Most excellent!
So let's see who at the Court refuses to take a polygraph exam
- Thread starter TreeFrogTrader
- Start date
Most excellent!
Biden went off the reservation yesterday and tries to show how outrage by saying that no one should take away a woman's right to "abort a child."
Might want to tidy that up a bit Joe. To refer to a fetus as a child is not the approved script- for the demonrats anyway.
Good catch!
Let's see what Reuters has to say...
Gay marriage, other rights at risk after U.S. Supreme Court abortion move
https://www.reuters.com/world/us/ga...er-us-supreme-court-abortion-move-2022-05-04/
May 4 (Reuters) - U.S. Supreme Court Justice Samuel Alito's draft opinion that would end the recognition of a constitutional right to abortion could imperil other freedoms related to marriage, sexuality and family life including birth control and same-sex nuptials, according to legal experts.
The draft ruling, disclosed in a leak that prompted Chief Justice John Roberts on Tuesday to launch an investigation, would uphold a Mississippi law banning abortions after 15 weeks of pregnancy and overturn the 1973 Roe v. Wade ruling that legalized the procedure nationwide.
The draft's legal reasoning, if adopted by the court when it issues its eventual ruling by the end of June, could threaten other rights that Americans take for granted in their personal lives, according to University of Texas law professor Elizabeth Sepper, an expert in healthcare law and religion.
"The low-hanging fruit is contraception, probably starting with emergency contraception, and same-sex marriage is also low-hanging fruit in that it was very recently recognized by the Supreme Court," Sepper said.
The court's 6-3 conservative majority, including Alito, has become increasingly assertive on a range of issues. The court confirmed the authenticity of the leaked draft but called it preliminary.
The Roe decision, one of the court's most important and contentious rulings of the 20th century, recognized that the right to personal privacy under the U.S. Constitution protects a woman's ability to terminate her pregnancy.
"Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences," Alito wrote in the draft, adding that Roe and a 1992 decision that reaffirmed it have only "deepened division" in society.
According to Alito, the right to abortion recognized in Roe must be overturned because it is not valid under the Constitution's 14th Amendment right to due process.
Abortion is among a number of fundamental rights that the court over many decades recognized at least in part as what are called "substantive" due process liberties, including contraception in 1965, interracial marriage in 1967 and same-sex marriage in 2015.
Though these rights are not explicitly mentioned in the Constitution, they are linked to personal privacy, autonomy, dignity and equality. Conservative critics of the substantive due process principle have said it improperly lets unelected justices make policy choices better left to legislators.
Alito reasoned in the draft that substantive due process rights must be "deeply rooted" in U.S. history and tradition and essential to the nation's "scheme of ordered liberty." Abortion, he said, is not, and rejected arguments that it is essential for privacy and bodily autonomy reasons.
Like abortion, other personal rights including contraception and same-sex marriage may be found by conservative justices to fall outside this framework involving rights "deeply rooted" in American history, scholars noted.
"This was considered social progress - we were changing as a society and different things became important and became part of what one cherished," said Carol Sanger, an expert in reproductive rights at Columbia Law School.
In the draft, Alito sought to distinguish abortion from other rights because it, unlike the others, destroys what the Roe ruling called "potential life."
"Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion," Alito wrote.
Sepper said that Alito is "not particularly convincing because he doesn't do the work to distinguish those cases in a meaningful way." She added: "It's a really sweeping opinion. It doesn't pull any punches when it comes to the abortion right."
Alito's opinion resembles his dissent in the court's same-sex marriage ruling in which he said the 14th Amendment's due process promise protects only rights deeply rooted in America's history and tradition.
"And it is beyond dispute that the right to same-sex marriage is not among those rights," Alito wrote in his 2015 dissent.
Some conservative commentators have suggested that Alito has provided a road map for future attempts to eliminate other guaranteed liberties. Other legal scholars doubt that there is either a willingness on the court or in legislatures to eliminate other rights.
"On interracial marriage, contraception and same-sex marriage, for one reason or another there is no likelihood the court is going to revisit those decisions," Northwestern University law professor John McGinnis said.
The fact that Americans have relied on the same-sex marriage decision to plan and invest in their lives and relationships makes it unlikely that the justices will overturn it, McGinnis said.
McGinnis added, "No state legislature is going to get rid of contraception. That's fanciful. And no state legislature is going to get rid of interracial marriage."
George Mason University constitutional law professor Ilya Somin said Alito's ruling could make it unlikely the court would recognize due process protections in new areas such as transgender rights.
"But on the whole its effect on due process rights is likely to be minor," Somin said.
Dobbs draft says the following:
"The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives."
So the decision does not declare abortion illegal or make a decision on it but says that it was something that should not have been found to be preserved or guaranteed under the Constitution and States can pass laws on health and welfare including abortion.
HOWEVER, the laws of the State are still subject to a reasonable test so the next battle can be where a State allows 100% abortions in all cases. There would be a valid challenge to those laws and Dobbs does NOT preclude that from happening.
As for Congress, saying that States can regulate it does not also preclude Congress from passing a federal law with respect to abortion, pro or con. But given the Dobbs decision it will raise a State v. Federal issue that was raised during racist arguments for school segregation and banning Blacks from hotels or restaurants and federal law often had more power in many cases. Abortion is not the same issue obviously.
I think the Miss law challenged here was not unreasonable and helped the SC even more in their decision. They were never going to hear a case on a 100% ban which would undermine their decision.
A state passing a 100% ban on abortions could still be open to a strong challenge in State Supreme Courts and then THE Supreme Court based on reasonableness tests.
Indeed.
Even if a state had/has 100% right to legalize all abortions there are limits to that power or at least it bumps up against other constitutional issues in the extreme.
A Ralph Northam/infanticide type of abortion - for example- bumps up against a consitutional provisions that state that person born alive is U.S. citizen entitled to equal protection under the law. The fact that the mother and the doctor wished that the baby had died as part of the abortion does not change that.
I am not asking for agreement on that. Only offering up an example of where other issues will still arrive at the court.
Not sure yet how that squares with the first statement in your full quote"
"The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion."
There are no qualifiers there. If a state is allowed to prohibit abortion then it is allowed to prohibit abortion. What can Congress regulate then other than equql access constitutional issues, and the like? To preserve the life of the mother is a given because that flows from other constitutional rights that the mother has. Not from an abortion right - even if there were one.
I mean, I am talking about what the feds can do in regard to establishing or diminishing the right to abortion, not what they can do with programs and funding and all of that. They will do lots of that. They will start right in with trying eliminate the Hyde Amendment and providing funding for women to travel to other states and all those financial/program types of things. No denying that.
The question is -even if there is some concurrent jurisdiction on the issue- which one level - fed or state- has primary jurisdiction. If it is the state, then that is a big shift that the feds will need to deal with because they can only do things around the edges.
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Sorry where a state does NOT allow abortions 100%
I see.
The court dodged a bullet here not addressing the issue of 100% ban. They did accept implicitly the idea a state can balance the mother's rights and the state's right to protect the unborn and thus a 15 week period like in MISS would be reasonable. The made an issue to say any State's laws on health and welfare had to pursue a genuine state interest and pass a reasonableness test. They did not recognize a right in the Constitution to an abortion but did not say that a state banning all abortions 100% would be free from challenge simply by citing Dobbs. They overturned Roe, not made abortions absolutely legal or illegal.
If a State had abortions legal up until the 15th week and then suddenly passed a law banning all abortions no matter what, even in the case of saving the mother's life or incest or rape, I could see a challenge to that law as being inconsistent with legislative input on health and welfare and a 100% ban would be deemed excessive in furthering the State's interest. Especially when the law is passed by a simple majority and a segment of the population of that state favor abortions within a time period or the law is passed by an extreme political position.