Leaked SCOTUS Draft Opinion Suggests Imminent Overturn of Roe vs. Wade
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For this reason, there was always a possibility that a future court may patch it to make it more consistent with other precedent. In my view, sending most things to the individual States to decide is the correct default. See also: marijuana legalization, which has spread at the State level because it is nearly impossible to change at the Federal level.
Problem with that is the deciders in these states don't reflect the population of the state in general.
Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ?
I am bemused at the marijuana thing -- I suspect there's a huge untold story there involving the DEA, the FBI, large sums of money, etc., etc. .
Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening.
If the state’s decision is egregious we have a constitution with amendments and other federal laws.
The federal government was incredibly limited prior to the civil war, and since then has only gained power and taken it away from the states. Our country was designed this way for a reason and I would personally love to return to it. If nothing else, different states having wildly different policies means that we can more easily see what works and what doesn’t.
Then you should provide a link to a reputable source. Not sure how a state government in the US could pass this, let alone enforce it
On a related note: Louisiana is about to pass a bill allowing murder charges for abortions. This bill also bars contraception options such as IUD's. It also impacts ectopic pregnancies, which are very common. [2]
Make no mistake: the moment Roe v. Wade comes down the floodgates are opening, and you are going to have a hard time believing the bills some of these states are cooking up.
[1] https://missouriindependent.com/2022/03/29/missouri-house-bl...
[2] https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m... https://www.wwno.org/2022-05-05/louisiana-bill-would-allow-m...
That's what voting is for. This is the fundamental basis of our system's legitimacy. Is it perfect? Absolutely not. But as Churchill said, "democracy is the worst form of government, except for all the others that have been tried."
Yes, particularly in de facto one party States. There are more Independents than either Democrats or Republicans in the US.
Approximately a third of Republicans are pro-choice and a third of Democrats are pro-life, and they aren't evenly distributed. At the local and State level it isn't a party line vote, the reality is a bit more complex.
> Another problem with that is what if the State's decision is egregious, e.g., slavery is permitted again, Hispanics are not allowed to vote, etc., etc. ?
That's a straw man, not a problem. The 14th Amendment is a thing so that isn't something a reasonable person would worry about.
All States have reasonable laws to a first approximation, after all average people have to live there. There is no State that does not have some laws where one could legitimately argue that they infringe on individual rights. Except maybe Nevada, they don't even have laws for most things.
Studies of voting behavior have consistently shown that Independents who vote vote either as consistently Republican or as consistently Democrat as, respectively, self identified Republicans and Democrats.
By "the state" did you mean the US? If so, I'm not sure reflecting the population of the nation is a sound idea. I was not born in the US nor was educated in the US, but I thought the founding fathers spent inordinate amount of energy to design a system so that democracy would not mean the "tyranny of the majority", and local governance throughout the entire political system in a country as large as the US is one of the greatest invention in politics.
That would be a violation of the 13th amendment
> Hispanics are not allowed to vote
and this of the 15th amendment
> overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States
The point is that it wouldn't be arbitrary, it'd be in those areas not covered by the constitution, at which point it's not balkanization but federalization
And if you don't like one state you can move to a different state whose policies you align more with
But nine unelected lawyers in Washington DC who went to either Harvard or Yale do?
Your line of reasoning could quite quickly lead to a literal dictator or an oligarchy ruling "in the name of the people" without actually being accountable to them in any way.
There are defined mechanisms for the population of a state to make its voice heard in its government. They're not perfect, but they're a hell of a lot better than choosing a criteria ad-hoc based whatever result some rando wants (e.g. some poll agrees with me, therefore that's what the "people" want).
So what are you arguing? That legal granularity across multiple jurisdictions is untenable because some laws are Federal per the US Constitution and some are not?
> Problem with that is the deciders in these states don't reflect the population of the state in general.
How so? Each State in the union has an elected government, elected by its eligible citizenry and is legitimate under the Constitution and under its own laws unless proven otherwise. The democratic process is not a guarantor of the types of laws that will be passed, merely the means by which power is shared among the citizenry.
> Once we allow States to decide things and overrule the government arbitrarily, we're possibly on the road to the balkanization of the United States. Sure, a slippery slope argument, but I've read enough science fiction to think this has a non-zero probability of happening.
This isn’t the States overruling the Federal government. This is SCOTUS overruling itself, if the decision is handed down anyway (it’s been leaked, but not actually handed down) which is not unprecedented. The result will be if this opinion is handed down, that the matter then defaults back to the States as all laws do because they share sovereignty with the Federal government and as democratically elected governments possess their own legitimate and sovereign lawmaking power. The reason the States were ever in a position to decriminalize marijuana or anything else is because they have their own criminal statutes over which they have the ability to amend or repeal as they deem fit to. This does not effect changes in Federal statutes over which they have no authority because that’s the domain of the United States Congress.
Also as a note, neither Roe nor Casey has actually been overturned as of this writing. Interestingly enough I was just listening to a podcast from 2015 or 2016 three nights ago where Justice Alito was the interviewee and he explained the process by which majorities are reached, opinions are assigned and he specifically said that no decision by the court is final until the moment it is handed down. It’s rare for this to happen, but in a narrow decision a Justice can indicate to the court at any point until then that today is not a good day to hand it down and he or she might need to rethink some things.
Before going after interracial marriage, opponents would necessarily have to go after gay marriage, and before that they have to go after Roe. Legalized contraception is also at stake, not just gay marriage. Right to contraception and right to marry are not in federal law either.
Your path might be correct, only hindsight could tell us, but it will have serious consequences: significantly more political polarization will happen to compel a legislative process, let alone if it will be a constitutional amendment process - which we are really overdue for. No venue can be immune to conversations about the most important subjects of the day - even when quite a few people insist these issues aren't important or are off topic and shouldn't be discussed on HN or at holiday and company parties. Necessarily there will be quite a lot of long deep seated fears expressed verbally with a lot of anger - that's natural. And some people will worry about it, whereas I think repression is worse.
If the Court overturns Roe, it is an assertion the state owns an organ only women have as if it were government property. The culture war set aside for so long is going to get so hot, everyone will forget about the Trump presidency. It will divide the country before it has any chance, even if there is a chance, of it coming to a compromise again.
I almost included this in my last comment but left it out for brevity and because I saw it as a distraction but I think it’s appropriate here as an example: California has at multiple times sought to disallow gay marriage. First it was a statute, then it was a statute passed by ballot proposition. These were overturned by our courts. Then it was an amendment to our constitution passed by a popular vote in the same year Barack Obama was elected to his first term as POTUS where it retained the force of law until Obergefell in 2015. It had to take a Federal court to disempower Proposition 8 because once it was in the highest law of the State of California, it was beyond the power of a State court to permanently overturn it.
A constitution is nothing more than an amendable body of legal text, and you can make this process easier or more difficult and there are arguments to be made for making it easier, but once it is in there not even SCOTUS can overrule it. Maybe you protect a woman’s right to an abortion that way, but maybe you achieve the exact opposite effect and now you’re stuck with it. As a prudential matter, constitutional amendments should be rare because once you pass one, the only way to undo it is with another one and we don’t need more like the 18th and 21st. So what can you accomplish without resorting to the amendment process today? If you were to resort to one, would it be better to go directly at the goals you wish to achieve, or modify the process that makes it more likely to achieve productive changes to the law without having to resort to further amendments?
Ultimately this is a political fight, and while SCOTUS can grant legal victories and losses, they cannot grant political victories and losses.
Continuing to argue that the shitty thing the majority did, should continue to be arm wrestled over politically, not in the courts, means you think the majority should always win. That is the nature of politics in a democracy!
The very issue at hand is the Court becoming political and therefore granting political victories and losses, thereby no longer being viewed as capable of providing fair hearings.
That said, political offices are inherently about power. They are offices of power, not fairness; people who seek to be elected to office are people who seek acquire power; and the Constitution we have, including the one that you think we should have is fundamentally a power sharing agreement between people and States. Without the rule of law, we don’t have a nation, nor do we have the institutions we rely on to protect us from injustices both foreign or domestic.
Abortion was never not political. SCOTUS cannot bang their gavels and make it not political because society has politicized this issue under Roe/Casey’s jurisprudence and will continue to politicize it even if Roe/Casey are actually overturned. You could not successfully pass a constitutional amendment, declare victory, and expect the political nature of it to evaporate. There is no “should” here, there is only the reality that we live in with the people we share it with whether we recognize it as such or not.
More than abortion, I think the biggest problem we have as a nation is a lack of buy-in, or put another way: representation. We have more or less the right framework for government, but the most powerful branch of government is Congress and Congress itself is both too under-representative and too disinterested, and specifically the House of Representatives for which it is their entire schtick to be the directly elected house most representative of Americans. If you wanted to pass a Constitutional amendment of some sort, I would think about how to improve the legislature, because it doesn’t matter how many “rights” you stack in there if Americans do not culturally respect them. So how do you get the buy-in so we can have actual conversations about divisive political issues which divide us (instead of SCOTUS kindly putting the legislative conversation on hold for 50 or so years, elected representatives have more or less been able to say whatever they want without facing actual electoral consequences) and broker actual compromises?
Except now with these rulings those laws will absolutely be challenged. Do you truly believe they'll be upheld by such a partisan court, with multiple judges picked for the explicit purpose of overturning Roe v. Wade?
I mean you've got Montana trying to pass a law prosecuting people for getting abortions in another state. You can't expect people who are dogmatic about abortion to accept compromises in any way, shape, or form. Clearly that's the case given half a century later they are fighting as hard as ever and are about to secure their first major victory.
for Roe it took the the 14th amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This was intepreteted it to say this means abortion bans are OK in the 1st trimester, conditional in the 2nd, and prohibited in the 3rd trimester.
Loving took this and said that means interracial partners and gays get equal legal treatment to everyone else.
Uhmmm...
Amendment 13 Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Abortion might just become a crime in many states real soon. Thanks to the same people who are in charge of deciding what "duly convicted" means.
But with interracial marriage it's an extremely tiny fringe group opposed to it, as far as I can tell. Seems like the only point of bringing up interracial marriage is to fearmonger.
The question is, is it reasonable that we should allow one's right to privacy and autonomy to only exist in some states? And if so, then this principle could apply to more than just abortion. Yes, reimplementing a ban on interracial marriage in any state seems completely unreasonable now, but so did banning abortion a decade ago. Things change. A senator just recently stated that anti-interracial marriage laws should not have been struck down by the courts [1]
Interracial marriage is brought up for multiple reasons:
- To demonstrate that the roll-back of constitutionally protected rights to individual privacy and autonomy have negative unintended consequences
- To demonstrate that some who are opposed to constitutionally-protected privacy apply the principle inconsistently (usually contingent on whether it meshes with their personal/religious views)
- To demonstrate that those who do support this rollback consistently are willing to let gay and interracial couples be collateral damage in the pursuit of their ideological goals
[1] https://slate.com/news-and-politics/2022/03/republican-sen-m...
That seems pretty clear to me.
> Amendment IX
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
> Amendment X
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What the court did is lift abortion above states by recognizing it is a constitutional right. States cannot infringe constitutional rights; that's kind of the whole point of having a constitution, so "sending it states" isn't an option.
If this decision goes through, it completely wrecks all precedent; the Supreme Court can just revoke constitutional rights by changing its mind, unless, presumably, that right is enumerated in the Constitution. But the above amendments were written exactly for that.
1) Increase crime long term.
2) Weaken the mandate of the Supreme Court, and destroy any trust people have in it.
3) Financially disenfranchise poor people further.
4) Hurt rape victims.
What? No.
The High Court of Australia is a far less controversial institution than the Supreme Court of the United States, arguably significantly more trusted – precisely because its justices (unlike their American counterparts) try very hard to stay out of controversial social and political issues and prefer (with occasional exceptions) to stick to deciding boring legal technicalities instead. No doubt it is easier for them to do so, given how little Australia's constitution has to say about individual rights–but I think if you gave the High Court of Australia the US constitution to interpret, they'd interpret its individual rights in a similarly dry, narrow and literalistic way. It is decades too late for the US Supreme Court to unanimously adopt the same strategy; now that strategy gets labelled as "conservative"/"right-wing"/etc when in Australia it is viewed as politically netural.
Australia has no constitutional right to abortion, and yet it has a liberal abortion regime nationwide – which was attained state-by-state, through a combination of state legislation and state court decisions. The federal legislative and executive branches mostly avoided the issue, and the federal courts (to the best of my knowledge) stayed out of it completely. It is much harder to make a big political deal out of something which is a state-by-state issue than when it gets decided at the national level. Activist/lobby groups (on either side of the debate) thrive on the national media and attention of federal politicians, both sides would be weaker if it had been a purely state-level debate.
I think, if Roe v Wade had never happened, most American states would have moved to a liberal abortion regime with time (maybe with a handful of conservative holdouts), but it would have been a far less heated political and social issue. I think it is very likely that, the abortion law regime post-Roe v Wade's overturn, is going to be much more restrictive (in many states) than it would have been in the same year in a timeline in which Roe v Wade never happened to begin with.
I broadly agree. IIRC, Roe liberalized abortion by fiat shortly after a handful of states did. That totally fried the normal political/social change process and pissed off a boatload of people, which got us where we are today. Liberals got what they want, but at a much steeper cost that if they'd been more patient.
We should be governed by secular laws. Those of a particular faith should be free to follow that faith amongst their own but should have no right to enforce their religious beliefs on others.
Unfortunately, for many, "religious freedom" means exactly that.
Every law has a worldview and moral standards it assumes a priori. The point of our government's structure is to allow whatever laws people ask their representatives to pass, assuming the House and the Senate can agree and the law itself isn't unconstitutional.
There's nothing unconstitutional about laws that assume particular beliefs about what is right and wrong, even if those beliefs originate in a religious worldview. If it's what "we the people" (at least a large enough subset of us) believe, there's nothing wrong with it passing from a constitutional or jurisprudential standpoint. We all have varying beliefs; that's not going to change, but it will be reflected in our politics, unfortunately.
You and I may disagree with a particular law as immoral, but the battle over which worldview to found laws on should be fought in public debate, votes, etc. -- not by arguing that such laws are legally invalid. Only unconstitutional laws ought to be struck down as such.
> Every law has a worldview and moral standards it assumes a priori.
"Cars are dangerous but helpful to people, people's lives are valuable, let's protect human life by outlawing randomly walking across the street where cars are."
The moral assumption that argument is asking lawmakers to accept is that human life is valuable. The argument is flawed and mostly wrong otherwise, but it's the moral component that makes it compelling.
It's the same with pro-choice laws. They're compelling to many people because of the moral assumptions we're asked to accept -- specifically the bodily autonomy of the woman, among other things.
Why should pro-life arguments be the only ones not allowed to be based on morality?
We are.
> Those of a particular faith should be free to follow that faith amongst their own but should have no right to enforce their religious beliefs on others.
That is nonsense. Are you saying the state should be forbidden to (for instance) limit the operating hours of business on Sundays because that might align with the population's religious convictions?
The way should and does work is the motivations for a policy almost always don't matter, so long as the policy itself is constitutional. If the state can regulate store hours, then it can regulate them on any day as it sees fit.
A woman should have full control over her body, this decision is counter-productive.
In my view USA is making a turn for the worse and setting out on a very dark path.
https://www.guttmacher.org/state-policy/explore/abortion-pol...
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and globally
https://en.wikipedia.org/wiki/Abortion_law#International_law
What's next for Republicans will be to ban abortion outright at the national level, and not leave it up to the states. Then the sanctity squad will come for your Plan B pill, contraceptives, gay marriage, etc.
Is there any indication that they care?
If the everyone freaks out now, the news cycle will be over when the actual vote happens.
Nothing in here is surprising … it doesn’t even tell us how Roberts voted, and since it’s a month old, we don’t know the actual decision.
Seems like PR.
This is a pissed off staffer.
I mean there’s no doubt this was leaked by a clerk, right?
Why does it have to be a pissed off clerk, rather than a PR savvy clerk … and the clerks are all PR savvy.
The person that leaked this is probably trying to force the democrats to do what they were elected to do before the midterm elections.
For that matter they could try to outlaw abortion nationwide.
Not long ago Planned Parenthood was reluctantly defending the filibuster.
Do you think Congress is fairly constructed to reflect the will of the people?
I mean, it's wrong. This could be overturned only by amending the Consittution.
If the filibuster were dropped, and Democrats voted without defections, they could pass a law purporting to secure abortion rights federally, but it's hard to see what Constitutional authority of the federal government could be invoked to justify it. That wouldn't reverse the decision that the right is not secured by the Constitution, it would just create a new and weaker barrier that the Court would almost certainly immediately sweep aside, finding whatever Constitutional basis was asserted unconvincing, and citing the 10th Amendment.
With literally one of the the slimmest majorities possible? That would be unwise.
By leaking it, they’re having the news released further from the mid terms.
Nor should we rely on executive orders to do that - they can be overturned on a whim.
We have legislatures to make freedoms the law, if they'd do their jobs for us. They can only seem to agree enough to give payouts to their donors, though. When they're not busy fighting vapid culture war issues.
Your argument is akin to a bully yelling “stop hurting yourself!” while they bang a kid’s head against the wall.
The draft opinion uses similar logic when it argues the decision doesn’t subjugate women. They are “not without representation”, after all.
Well great, by that logic, I guess the court is planning to go back to giving blacks 1/10th of a vote. “Not without representation”, after all.
No offense, but why do people still think this matters? The US is not a democracy, it’s a republic of democratic states and this is by design. If you want the country to be a democracy, destroy or amend the constitution and remake the country.
The House of Representatives has 435 people. The size used to change after each census but they stopped increasing it early in the 20th century. This makes the system less democratic than it originally was and favours less populated states. The electoral college is based on the number of representatives each state has do it is also less democratic than it used to be.
The U.S. is indeed a democracy, but it is not a direct democracy. It shouldn't be used as an excuse to wheel in a bunch of tyranny.
Not from the perspective of the baby.
Unrelated to that:
> We have legislatures to make freedoms the law, if they'd do their jobs for us.
Yes, but it's important to recognize that this position presumes the status quo is basically okay (maybe not great, but okay). If the status quo is oppressive to you for whatever reason, you might not be so jazzed about a system with so many checks and balances that require overwhelming majorities to pass even popular changes. (I'm not saying it's a bad system. But I wish we were more candid about this really significant tradeoff.)
Amendment IX was specifically written so that legislatures would not have to enumerate all rights.
Using SCOTUS was a hack by the activists at time.
Make it a federal law or constitutional amendment if it is so popular and important. Both are much harder to repeal.
If it was weak or wrong decision (not from moral but from judical point) - it should be removed and done right.
The people who removed it have no interest in doing it right.
Or is this sarcasm?
Kavanaugh during his confirmation hearing: "It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis," he said. "The Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times."
Gorsuch during his confirmation hearing: "I would tell you that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed," he said. "A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other."
I guess you'll have to forgive me if I say that I don't put a ton of weight into what the justices claim, and I think that time will probably bear out that my opinion is the correct one if we revisit this in a few years' time.
"It is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis" - I'm no expert, but according to Wikipedia: "A court may overturn its own precedent, but should do so only if a strong reason exists to do so, and even in that case, should be guided by principles from superior, lateral, and inferior courts."
So I suspect they said "settled as a precedent" knowing that settled and reaffirmed precedents have the possibility of being overturned while still following "principles of stare decisis".
One hopes that the pro-life movement continues its positive efforts in a pro-family vein.
If there has ever been an occasion to read a full SCOTUS opinion, this may be it.
Prediction I: the abortionistas will not actually read the opinion and engage with its points on the merits.
Prediction II: a State, e.g. Nevada, will become an abortion necropolis, and those who disagree with the practice will find a preferred climate. As with taxation preferences, that is a major point of our system.
Here are some quotes from current senators:
https://www.msn.com/en-us/news/politics/members-of-congress-...
Here are two that I think are particularly well thought out:
Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.
— Bernie Sanders (@SenSanders) May 3, 2022
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.
Manchin is blocking Congress codifying Roe. House has seemingly forgotten about Clarence Thomas. These 2 points must change https://t.co/5Isec0osV0
— Alexandria Ocasio-Cortez (@AOC) May 3, 2022
I don't believe this is accurate.
>The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of “liberty.” Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being." (p5)
Would a "right to privacy" imply a right to murder? The issue at hand, IMO, is precisely whether or not abortion is a personal, private decision, versus the ending of a life separate from one's own.
That's false, as reading the opinion would show.
You can still collect your 6 figure signing bonus from the law firm you go to work for.