The Roe Countdown

[Meadmaker]

The draft contends that Roe v. Wade was wrong to restrict the power of state legislatures in private matters. Does that same reasoning also apply to the decisions in Griswold v. Connecticut or even Loving v. Virginia?

In the case of Loving v. Virginia, it definitely does not.

Griswold? While there is zero chance that birth control will be restricted in the US, the reasoning behind the case would apply. I don't know what sort of comparable case will come up in the future, but this court would be less likely, in general, to overturn a state legislature. There is a huge difference between Griswold and Roe, but it isn't so huge to make them totally incomparable.

I think Obergefell v. Hodges is definitely in the sights, although I don't know if any legislature will be bold enough to actually pass a ban on same sex marriage in order to create a case. Definitely some individual legislators will want to try, but I don't know if any of them will. I think the current court would be willing to overturn Obergefell, but there are practical problems with doing it that don't exist for Roe v. Wade.

 

[Delphic Oracle]

The Constitution is a document binding the government, not the other way around.

"If the Constitution doesn't explicitly grant you a given right, you are in fact forbidden that behavior" is a frightening interpretation. Especially if exceedingly narrow interpretations of things like "privacy" take hold.

 

[The Don]

In the case of Loving v. Virginia, it definitely does not.

Griswold? While there is zero chance that birth control will be restricted in the US, the reasoning behind the case would apply. I don't know what sort of comparable case will come up in the future, but this court would be less likely, in general, to overturn a state legislature. There is a huge difference between Griswold and Roe, but it isn't so huge to make them totally incomparable.

Why do you think that ?

Why wouldn't a state outlaw the morning after pill and, say, only allow married women access to the birth control pill ?

The intent may not be to have larger numbers of children born out of wedlock, but to steer more people towards marriage.

 

[TurkeysGhost]

The Constitution is a document binding the government, not the other way around.

"If the Constitution doesn't explicitly grant you a given right, you are in fact forbidden that behavior" is a frightening interpretation. Especially if exceedingly narrow interpretations of things like "privacy" take hold.

To be fair, this is a fairly consistent and conservative view of how the law should be. The federal government is largely powerless to establish any rights not already enumerated, and state government is free to be as authoritarian and undemocratic as they please.

The 14th amendment being codified into the constitution (as a direct consequence of the failure of a "states right" approach to government leading to bloody civil war) is a fact that conservative jurists prefer to ignore or view narrowly to the point of being without meaning.

 

[Meadmaker]

While there is zero chance that birth control will be restricted in the US...

On further review, I would like to revise and extend my remarks.

I could easily see it being restricted, in the sense of certain methods being banned, or limitations placed on sale. Griswold overturned a complete ban on contraception. I can't imagine any state ever passing a complete ban, but I can see states restricting their use in some ways. The obvious case is any variant of a "morning after" pill, or any method aimed at preventing implantation of a fertilized egg. I could see some states passing such laws, and I think this court would uphold those laws if the states passed them.

ETA: Ninja'd by The Don

 

[JoeMorgue]

Goddamn the Conservatives are still so butthurt over the ebil federal guberment telling them they can't own black people.

 

[Random]

To be fair, this is a fairly consistent and conservative view of how the law should be. The federal government is largely powerless to establish any rights not already enumerated, and state government is free to be as authoritarian and undemocratic as they please.

The 14th amendment being codified into the constitution (as a direct consequence of the failure of a "states right" approach to government leading to bloody civil war) is a fact that conservative jurists prefer to ignore or view narrowly to the point of being without meaning.

Not to mention the 9th Amendment specifically saying that the whole, "If it's not in the Constitution, it doesn't count" argument is a load of dingo's kidneys...

 

[TurkeysGhost]

Isn't it neato to have a moral and legal ideology frozen in amber?

Alito’s draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale who, it should be noted, had at least two women executed for witchcraft and wrote a treatise supporting marital rape

https://twitter.com/emilybell/status/1521450341983739904?cxt=HHwWgICzlc3Bo50qAAAA

For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract
the wife hath given up herself in this kind unto her husband which she cannot retract.

https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1248&context=ggulrev

 

[Delphic Oracle]

On further review, I would like to revise and extend my remarks.

I could easily see it being restricted, in the sense of certain methods being banned, or limitations placed on sale. Griswold overturned a complete ban on contraception. I can't imagine any state ever passing a complete ban, but I can see states restricting their use in some ways. The obvious case is any variant of a "morning after" pill, or any method aimed at preventing implantation of a fertilized egg. I could see some states passing such laws, and I think this court would uphold those laws if the states passed them.

ETA: Ninja'd by The Don

A less conservative court held that a business owner's "sincere religious belief" that a contraceptive is the same thing as an abortofacient meant they could refuse specific services available in a health insurance package offered to their employees. Health care decisions otherwise being enshrined in some of the strongest interpretations of privacy protections be damned.

I'd say there's a fair to good chance of this fully modern, industrialized superpower banning contraceptives.

 

[Meadmaker]

I think it's equally plausible that it was leaked for the purpose of giving states the heads-up that they can start taking more aggressive action about abortion sooner than later.

A thought occurred to me. Obviously, we don't know who the leaker was and whether they were for or against the pending decision, but I can thing af another motivation for wanting to leak the document.


I don't know what happens, legally, when Roe is overturned. Back when the opinion was issued, the opinion overturned law in all 50 states. At the time, there were various levels of restriction in various places. In some states, abortion was basically legal, and in some states completely illegal, but Roe affected every state somehow.

So, exactly what will be the legal status of abortion in states when this 50 year old decision is overturned? Does 50 year old legislation suddenly spring back to life? During those 50 years, abortion has become much more accepted and indeed taken for granted. Will abortion suddenly become illegal in states where abortion rights have strong support?

Perhaps the leaker wanted to give a heads up to legislators that they should get to work revising state laws to keep abortion legal after Roe is officially overturned. It's just speculation, obviously.

 

[Beelzebuddy]

Loving? No.

In the case of Loving v. Virginia, it definitely does not.

GOP Senator Says Interracial Marriage Should Be State Issue, Then Walks It Back

It's on the radar.

 

[Meadmaker]

A less conservative court held that a business owner's "sincere religious belief" that a contraceptive is the same thing as an abortofacient meant they could refuse specific services available in a health insurance package offered to their employees. Health care decisions otherwise being enshrined in some of the strongest interpretations of privacy protections be damned.

I'd say there's a fair to good chance of this fully modern, industrialized superpower banning contraceptives.

I think that's possible. I could see it going either way with this court. However, what I was saying is that they will never get a chance to make that decision. I can't imagine any state legislature in today's America passing a complete ban.

 

[cosmicaug]

A less conservative court held that a business owner's "sincere religious belief" that a contraceptive is the same thing as an abortofacient meant they could refuse specific services available in a health insurance package offered to their employees. Health care decisions otherwise being enshrined in some of the strongest interpretations of privacy protections be damned.

I'd say there's a fair to good chance of this fully modern, industrialized superpower banning contraceptives.

I mean, the fact that we can have all GOP candidates for attorney general in Michigan coming out against Griswold tells you some things. I'll grant you that this is a position where this has less significance (except as a stepping stone to other political positions) since they would have no authority to do anything about that; but it is significant that this is what they think they must support to be a part of the tribe. I'll also grant that it looks more like candidates too ignorant to even know what Griswold was about and ad-libbing rather than the result of well thought out deliberation.

 

[ponderingturtle]

DailyBeast: Barricades Quietly Erected Around Supreme Court After Roe Draft Decision Leaks Link
Seems like a prudent decision to me.

That's crazy you have to be able to yell in the faces of people that is part of free speech as the supreme court ruled getting rid of protest minimum distances from abortion clinics. Don't they read their own decisions or are they just above such petty concerns as free speech?

 

[The Don]

I think that's possible. I could see it going either way with this court. However, what I was saying is that they will never get a chance to make that decision. I can't imagine any state legislature in today's America passing a complete ban.

IMO you're right, but the states could then legislate to make it a local matter.

I could then envisage the contraceptive equivalent of "dry" counties when it comes to anything other than barrier contraceptives and enough of those together will effectively deprive those within them of contraception.

 

[ponderingturtle]

The draft contends that Roe v. Wade was wrong to restrict the power of state legislatures in private matters. Does that same reasoning also apply to the decisions in Griswold v. Connecticut or even Loving v. Virginia?

Those are clearly next up for attack.

 

[Ziggurat]

Libs tempering their agenda to not provoke insane right wingers has worked so well thus far, why not try it some more.

"Liberal agenda"? We were talking about threats of violence to coerce the Supreme Court. You managed to straw man yourself. Impressive.

Either that, or you're admitting that threats of violence ARE the liberal agenda.

 

[alfaniner]

I for one am glad for the leak. Rather than being blindsided by the actual ruling, it allows for discussion and protest before the fact.

 

[JoeMorgue]

"Liberal agenda"? We were talking about threats of violence to coerce the Supreme Court. You managed to straw man yourself. Impressive.

Either that, or you're admitting that threats of violence ARE the liberal agenda.

Yeah because it's totally liberals who storm government buildings when political decisions don't go their way.

 

[ponderingturtle]

It's quite possibly only an ethics violation, which still means that the leaker will have a hard time finding a job ever again.

That seems unlikely, there are plenty of jobs open to someone who did this with their friendly ideological side. The interesting thing was was this leak from the conservative or liberal side? Either could well view the leak as in their interests.