- 29,937
- a baby, candy, it's like taking.
- TexRex72
This was a good piece from Reason's Elizabeth Nolan Brown. The article contains several tweets, the last of which exceeds GTPlanet's limit for embedding (the link still works even if the tweet isn't displayed), so I included a screenshot of the tweet and the link (to a book purchase page on Amazon) therein.
reason.com
Alito's Draft Opinion That Would Overturn Roe Is a Disaster of Legal Reasoning
The leaked draft of a Supreme Court opinion overturning Roe v. Wade continues to spawn confusion, anger, anxiety, and ample predictions. Today I'm going
reason.com
The leaked draft of a Supreme Court opinion overturning Roe v. Wade continues to spawn confusion, anger, anxiety, and ample predictions. Today I'm going to hone in on some of these reactions to the draft opinion, starting with people questioning some key claims within it.
The February draft—published Monday by Politico and verified as authentic by Chief Justice John Roberts—concerns the case of a 15-week abortion ban in Mississippi (Dobbs v. Jackson Women's Health Organization). It was penned by Justice Samuel Alito and is labeled as the opinion of the Court. In it, Alito writes that the Court must overturn both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), the main legal precedents upon which abortion rights in America are based.
Alito's logic in the draft opinion is raising many an eyebrow. Among his reasons for rejecting Roe and Casey, Alito notes that "the Constitution makes no reference to abortion." And while the 14th Amendment's Due Process Clause has been held to enshrine rights not explicitly mentioned in the Constitution, such rights must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty," writes Alito, adding that "the right to an abortion does not fall within this category."
"But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category," writes Reason's Damon Root:
University of Maryland history professor Holly Brewer points out that Alito derives support for his arguments from 17th century British common law, which sometimes made abortion a crime if it took place after the "quickening." But the quickening refers to the point in a pregnancy at which a mother can feel a fetus moving inside her—something that doesn't usually happen until around 16 weeks pregnancy at the earliest.
"This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs," notes Brewer. "So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence."
Jason Kuznicki, editor in chief of the think tank TechFreedom, takes issue with the idea that rights must be "deeply rooted in history" in order to be valid. This concept "implies that the rights of some people will always be less important than the rights of others. It also raises the question: How far back do the roots of our rights really go?" Kuznicki tweeted, noting that some currently recognized rights—including the right to marry people of the same sex—are not deeply rooted.
"The more we privilege deep roots in history, the more weight we have to give to some terribly illiberal ideas," added Kuznicki. "Rights for white people have deeper roots than rights for black people, and no amount of time can change that."
Democratic politicians are angry, obviously. For instance: "I am angry. Angry and upset and determined," Massachusetts Democratic Sen. Elizabeth Warren told reporters (while trampling some plants). "The United States Congress can keep Roe v. Wade the law of the land, they just need to do it."
They're vowing to fight back, although what they can realistically do is limited.
Some Republicans are mad, too:
But Collins is in the minority among Republican legislators.
Some people are still lingering on how or why the draft was leaked and what it means. Some—including Senate Minority Leader Mitch McConnell (R–Ky.)—are even calling for the leaker to be criminally prosecuted.
But this obsession with process and punishment over the substance of the opinion is pretty weird. "The Court's credibility doesn't depend on ceremonies or secrets or mystique. It depends on it getting the answers right," notes Timothy Sandefur, an adjunct at Cato and vice president at Goldwater Institute. "If it gets the answers wrong; no amount of officialdom and ritual will save it. If it gets the answers right, none is necessary."
What happens next? We still don't know if the court's final opinion will resemble this leaked draft. But many are making predictions predicated on the idea that it is the final opinion. These predictions include dire scenarios of unsafe illegal abortions and widely disappeared access to abortion.
But Reason's Jacob Sullum suggests that the impact will be much more limited than many assume:
It's not just the impact on abortion access that people are worried about, however. Many are concerned about the way the ruling could lead to a rethinking of other Supreme Court precedents.
"As we've warned, SCOTUS isn't just coming for abortion — they're coming for the right to privacy Roe rests on which includes gay marriage + civil rights," Rep. Alexandria Ocasio-Cortez (D–N.Y.) tweeted.
Some Republicans "want to take us back to a time before Roe v. Wade, back to a time before Obergefell v. Hodges, back to a time before Griswold v. Connecticut," suggested Vice President Kamala Harris said in a Tuesday speech.
Whoopi Goldberg suggested on The View that the Supreme Court "will go after gay marriage and maybe Brown v. Board of Education" next.
Reason's Scott Shackford suggests that such fears are largely unfounded.
What it would mean for electoral politics is anyone's guess. "It's not clear that it will give the party any significant boost in the upcoming midterm elections," writes Nicole Narea at Vox. Meanwhile, CNN suggests that "the Supreme Court may have just fundamentally altered the 2022 election."
Democrats are certainly already campaigning on this issue.
"If the Court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose," President Joe Biden said in a Tuesday statement. "And it will fall on voters to elect pro-choice officials this November."
"Women are going to go to vote in numbers we have never seen before," Sen. Amy Klobuchar (D–Minn.) said on CBS.
They're also using it to push other reforms, like an end to the filibuster:
In the longer term, some see it invigorating Democratic support and/or intensifying culture wars.
"Americans are almost evenly divided on their personal views of abortion, according to years of Gallup polling, but only 19 percent think abortion should be illegal under all circumstances," notes Bret Stephens in The New York Times. "It shouldn't be hard to imagine how Americans will react to the court conspicuously providing aid and comfort to the 19 percent."
A reminder that abortion hasn't always been as neatly divided between left and right as it is today:
https://twitter.com/notjessewalker/status/1521326353898954754
Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade: Williams, Daniel K.: 9780190053321: Amazon.com: Books
Defenders of the Unborn: The Pro-Life Movement before Roe v. Wade [Williams, Daniel K.] on Amazon.com. *FREE* shipping on qualifying offers. Defenders of the Unborn: The Pro-Life Movement before Roe v. Wadewww.amazon.com
