There is also a movement for a national abortion ban, major antiabortion groups have already spoken with Trump and other top Republican Presidential contenders in 2024 and all of them say they would have no problem running with a nationwide abortion ban bill as a centerpiece of their campaigns.
Note that the filibuster likely won’t protect anything–Republicans will certainly dispense with the filibuster the next time they control both houses of Congress and the White House, because they will wager they will never again be in the minority so there is no reason to keep a relic of minority power in the Senate.
“Appeal to consequences” is considered a logical fallacy, and certainly contests the ideal (however imperfectly applied irl) that judges are supposed to rule strictly on whether a case is affirmed or contradicted by the constitution.
What I’d like to know is, how does a SC opinion overturn Roe v. Wade? I thought the court could only rule on a case before it.
They did. This opinion is on the Mississippi case that came before it a few months ago. To rule in favor of the plaintiff meant that Roe needed to be overturned.
You think this is the straw that breaks the camel’s back? This will only strengthen the GOP, showing those that support them that ANY goal is now possible and that “reason” and “compromise” are words they never have to use again.
Yes, but my point was, the Supreme Court decision isn’t official yet. Between now and July, there’s still time for any of the 5 majority justices to change their minds. Whereas if this had remain un-leaked until the decision announcement day, it would be too late for anyone to change it - the decision would be done.
So whoever leaked this document probably did so hoping to ignite a public furor of a firestorm against SCOTUS, maybe threats against the justices and their families, massive protests on the steps of the courthouse, hoping to get at least one of them to switch sides.
As scary as this proposed decision is, your point is the one that frightens me the most. If stare decisis is no longer binding on the SCOTUS, they really can do whatever the fuck they want.
At least to me it seems shockingly blunt and uncompromising - I always assumed even if if they completely legally overturned Roe they would still couch it in something in an attempt to make it seem less controversial and/or political. Maybe whoever leaked it wanted the most controversial draft out there to make it look worse for the court to essentially rule the same way but with more diplomatic language.
Yeah, I am likewise unconvinced this meaningfully helps Democrats politically. Republicans will start pushing for a national ban and other things that will just further energize their base. Six in 10 Americans are against Roe v. Wade being overturned, but the reality is only a small portion of that 6 in 10 votes on the topic, plenty of them support abortion rights in principle, but not enough to make them vote for Democrats. Many of the people most attached to abortion rights are already clustered in blue states and don’t have a voice in the many small population red states that get equal weight in the Senate and disproportionate weight in the electoral college.
Who is going to have standing to sue? That case was Griswold v. Connecticut. Do you seriously think that Connecticut still wants to outlaw what we did in my day call the pill?
The most heavily Catholic states are Massachusetts, Rhode Island, New Jersey, Califorina, and New York. They won’t even restrict second trimester abortion, much less outlaw birth control.
If this leak is real, the GOP justices are about to give their party the tremendous gift of incentivizing the Democratic Party to focus on issues median voters have far down on their list.
P.S. I do agree with much of what you wrote in your last post before this.
Again–there are holdings in Griswold that would have to be addressed about the enforcement of an abortion ban, specifically in the prosecution of the woman, that are not addressed by this draft opinion. The court can take the option of taking it head on–upholding Griswold but basically saying “except in this case”, but then that starts a process of “death by a thousand cuts” to the privacy protections in Griswold.
Remember, a Supreme Court decision isn’t usually important solely because of the direct controversy at hand in the case in which the decision was made. The most famous case in Supreme Court history, arguably (at least the most important): Marbury v Madison, the core holding was not that important, the core controversy not that important. But the precedent it established was that the Supreme Court unequivocally has the authority of judicial review, and it has never lost that power in 230+ years since.
Griswold applies in many cases before lower courts that have nothing to do with contraception, because Griswold affects more than just the core holding of the case that was before the court.
FWIW I find little reason to believe the Republicans will moderate their behavior out of a desire to appeal to moderates. The modern GOP doesn’t really work that way. The modern GOP has different factions of extremists who populate it and they largely kow tow to all of them unless their interests directly conflict, then they have to pick one to support. For example very few Americans really support basically anyone over 18 being able to buy a gun with no safety training, no requirement to get a license to carry concealed etc, and yet many Republican states have passed that because the extremists of the “2A” crowd have been pushing it.
I don’t even think most Republicans support eliminating the rape or incest exceptions to abortion, but many conservative legislatures have been doing just that in preparation for Roe to be overturned.
The why is the mechanics–the Republicans have not faced one iota of political consequences for this, so it is convenient and easy for them to just let whichever thing their passionate extremists are passionate about, dominate. The America First Nativists may not care all that much about abortion, so they are fine to let laws that on paper they probably don’t fully support be enacted. The hardcore 2A types don’t really care to see extremist abortion restrictions pass–they may not vote for those if put to a referendum, but they are not going to vote for the other team in any case, so the GOP pays no price.
When you pay no price for coddling your extremist factions, you have no real reason to do so, and that’s exactly the path the GOP is on–just another part of why I haven’t been a part of the party in 7 years.
All are promise-breakers that watch polls in detail.
Now, I can believe they would come up with something popular, like a nationalwide ban after the first half of pregnancy, after which few abortions occur.
The GOP method will be to find something that is rare and unpopular but valued by the Democratic Party base, like the legality of rather late term abortions, or, maybe, the right of physicians to do trans surgery on minors, and go after that. The idea that either the GOP politicians or justices ignore public opinion is IMHO mistaken.
What would be the jurisdictional grounds for a federal anti-abortion law? If you for example claimed the federal government has a 14th Amendment authority to protect unborn citizens lives, the same logic could be used to ban capital punishment in all fifty states. I would think that at most the federal government might have a “crossing state lines” law under the Commerce Clause.
It feels like the country has been in a glacially-paced civil war since 1972. Today the pace picked up; the 26 “trigger law” states have de facto seceded, with the blessing of the SCOTUS.
Okay, so what exactly does stare decisis mean? It just seems unintuitive to me to have a principle, even as a “gentleman’s agreement,” where the first court to decide on an issue gets to have that issue enshrined as settled, sacrosanct law forever, even specifically barring if laws change (since the Constitution is so difficult to alter).
You could come up with a number of grounds, which would pass constitutional muster is an open question.
You could argue that the Federal government as per its authority under the 14th Amendment, and in line with the long legal practice of treating fetuses as human beings in many legal matters, has the authority to prohibit abortions anywhere as they would be a violation of the civil rights of the fetus. Same way many “regular crimes” that normally would not be Federal jurisdiction have been codified as civil rights violations.
This would be “new law” for sure, but it wouldn’t be immediately obvious that it would be “wrong law” given the text of Alito’s opinion becomes precedent. There isn’t a ton of jurisprudence protecting the rights of the unborn from abortion because Roe made such laws patently unconstitutional, but even the holding of Roe found some justification for the State protecting fetal life after a certain point in development, and there is a very long history (satisfying Alito’s Tradition & History standard he just invented) of criminalizing the destruction of a fetus, sometimes treating it as murder.
I despise the “it’s tradition” argument. My take on that is it used to be traditional to sacrifice the first-born. I wonder if Alito is the first-born?
As it is now, the far right are simply sacrificing women instead, and in reality only minority women and those white women who happen to be poor.