Patterico's Pontifications

12/1/2021

Open Thread: Supreme Court Arguments on Abortion

Filed under: General — Patterico @ 8:28 am



Going on now. I’ve not heard everything so far, but reversal of Roe is a real possibility. This may be the first day many Americans realize that. Your thoughts on the argument?

133 Responses to “Open Thread: Supreme Court Arguments on Abortion”

  1. Sotomayor is unimpressive. Breyer sounds old. He has always rambled, but man is he rambling today.

    Patterico (e349ce)

  2. Sotomayor has always been mediocre (as SC justices go). A Blackmun. She may be impressive compared to many lawyers, but she’s never been the first pick for the brain trust. Other check-boxes were more important.

    Kevin M (ab1c11)

  3. As for Roe, I thought that the original “penumbra” argument had been supplanted by Kennedy’s “ordered liberty” arguments in Casey, which were quite a bit less strained. I can see the justices wiping out all federal protections after a certain date, while retaining a short period where abortion is a right.

    The problem, of course, is that Constitutional law is a blunt instrument when applied to any subject that has grey areas, and abortion has many of them. So, I can see the justices looking for a bright line and a simple rule, and leaving everything else to the states.

    Kevin M (ab1c11)

  4. Sotomayor spoke of the political reality of our times.

    As to Kavanaugh’s ‘you have to pick’ quip- it hits home. Long before R v. W, my own late mother experienced a difficult pregnancy and both her and my father doctors told them it could come down to the mother or the child. Both parents told me their ‘choice’ was to save the woman, the rationale being they’d effort to have another child. Understandable. In the end, both child and woman made it– the child being me.

    DCSCA (f4c5e5)

  5. I am amazed at the chutzpah of justices talking about the court being political, as if this was the first time ever. The Warren and Berger courts, with 7-2 liberal majorities were overtly political well into the late 70’s. Roe itself is testimony to that. The post-Reconstruction court, with its terrible, no good and perhaps evil, attitude towards freedmen is another. The court that accepted the Wickard argument was not only political but self-servingly so.

    The whole “political” argument is a matter of whose ox got gored.

    Kevin M (ab1c11)

  6. Ideally, the court can find a compromise position that gets them a unanimous decision. In this age of vanishing comity, that would be a big help. I’m not optimistic.

    Kevin M (ab1c11)

  7. There will not be a unanimous decision on this, Kevin.

    nate (1f1d55)

  8. Kevin, I don’t think there’s any unanimous decision available on this topic. I think several of the justices are looking at the law to see how much they can restrict abortion given what the law says and other’s are taking the opposite view.

    Time123 (9f42ee)

  9. @7. States should print their own currency, too. 😉

    DCSCA (f4c5e5)

  10. #9 When was the last time they did that, DCSCA. 1964?

    Appalled (1a17de)

  11. Kevin, I don’t think there’s any unanimous decision available on this topic

    I don’t really think it likely either, but I do see it as possible. For example:

    In a situation where the court was going to strike Roe/Casey down completely, 6-3, the liberal justices *might* prefer a compromise saving a core abortion right (e.g. adult women/first trimester) while letting everything else go back to the states.

    Politically, I think that they and their party (yes, they are no less political) would prefer to use “restoring women’s rights” as a fundraiser for the rest of my lifetime, so they’d probably just beat that drum instead.

    But maybe.

    Kevin M (ab1c11)

  12. @10. Actually, 1987:

    https://en.wikipedia.org/wiki/Disney_Dollars

    ” ‘Disney Dollars’ were a form of corporate scrip previously sold by The Walt Disney Company and redeemable for goods or services at many Disney facilities.”

    As you know, the realms known as “The Happiest Places On Earth” are ‘states’ unto themselves. 😉

    DCSCA (f4c5e5)

  13. If this nation is to survive, we need to dial this rupture back and restore some comity. This is an opportunity for leadership from the court, as they did once before (Brown v Board). In that unanimous decision they settled the segregation argument forever (save for the inevitable dead-enders who eventually dead-ended).

    Kevin M (ab1c11)

  14. States should print their own currency, too.

    They cannot. Only gold or silver coin is allowed.

    Kevin M (ab1c11)

  15. California issues scrip now and then when it’s out of actual cash and cannot borrow.

    Kevin M (ab1c11)

  16. C-Span audio

    Kevin M (ab1c11)

  17. DCSCA,

    I was sure you were thinking of these.

    https://www.loriferber.com/barry-goldwater-freedom-dollar.html

    😉

    Appalled (1a17de)

  18. Dred scott decision II. This time a john brown will not be needed even though a john brown gun club is now present.

    asset (ca6c71)

  19. “Stare decisis” — the last refuge of lost causes.

    Kevin M (ab1c11)

  20. Dred Scott was never overturned by the Court. More the Grand Army of the Potomac.

    Kevin M (ab1c11)

  21. There seems to be some stare decisis argument for a viability argument, or at the least a fixed timeframe sufficient for women to make deliberate decisions.

    Sotomayor’s “survival” argument is simply risable. This is a court that stopped prayer in public schools, upheld partisan limits on speech, gave undue weight to criminal rights and treansferred huge Congressional power to the executive’s regulatory age3ncies. But of course, Sotomayor doesn’t see these as political, but only as “justice.”

    Kevin M (ab1c11)

  22. Sotomayor’s filibuster was so annoying that the CJ stepped on her.

    Kevin M (ab1c11)

  23. Transcript here:
    https://www.supremecourt.gov/oral_ar…-1392_5if6.pdf

    This struck me profoundly as it’s simplicity and it’s advocate for more federalism:

    JUSTICE KAVANAUGH: (addressing Rikelman) I think the other side would say that the core problem here is that the Court has been forced by the position you’re taking and by the — the cases to pick sides on the most contentious social debate in American life and to do so in a situation where they say that the Constitution is neutral on the question of abortion, the text and history, that the Constitution’s neither pro-life nor pro-choice on the question of abortion, and they would say, therefore, it should be left to the people, to the states, or to Congress. And I think they also then continue, because the Constitution is neutral, that this Court should be scrupulously neutral on the question of abortion, either pro-choice nor pro-life, but, because, they say, the Constitution doesn’t give us the authority, we should leave it to the states and we should be scrupulously neutral on the question and that they are saying here, I think, that we should return to a position of neutrality on that contentious social issue rather than continuing to pick sides on that issue. So I think that’s, at a big-picture level, their argument. I want to give you a chance to respond to that.

    whembly (63cfde)

  24. Sotomayor does not believe that a fetus is human. Period. She compares the fetal pain response to post-motem reflex.

    Kevin M (ab1c11)

  25. Dred Scott was never overturned by the Court. More the Grand Army of the Potomac.

    Actually, it was the 13th and 14th Amendments.

    Appalled (1a17de)

  26. (I’m typing as I listen to the replay)

    Kevin M (ab1c11)

  27. Actually, it was the 13th and 14th Amendments.

    Ratified under occupation by aforesaid army.

    Kevin M (ab1c11)

  28. Of course “how many states are there?” was a bit iffy at the time.

    Kevin M (ab1c11)

  29. Sotomayor things the abortion argument is purely religious (and that political or legal views that stem from religious teaching are somehow invalid).

    Kevin M (ab1c11)

  30. @17. LOL Well, ol’Walt was a righty in ’64- though his ‘Gold Standard’ then was the Oscar for ‘Poppins.’ 😉

    DCSCA (f4c5e5)

  31. @7. States should print their own currency, too. 😉

    DCSCA (f4c5e5) — 12/1/2021 @ 11:19 am

    Wink all you want but I’d surmise a state-issued or -backed cryptocurrency is on its way in the near future.

    Hoi Polloi (2f1acd)

  32. Emerging from a more than two-hour “courtesy visit” with Judge Kavanaugh, President Trump’s Supreme Court nominee, Senator Susan Collins of Maine said they had discussed abortion cases “at length,” and that he told her he agreed with Chief Justice John G. Roberts Jr., who told senators during his 2005 confirmation hearings that he regarded Roe as “settled law.” Ms. Collins later said she was heartened by the statement.

    lol. lmao.

    Davethulhu (67c626)

  33. Breyer sounds old. He has always rambled, but man is he rambling today.

    Well, the poor guy is four years older than our current President, after all.

    JVW (ee64e4)

  34. Sotomayor’s filibuster was so annoying that the CJ stepped on her.

    Well, recall that in Lawrence Tribe’s infamous leaked letter to Obama he worried that Sotomayor lacked the intellect or disposition to win over her conservative colleagues to her ideas. It turns out of course that he was correct, and that Elena Kagan is actually the mold of SC Justice whom Democrats should be nominating: smart and amiable enough such that she can win over Roberts, Kavanaugh, and Barrett.

    JVW (ee64e4)

  35. Just stop the genocide.

    mg (8cbc69)

  36. This week, Thomas broke his usual silence to ask a question that has pro-abortion activists livid.

    ” Does a mother have a right to ingest drugs and harm a pre-viable baby? Can the state bring child neglect charges against the mother? “ he asked.

    Gets to the heart of it.

    NJRob (58859c)

  37. I’m equivocal on the subject. Once I would have said that I was decidedly Pro-Life, but the last five years have made me question my position on abortion and to view Griswold v. Connecticut, the 1965 birth control case, as too little too late.

    nk (1d9030)

  38. Once I would have said that I was decidedly Pro-Life, but the last five years have made me question my position on abortion and to view Griswold v. Connecticut, the 1965 birth control case, as too little too late.

    Interesting you should write that. I was just at this moment wondering if there were any abortion rights supporters who want to see Dobbs pervail and/or Roe and Casey struck down because even though they support abortion they think the jurisprudence is awful? We are always hearing from fatuous dunderheads like Joe Biden who say, “I’m personally against abortion, but I don’t think the state should regulate it.” Is there a corresponding figure who says, “I support a general right to abortion, but I believe that the state has a compelling interest in strictly limiting the terms under which it can be invoked”? I would love to hear that line of reasoning.

    JVW (ee64e4)

  39. @JVW you don’t even have to go far when Roe v. Wade was decided…
    https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=6179&context=ylj

    John Hart Ely ain’t known for being a righty/conservative.

    whembly (849622)

  40. John Hart Ely ain’t known for being a righty/conservative.

    Yeah, I know of Ely. I was wondering if there were any current day public figures who support abortion by oppose Roe and Casey.

    JVW (ee64e4)

  41. *but oppose Roe and Casey.

    JVW (ee64e4)

  42. If roe is overturned it will be another dred scott decision. If biden just whines instead of doing something AOC and the left will take over the democratic party. The dnc and corporate establishment democrats will be discredited even worse then 2016 and won’t be able to stop it.

    asset (cf9dce)

  43. JVW,

    I certainly believe that Roe and Casey have zero constitutional support while simultaneously desiring that abortion be far more available than it currently is.

    Were it not such an incredible imposition on personal autonomy I would go further and require that a license be obtained before any pregnancy is carried to term, with the putative parents required to show that they are financially capable of caring for the new child. There is absolutely no chance I trust government with the power to decide that people are mentally ready to be parents even though that is nearly as important.

    Soronel Haetir (be15e6)

  44. I’m pro-choice, but anti Roe v Wade. Michael Kinsley once said that if the Second Amendment were stretched as much as the amendments invoked to support Roe v Wade, it would be a requirement that every household have a firearm.

    norcal (e37642)

  45. Interesting you should write that. I was just at this moment wondering if there were any abortion rights supporters who want to see Dobbs pervail and/or Roe and Casey struck down because even though they support abortion they think the jurisprudence is awful?

    JVW (ee64e4) — 12/1/2021 @ 2:41 pm

    *Raises hand*

    IMO Roe is good policy but bad constitutional jurisprudence.

    lurker (59504c)

  46. In other abortion news:

    Planned Parenthood Los Angeles says hack breached about 400,000 patients’ information

    Letters from PPLA to affected patients warned that “we identified files that contained your name and one or more of the following: address, insurance information, date of birth, and clinical information, such as diagnosis, procedure, and/or prescription information.”

    Rip Murdock (d2a2a8)

  47. Now that you guys made me think about it seriously ….

    I find mothers who have their children killed and the people who carry out the killings distasteful, and I think that society has the right to find them distasteful too, up to and including outlawing them. But, what about the Ninth Amendment? Is it going back to an ink blot in the Bill of Rights? Will Robert Bork have finally won and on Biden’s watch to boot?

    nk (1d9030)

  48. NJRob – one of the real concerns the left has is that there is a risk that protecting the life of the fetus could be used to impose all sorts of legally enforceable restrictions on the behavior of pregnant women, and that miscarriages could result in investigation by prosecutors and/or the formerly pregnant woman being forced to prove that she wasn’t negligent or otherwise responsible for causing the miscarriage.

    aphrael (4c4719)

  49. Child neglect questioning by The Greatest American in my lifetime {Justice Thomas} sure tripped up those baby killing lawyers.

    mg (8cbc69)

  50. Aphrael,

    So it means we shouldn’t have politicized AG’s?

    NJRob (651533)

  51. You Constitution/SCOTUS buffs would know better, but when was the last time ‘rights’ in America were rescinded after being granted– hasn’t the arc of U.S. history moved toward expanding rights, not restricting or contracting them? Prohibition?? Didn’t stop the thirsty from the ‘choice’ of sourcing booze– and fueled the enterprising, back alley/’speak easy’ crowd– and the criminal element as well.

    DCSCA (f4c5e5)

  52. I still haven’t had a good explanation from a Science-Loving, Scientific Democrat explaining to me exactly when life begins. Someone said when the baby is born and I asked does the baby fairy sprinkle magic life dust as the baby comes out and I got nothing but a blank stare.

    That’s really what I want. An abortion advocate to explain to me when exactly life begins. Because they seem to give more rights to a domesticated animal than an unborn human. Quite strange.

    Hoi Polloi (998b37)

  53. But, what about the Ninth Amendment? Is it going back to an ink blot in the Bill of Rights?

    nk (1d9030) — 12/1/2021 @ 4:53 pm

    The Ninth Amendment was never an ink blot. But it is not, and never has been, a guarantor of specific rights.

    Also worth noting: Roe’s reasoning (such as it is) is predicated primarily on the Fourteenth Amendment, not the Ninth. That’s because you really CAN’T base a positive claim on the Ninth Amendment. The most you can say is “Just because Right X isn’t explicitly protected doesn’t mean I don’t have Right X.” But that line doesn’t even establish whether “Right X” is actually a right at all…

    Demosthenes (3fd56e)

  54. Were it not such an incredible imposition on personal autonomy I would go further and require that a license be obtained before any pregnancy is carried to term, with the putative parents required to show that they are financially capable of caring for the new child. There is absolutely no chance I trust government with the power to decide that people are mentally ready to be parents even though that is nearly as important.

    I salute you from a curmudgeonly standpoint inasmuch as it’s clear that there are lots and lots of people out there who have no business trying to raise children, but of course the real problem is that once you find the putative mom-and-dad-to-be unworthy, what happens to the unborn child? Are they summarily aborted, or are they brought to term and then seized by the state and sent off to an orphanage? There aren’t any good answers.

    JVW (ee64e4)

  55. NJRob – one of the real concerns the left has is that there is a risk that protecting the life of the fetus could be used to impose all sorts of legally enforceable restrictions on the behavior of pregnant women,

    Very much the same sort of concerns that so many people have with mandatory vaccinations, yes?

    JVW (ee64e4)

  56. @53. I still haven’t had a good explanation from a Science-Loving, Scientific Democrat explaining to me exactly when life begins… Because they seem to give more rights to a domesticated animal than an unborn human. Quite strange.

    Next time you tuck into a salad, bite into a peach… or ‘behead’ the blades of grass in your yard, chew on this:

    https://www.sciencetimes.com/articles/24473/20191218/a-group-of-scientists-suggest-that-plants-feel-pain.htm

    A Group of Scientists Suggest that Plants Feel Pain

    For years, scientists are baffled by the question of whether plants can feel pain or not. A team of scientists from Tel Aviv University may have the answer to that question, as they discovered that some plants can emit a high-frequency distress sound when in environmental stress.

    ‘Course don’t bat an eye if swatting a fly. Dirty little buggers. 😉

    DCSCA (f4c5e5)

  57. A Group of Scientists Suggest that Plants Feel Pain

    Vegetarians are the cruelest of us all. One cow can feed dozens of us, but every grape is its own sentient being.

    JVW (ee64e4)

  58. I love how some people walk around all full of certitude. It’s either “life begins at conception, and anything done to the embryo after that is murder”, or “it isn’t a life worth protecting until birth is actually given”.

    As my wise uncle used to say, he became more uncomfortable with abortion the further along a pregnancy was.

    The strident make no such distinction, whether they be pro-life or pro-choice, because to do so lessens the certitude.

    norcal (7c1f06)

  59. A child might be viable at fifteen weeks in a first-class research hospital, but not be viable at twenty five weeks in an underfunded rural hospital.

    John B Boddie (9efa1d)

  60. Over at National Review Online, Dan McLaughlin made an interesting observation as he and the other writers were live-blogging today’s oral arguments:

    December 1, 2021 11:11 AM

    DAN MCLAUGHLIN
    Breyer: “we’re an institution more than a court of appeals…we have to have public support.” Giving an ode to “we do our job, we use reason.”

    Frankly, this feels like a combination of his answer to the people who want him to retire, and maybe the windup to a speech on why he’s retiring after Roe is overruled.

    I hadn’t thought of this until now, but should either Roe or Casey be overturned by this decision then the pressure on Breyer to retire from Democrats is going to be overwhelming, isn’t it? As I mentioned above, he’s 83 now and by the time the Court renders its decision he will be a few months away from 84. Very little chance he is on the bench in the Court’s next term, right?

    JVW (ee64e4)

  61. Breyer: I’ll give up my seat when they pry it from my cold, dead buttocks.

    norcal (7c1f06)

  62. Data from The Mothership released 12/1/21:

    Most Americans favor keeping Roe v. Wade: polling

    https://www.foxnews.com/politics/most-americans-favor-keeping-roe-v-wade-polling

    ‘Going past the top lines, the Fox News poll indicated that for the first time, over half of Republicans (53%) joined majorities of Democrats (77%) and Independents (64%) in saying Roe should remain the law of the land… Seven in 10 White Catholics (72%) and nearly half of White evangelical Christians (49%) also thought the decision should stand.’

    DCSCA (f4c5e5)

  63. Everybody wants to quote the polls that show majority support for Roe, but the problem is that most Americans think all Roe does say that abortion should be legal in the first trimester. They don’t realize that the Roe and Casey decisions also limit the state’s ability to restrict abortion in the second and third trimesters as well. Even this Mississippi law which is being litigated would allow abortion in the first fifteen weeks, so it’s not as if this would grossly undo Blackmun’s awful jurisprudence, but it would at long last reflect where the majority of American people are with respect to abortion after the first trimester. Here are the results of a poll from the summer undertaken by the AP with the University of Chicago:

    FIRST TRIMESTER ABORTION should be
    legal in all cases – 38%
    legal in most cases – 23%
    illegal in most cases – 22%
    illegal in all cases – 16%

    SECOND TRIMESTER ABORTION should be
    legal in all cases – 15%
    legal in most cases – 19%
    illegal in most cases – 30%
    illegal in all cases – 35%

    THIRD TRIMESTER ABORTION should be
    legal in all cases – 7%
    legal in most cases – 13%
    illegal in most cases – 26%
    illegal in all cases – 54%

    JVW (ee64e4)

  64. @32. Wink all you want but I’d surmise a state-issued or -backed cryptocurrency is on its way in the near future

    Tiptoe carefully: Tulip bulbs had become so expensive that they were treated as a form of currency, or rather, as futures, forcing the Dutch government to introduce trading restrictions on the bulbs.

    https://en.wikipedia.org/wiki/Tulip

    And you could be pouring millions on to your French Fries:

    https://en.wikipedia.org/wiki/History_of_salt

    Salt was often difficult to obtain, so it was a highly valued trade item, and was considered a form of currency by certain people.

    ‘Course VISA & Mastercard had that goal – a world using their plastic as ‘currency’- and taking a percentage of transactions from seller and buyer on every swipe.

    As to the future, we’ve seen it: Star Fleet transacts with Credits– which apparently is no ‘tribble’ at all. 😉

    DCSCA (f4c5e5)

  65. As has been mentioned elsewhere, we are there with 6 other nations in practicing barbarism to the unborn up to and including at birth. That puts us in the same category as North Korea and China, but opposite every European nation.

    NJRob (eb56c3)

  66. “The unborn” are a convenient group of people to advocate for. They never make demands of you; they are morally uncomplicated, unlike the incarcerated, addicted, or the chronically poor; they don’t resent your condescension or complain that you are not politically correct; unlike widows, they don’t ask you to question patriarchy; unlike orphans, they don’t need money, education, or childcare; unlike aliens, they don’t bring all that racial, cultural, and religious baggage that you dislike; they allow you to feel good about yourself without any work at creating or maintaining relationships; and when they are born, you can forget about them, because they cease to be unborn. You can love the unborn and advocate for them without substantially challenging your own wealth, power, or privilege, without re-imagining social structures, apologizing, or making reparations to anyone. They are, in short, the perfect people to love if you want to claim you love Jesus, but actually dislike people who breathe. Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.”

    https://www.goodreads.com/quotes/10357009-the-unborn-are-a-convenient-group-of-people-to-advocate

    Victor (4959fb)

  67. ” Does a mother have a right to ingest drugs and harm a pre-viable baby? Can the state bring child neglect charges against the mother? “ he asked.

    Not really. You can hold that a woman has an interest in not remaining pregnant (e.g. economic difficulties) that a court could give greater weight to than to her interest in smoking crack.

    Kevin M (ab1c11)

  68. You Constitution/SCOTUS buffs would know better, but when was the last time ‘rights’ in America were rescinded after being granted

    1974, when they rescinded the right of a fetus to be born. That’s not snark, actually. Unlike other rights, the abortion right has a victim.

    Kevin M (ab1c11)

  69. I listened to the entire hearing and I came away amazed at what was being argued.

    1. Mississippi wants to drop ALL viability or length of pregnancy rules, leaving only the completely unworkable “undue burden” tests (made all the more unworkable by removing the “to do what?” portion of the question).

    2. Sotomayor suggested that this would be the first time the court did something political, and that “some” would use it as a club to delegitimatize the court. Starting with Sotomayor, it seems.

    3. To the best of my hearing, only Kavanaugh seemed interested in sending it all back to the states, although maybe some of the others didn’t feel like whowing their cards.

    It seemed to me that there is a search by the CJ and maybe others to find a compromise that could hold a supermajority. I would like to see a 9-0 result and get this behind us, but Sotomayor is too stupid and I think Alito too hostile for any broad-based solution that sends most of it to the states with some core holding as to first-trimeter rules.

    What I expect, and fear, is a mealy-mouthed Casey II, that sends a little bit more back to the states but still leaves the door open to late-term abortions on demand.

    Kevin M (ab1c11)

  70. As has been mentioned elsewhere, we are there with 6 other nations in practicing barbarism to the unborn up to and including at birth. That puts us in the same category as North Korea and China, but opposite every European nation.

    To be fair, North Korea and China do it by force.

    Kevin M (ab1c11)

  71. The wokistas must be scared. Justice Thomas is “trending”.

    mg (8cbc69)

  72. Prisoners? Immigrants? The sick? The poor? Widows? Orphans? All the groups that are specifically mentioned in the Bible? They all get thrown under the bus for the unborn.”

    That is a funny sort of jealousy. Not funny ha-ha, funny queer. Not gay queer, weird queer. “Mommy loves the new baby best!” Seriously? But what do you expect from a Methodist?

    [R]ustlers, cut throats, murderers, bounty hunters, desperados, mugs, pugs, thugs, nitwits, halfwits, dimwits, vipers, snipers, con men, Indian agents, Mexican bandits, muggers, buggerers, bushwhackers, hornswogglers, horse thieves, bull dykes, train robbers, bank robbers, ass-kickers, sh!t-kickers and Methodists.

    Okay, maybe it’s funny, too.

    nk (1d9030)

  73. Okay, maybe it’s funny *ha-ha*, too, I meant to say.

    nk (1d9030)

  74. The Ninth Amendment was never an ink blot. But it is not, and never has been, a guarantor of specific rights.

    Also worth noting: Roe’s reasoning (such as it is) is predicated primarily on the Fourteenth Amendment, not the Ninth. That’s because you really CAN’T base a positive claim on the Ninth Amendment. The most you can say is “Just because Right X isn’t explicitly protected doesn’t mean I don’t have Right X.” But that line doesn’t even establish whether “Right X” is actually a right at all…

    Well, if it was easy, we’d let the girls do it. Thankfully, there are still only three of them on the Supreme Court.

    Is self-defense a non-enumerated right? The defense of your property? To choose where you live? To travel where you wish in America? To emigrate from America? Low-hanging fruit, I hope you all will agree. They’re what make America a “free country”.

    Let’s add a few more. No government-issued ID that you must produce if a cop stops you on the street? Refusing to have health insurance. Refusing medical treatment altogether? No mandatory voting? No mandatory paying of dues to an organization you don’t want to be a part of?

    Where do you go when Woodrow Delano Trump decides one of them, or all, does not fit their view of the way things should be?

    And I don’t believe that Roe v. Wade was based on a general right to liberty and/or privacy found in the 14th Amendment as opposed to merely Fourteenth Amendment incorporation doctrine which makes the Bill of Right binding on the States. If only!

    nk (1d9030)

  75. Abortion restrictions both compel women to bear children against their will, risking health and life, and potentially compel motherhood and all of its corollary responsibilities. Responsibilities asymmetrically borne by the woman. A large portion of the poorest of the poor are single mothers. These laws deny women a significant choice in the direction of their lives. An Equal Protection Clause argument has some merit, though I’m not sure whether a majority of the Court would be willing to embrace it.

    The case certainly has some compelling implications. How would an unwinding of Roe effect the viability of Obergefell or Griswold which are based in part on claims of individual liberty, also like abortion not explicitly listed in the Constitution…..and which could have been more broadly protected with a different view of the Privileges and Immunities Clause. The Justices will have to consider the logical ripple. Public opinion is also an interesting creature….just look how opinion on gay marriage has shifted significantly within two decades. But support for some level of abortion access has hung steady at 60% over the years. This makes handing the question back to the states….interesting, as purple states will now be all about the question. How does this bode for the GOP? If abortion becomes the central issue and 60% of the public support it being legal over some period of the pregnancy…. will the GOP lose influence or will it pull the GOP towards the middle? It’s just an observation of “be careful what you wish for”.

    My best guess is that the Court will be willing to roll back when a state cannot intervene to the 12-15wk mark though I’m not quite sure about the underlying rationale for moving away from viability…except “here is the new compromise”. I think that would get better reception than a complete return to the states, where many states would immediately institute a complete ban that would certainly impact poor women the most. Bans would also bring to the fore questions about how is the state supposed to punish a woman who attempts to perform her own abortion at home. I certainly think pharmalogically-induced abortions would become more prevalent and the law would have to address them. A lot for the justices to untangle….

    AJ_Liberty (3cb02f)

  76. A child might be viable at fifteen weeks in a first-class research hospital, but not be viable at twenty five weeks in an underfunded rural hospital.

    John B Boddie (9efa1d) — 12/1/2021 @ 8:09 pm

    Define “viable”

    Hoi Polloi (2f1acd)

  77. @69. Unlike other rights, the abortion right has a victim.

    Rights do produce victims, Kev; 4 students shot dead in Michigan, for instance; Prohibition blinded a lot of wood alcohol drinkers; the rackets cashed in on outlawed gambling as well. And, it is an issue of choice anyway. Nobody forces you to drink, gamble, shoot people– or opt for an abortion. It’s a ‘choice.’ Point is, the arc of U.S. history has moved toward the expansion of rights. And restricting them, as w/Prohibition, though well intended, didn’t really work– people still chose to drink booze. And people will still seek abortions. ‘Course if R v. W gets dumped back on the weasels in state legislatures, certain states may just make a bundle on it. Nevada could offer Vegas vacation abortion packages; CA as well; NY a Broadway abortion package special, etc. But then, it’s a matter of ‘choice’ as well.

    DCSCA (f4c5e5)

  78. @66. As has been mentioned elsewhere, we [the USA] are there with 6 other nations in practicing barbarism to the unborn up to and including at birth. That puts us in the same category as North Korea and China, but opposite every European nation.

    OTOH- only three countries in the world do not use the metric system as the official system of measurement: Liberia, Myanmar and… the United States.

    https://worldpopulationreview.com/country-rankings/countries-that-dont-use-the-metric-system

    DCSCA (f4c5e5)

  79. Is self-defense a non-enumerated right? The defense of your property? To choose where you live? To travel where you wish in America? To emigrate from America? … No government-issued ID that you must produce if a cop stops you on the street? Refusing to have health insurance. Refusing medical treatment altogether? No mandatory voting? No mandatory paying of dues to an organization you don’t want to be a part of?

    nk (1d9030) — 12/2/2021 @ 4:12 am

    If you’re asking me my personal opinion, I would say all of these are non-enumerated rights. But since they are non-enumerated, one must establish that they are in fact rights, as opposed to merely debating their scope. This is the primary reason for, and virtue of, the Ninth Amendment. It establishes that the list of rights in the Constitution is not an exhaustive one. But it does not defend any specific right-claims. It merely creates a space where they can be defended on other grounds. That’s all I was trying to say.

    Demosthenes (9427a9)

  80. I love how some people walk around all full of certitude. It’s either “life begins at conception, and anything done to the embryo after that is murder”, or “it isn’t a life worth protecting until birth is actually given”.

    norcal (7c1f06) — 12/1/2021 @ 8:08 pm

    To my mind, this is one of the most important reasons for overturning Roe. This sort of certitude is borne from a lack of responsibility. People don’t have to consider circumstances, cases, situations of their fellow citizens and actual human beings. They don’t have to confront unpleasant truths, or even engage with well-informed but opposing opinions. So they don’t. Why should they? It’s so much easier to take a bold stand. You can feel so much more righteous, too. And bold and righteous stands are never easier than when one doesn’t have to live with the consequences of making them.

    “Most questions are clear when someone else has to decide them.“ —Benjamin Franklin, 1776

    Demosthenes (9427a9)

  81. AJ, you raise some good points. One of the issues with the way abortion stands in the USA is that because we’ve decided it in the courts we’re trapped trying to develop public policy from first principles and precedent. That’s not the worst thing in the world but I think a of the questions that you raise should better be decided politically. I think if we did that we’d find that the law settles about 12-15 weeks with an exception for health of the mother. But I also expect there would be some variation around the country, which would effectively give affluent people the access to the least restrictive rule set.

    Time123 (9f42ee)

  82. That’s because you really CAN’T base a positive claim on the Ninth Amendment.

    Well, you can, but it’s just that when you can it’s a right that’s not at issue since it’s well-established. The right to travel, for example.

    All the 9th Amendment says is: “Just because we did not list all existing rights of the People does not mean we are taking them away.”

    To establish a right today through the 9th Amendment, it would have to be one that existed at the Founding but fell into disuse or was somehow suppressed since. The right to ride a horse, perhaps.

    Kevin M (ab1c11)

  83. Rights do produce victims, Kev; 4 students shot dead in Michigan, for instance

    Other rights CAN produce victims, as their exercise CAN affect others. Even Speech or the Press. But only abortion MUST have a victim.

    Kevin M (ab1c11)

  84. Abortion restrictions both compel women to bear children against their will, risking health and life, and potentially compel motherhood and all of its corollary responsibilities

    Abortion time-limits, health & safety rules (e.g. you must wash your hands between abortions), coupled with safe-harbor laws to allow abandonment surrender of the infant turn it from a compulsion to simply a regulated activity. Choices still abound.

    Probably the most compelling argument I see is the risk that poor women might have to travel out-of-state to obtain an abortion, but even that seems overwrought. It would simply create additional tasks for charitable operations that, even today, subsidize abortion (and birth control) for poor women.

    I am more concerned with laws like the crowd-sourced TX crap that turn involvement — at any level — in abortion into a financial risk.

    In any event, I would like to see the court find a 9-0 or 8-1 ruling that splits the baby so that we can be done with this distortion of our legal system.

    Kevin M (ab1c11)

  85. AJ,

    I would be concerned by a court that used Equal Protection arguments to bar laws that disproportionately affected the poor, since nearly everything disproportionately affects the poor. Opening that door would seem to allow an endless flow of cases.

    Kevin M (ab1c11)

  86. My best guess is that the Court will be willing to roll back when a state cannot intervene to the 12-15wk mark though I’m not quite sure about the underlying rationale for moving away from viability…except “here is the new compromise”. I think that would get better reception than a complete return to the states, where many states would immediately institute a complete ban that would certainly impact poor women the most. Bans would also bring to the fore questions about how is the state supposed to punish a woman who attempts to perform her own abortion at home. I certainly think pharmalogically-induced abortions would become more prevalent and the law would have to address them. A lot for the justices to untangle….

    Here I find some agreement, as any broad compromise would have to have this form. There might be 5 or even 6 votes on the court to send it all back to the states (Roberts being the waverer), but a 5-4 undoing of Roe would not settle a damn thing. An 8-1 compromise would, especially if it gave both sides the ability to create a regime locally but kept the core of Roe (first trimester) intact.

    Not a fan of pharmma abortions as it very quickly gets to induced miscarriages which are a medical problem, particularly for the poor or those without easy hospital access.

    Kevin M (ab1c11)

  87. 85. Kevin M (ab1c11) — 12/2/2021 @ 6:57 am

    It would simply create additional tasks for charitable operations

    But they don’t like to do that.

    that, even today, subsidize abortion (and birth control) for poor women.

    If so, I would venture that Planned Parenthood isn’t one of them. Or do they use funds that they raise in states where abortion is not paid for by Medicaid?

    Sammy Finkelman (c49738)

  88. Not a fan of pharmma abortions as it very quickly gets to induced miscarriages which are a medical problem, particularly for the poor or those without easy hospital access.

    Kevin M (ab1c11) — 12/2/2021 @ 7:08 am

    I have an additional concern about this. It’s reasonable to expect that any ban on abortions would include pharmaceutical induced abortions. Desperate women wold likely try them unsupervised and be less likely to seek medical help for complications if doing so exposed them to prosecution.

    Time123 (9f42ee)

  89. Rights do produce victims, Kev; 4 students shot dead in Michigan, for instance

    Other rights CAN produce victims, as their exercise CAN affect others. Even Speech or the Press. But only abortion MUST have a victim.

    Kevin M (ab1c11) — 12/2/2021 @ 6:47 am

    I’m not aware of any right that is so pure in it’s exercise and so clean on externalities that it cannot at some point infringe upon other peoples rights.

    Your statement that abortion must have a victim gets to the heart of the matter. Not everyone agrees on when the transition from ‘part of a woman’s body’ to ‘individual with rights happens’ or under what circumstances the rights of that new person take precedence over the rights of the mother.

    Time123 (9f42ee)

  90. The original point was, having been asked “When has a right ever been taken away?”, I responded 1974, when the right to be born was taken away.

    Kevin M (ab1c11)

  91. Kevin, I understand your point better now. My response was that you don’t have that right until you’re ‘you’ and can’t make demands on others. When and where a life starts is at the center of the debate.

    Time123 (9f42ee)

  92. Don’t misunderstand me, I agree that there is some threshold. But it is demonstrable that some routine abortions do occur, under the current regime, after any given threshold.

    Kevin M (ab1c11)

  93. One thing that deeply troubles me is the State’s interference in parent-child relationships.

    In some states, the child is given the sole right to consent in a “medical” matter where she almost never has that right in other situations AND the state conspires with her to keep this procedure a secret from her parents. This despite her clear need for guidance on matters sexual (where she has completely screwed up) and laws that deny her the right to consent about sex in the first place.

    I can’t think of a situation where a young woman needs parental counsel more than this one, yet it is denied her (and them). All because of some bogeyman-parent that might be out there.

    Kevin M (ab1c11)

  94. When I crashed my dad’s car at 16, I sure would have liked the state to step in and fix it and help me keep it a secret. After all, my dad might have been one of those kid-beater types, right?

    Kevin M (ab1c11)

  95. “I would be concerned by a court that used Equal Protection arguments to bar laws that disproportionately affected the poor,”

    No, my argument is that laws limiting abortion would disproportionately impact women…with part of the evidence being the disproportionate number of single mothers who are poor.

    AJ_Liberty (ec7f74)

  96. To my mind, this is one of the most important reasons for overturning Roe. This sort of certitude is borne from a lack of responsibility. People don’t have to consider circumstances, cases, situations of their fellow citizens and actual human beings. They don’t have to confront unpleasant truths, or even engage with well-informed but opposing opinions. So they don’t. Why should they? It’s so much easier to take a bold stand. You can feel so much more righteous, too. And bold and righteous stands are never easier than when one doesn’t have to live with the consequences of making them.

    “Most questions are clear when someone else has to decide them.“ —Benjamin Franklin, 1776

    ‘[Franklin] was a big believer in casual sex and had a large sex drive. It has been said that he only married his wife for the sake of having an outlet for his libido. He frequented the Red Light Districts, and some people even say he has as many as 15 illegitimate children. One of his illegitimate children was accepted by his wife, and she raised him as her stepson. His name was William Franklin, and he grew up to have a political career of his own.’

    https://medium.com/lessons-from-history/10-bizarre-facts-about-benjamin-franklins-private-life-9fe91a0c25fe

    DCSCA (f4c5e5)

  97. Well, you can [base a positive claim on the Ninth Amendment], but it’s just that when you can it’s a right that’s not at issue since it’s well-established. The right to travel, for example.

    Kevin M (ab1c11) — 12/2/2021 @ 6:44 am

    To my mind, anyway, this isn’t basing a positive claim on the Ninth Amendment. But regardless of the exact wording and framing, I think we’re coming from the same place here.

    Demosthenes (9427a9)

  98. @90. Time/Kev, it is a matter of choice.

    THAT is the heart of the matter.

    DCSCA (f4c5e5)

  99. But only abortion MUST have a victim.

    Same in war. Unless you CHOOSE not to wage one.

    Freedom of choice.

    DCSCA (f4c5e5)

  100. @96: And my counter is basically “so what?!” That’s not the point of the law. Laws against robbing banks disproportionately affect people without money, but that’s not why we have laws against robbing banks.

    Kevin M (ab1c11)

  101. I think the casual-sex thing that came out of the 60s was an impetus for the normalization of abortion. But since then AIDS, and now Covid, have pretty much put the kibosh on sleeping around. Sex as a sport isn’t a thing anymore.

    Ans so the pressures to maintain the Roe regime ebb.

    Kevin M (ab1c11)

  102. I think the casual-sex thing that came out of the 60s was an impetus for the normalization of abortion.

    Condoms aside, ‘The Pill’ was the impetus for increased casual-sex, a choice to avoid a need for an abortion — and, of course, that hip-swiveling Elvis Presley and all that damn rock ‘n’ roll stuff that followed. 😉

    DCSCA (f4c5e5)

  103. Elvis? How about Sean Connery in Ian Fleming’s James Bond 007? The spy who shagged everything that stood still long enough, as brilliantly explicated by the first Austin Powers movie.

    nk (1d9030)

  104. @104. LOL – it takes two to tango, baby. 😉

    DCSCA (f4c5e5)

  105. @104. Bond? They were pretty loose in the 20’s, too- my long dead grandmother apparently was quite the ‘flapper’ in her day; complete w/hip flask, a tuned uke and ’22-skidoo’ parties– which were carefully quilled in a diary we found in her papers after her passing. Quite amusing.

    DCSCA (f4c5e5)

  106. In 1969 it was pretty rude to turn down an invitation to have sex.

    Kevin M (ab1c11)

  107. None of the James Bod womanizing was “Me too” city. Bond didn’t need to coerce. OK, maybe the decrepit Roger Moore needed an edge later on. But mostly not.

    Kevin M (ab1c11)

  108. *Bond. Damn your eyes, Freud.

    Kevin M (ab1c11)

  109. The reason these questions over the politicization of the court keep coming up is because the courts, especially the SC, are the closest thing this country has to an instituional monarchy.

    The left knows it, too, which is why they talk about packing the SC when the judge composition doesn’t favor their side.

    Factory Working Orphan (ab66c7)

  110. “That’s not the point of the law. Laws against robbing banks disproportionately affect people without money”

    But anyone could be a bank robber…only women can get pregnant…..and only women are asked by the state to absorb the lion share of the burden. The assumption is based on a stereotype of the maternal role. If it wasn’t, the state would bend over backwards to incentivize taking the pregnancy to term by providing prenatal support, covering delivery expenses, and guaranteeing job protection. Nothing about protecting fetal life compels minimizing the material (and emotional) costs of pregnancy, child birth, and child rearing. When restrictions reflect sex stereotypes, then they may violate the EPC.

    Not all sex classifications are unconstitutional, but this one has the effect of making some women second-class citizens….restricting economic opportunities. So regulating pregnancy is not always sex classification because men are not similarly situated. I think it has to also include the impact and its predication on stereotypes.

    AJ_Liberty (ec7f74)

  111. The Constitution presumes to grant us the right to ‘breath free.’ Yet everybody else in the world breaths freely as it is.

    Wear a mask anyway. 😉

    DCSCA (f4c5e5)

  112. ^breathe

    DCSCA (f4c5e5)

  113. NJRob, at 50, i don’t understand the question.

    The fear I raised wasn’t about politicization or partisanship. It was about the way law works by analogy and the slippery slope that results — if *abortion* is illegal, what about causing the death of a fetus through negligence? How do we define what is or isn’t negligent for a pregnant woman? How do / will those standards shift over time? How broad are the limitations on the activity of pregnant women *which the jury in any particular jurisdiction will accept and hold the women in question to*?

    None of these questions are about politicization.

    aphrael (4c4719)

  114. I feel for them, actually. The 5-4, I mean. It must irk them to have to sacrifice a slice of unitary state (I’m told that’s what the opposite of federalism is called), maybe for the first time since Wickard v. Filburn, in order to extinguish the meager ember of Ninth Amendment individual rights.

    Because that’s what Roe v. Wade was. Taking away the several States’ right to legislate on a serious moral question and replacing it with a national standard of morality of their own devising.

    nk (1d9030)

  115. > Very much the same sort of concerns that so many people have with mandatory vaccinations, yes?

    No. There’s a direct and bright line between “abortion is punishable” and “engaging in activity [x] might accidentally kill a fetus and so you cannot do it because if that accident happens you will be held liable by law for the death”. There isn’t such a direct and bright line between mandatory vaccinations and pretty much anything.

    aphrael (4c4719)

  116. > I would be concerned by a court that used Equal Protection arguments to bar laws that disproportionately affected the poor, since nearly everything disproportionately affects the poor. Opening that door would seem to allow an endless flow of cases.

    I’ve never really understood why the plain text of the fourteenth amendment doesn’t *compel* that outcome.

    aphrael (4c4719)

  117. The perplexing question is why supposedly ‘pro-life’ folks even care to meddle one way or the other about the freedom of choices other people make. Pro-life folks aren’t going to choose the option of abortion anyway– though they have a right to choose it or not as is– yet seek to inhibit/deny ‘pro-choice’ folks the very same option. To me it comes down to a basic freedom of choice. Or maybe it’s just pro-lifers want to impose their POV on to others. Next thing you know, “that rock ‘n’ roll has got to go!’.

    DCSCA (f4c5e5)

  118. So many comments from DS-CSA, and I can’t read a single one of them. Marvelous!

    …in order to extinguish the meager ember of Ninth Amendment individual rights. Because that’s what Roe v. Wade was.

    nk (1d9030) — 12/2/2021 @ 1:28 pm

    Sigh. You have not established this.

    Demosthenes (3fd56e)

  119. @119. Pfft.

    Demosthenes is Greek to me anyway.

    DCSCA (f4c5e5)

  120. Marvelous!

    Demosthenes (3fd56e) — 12/2/2021 @ 2:55 pm

    Don’t you mean “Glorious!”?

    lurker (59504c)

  121. @lurker 🤣

    norcal (d9c78c)

  122. Don’t you mean “Glorious!”?

    lurker (59504c) — 12/2/2021 @ 4:18 pm

    Heh. I kind of hope he thought the same thing you did.

    No, I meant what I said. Not having to deal with his claptrap doesn’t rise to the level of “glorious.”

    But it’s awful nice, I tells ya. Awful nice.

    Demosthenes (3fd56e)

  123. Sigh. You have not established this.

    I guess not. Let me eject the empty and take aim again. Proposed for your consideration: Roe v. Wade was a continuation, but by no means the culmination (as later cases proved), of a long war against federalism, and it was under the guise of granting more individual freedom. If it is overruled, it will be a blow against individual freedom at the sacrifice of giving back a little bit of federalism.

    nk (1d9030)

  124. If it is overruled, it will be a blow against individual freedom at the sacrifice of giving back a little bit of federalism.

    Yes- in the abstract. But in a practical, day-to-day sense- it will surely piss off a lot of modern American women, especially fostering anger toward any of the male justices who rule against managing their own bodies– and any female justice who betray their sex.

    You know… “hell hath no fury, etc., etc.” Picture the miffed wife and kids in that scene in ‘Miracle On 34th St.,’ where the judge has to make rulings on Santa Claus– or worse, revisit ‘Lysistrata’ by Aristophanes.

    Hell hath no fury…

    https://en.wikipedia.org/wiki/Lysistrata

    DCSCA (f4c5e5)

  125. @DCSCA@125 I had to watch a performance of the Ecclesiazusae (same playwrite, similar content) as a class assignment with my entire college freshman ancient lit class, including our 14 yr old wunderkind classmate, and our prof-the-priest. I do not recommend.

    Nic (896fdf)

  126. Right now, there aren’t any other basic moral questions that there is substantial disagreement about besides abortion.

    Sammy Finkelman (c49738)

  127. Not all sex classifications are unconstitutional, but this one has the effect of making some women second-class citizens

    It isn’t the law that has women more affected by pregnancy. It IS the law that increases the effect on men, actually.

    Kevin M (ab1c11)

  128. But did any of the Justices raise the question of interstate commerce in babies?

    ingot9455 (0cc587)

  129. I’ve never really understood why the plain text of the fourteenth amendment doesn’t *compel* that outcome.

    Because you are misreading it? Certainly it was never the intent of the Civil War Congress for it to have that effect. Matter of fact, it was the Supreme Court in the next decade that so totally mucked it up (trying to pretend that it was not there to protect freedmen*) that the 14th Amendment’s connection to those that passed it is rather hard to fathom.

    To hold as you do, only the rich could be prohibited from sleeping under bridges.

    —–
    see, for example Cruikshank

    Kevin M (ab1c11)

  130. But did any of the Justices raise the question of interstate commerce in babies?

    Buying and selling babies? Trafficking in babies? Hmmmn. I think that most domestic adoptions are local.

    Kevin M (ab1c11)

  131. “It isn’t the law that has women more affected by pregnancy. It IS the law that increases the effect on men, actually.”

    Now you’re just talking nonsense…child support is imperfect at best. Show me data that shows the impact on men is as great as women. Good luck with that….

    AJ_Liberty (ec7f74)

  132. Here’s the difference as I see it, AJ. With an unexpected pregnancy, a woman can force a man to become a parent against his will, and lodge a claim against him. A man can’t force a woman to carry out the pregnancy, and lodge a claim against her.

    norcal (d9c78c)


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