The Roe Countdown

[theprestige]

"The right to keep and bear arms" seems plain enough. Do you deny such a right exists?

 

[Skeptic Ginger]

So, we've seen putdowns of "originalism" and of "textualism" when it comes to constitutional interpretation.

What's an alternative?

The Supreme Court has the power of judicial review. They can declare a law invalid. When doing so, what sort of theory should guide them? What limits are there in their ability to do so? Is there a name for a school of thought that isn't textualism and isn't originalism, but which describes the proper role for justices tasked with conducting judicial review of laws passed by the legislatures of the states or by the federal legislative branch?

It would make more sense not to be overturning a 50 yr precedent without more reason than your own personal beliefs.

 

[Skeptic Ginger]

It's only common sense when someone agrees with you on the meaning of those two words..

Slave owners truly believed owning another (sub)human being was fair and just.

And in that case times changed. The country evolved. We didn't evolve to believe life really starts at conception.

 

[Skeptical Greg]

We?

 

[Skeptic Ginger]

We?

We as the people in this country.

And that doesn't include a religious minority or a bunch of racists who still think black and brown people shouldn't count as full citizens.

 

[BobTheCoward]

It would make more sense not to be overturning a 50 yr precedent without more reason than your own personal beliefs.

But it only was created as precedent because of personal beliefs.

 

[gnome]

I just assumed you would ignore any question you found inconvenient, and I was right.


There's a lot of confusion between textualism and originalism. The words of the law or Constitution have meaning, but, as noted in my last post, there are situations that the framers could not have foreseen. Even more significantly, there are things that are implied by the words of the Constitution, but which were not actually intended by the framers who wrote the laws. In those cases, an originalist would say, "Hold on. They didn't mean that, so we don't have to do what they said." A textualist would say, "I don't care what they intended. Here's what they said, and that's what we're going to do." The only place where the original meaning comes in is that if a word's meaning has drifted over time, the definition of an original phrase should be the one used by those who wrote the sentences that are being interpreted.

I doubt that anyone is a purist on either side. I would count myself much closer to a textualist, but I would say that the concept of substantive due process is implied by the words that they wrote. As such, I support a whole raft of interpretations that depend on substantive due process, even though the framers didn't intend them. An originalist would disagree.

And a living constitutionalist? I have no idea what they would say because I can't understand how they would place any constraints at all on the Supreme Court. It seems to me that they would have to accept any and all rulings of the Supreme Court, because regardless of what the High Nine said, that was the "living" part.

I don't know what to call it, but I'd say that the language of the constitution reveals principles of liberty and the restraints on government. I prefer to consider the principles binding, so that we task a court interpreting the constitution to decide how a context that wasn't explicitly defined before best suits those principles.

That came out wordier than I'd like, so I'll use an example instead, what I hope is an easy one. Freedom of speech and the press. It's a pretty easy and obvious interpretation to realize that doesn't just encompass spoken words or content made on a literal printing press. It refers to freedom of expression, in any media... spoken, written, painted, sculpted, sung, printed, electronically transmitted, or any other form of communication we may not yet have invented. The constitution gives us that principle. If there's an aspect of the "living" model for interpreting that I agree with, it's that the people we entrust as judges should be able to recognize and apply that kind of equivalence. The way they're set up seems to be pretty sound. Not just the main reason for the decision but concurring agreements for different reasons are logged, as well as reasons for dissent. Any of those can be appropriate tools to recognize mistakes in hindsight, even as decisions that stand for a long time should have the strongest influence. Some of the common "tests" the court has established by building up precedent over time seem to me to be the most well thought out principles we have.

At a certain point though you need the right kind of people doing the job. Even if there were somehow a "perfect" system, it would still have bad outcomes if we make bad choices in stewards. And we couldn't fix that with any kind of reform.

 

[llwyd]

Well, the US Constitution was a great progressive document, much ahead of its time when it was written. Now, despite of many additions and modifications, it's rather a clumsy and increasingly harmful document. I think you guys should go back to the drawing board and come up with Republic v. 2.0 - otherwise you might slowly sink into a fundamentalist and superstitious Gilead.

 

[bruto]

Well, the US Constitution was a great progressive document, much ahead of its time when it was written. Now, despite of many additions and modifications, it's rather a clumsy and increasingly harmful document. I think you guys should go back to the drawing board and come up with Republic v. 2.0 - otherwise you might slowly sink into a fundamentalist and superstitious Gilead.

The problem is that the same people who are now trying to turn us into a fundamentalist and superstitious Gilead are too likely to be the ones who make Republic 2.0 just that. The current Constitution, flawed as it may be, was designed with an eye to future amendment and growth, whether it's been done properly or not. I do not trust the people now in power to moderate their own hubris so.

 

[TurkeysGhost]

Conservative pundits clutching their pearls over hostile protests assembling outside the homes of the SCOTUS justices overturning Roe.

In other news, someone throw a molotov cocktail into an anti-abortion office during the night.

Graffiti on the attacked office read "If abortions aren’t safe then you aren’t either.”

https://madison.com/news/local/madison-anti-abortion-headquarters-hit-by-molotov-cocktail-vandalism-graffiti/article_526660ea-776d-50ca-9baa-4b4a9337dca7.html

 

[Meadmaker]

Folks, I look around our world and see a lot more Gomorrah than Gilead. I think we're pretty safe from fundamentalists. They're out there, to be sure, but just vote.



I think what's really about to happen is that Roe v. Wade will be overturned, and it might take as long as 15 years before abortion is legal in every state again. It might happen a lot faster than that.

When some state manages to enact an anti-sodomy law, I'll get nervous, but I don't see that happening.

 

[Random]

Well, the US Constitution was a great progressive document, much ahead of its time when it was written. Now, despite of many additions and modifications, it's rather a clumsy and increasingly harmful document. I think you guys should go back to the drawing board and come up with Republic v. 2.0 - otherwise you might slowly sink into a fundamentalist and superstitious Gilead.

That would be Republic v 3.0. It's an easy mistake to make, most people forget about the Articles of Confederation and Perpetual Union^WP. It was the first constitution of the United State, it was in force from March of 1781 through March of 1789, and it was much, much dumber than the one we have now...

 

[ponderingturtle]

Well, no. They didn't try to, and nothing they did could be used to imply that they will. To my way of thinking, it's best to address the specific case or the specific issue that's under discussion, but when it comes to Roe v. Wade, people seem compelled to bring in other things that are either completely unrelated, or connected only by the flimsiest thread.

I think on the subject of law, people should address the Supreme Court rulings, specifically. On the subject of social effects, I think people should address abortion, specifically.

If the best you've got is "They might attack interractial marriage", then you've got nothing. It's not very difficult to see that they won't attack Loving v. Virginia at all, so it's not relevant.

If they didn't see this argument they would not have needed to put in the whole big about how it is entirely different not because of any of the arguments used against abortion but because abortion kills babies.

I don't think an attack on interracial marriage is likely, but Alito sees how his argument plays against it and tried to address this in the text that was leaked.

 

[JoeMorgue]

Everything will be "dramatic hyberbole strawman that's never going to happen you're being paranoid" until it happens and then it will be too late to do anything about it.

By design and with intention.

 

[TurkeysGhost]

Everything will be "dramatic hyberbole strawman that's never going to happen you're being paranoid" until it happens and then it will be too late to do anything about it.

By design and with intention.

There's a certain retro-ness to this idea. For decades the Republican party made a lot of empty promises to the Christian extremists in their party in order to capture their votes, but only rarely delivered on them. The party was very comfortable waving carrots, like overturning Roe, to keep this part of the base pulling hard for them.

Of course, a lot has changed over the recent years, and the nuts are running the party now. All the things that "mainstream" conservatives had been promising to do, but never intending to actually deliver on, are going to happen, because the people they were promising it to took it very seriously.

All the loopy stuff is on the table now because the inmates are running the asylum. There's really no credibility for this rump of "reasonable" conservatives claiming there's no reason to be concerned, because they lost control of this monster years ago.

 

[JoeMorgue]

There's a certain retro-ness to this idea. For decades the Republican party made a lot of empty promises to the Christian extremists in their party in order to capture their votes, but only rarely delivered on them. The party was very comfortable waving carrots, like overturning Roe, to keep this part of the base pulling hard for them.

I saw a comment online over the weekend that I think explains that.

"It should say a lot that most of the heaviest attacks on abortion rights started the moment that baby boomers stopped having any need of them."

 

[ponderingturtle]

There will be zero states where it will be illegal to terminate a pregnancy in cases where the mother's life is in danger. It won't happen, anywhere.

It is already happening in Texas. See the NPR article I linked earlier.

https://www.npr.org/2022/02/28/1083536401/texas-abortion-law-6-months

"Anna's water had broken too early for the baby to survive. She and Scott spent the night of their wedding in the emergency room, trying to take in the heartbreaking news.

"Basically, the doctor looked at me and was like, well, the baby's underdeveloped," says Anna. "Even with the best NICU care in the world, they're not going to survive."

And as painful as it was to hear that, the doctors told Anna there was another urgent concern.

" 'You're at a high chance of going septic or bleeding out,' " she says the doctors told her — a risk of infection or hemorrhage, which could become deadly. " 'And unfortunately, we recommend termination, but we cannot provide you one here in Texas because of this law.' "

Before Roe v. Wade, a secret group provided abortions. Two new films tell the story.
Before Roe v. Wade, a secret group provided abortions. Two new films tell the story.
In Anna's situation, a patient would normally be offered two options: wait and watch for signs of danger, or terminate the pregnancy, which is usually the safest option and most guaranteed to preserve future fertility.

But under Texas law, abortions are allowed at that stage only for severe medical emergencies, defined as when a patient is "in danger of death or a serious risk of substantial impairment of a major bodily function."

And because fetal heart tones were detectable, doctors told Anna they couldn't offer her that option."

I guess they could have waited around until she was actually in life threatening conditions and then maybe she could have her abortion in Texas.

But who should I believe the lying facts or Meadmaker?

 

[TurkeysGhost]

Man this party is hopeless:

.
@POTUS
strongly believes in the Constitutional right to protest. But that should never include violence, threats, or vandalism. Judges perform an incredibly important function in our society, and they must be able to do their jobs without concern for their personal safety.

https://twitter.com/PressSec/status/1523649143951962115?cxt=HHwWhsCtudy0i6UqAAAA

The Democrats have a winning, broadly popular anti-theocratic issue to run hard on. It is, in the technical terms, a guaranteed banger. Instead of leaning into a winning issue, Psaki is scolding the base over violence that didn't occur. Scolding Roe supporters because they hurt the feelings of SCOTUS ghouls.

One of the defining characteristics of the modern party is its reflexive conflict aversion, even in areas where they have every advantage to come out on top. Loser mentality.

 

[JoeMorgue]

We're being baited into a "Show me a law that specifically says in those exact words that you can't get an abortion to save the mother's life" rabbithole, when we all know that's not how the GOP does thing.

 

[ponderingturtle]

This is an interesting case, and what it shows is that legislators can pass really bad laws.


Under the Texas law in question, that situation, if described accurately, should have been a case where abortion should have been perfectly legal, under either Texas law or considering Roe v. Wade, which was, and is, still in effect.

Why her life was not in any significant danger at that point, there was just a chance something bad would happen. You have to wait for those risks to become realities to justify the abortion in Texas.