choicers want, there is a decent history of the State having “some interest” in fetal life.
The difficult question is how you square that interest with the right to privacy, and I have never came to my own personal perfect answer on it. If anything maybe I came to eventually believe that Roe was making a hard call on a hard issue, but I also think Roe did a lot of political damage to our country and that in itself might suggest that it is such a difficult issue legally and politically that more deference should have been given to the political system. RBG, no slouch on women’s rights, held a similar view–she thought that Roe by occurring at a point in our country’s history where many people were not ready for abortion to be legal, caused a lot of bad political outcomes. An entire wing of the Republican party sprouted up and embraced religious fanaticism, to some degree this wing took over the entire party, and directly lead (at least in part) to how extremist and dangerous the modern GOP is. One has to wonder, if Roe had not been decided, while it is undoubtedly true at least some red states would still prohibit abortion, it seems likely that over time a moderating approach may have prevailed. States would have slightly expanded already-extant exemptions to the abortion bans, purple states may have slowly drifted into some form of legal permissiveness. It would not have been a clean solution, and it absolutely would have screwed over many, many women. However, it is possible that the extremism of the modern GOP is going to screw over the whole country far worse, and it is at least plausible to me to attribute some of that extremism to the pro-life movement and the marriage of religious fundamentalism to right wing activism.
Well, what I was addressing is the likelihood of political success and the “enthusiasm gap”. As an animating motivation, how has it worked out in the states where all of these laws are being enacted? Evidence suggests that being pro-choice, at whatever level of enthusiasm, has not been enough. Why do we think it will flip congressional seats, or state legislatures? If not, why not? My answer to “why not?” is the abstract nature of the argument for most people.
Right, so the leadership of the Susan B Anthony List (a big pro-life advocay group) has basically been pitching to Republican politicians and candidates “we have not paid any penalty for what we did in Texas, so you need to keep pushing.” The GOP isn’t going to stop unless they are stopped at the polls, and in many States I find it unlikely they will be, ever.
In the past, when these ridiculous restrictions came about, moderate pro-choicers could rely on the SCOTUS to strike them down. If abortion really becomes illegal in their state (if they live in one of the 24 or 26 states where it will become illegal immediately after this ruling, if it comes to pass), that may be more of a motivation.
If we don’t even try, we’ll definitely lose. Seems to me we ought to try and use this huge issue as best we can.
I tend to agree with this strategically (and I don’t really fit into the Democrats’ pro-choice mold), abortion rights are either an important part of the Democratic party and they need to go nuclear war mode to defend them vigorously, or they aren’t. If they aren’t, then the Dems are failing to even field viable candidates in lots of regions of the country almost entirely because of this issue–there are a lot of areas that have even voted blue in the last 15 years or so, where being pro-choice is often a disqualifier for many voters. If the party isn’t going to defend abortion rights vigorously, it should probably start running pro-life candidates, because at that point the party is saying “this isn’t very important.” Well, if it isn’t very important then you shouldn’t be losing elections over it. Ditch pro-choice candidates in purple and winnable districts in red states (and there are still some.)