Seems the real question the Court is deciding isn’t abortion per se, but the legality of federal restrictions on state laws concerning abortion. That is, it is not the specific questions about reproductive rights as it is the question of state versus federal authority (again). The reason state laws against abortion were struck down in Roe IIRC was because the Court viewed such laws as unconstitutional infringements on Constitutional liberties. If the Court today takes a different view, that such laws do not impinge on Constitutional guarantees, they aren’t saying they are in favor of abortion laws any more than they were saying in Roe that they were for abortion. I mean, in practice, I’m not sure how much it matters, but the headlines about the Court banning abortion or whatever are a bit hyperbolic.
Now, the fact that the court doesn’t see abortion as a right worth guaranteeing, and may well feel states can restrict what women can do with their bodies, that is definitely worrying.
Right, that’s how they’re going to strike down Roe v. Wade. They aren’t going to “ban abortion,” but they are going to let states ban abortion.
The race to see which state becomes Handmaid’s Tale will then be on. Because at least one will try to criminalize it and prevent women from leaving the state to get an abortion as well.
PS - if the SC punts to the states, a challenge to gay marriage will come next.
It they say that, they’re saying that the issue is up to the states to resolve, which effectively permits a ban in any state that wants to ban it; of which there is no small number. I don’t really grasp the point of your argument. The Court would be explicitly endorsing the power of the states to ban abortions.
This was briefly touched on in oral, this long-standing assertion by conservative commentators that because abortion is not explicitly mentioned that ruling on its constitutionality is impossible. I would reject this wholesale since it’s an argument from convenience; ie., the argument is convenient for those wishing to undo abortion, and by extension, more or less any expansion of social franchise thorugh the courts, and i’m very skeptical of such arguments.
The larger point is that it’s become such a bad faith culture war issue for decades it’s basically impossible to seperate “pure” arguments from arguments that have been compelled in the population by these culture war actors. But more or less every online discussion about abortion gets flooded by conservative supporters that immediately decry affirmiative action and loose morality of women and how can a tribe be strong if its women aren’t making babies ect., enough so and regularly enough that the pro-abortion side seems badly tainted as, was mentioned above, a sort of proto-Handmaid’s Tale come to life. It’s likely that in states that ban abortion that they’re going to be more eager to become even more restrictive on women’s sexuality than they were before Roe v Wade, because going too far is always the reaction in the ebullence of seeming victory in a decades long culture war battle.
I also suspect that more or less every “right” won over the last 5 decades through court rulings will be contested, restricted or overturned. So yay. Once the court rules that states can do whatever to whomever, there’s no reason any assertion of rights not explicitly enumerated by the Constitution can’t be restricted by the states.
Yes, I agree. As RGB pointed out, there is no explicit constitutional basis for one-person-one-vote. The absence of an explicit constitutional provision for something, particularly a right, can’t be taken to mean the right doesn’t exist, as the constitution explicitly says it isn’t an exhaustive list of rights. Why can’t states prohibit men from having vasectomies, or using Viagra? There’s nothing explicit in the constitution that prohibits states from doing that, but I imagine such laws wouldn’t survive judicial scrutiny.
Sadly I have nothing more productive to say than that I feel we have finally arrived at the slow motion train wreck segment of the life of our republic. The next few years are, regardless of the specific expressions, are going to see major erosions of our democracy. I don’t see any way to prevent that at this point.
The political system will be rigged, the states will impose culture war restrictions on their populations like they did pre-1965, and we’ll have a dysfunctional Federal system unable to move, change, or address even the slightest way any significant issue of the day, but you know, at least we’re not Country X!
Ultimately conservatives will win the day because their position is also the default position and the US political system will make it impossible to move away from the default; not by the strength of validity or popularity of their arguments, but because the sclerotic political system impossible to contest them.
All that said i’m not 100% sold that the SC will overturn Roe.
I continue to feel that there is a struggle ongoing, not an open and shut “WE LOSE” scenario and yet I don’t see how to win. The only path to sanity IMO is to try to step back somewhat from the day to day news cycle and the (to me) obsessive addiction of following the tactics of politics and basically look for opportunities to counterpunch, if they arise. Sadly, they may not arise.
Well, this will probably make red states even worse to live in, and further flock young professionals to states with more liberal friendly legislature.
Which in the future will make it even harder for the GOP to win over the House of Representatives, and hopefully, eventually flip states like Georgia and N.C. on a permanent basis.
“Overturn” is a red herring. There’s zero chance the court will uphold the currently existing set of abortion rights. Abortion rights are going to be reduced, regardless of whether the magic word “overturn” is used. Abortion rights are not going to go to zero immediately, but they are going to be rapidly and dramatically reduced in many states. That’s guaranteed IMO. The exact extent remains to be determined but we are going to see a major loss of rights. Doesn’t matter at all if the word “overturn” is used.
Yes, this. The Court will uphold Mississippi’s ban at 15 weeks, and another state will enact a ban at 12 weeks, coupled to a mandatory 2-week cooling off period before you can have the abortion. Repeat as necessary. Once you reach the point where effectively nobody can have the abortion because there isn’t sufficient time between when you discover the pregnancy and the limit, all the clinics close for lack of a purpose, and abortion services are no longer available. It’s death to Roe by a thousand cuts.
The point is in how the Constitution and the Court works. The Court is not ruling on the issue of abortion per se, but on what the states can legislate. I agree that in its actual impact the difference in this case is trivial, but in a broader sense it points out that the problem we face here is not the Justice’s attitudes towards reproductive rights so much as it is the entire Constitutional framework itself. We have a system that still privileges federal structure over individual rights.
Again, this is basically all the Court ever does: they rule on what the federal government can / can’t legislate (or otherwise do), what the states can / can’t legislate (or otherwise do), what the law means. I’m struggling to think of a case which was about something other than that.
But the basis of this can / can’t legislate choice is their own attitude about what the Constitution says. If they rule that states can ban (or effectively ban) abortion, it’s because they think the Constitution contains no personal right to an abortion. Their attitude is everything in that decision. A justice who wants to find a right to abortion in the Constitution will find it; one who doesn’t will say he/she can’t find it.
Prior to Roe, abortion was legal in Washington, Hawaii, New York and Alaska until 24 weeks, and in several other states in cases of rape or incest. The fight over abortion has never been about making it illegal everywhere, but about de-federalizing its legality.
Well, that’s the current fight post-Roe v. Wade. If that’s overturned, you can bet that the next step will be a Federal ban (yes, I get the irony), and the next time Republicans hold Congress and the Presidency, it’s going to happen.
