Regarding Dobbs v. Jackson Women's Health Organization

by wj

This term’s abortion law case (Dobbs v. Jackson Women's Health Organization) looks to be a big deal. But what is likely to come of it? And what should we hope for?

Just to be clear at the start,
1) I personally think abortion should be legal,
2) IANAL, but I find the Court’s reasoning in Roe v. Wade particularly unconvincing. (Planned Parenthood v. Casey makes a much more solid Constitutional case on the subject.)

What do we have on the Court currently:
1 Chief Justice, who strongly desires that the Court as an institution be seen as impartial and important. (And is no doubt aware that it is losing ground rapidly on that.)
3 Solid reactionaries (Thomas, Alito, and Gorsuch) who strongly desire to see Roe explicitly overturned. And, presumably, Casey as well -- never mind what bad impacts that would have on cases they care about where Casey was cited as a precedent.
3 Solid liberals (Kagen, Sotomayor, and Breyer) who strongly desire that Roe be upheld.
2 Political hacks (Kavanaugh and Barrett, although I may be doing Barrett a disservice on this one; she might be a solid reactionary as well.) Their priority would appear to be "What will do least harm to Republican electoral chances going forward?"

What are the possible outcomes?

1. The Court might simply uphold Roe, and toss the Mississippi law. Which would be amazing, since it would require both the Chief Justice and probably Kavanaugh to side with the liberals.
2. The Court might fudge the issue, letting the Mississippi law stand, but not directly addressing Roe. Which Roberts would probably prefer.
3. The Court might outright reverse Roe (as Brown v Board of Education did to Plessy v Ferguson).

At minimum, there would appear to be a plurality, even if not a majority, for reversing Roe. Not sure what the legal impact is if there is no majority, even with concurring opinions.

On balance, option 3 might actually be the preferable viable option. Why?!?!? you ask. Well consider. If the Court goes with option 2 (eviscerate, but not reverse), a lot of voters will simply go blithely along like nothing happened. Abortion is still nominally legal, after all. So why worry? Nothing has really changed – just another case of lots of noise from the anti-abortion folks, but nothing more. (Of course, it would be more. Not least because, once the “fetal viability” test is gone, there is no logical alternative threshold – any place a state wants to go is OK. 1 month? 1 week? 1 day? 1 hour, even? All equally defensible.)

Whereas with option 3, there is absolutely no doubt what has happened. Given what public opinion on the subject actually is, that would be a disaster for the anti-abortion folks. Because abortion would instantly become the single biggest issue for a lot of voters who didn't realize that it was a risk. And then their preferred candidates would likely get replaced en masse, even in pretty red states. (Which is why Kavanaugh, at least, might be seriously opposed.) Leading, quite possibly, to Federal legislation on the subject. Maybe even a Constitutional Amendment, to put the subject to bed once and for all.

Comments

[Nigel]

Good analysis.
On the arguments so far, option 3 looks fairly likely:
https://slate.com/news-and-politics/2021/12/dobbs-supreme-court-abortion-kavanaugh-barrett.html

Though the confirmed gaslighting tendency of the new justices makes a carefully crafted option 2 possible.
https://slate.com/news-and-politics/2021/12/scotus-will-gaslight-us-until-the-end.html
Though that would require a compromise between the gaslighters and the ideologues.

[wj]

Though that would require a compromise between the gaslighters and the ideologues.

Which is why I think it's unlikely. The ideologues won't compromise, so the only way to get to a majority (rather than just a plurality) involves the non-(more accurately, "lesser")ideologues to go for one side or the other; all or nothing.

[Liberal japonicus]

wj, going all heighten the contradictions on us!

But seriously, difficult to choose. Least bad or knock down the pillars.

And thanks for the links nigel, much appreciated

[russell]

FWIW, I put Barrett in the solid reactionary camp. Kavanaugh, however, is a hack.

My guess is that they'll overturn Roe. This is basically the moment that the conservative movement has been promising its base for almost 50 years. SCOTUS justices are appointed for life, they can do whatever the hell they like, really, there isn't any downside for the justices in tossing out Roe.

Roberts might find it distressing from a "credibility of the court" point of view, but I don't think the rest of the conservatives worry about that very much.

I'm curious what happens to the conservative movement if Roe goes. Abortion has been their go-to rallying cry, their bloody shirt to wave, for almost 50 years now.

What takes its place?

Or maybe overturning Roe will just solidify the support of the base. They promised to overturn it, and they delivered.

Hard to say.

If anyone thinks this will end at "send it to the states", I have a bridge to sell you.

[JanieM]

If anyone is tempted to observe that justices may be appointed for life, but congress critters are not, and to speculate about an electoral wave in response to the decision that is surely coming, let me point you to my own senator. Even after the Kavanaugh caper, in which she gave a speech that was, between the lines, one long sneer at constituents like me, she won by a large margin a year ago, even in a town like mine that went for Ds by wide margins in every other race.

We've got a long road ahead of us to rebuild what we're about to lose, if we ever can. I don't honestly expect to live to see it, and I'm afraid for my kids and theirs.

[russell]

Here is a question:

Are there any arguments against legal abortion that are not based in religious faith?

I'm not questioning the legitimacy of religious faith and conscience here, I'm asking a question about the basis of objections to legal abortion.

The obvious second question here is: if the arguments against legal abortion are based in religious faith and conscience, is there a legal basis for the existence of laws against it?

What precedent is set by juridicial rulings that are motivated by the beliefs of specific religious traditions? If this, than what else is on the table?

[Nigel]

Did you mean this one, JanieM ?

Sen. Collins just said Kavanaugh told her he agrees w Roberts' take on Roe V Wade - that it is settled law.
https://twitter.com/LisaDNews/status/1031945884534300672

Either or both lying ?

[Hartmut]

I believe the only argument that is not religious per se (but still counts as philosophical) is that an unborn that has reached the state of viability outside the womb should be considered a human being with rights competing with those of the 'incubatress'. Emphasis on 'competing', i.e. not automatically superseding. In that case one would have to discuss on the individual base, whose rights should be valued higher, if no compromise position can be found. In that case the state could take the function of legal defense of the part that cannot defend itself.
In the pre-viable phase that argument would not apply without religious pre-assumptions (and those would also be specific for individual religions not universal).
It's still possible to have a non-ideological discussion about the pre-viability phase and whether an abortion is the least worst decision but that should not concern the state or laws.
Not talking about purely hypothetical pre-birth and/or pre-viability torture here, i.e. the deliberate infliction of suffering on the unborn that does not serve its benefit.

[nooneithinkisinmytree]

Yes.

[cleek]

If anyone thinks this will end at "send it to the states", I have a bridge to sell you.

right.

overturning Roe is a boon to Republicanism in more ways than one. when it goes "to the states", the GOP cult now has 50 different places to wage that battle! every single state legislative seat and elected judge becomes a battle for the souls of unborn!

they're going to love it.

[cleek]

Are there any arguments against legal abortion that are not based in religious faith?

"a fetus is at least a potential human life, so we shouldn't kill it" isn't very religious.

[nooneithinkisinmytree]

That was in an answer to Nigel's bundle of questions.

It is settled Lie.

Lying is constitutionally protected by the First Amendment.

Overturn that one too.

Let's pare ... cut to the damned chase ... the Constitution down to the words that will matter, and the only ones that DO matter to the conservative movement, as the violent end of America looms: The Second Amendment.

I hate guns and abortion isn't my favoritest thing on the face of Earth either, but I will not be governed by these scum in ANY way without a fight to my death.

[nooneithinkisinmytree]

Conservatives prefer waiting for humans beings to be born to kill them, or at least prevent them from voting.

Amy wants to allow convicted felons to own and carry firearms.

That should be interesting when they show up at the polls in Florida and ask for a ballot.

I can't fucking wait.

What are our masters ... conservative vermin .. thinking? Roe versus Wade today .. Griswold tomorrow .... and next week, cultivating tobacco with slave labor enshrined.

https://www.theamericanconservative.com/articles/america-without-abortion/

Don't forget to read the comments.

[nooneithinkisinmytree]

Every child who dies or in anyway suffers in this country because the subhuman conservative movement removes sustenance by gutting the social safety net, and whose mothers are denied medical attention because the subhuman conservative movement ....yes, each of the tens of millions who will be murdered in the coming years of conservative fascism in this land when those gummint administrative state programs too are ruled unconstitutional should, will be, a single spark in the furious firestorm that engulfs and incinerates the conservative movement.

[nooneithinkisinmytree]

Collins speaks from multiple constitutionally-protected orifices:

https://digbysblog.net/2021/12/01/oh-fergawdsake/

I wonder how she thinks (ignore that verb for that snake) she will get the votes as she steals every future election in America:

https://talkingpointsmemo.com/news/republican-attacks-on-wisconsin-election-officials-alarm-outside-experts

[bobbyp]

IANAL, but I find the Court’s reasoning in Roe v. Wade particularly unconvincing.

Really? On what grounds?

[cleek]

Don't forget to read the comments.

it's always the Fall Of Rome in Republicanland

[JanieM]

@Nigel -- no, that looks like the earlier occasion when Collins met with Kavanaugh, then reported back about what a good little boy he was. Later, toward the end of the hearings, she made a long speech, the transcript of which is here. I happened to be in the car that day, which is the only place were I ever turn the radio on. It made me feel ill then, and it makes me feel ill again just to see the headline on Vox.

[nooneithinkisinmytree]

https://www.lawyersgunsmoneyblog.com/2021/12/an-army-of-rittenhouses

https://www.dailykos.com/stories/2021/12/2/2067170/-Mark-Meadows-calls-Mark-Meadows-a-liar-rather-than-disagree-with-Donald-Trump

https://www.lawyersgunsmoneyblog.com/2021/12/trump-knowingly-tried-to-kill-joe-biden

Yeah, let's keep talking to and about the genocidal psychopathic murderous conservative movement and see if we can find away forward without them killing all of us.

Why did they lock the boxcars on the way to the spa, post-born children asked.

[nooneithinkisinmytree]

a way

[wj]

wj, going all heighten the contradictions on us!

More going, if it's going to change (for the worse) abyway, let's hope to have it up front and visible.

[nooneithinkisinmytree]

Leave the heightening to the professionals:

https://www.thedailybeast.com/steve-bannons-jan-6-legal-strategy-blowing-up-the-whole-system?via=newsletter&source=DDMorning

[nous]

I'm just here to point out that I cannot think of a single example of a nation state that is both fundamentalist and a functioning representative government. Fundamentalism is totalitarian at its core and cannot be otherwise.

We can expect no one who has enabled this judicial power grab to willingly reverse course on any of it now, and all of the checks and balances have been sabotaged.

Constitutional crisis is too mild a word for where we are. This is a repudiation of the constitutional plebiscite.

[wj]

"a fetus is at least a potential human life, so we shouldn't kill it" isn't very religious.

I don't think that the non-religious argument concerns "potential human beings." After all, every ovum is, potentially, a human being. Rather it is about at what point does a potential human being become a real one? Which can be a philosophical, rather than strictly a religious, question. Not sure anybody has a solid pragmatic, rather than philosophical, answer however.

[wj]

IANAL, but I find the Court’s reasoning in Roe v. Wade particularly unconvincing.

Really? On what grounds?

I don't see abortion as a privacy issue. (Knowledge of whether someone had an abortion, sure. But not the right to the procedure itself.)

Whereas Casey grounds the right in the Due Process clause, etc. which directly addresses the procedure itself.

[nooneithinkisinmytree]

Religious orders, particularly orthodox, have a love affair with Death, not least their own:

https://www.thedailybeast.com/smells-of-death-anti-vax-christian-orthodox-monks-and-priests-are-dropping-like-flies-in-greece

Death is the multi-level money-grubbing marketing tool for religious orders.

Life and death of course are the ultimate beautiful and terrifying mysteries.

As Left of Lenin said:

"Jesus was all right, but his disciples were thick and ordinary. It's them twisting it that ruins it for me.”

Baseline, in America it's twisted, like every fucking thing, to avoid taxes and maximize income for those who require a new haberdasher:

https://www.theamericanconservative.com/dreher/european-base-camp-2022/

He looks like Cantinflas the Elder, without the humor.

"Constitutional crisis is too mild a word for where we are."

I have all the words for it.

[nooneithinkisinmytree]

So does this guy:

https://juanitajean.com/and-if-he-doesnt-win-hell-go-back-to-the-hotel-to-get-some-dry-clothes/

He'll murder us.

[nooneithinkisinmytree]

As the Trump killers do their time, sans Trump's butt in jail of course because there is no rule of law in America unless you believe the innocent mouse dream that a big hunk of swiss cheese with rats running through it unscathed is somehow fucking law, this guy will be the model for them as they run the Federal Government from their cells:

https://www.marketwatch.com/story/brazen-is-probably-an-understatement-georgia-inmate-ran-multi-million-dollar-scam-from-prison-cell-posing-as-abbvie-employee-11638394803?siteid=bigcharts&dist=bigcharts

Yes, Trump or surrogate will appoint jailed felons to high posts in January 2025.

Amy and company will sniff and like the stench of it.

My new legal theory is now that everything, even breathing, should be illegal and punishable by death.

Until such time we can sort out what America can handle responsibly.

We'll let up slowly, one thing at a time, and wait a few days for the conservative movement to fuck it up, monetize it, offshore it, sodomize it to avoid impregnating it, unless it's white, and then shut it down again.

[JanieM]

nous @12:34 -- as depressing as the content is (and i totally agree with you), I appreciate your sanity. As always.

Akhil Reed Amar of Yale Law wrote a wonderful book called "America's Constitution: A Biography." My son took a class from him IIRC. He was optimistic about what other people might call "the arc of justice" (though I don't think he called it that). I wonder what he's thinking now.

For some reason I'm also thinking of the strand of early thought in the colonies about religious freedom. ... Wistfully.

[cleek]

I don't see abortion as a privacy issue.

seems a lot like a "none of your damned business what i do with my body" issue, to me... among several other kinds of issues: health, moral, economic, etc.. but, at the top is: don't want an abortion don't get one, and if someone else does want one, it's not your call.

[hairshirthedonist]

I don't see how the state inserts itself into a woman's decision to seek an abortion without violating her privacy, but maybe I have a broader notion of what sorts of things are private.

[Nigel]

Agreed.
To outlaw abortion is for the state to force women to carry pregnancies to term against their will. That is a massive encroachment on personal liberty.

If we’re arguing constitutional principles, women are citizens; foetuses aren’t.

[nous]

Douthat and Dreher talking about our loss of the sacred always remind me of Douglas Adams' commentary:

They flew out of the cloud.

They saw the staggering jewels of the night in their infinite dust and their minds sang with fear.

For a while they flew on, motionless against the starry sweep of the Galaxy, itself motionless against the infinite sweep of the Universe. And then they turned round.

‘It’ll have to go,’ the men of Krikkit said as they headed back for home.

On the way back they sang a number of tuneful and reflective songs on the subjects of peace, justice, morality, culture, sport, family life and the obliteration of all other life forms. -
Douglas Adams: Life, the Universe, and Everything

[nous]

Meanwhile, I'll repost this journal article that gets at the heart of why a woman should never be compelled to carry a pregnancy to term - you cannot force a person to donate organs to save a life:

https://www.tandfonline.com/doi/pdf/10.1016/0968-8080%2893%2990011-H

[Tony P.]

Fine distinctions between "religion" and "philosophy"; careful definitions of "privacy"; legal arguments about "precedent" -- these are all fine.

But they all take a back seat to power. If we accept that:
1) SCOTUS rulings must always be obeyed; and
2) McConnell stole the SCOTUS fair and square;
then everything else is lagniappe.

It doesn't matter what women or their doctors or even philosophers think about abortion. If We The People do not explicitly reject one or the other of the above premises, then the god-botherers get their way.

--TP

[wj]

you cannot force a person to donate organs to save a life

Apparently you cannot even be required to wear a mask (a far smaller imposition than an organ donation) in an effort to save the lives and health of others.

[cleek]

they'll get their way.

[wj]

they'll get their way.

On abortion, at least in the short term, they will. Whether their movement will survive this success is another question. Involving, in no small part, whether their anti-democratic techniques for holding power will be enough, in enough places. My bet is, they won't be. But then, I'm a compulsive optimist.

[cleek]

why wear a mask? COVID is over!

[cleek]

they'll just move the battle to the states.

it will never end. there's too much money in it for the GOP.

[nooneithinkisinmytree]

It's the slippery slope.

Not only will women's bathrooms be invaded by men in dresses and heels (probably the assistant pastor down at the local St. Jezebel's Church Of The Next Thing We Don't Like on his lunch break) attempting to rape them, but a republican will be quartered in every toilet bowl in the country peering through a scuba mask directly all up in there to surveil the forced pregnancies of the ladies.

An armed society is a society with a lot of emergency room visits.

[nooneithinkisinmytree]

"you cannot force a person to donate organs to save a life".

Souls are covered under other small print.

Ask Mike Pence, but I guess he's given his up to trump like a cheap suit.

[wj]

An armed society is a society with a lot of emergency room visits.

A society with lots of emergency room visits obviously needs better (i.e. more reliably lethal) ammunition.

[cleek]

learn to aim, libtard!

[wj]

learn to aim, libtard!

If I could aim, I wouldn't need a semi-automatic now, would I?

[Michael Cain]

If I could aim, I wouldn't need a semi-automatic now, would I?

The only time I remember Dad swearing when I was a kid was one time we were on the back patio, on the outer edge of a small town in Iowa. Behind the last few houses was a railroad embankment where the ground squirrels had moved in, and their next stop was going to be the back yards. The next door neighbor had been plinking at them all afternoon from our patio to no effect. Dad finally went in, got his rifle, the .22 with the long barrel and the 4x scope, handed it to me, and said, "Mike, kill the fucking ground squirrel."

I assume Dad was pleased that I checked the chamber (it was empty), loaded, looked every which way for other things in the field of fire, rested the stock on the neighbor's little sandbag, sighted, exhaled, squeezed, and killed the fucking ground squirrel. He never said anything to me about it, ever.

To the best of my knowledge, my dad and that neighbor never spoke again.

[nooneithinkisinmytree]

That's a tight, lovely reminiscence.

[nooneithinkisinmytree]

https://www.theatlantic.com/ideas/archive/2021/12/what-roe-could-take-down-it/620892/

Let's wait and see.

No, let's not.

Leonard Leo and his robed minion children on the fake Court are not merely chess MOVES ahead of us, they are many games in the lead.

Unless they are stopped.

Elections don't look to be an option.

[hairshirthedonist]

I didn't know ground squirrels were that bad, or really even what a ground squirrel was. In looking for background info, I was lucky enough to come across the yellow-bellied marmot. I think that's going to be my new mild insult - calling people yellow-bellied marmots.

[Girl from the North Country]

I think that's going to be my new mild insult - calling people yellow-bellied marmots.

Excellent plan. I look forward to it spreading worldwide, like cleek's law.

[CharlesWT]

Ground squirrels like it hot.

"But unlike most mammals, ground squirrels love the heat. Ground squirrels—which look like a cross between a prairie dog and a chipmunk—thrive in hot climates, partly because their TRPV1 receptors are not activated by extreme heat. Even at temperatures of 115 F (46 C) degrees, ground squirrels are content, and their TRPV1 receptors remain unmoved."
Squirrels Help Scientists Understand How We Sense Heat

[Ugh]

You're going to get 6-7 opinions and a 5-4 or 6-3 judgment that the MS law is Constitutional without any controlling opinion.

[Russell]

Even at temperatures of 115 F (46 C) degrees, ground squirrels are content

When the American southwest and the entire subcontinent of India become too hot for human habitation, the ground squirrels will take over.

[Ugh]

I, for one, welcome our new ground squirrel....