It will be interesting to see how it plays out, but I could equally see this move DEMORALIZING mainstream Democrats and MOTIVATING many Republicans. Add to this the systematic dismantling of voting rights in many states and things look more and more like they are on a knife’s edge.
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This is where leadership comes into play. The Democratic Party leadership, both the mainstream centrists and the progressives, need to come together, present a united front, and start going around the country motivating the fuck out of people. And they need to start today and keep going until election day in November. And then keep going until election day in November 2024.
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[quote=“hotel, post:92, topic:220450”]
[/quote] Alito claims they are not “deeply rooted in history.”
Abortion was legal in the US at the time of the Founders. Bullshit history Sammy.
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Charlie Stross:
http://www.antipope.org/charlie/blog-static/2022/05/roe-v-wade-v-sanity.html
I am not a lawyer.
The opinion apparently overturns Roe v. Wade by junking the implied constitutional right to privacy that it created. However, a bunch of other US legal precedents rely on the right to privacy. Notably:
- Lawrence v. Texas (2003) determined that it’s unconstitutional to punish people for committing “Sodomy” (any sex act other than missionary-position penis-in-vagina between a married man and woman)
- Griswold v. Connecticut (1965) protects the ability of married couples to buy contraceptives without government interference
- Loving v. Virginia (1968): right to privacy was used to overturn laws banning interracial marriage
- Stanley v. Georgia (1969): right to privacy protects personal possession of pornography
- Obergefell v. Hodges (2015): right to privacy and equal protection clause were used to argue for legality of same sex marriage
- Meyer v. Nebraska (1923): ruling allows families to decide for themselves if they want their children to learn a language other than English (overturning the right to privacy could open the door for racist states to outlaw parents teaching their children their natal language)
- Skinner v. Oklahoma (1942): this ruling found it unconstitutional to forcibly sterilize people (it violated the Equal Protection clause)
I’m sure there are going to be people with lots of expertise who will point out that various of those couldn’t possibly be overturned for what, I’m sure, are very good reasons.
They were saying the same about Roe v. Wade until recently.
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The alleged draft opinion spends quite a lot of its length arguing that that was not the case.
Right or wrong, the author was aware of the claim and does try to deal with it.
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IANAL either, although I am in law school, which may make my analysis even worse because I know just enough to think I know more than I do. Anyway, Charlie’s basic premise, that all of these decisions are in jeopardy, is absolutely correct. There is a 6-3 conservative majority on the court, and that means even decisions thought safe for 100 years are potentially vulnerable. I can’t speak to all of the cases Charlie listed, but Loving v. Virginia and Obergefell v. Hodges did not rely on an implied right to privacy for their holdings. They relied on the equal protection and due process clauses of the 14th Amendment. Regardless, Roberts, Thomas, and Alito all dissented in the Obergefell decision, and Gorsuch, Kavanaugh, and Barrett have all joined the bench since that ruling, so it is absolutely in jeopardy. In fact, I’d bet everything I own that, assuming they go through with overturning Roe, that will be the next target of the the GOP. As soon as the official opinion overturning Roe is issued, it will probably be only a few months at most before one of these states passes a new law banning same sex marriage to start a direct challenge to that decision.
Edited to clarify whose premise I was reacting to.
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Not mine, Charlie’s.
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He can say things - but the first abortion law was 1821. And the practice going through the 1800’s till anti abortion laws were being passed was that it was fine until quickening- when a fetus could kick.
It was also true that much of the reasoning about that law was racist and anti immigrant. They didn’t want the land filling up with “those people”. Ironically- other white peoples largely.
Edit:
“In 1821, America’s first statutory abortion regulation was enacted in Connecticut in order to protect women from abortion inducement through poison administered after the fourth month of pregnancy.“
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Sorry. I edited my post to clarify.
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Decades ago, Frank Zappa said that the U.S. was heading toward becoming a “Fascist Theocracy.” And he was merely talking about record labeling. He knew that one restrictive thing leads to another, and here we are. We should have listened to Frank.
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First they came for the naughty lyrics…
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Part of me wonders if the leak was engineered by one of the Justices, perhaps even Alito himself, as a sort of trial balloon to see how an extreme opinion would be received. I’ve mostly dismissed that idea as a bit too Xanatos, as I can’t figure out what utility it would actually have for the Court.
Question for folks who know more about law than I do:
I believe that two clearly legal but probably unlikely ways to reverse this (apparently imminent) ruling would be to
- Get a bunch of new more liberal justices on the court through court packing or whatever.
or
- Pass a constitutional amendment explicitly ensuring the right to an abortion.
Short of that, if the filibuster were ended are there any potential federal laws that could be passed to guarantee the right to an abortion nation-wide? A federal law could of course be repealed once the other party takes power, but it seems like it’s something the legislature actually has the power and potential will to do right now when they have the chance.
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As the tweet @catsidhe posted says, the opinion relies a lot on the common law.
So the argument is that the US continued to follow the common law after the revolution, the common law criminalised at least some forms of abortion, therefore abortion was not legal in the US at the time of the Founding.
I’m not prepared (in the sense of not having done enough research) to comment on the merit of that argument.
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