Immanentize linked to this article yesterday as a good explainer for the Supreme Court abortion arguments we could expect to hear. Even thought it’s mostly written in English, I could use some help understanding what each of the 7 points means, and I suspect I may not be alone in that.
So… I have given a heads up to a few of our BJ attorneys in the hopes that they can help get the explanations going, and this is an invitation to all BJ attorneys to jump in and help translate for the rest of us.
Dobbs in Seven Steps
by Jason Mazzone at Jack M. Balkin’s blog
Tuesday, November 30, 2021Tomorrow the Supreme Court will hear argument in Dobbs v. Jackson Women’s Health Organization. Many observers have offered predictions about how the case will turn out. My guess is that the Court majority will uphold the Mississippi law (which bans most abortions after 15 weeks) in seven steps:
1. Mississippi asks us to overrule our holding in Roe, as affirmed in Casey, that the Constitution protects the right of a pregnant woman to terminate her pregnancy. It is not necessary today to revisit that holding. Even assuming—as we do in this case–that the Constitution does protect a right to abort a fetus, the Mississippi law before us is valid.
2. We adhere to Casey’s undue burden framework.
3. While the joint opinion in Casey took the position that before viability the state may not ban abortion, that approach was error, and, if followed, it would elevate the right to abortion (which for purposes of this case we assume is protected by the Constitution) above all other constitutional rights, the exercise of which can be prohibited in at least some circumstances. Thus, abortion bans, like all abortion regulations, should be subject to the undue burden test.
4. We note that in the period since Casey several significant developments have occurred. Pregnancy tests are now cheap and reliable. New forms of cheap and reliable contraception have also become available. Indeed, access to contraception is guaranteed to most employees without cost under the Affordable Care Act. In addition, since Casey, new safe and effective oral abortifacients have become available to women.
5. Applying Casey, a state law that bans abortion prior to viability does not impose an undue burden so long as the law gives the pregnant woman a reasonable opportunity to obtain an abortion.
6. The challenged Mississippi law provides a pregnant women with a full fifteen weeks to obtain an abortion. This period easily provides a reasonable opportunity for the pregnant woman to exercise her constitutional right (assumed to exist for purposed of this case) to terminate the pregnancy
7. The dissent argues that for many women fifteen weeks is an insufficient period to make the difficult choice of whether or not to proceed with a pregnancy. Many life decisions, however, are reached in shorter time periods. To adopt the dissent’s view would be to attribute to women an inability to think carefully about their own circumstances, weigh competing considerations, and settle on the best course of action.
Also, Brachiator suggested this in one of the morning threads:
Listen to a 28-minute discussion on AirTalk: Supreme Court Hears Arguments In Mississippi Abortion Case. What Are The Key Takeaways?
We already know what a bad ruling will do to the rights women and others, so maybe for this post we can focus on understanding the arguments from both sides and what legal ground there might be for those arguments. Are there any legitimate justifications, no matter how thin, for letting this law stand?
Or if it stands, is it purely “a thin legal pretext to veneer over their personal religious and political desires”, as one of our BJ peeps John G. Cole described it yesterday?
h/t to the BJ peep who wrote that, whoever you are. I didn’t think to write down the nym along with the phrase! Out yourself, please!
Immanentize
I’m joining in — I thought that maybe I would just start by saying that there
arewere three possibilities going into the arguments in Dobbs —1) Keep Roe and Casey alive regarding the “viability” standard
2) As outlined by Jack Balkin above — get rid of the viability standard and just use the “
undoundue burden” standard of Casey, or3) Overturn Roe and send the issue back to the States
After the argument, it is pretty clear that the first is Na.Gon.Ha.Pen.
Not one of the “conservative Justivces even spent a moment on that possibility.
WaterGirl
Somewhat related… we’re thinking of having a lawyers roundtable once a month or so to discuss and explain legal issues that are in the news. Feel free to jump in if you think that’s a good idea, or say ‘what the fuck would we want to have something like that for’ if you’re not enamored of the idea.
dexwood
@WaterGirl: Haven’t we suffered enough? //s
Almost Retired
Here’s my semi-informed and long-winded take.
I think Roe will be overturned rather than merely eviscerated: Three dissenters, five votes for overturning the decision outright, and some sort of mush-mouthed institutional protection nonsense from Roberts about upholding the Mississippi law without overturning Roe.
Roe established the privacy right to abortion, and Casey held that restrictions cannot be enacted that constitute an “undue burden” on the right to an abortion (I’m oversimplifying).
With respect to the moving target of “undue burden,” in oral argument, the conservatives pounded on the changes in science and society since 1973: the age of viability has been moved back through technological advances, women have more access to contraception than in 1973, women can have careers AND babies now, woo hoo!, there are “safe harbor” baby drop-off centers available now (according to Amy Coathanger Barrett, as if she’s never read a Dickens novel set in an orphanage) and similar thoroughly emetic arguments. These arguments could be used to support a decision that 15- week limits are no longer the “undue burden” they would have been in 1973, and Mississippi’s law should be upheld. That’s probably where Roberts is.
But I suspect the Five Stooges are using these (alleged) societal and scientific changes for the broader purpose of justifying overturning settled precedent, rather than just moving the goalposts on “undue burden.” The conservatives tried to wrap themselves perversely in the civil rights movement: Long-standing precedent CAN be changed when cultural norms or science or whatever undermines the reasoning of earlier precedents – like the segregation decisions, for example. That appeared to me to be where they were going: Roe is ripe for overturning because of “watershed” societal and scientific changes since 1973 that make Roe’s entire premise and structure no longer viable (pun intended, sort of). Utterly intellectually (and historically) dishonest.
Combine that with the comments by Beer Bong Brett and others about abortion being better addressed through the legislative process (let’s put my civil rights up for vote), and I think we’ve got a majority for overturning Roe. I doubt they’ll broadly gut the right to privacy in general (yet), but will instead figure out some way to carve out abortion – and save the attack on Griswold, Loving, Obergefell and other cases based on the right of privacy for another day. I hope I’m wrong.
I have no patience with the argument that “at least this will motivate voters next year,” because it comes at the expense of the life and liberty of women.
WaterGirl
@Immanentize: And now i’ll chime in and ask for an explanation of “Casey” and viability and
undoundue burden.What does “Casey” have to do with Roe v. Wade?
edit: already explained by Almost Retired! (thank you)
Immanentize
The current count is:
Alito, Thomas and Gorsuch seemed to favor overturning Roe wholesale.
Kavenaugh was looking for a way not to join them, but well might.
Comey Barrett was a horrible human being but did not show her cards.
Roberts was clearly trying to aim the Court to the middle ground — #2
Breyer was trying to get his colleagues not to be jackasses
Sotomayor and Kagan called their colleagues Jackasses
Betty
Watergirl, please check my message on the pet calendar post. I need help with the Schiff request.
Immanentize
@WaterGirl: See, almost retired at #4….
Adding, since Roe was decided, the rule was that abortions could not be prevented before a foetus was “viable” meaning able to live on its own outside the mother’s body. In Roe, that was pegged at two trimesters, roughly six months or 24 weeks. At first the anti-abortion crowd thought that scientific improvements would vastly change the range of viability and reduce it to a nub. But the need of an unborn for the mother’s body has not changed much and the understood MINIMUM is currently 22 weeks.
So messing with the viability standard would be the biggest change ever in the law — even Casey, with its “
undoundue burden” test did not try to mess with that line.Almost Retired
@Immanentize: Love it! Sotomayer unleashed a fully-shaken can of whup-ass on those idiots.
Mai Naem mobile
I haven’t been following the particulars of this caae and I know this isn’t the big issue in the case 15 weeks seems such an arbitrary number. Depending on your medical/physical situation you could get away with saying you were 15 weeks along when you’re 19 weeks along. Are they going to autopsy each fetus?
BlueGuitarist
phrase was from John Cole
WaterGirl
@Mai Naem mobile: That brings up a good question. 15 weeks from when? Is it 15 weeks from your last period?
WaterGirl
@BlueGuitarist: oh that guy!
Betty
@Almost Retired: Good summary. I hope you right about the right to privacy. It may be a bridge too far.
Immanentize
@Almost Retired: Sotomayor:
WaterGirl
@Betty: I just replied in the calendar thread.
Argiope
@WaterGirl: yes, that is how pregnancies are dated, from the first day of the last menstrual period. Two weeks are “freebies” because implantation hasn’t happened yet. In fact, ovulation is happening right around that two week mark for most people, so there isn’t even (necessarily) a fertilized egg at two weeks after the first day of the LMP.
One of the things that constantly frustrates me about legislators and judges is they often don’t bother to ask the very pertinent question you just did. They know next to nothing about lady parts and their functions, but feel free to legislate or rule on them anyway.
Auntie Anne
@WaterGirl: I like the idea. I think for me, it will be another Richard Mayhew/Dick Anderson thread – interesting to read, always thought-provoking, but not something I can discuss with any knowledge.
sdhays
@Immanentize: How much “better” is #2 compared to #3. My sense is that it essentially guts the right to an abortion while pretending it doesn’t. If that’s the case, and the same number of people end up getting hurt either way, then it would be better for the Court to show it’s true radical colors in a way that’s clear for all to see.
Immanentize
@Almost Retired: I think that Roberts might have the general power to bring at least one other — probably Kavanaugh, mmaybe Barrett — into the incrementalist approach of just upholding the Mississippi law, but denying the Texas six week law.
There is one piece of logic that view has on its side — the 15 weeks after the last period is sort of emerging as the international standard for abortion rights (not the more vague “viability”).
BUT THOSE COUNTRIES HAVE UNIVERSAL HEALTH CARE WHICH INCLUDES ABORTION SERVICES.
Was I yelling?
WaterGirl
@Argiope: So when they say 15 weeks, it’s really more like 13 weeks pregnant.
MomSense
@WaterGirl:
The clock starts at the first day of your last period.
The Pale Scot
I occasionally drive by the Reddit Childfree boards and have read many accounts of doctors refusing to do a tubal ligation without the permission of their husband, or refuse because the woman might have regrets. Think about that, all the fucking bad choices one can have are absolute “freedoms” except for being a brood mare. That will have to change. Even if birth control remains it isn’t perfect.
WaterGirl
@MomSense:
So when they say 15 weeks, it’s really more like 13 weeks pregnant. Yes?
Argiope
@WaterGirl: Yes, and that’s assuming you have a 28 day cycle. If you have a 35 day cycle (as many people do) it’s more like 12 weeks since egg and sperm met….and 11 weeks since that egg actually implanted in a uterus.
It gets really interesting when people with common conditions causing irregular and infrequent ovulation are considered–they may well have no idea they are pregnant until pretty close to that 15 week timeframe since they often don’t have periods except for every 2 -3 months or even longer.
Immanentize
@sdhays: I think number two is WAY better that # 3. The overt over-ruling of Casey (let’s be honest, Roe is behind us) would instantly lead to more drastic possibilities because of the basis of the argument of abandoning Roe.
Same sex marriage? The states. (I believe that Loving and anti-mescegination laws are still OK, because in part, Thomas)
Contraception? The States
Laws that require gender equality in the workplace? The states.
Etc.
The compromise would not immediately implicate those other rights.
Betty
OT: Adam Schiff’s office wants me to DM them on Twitter about our book club discussion. Does someone here know how to do that,? I tried the message icon, but it says the aide I need to DM doesn’t allow messages. Help!
Immanentize
@WaterGirl: Or up to 11, right? Because it is measured from the START of the last period.
WaterGirl
@Immanentize:
Can you say more about what you mean by that?
Get rid of the viability standard – I assume that means that reduces the ability to get an abortion by many, many weeks, yes?
What do you mean by “and just use the “
undoundue burden” standard of Casey “?sdhays
@Immanentize: You (I think it was you) said yesterday something about how difficult it is for Supreme Courts to completely change precedent, even on awful decisions. The context was Citizens United.
How would a Supreme Court interested in not being political undo clearly awful, politically-based rulings like Citizens United? Say, if Clarence Thomas died of a heart attack tomorrow and Samuel Alito got run over by a bus because his head was too far up his own ass to look both ways before crossing the street, how would a Democrat-appointed Supreme Court undo all of the shit without also running into the challenge of seeming political?
Is it even possible?
Immanentize
@Betty: Tweet at the dude and ask for a DM back.
sdhays
@Immanentize: Ah, ok then. Then I guess I’ll have to hope for that.
ETA: Thanks for clarifying!
sab
@Immanentize: Well that is succinct. Sigh.
Betty
@Immanentize: I’ll try that. Thanks.
WaterGirl
@Betty: I answered you on the calendar thread.
Immanentize
@sdhays: Definitely possible, especially if it was soon. The new (Dem) court would just claim to be returning thisngs to satus quo ante. I read a paper today that demonstartated that the Roberts court has accepted more cases to overturn precedent than any court since the discretionary power of decision was given it when Taft was CJ
WaterGirl
@Immanentize: What is CJ?
Immanentize
@WaterGirl: So the viability standard was a very clear line — no state could ban an abortion during the period before viability (although they were allowed to put burdend on the excersize of the right as long as they were not “
undoundue.” In other words, tantamount to a serious interference in a womans’ right to actually get a pre-viability abortion. You have seen the results of those efforts — waiting periods, “counseling,” requiring clinics and Doctors to have “hospital admitting privileges.” Some have beenuphelpupheld and some struck down, even pre-viability.WaterGirl
@Immanentize:
So you believe they will overtly overrule Roe? (which gives every woman control over her own body when it comes to abortion)
And you believe they might overrule Casey? (which says they can’t make it too difficult to exercise your legal right to abortion?
Which came first? Roe or Casey? is one ruling based upon the other?
Immanentize
@WaterGirl: Chief Justice
HA! I was just told to slow down by the comment bot.
Was that installed for any particular commenter? :-)
WaterGirl
@Immanentize:
uhelp?
Betty
I saw that you don’t know either. I’ll let you know of any progress. If they say yes, can we specify date and time?
WaterGirl
@Immanentize: That’s built into WordPress itself, so don’t take that one personally.
Immanentize
@WaterGirl: Roe came first — then Casey.
Casey put a huge crimp on the Roe holding as it was by introducing as Almost Retired pointed out, the “
undoundue burden” standard.But it is clear that the clear line viability rule of Roe will be no more as of next July.
sdhays
@Immanentize: For Citizens United in particular, that seemed crazy to me in that it was outlawing a bunch of good government practices that had been mainstream and uncontroversial for almost a century (if I’m remembering right). That was a looney ruling, towards the beginning of many more awful and looney rulings.
WaterGirl
@Betty: Let’s converse about this in the calendar thread?
Immanentize
@WaterGirl: fixed it.
Immanentize
@sdhays: Money is first amendment protected speech, my friend.
Immanentize
Quick dinner retrieval moment!
Steeplejack
Am I correct in understanding that, now that we’ve had oral arguments on the Mississippi case, we won’t be getting a decision until next June?
And are there going to be oral arguments on the Texas “bounty hunter” law, which remains in effect right now?
Steeplejack
@Almost Retired:
Thanks for your detailed analysis.
WaterGirl
@Immanentize: So Roe said “you have this right” and Casey said “well, we can fuck with your ability to exercise your right, but we can’t cross some (unidentified) line that means we have gone too far in fucking with your ability to exercise your right.
Do I have that right?
Almost Retired
@Immanentize: Interesting. I wasn’t aware that the 15 weeks was becoming an international standard. Is that for Catholic countries in Latin America or Ireland that more recently legalized abortion, or has that been the norm in countries that protected reproductive rights for a longer time? I mean, I could look it up, but it’s almost 5:00 and I’ve done enough work for today.
Hoodie
@Immanentize: I think that may be right, but you have to consider what really drives these shitbirds, i.e., do they have the balls to use this to pursue their bigger Federalist Society wet dream of returning to Lochner. Their political base is more emotionally motivated against abortion than they are against federal regulation (e.g., they like their Social Security and Medicare), so this context offers more political and emotional weight than some pedestrian case about business regulation. I suspect that several of the wingnut justices really don’t give a shit about aborted fetuses, they just want to return to the good old days when women couldn’t tell men to get bent.
WaterGirl
@Immanentize: Ah. uhelp = unhelp = unhelpful.
Hard to know what’s a legal term, what’s an abbreviation, what’s a typo and what’s autocorrect gone wrong.
Leto
@Immanentize: this is what I was thinking too, mainly because conservative legal thought is essentially: if it’s not expressly stated in the Constitution, then it’s not covered. Unless the dead white dudes wrote it down some 213 years ago, then it doesn’t exist. Doesn’t matter what we’ve done since then, how we’ve evolved, how our understanding has changed, unless it’s on that document it doesn’t exist. I just don’t know how we proceed from here, where they want every single thing, in every possible way, written down. I just don’t.
burnspbesq
If you’re thinking long-term, you can sneakily do a lot of damage to women’s reproductive freedom by retaining the “undue burden” standard while holding that whether a burden is “undue” is a question of fact rather than law. If a legislature can convince a district judge that a new restriction doesn’t constitute an undue burden as a factual matter, then the standard of review is “clearly erroneous,” which if applied correctly is a very deferential standard.
Betty
@WaterGirl: Chief Justice. In this case, Roberts.
WaterGirl
@Almost Retired:
That should be a rotating tag.
Almost Retired
@WaterGirl: Pretty sure it’s “upheld.”
Immanentize
@Steeplejack: Unlikely to see a decision in Dobbs until the end of the term (end of June/early July).
They already had arguments on the Texas SB8 case and everyone understood there was a solid majority to strikle it down. What is taking so long is what is worrying people. The Court could consolidate the cases to outline a new rule and its limits.
WaterGirl
@Almost Retired: So when Imm fixed it he changed uhelp to unhelp, which should have been upheld.
Got it! Finally. Now i’ll go back and read his sentence again.
edit: yes, it makes so much more sense now! thank you
Hoodie
@burnspbesq: Exactly. It has the added benefit of giving wingnut legislators endless opportunities to put forward legislation to fuck with women and thus keep their evangelical supporters all jacked up. The supporters want to keep chasing the car as much as their politicians, it gives their lives meaning.
burnspbesq
If Roberts gets to write the opinion, it will look a lot like Shelby County—“the law is what it always has been, but scientific advances have reduced the period during which the mother’s interests outweigh the blastocyst’s.”
Immanentize
@WaterGirl: Yes. But the critical thing about Casey was that all the RW law folks thought that it was the case to overturn Roe. But both O’Connor and Kennedy (big Catholic person) refused to do so.
By the way — who knows what the vote was in favor of abortion in Roe?
WaterGirl
Can one of you legal eagles explain the significance of “being a question of fact” vs. “being a question of law”?
edit: I used legal eagles as a term of endearment, please let me know if that’s considered pejorativer reference if you are in the legal profession.
Immanentize
@Almost Retired: I think it is a Catholic country/Ireland, compromise period. Long enough to know you are pregnant (in most cases) but not too long to bridge what I think of as the “icky” factor which frankly drives so much of this law discussion.
Lady parts!
Another Scott
@Immanentize: I remember.
Funny how the vote is almost never, every mentioned, isn’t it??
Cheers,
Scott.
Steeplejack
@WaterGirl, @Immanentize:
Undue burden. A typo is okay, but please don’t perpetuate it.
debbie
@Almost Retired:
“Stench” nailed them to their crosses perfectly!
WaterGirl
@Immanentize: I’m totally guessing but I’ll say either 7-2 or 9-0.
Immanentize
@Leto: But no serious person believes that there are no un-enumerated rights or powers (see the always forgotten 9th amendment which reserved everything unsaid to the perople).
My favorite rejoinder to dipshits who spout this crap is: So you believe the air force is clearly unconstitutional and must be de-funded?
Immanentize
@Leto: But “marriage” is not in the constituion. Nor is “child raising.” Nor is “miscegenation.” Nor is “contraception.” Nor is a ban on raping your wife, etc. RW men love the “not in the constitution” argument.
burnspbesq
@WaterGirl:
Has to do with standard of review on appeal.
In the federal system, a trial court’s findings of fact aren’t supposed to be overturned unless “clearly erroneous” which is supposed to be a deferential standard (except when the Fifth Circuit is reviewing decisions of the district court in Austin). Conclusions of law are reviewed de novo, with no deference given to the district court.
Immanentize
@Leto: But “marriage” is not in the constituion. Nor is “child raising.” Nor is “miscegenation.” Nor is “contraception.” Nor is a ban on raping your wife, etc. RW men love the “not in the constitution” argument.
@WaterGirl: I have no idea how upheld became unhelp.
Almost Retired
@WaterGirl: We prefer “legal eagles” to “arrogant, unpleasant, know-it-alls” so go with it.
To oversimplify, a question of law is decided by the judge. A question of fact is decided by the jury (or fact-finder like an arbitrator).
ETA: In the appellate context, Burnsspbesq’s answer is better.
E.
If they overturn Roe the states with “trigger laws” immediately outlaw abortions. If they go with Roberts and sort of keep Roe/Casey, that doesn’t happen. I think. Personally I believe the endgame is to make abortion flat out unconstitutional, and they are plotting the likliest path. There is a lot of fight left in them.
Hoodie
@WaterGirl: In this case, it would mean that that no restriction would per se be an undue burden. It makes it easier for legislatures to concoct fabricated factual bases for restrictions and the courts couldn’t invalidate as long as the basis is not obviously unreasonable. So, for example, an 8 week limit may be ok of a state says that you can determine pregnancy and arrange for an abortion in that time in most cases and their is some legislative record that supports that conclusion, even if it is contrived or incomplete. All they need is a fig leaf. That was the slippery slope created by Casey in the first place.
Immanentize
@Leto: But “marriage” is not in the constituion. Nor is “child raising.” Nor is “miscegenation.” Nor is “contraception.” Nor is a ban on raping your wife, etc. RW men love the “not in the constitution” argument.
@WaterGirl: I have no idea how upheld became unhelp.
Leto
@Immanentize: Unfortunately, we have a lot of unserious people in our legal system all the way up to the SC. But we all know this.
WaterGirl
@Steeplejack: I went back and corrected them all.
Immanentize
@E.: The problem with making abortion nationally illegal is that the Court would have to recognize a constitutional right of a foetus to continue to birth. I cannot begin to tell you how many basic, fundamental laws that would over turn. So I think the worst will be state by state patchwork whih was what existed in 1972 whn Roe was decided
Steeplejack
@Immanentize:
Oops, I forgot they already had the arguments for SB8. Seems very cynical and callous that they would let it stand in the interim.
Immanentize
@Another Scott: It’s the first thing I tell my students. They all imagine it was 5/4. But as Watergirl deduced, it was 7/2. All men, majority republican appointed.
WaterGirl
@Immanentize: I’m fairly confident that fucking autocorrect was the culprit.
WaterGirl
@Hoodie: Oh, swell.
Immanentize
@Steeplejack: Agreed. It is horrible. But just three Justices can block a decision if “held” for the resolution of another case.
Immanentize
@Leto: I may be one of them!
New Deal democrat
@WaterGirl: Roe was 7-2.
Rehnquist and White dissented.
WaterGirl
@Immanentize: There is so much that is wrong with our legal system. It can’t possibly be referred to as ‘justice’ with a straight face.
burnspbesq
@Immanentize:
Yup. And if one of (for example) Ted Cruz’s daughters gets knocked up, she’ll be on a private jet to LA so fast it will make your head spin. While his non-rich, non-white constituents are bleeding to death behind Circle K.
oldgold
To some degree the Supreme Court has always been political. It is in its DNA. It doesn’t get more political than the Court’s seminal decision – Marbury v. Madison.
That expressed, the current Court, is so extremely political and lacking in terms of honor and intellect, that the stench surrounding it is not a measurable difference in degree from earlier Courts, but a disastrous difference in kind.
Leto
@burnspbesq: sounds like another Ted Cruz father/daughter vacation! Off to Mexico they go!
Steeplejack
@WaterGirl:
Thanks!
Immanentize
@oldgold: So true — a former President kind of engineered his own appointment as CJ after his term ended (Taft). But Taft was actually smart and saw the future that was coming, especially economically. Today’s political justices have such very small thoughts. They just want to own the libs. They are trolls.
Betty
@Immanentize: You know who else made this argument over a hundred years ago? Ulysses Grant in his memoirs. He was a really astute man. He said it was ridiculous to believe the founders didn’t expect the world to change and for government to respond to those changes.
Frank Wilhoit
It’s not over. The opinion will not be published for a further seven months. No one can imagine what the context of June 2022 will look like. Unimaginable things have been happening roughly once a week, and we are all accelerationists now.
The false theories of conservatism (which may well include my own) are numerous and each gets its passionate advocacy. But one of the few things that we do know about the conservatives of this time and place is that their nerve always fails them — albeit typically after substantial collateral damage has already been done. This is the time to turn up the heat. Turn it up higher than they can imagine.
The problem is not the “thin legal pretext to veneer over their personal religious and political desires.” Everyone is inured to that. The problem is that their personal religious and political desires are sadistic. That point has hardly ever been brought out in public and forthrightly. Never frame it any other way. Concrete, real-world examples abound. Start with the most shocking ones. Surround each one with a solid ring of only-barely-less shocking ones. Hammer on them at every opportunity.
Even if, at first, only a few begin to backpedal, each one is a gain. Eventually more of them will cut and run. The game is to try to get to a tipping point where it becomes a stampede; but that is not a deterministic goal, it is (in the topological sense of the word) a catastrophe. There is no way to know how much pressure is enough — until it happens.
A few will try to stand and fight. Don’t fight them. Give them all the space they want: but, the while, make them say what they mean, full strength. As soon as they turn to fight, stop shaming them for what they believe, and start shaming them for apologizing for what they believe. Every time we make one of them do the deer-in-the-headlights thing, that is a gain. Put them on the back foot and keep them there.
Edmund Dantes
I used to use the forced Bone Marrow donation scenario with people. But someone alerted me to even a better one.
A dead (mostly since they still need to be alive to be viable) person can’t be forced to donate their organs even though it would save multiple lives. Also a dead person’s body can’t be donated to science without their prior consent.
Bard the Grim
@Immanentize:
Any chance they could use the “undue burden” consideration to make the qualification that the 15 week limit only holds if the state provides free abortion services, otherwise the 24-week limit holds? (Hah. Yeah, I know the answer on that one.)
Immanentize
@Betty: There is no such thing (accurately) as “Original Intent.” Original intent was a white supremesist world view that created compromises to just get this friggin country off the ground. I generally respect the compromises given the times, threats and ends; but to launch those thoughts and deals into the sky as the sun of constitutional law is to deify mediocrity and meanness.
Immanentize
@Edmund Dantes: The person (lizard?) arguing for Mississippi said that no where in the law does the Constitution allow the State to take a person’s life.
The Death Penalty is on the phone and is happy to hear this!
Immanentize
@Betty: I am a big Grant fan. The people who fought for the North were not the most enlightened, but they mostly saw humanity for all it was.
Sufjan Stevens:
“I’m not afraid of the black man running
He’s got it right, he’s got a better life coming…”
Gin & Tonic
To the multitudes here who follow the news from Eastern Europe intently, a heads-up. Several weeks ago, the Kyiv Post, Ukraine’s pre-eminent English-language news source, was shut down by its owner and all the staff were fired. The owner also refused to sell the staff the name of the publication. So they started another, which, I hope, will in short order be recognized as Ukraine’s new pre-eminent English-language news source. The site went live today at kyivindependent.com
Now back to your regularly-scheduled dose of US politics.
Immanentize
@Bard the Grim: I think that the people supporting women will certainly argue such a position. I know they are already thinking about post-Roe startegies. But they are also pissed! And disillusioned. As am I.
West of the Rockies
I’d like to see some corporate responses. What are the biggest corporate firms in Mississippi? What if National Widget loudly declares it is moving out because of the law? Any chance corporations can become players in this issue
What if the NBA moves out of Texas? If actors snd singers refuse to work in Mississippi?
Gin & Tonic
@Immanentize:
Wasn’t the vote in favor of choice?
NotMax
@Immanentize
The ninth is a sticky ol’ wicket, as interpretation (in my layman’s understanding) is that it does not preclude restraint of unenumerated rights.
WaterGirl
I hope this thread keeps going, but I want to pause and say thank you to all the attorneys who are participating in this thread, particularly Imm and Almost Retired, who jumped in early and often.
Thank you so much!
i think only one person weighed in with their opinion on a suggested Lawyers Roundtable post every month or so. If you have an opinion, chime in!
i have personally found this very helpful.
Ancient Atheist
@WaterGirl: When the cost for a lifetime Supreme Court position is $14,000,000.00 the donors expect their pound of flesh.
Immanentize
@Gin & Tonic: Not really, although that is the rap. The vote was to strike down all abortion laws in the country post-viability. It was based on a woman’s personal autonomy and the precedent that indicated that having a family (contraception, forced sterilization) was a constitutionally protected right that was part of the right of privacy and personal liberty. So the vote was technically anti-criminalizing or banning abortion. The concept of “Choice” was, as I recall, a PR response to “pro-life.” A 1980s phenom.
Immanentize
@NotMax: The 9th hardly exists in law, although its biggest proponent in the last 30 years has been Thomas. Go figure.
Immanentize
@WaterGirl: Thank you for setting this up. I gotta go rescue my sweet cat. So be kind to eachother, jackals.
Immanentize
@Immanentize: FYI:
Sufjan — Jacksonville
One of the best recorded live things ever. Dig it.
NotMax
@Immanentize
Which is why I went with interpretation rather than precedent.
Kayla Rudbek
@WaterGirl: question of fact is something that can be determined by anyone, or person having ordinary skill in the art, e.g. is the sky blue.
Question of law is what law is applicable to a given fact pattern (e.g. your claimed perpetual motion machine isn’t going to scientifically work, what exact part of 35 USC 101 does the patent examiner/Board of Patent Appeals and Interferences/Federal court cite in the rejection)
At least that’s the way we do it in patent law, but I’m sure that my professional colleagues outside patent law would have different examples.
Steeplejack
@Gin & Tonic:
What’s the back-story on that, if known?
Another Scott
@Gin & Tonic: Excellent news. Thanks for the pointer.
Cheers,
Scott.
Kayla Rudbek
@Edmund Dantes: in other words, a woman’s corpse has more rights than a living woman.
Bill Arnold
@Immanentize:
There is also the ‘when does human brain life begin” school of thought over the last several decades (human life ending a brain death). It’s pretty complicated and quite without total consensus, but at 16 weeks there is no neural infrastructure for human consciousness, and (weakly) arguably not until birth or after. So the Mississippi law is a theocratic law, asserting a human nature(/ensoulment) to a blob that cannot possibly support it except as a metaphysical thing that is assigned at conception (disregarding twinning/chimeras) but that waits around patiently until the brain is sufficiently formed to support consciousness; it’s a theological concept, and FWIW there is no agreement among even Christian theologians.
The Emergence of Human Consciousness: From Fetal to Neonatal Life (Nature, March 2009, Hugo Lagercrantz & Jean-Pierre Changeux, worth a skim.)
(TL;DR the Mississippi law is clearly biologically bullshit, and (most?) other anti-abortion laws arguably are as well. Even if ignoring human rights of bodily autonomy.)
burnspbesq
@Steeplejack:
One imagines that the Russian equivalent of Tom Hagen was involved in some capacity.
Hob
“Many life decisions, however, are reached in shorter time periods [than 15 weeks]”
I realize this is Balkin’s paraphrase of what he expects the assholes to say, and not a quote, but I fully expect that they will say it because they’ve said the equivalent before. And it’s so deeply, shamelessly dishonest on every level.
First, take off two weeks because, as others mentioned above, pregnancy isn’t detectable before implantation. Then, take off another four weeks, as a person who wasn’t trying to conceive and therefore wasn’t doing tests all the time starts thinking “hmm, seems a bit late” and then “oh shit, I’ve definitely missed a period”.
Absolutely no adult with any clue about the birds and bees has any excuse not to understand that part. But, the next part doesn’t even require that much savvy, just a basic reading of the law: 15 weeks since pregnancy isn’t the deadline to make the decision, it’s the deadline to get it done. In a state that has done its best to destroy availability of this service, so, subtract all the time required to arrange travel and time off (and possibly childcare) and scrounge the money.
They know all this of course. Some privileged men may really be clueless about life, but not the army of assholes who do all the work of writing the speeches and the legislation and the op-eds and propaganda – they know, they just don’t care. I hate them so much.
Gin & Tonic
@Steeplejack: Here’s a pretty decent mix of fact and speculation on the matter.
Kent
Actually it was 7-2 in favor of privacy.
Omnes Omnibus
Late to the party, but I basically agree with what Almost Retired said up at #4.
Gin & Tonic
@burnspbesq: In this version, Tom Hagen is played by Brian Bonner.
Priest
FWIW, the blog post on the Balkinization blog was written by Jason Mazzone, not Jack Balkin.
Steeplejack
@Gin & Tonic:
Thanks.
dnfree
@Immanentize: that is an excellent way to explain “original intent”. The original intent was to come up with something enough states would ratify, not to write the ideal constitution.
sdhays
@WaterGirl: I think a lawyers roundtable is a great idea!
Omnes Omnibus
Well, yeah.
sdhays
@Edmund Dantes: Serious question – what’s the standard for the ban on having a dead’s person’s body donated to science without their prior consent. Theoretically speaking, is that something that could be allowed by a legislature, or does that cross a Constitutional threshold? Or is it something that’s so “beyond the pale” that it hasn’t been challenged?
Gretchen
This is a must-read by an OB who did abortions in a KS hospital that was forbidden, by state law, to perform abortions except when the life or health of the mother was threatened:https://www.nytimes.com/2019/05/20/opinion/abortion-laws.html
summary: she was asked to perform an abortion on a 3 months pregnant woman whose kidneys were failing. You can live with failed kidneys, but dialysis will shorten your life. So how imminently does her life need to be threatened to count? She and the hospital lawyers ended up on the phone with the state legislator who wrote the bill. Is the patient sick enough to allow the abortion? Legislator: do what you think is best, doctor. Exactly.
All these arguments are being framed as a slutty slut slut who was too disorganized to get an abortion in a timely manner, when really, if you’re getting a late abortion, it’s usually because something went terribly wrong. Ireland legalized abortion after Savita Halappanavar died completely unnecessarily after her water broke at 17 weeks but the fetal heart kept beating so doctors watched her die of infection over 3 days while she and her husband pleaded with them to end it. That’s who’s going to die.
Almost Retired
@Omnes Omnibus: But not the Space Force. That’s in the Constitution.
SiubhanDuinne
O/T, sorry, but jackals may want to know that Stacey Abrams is going to be on Rachel Maddow’s show tonight. Rachel just announced it at the start of her hour; she didn’t say what time Stacey will join her.
raven
@SiubhanDuinne: She announced it last night too.
SiubhanDuinne
@raven:
Now you mention it, I guess she did. I had forgotten that. Thanks
Either way, it’s must-see teevee.
RevRick
If a fetus is a person, a woman is not. If the state can hijack a woman’s body and life to serve the agenda of the state for any reason, even the most seemingly noble, then she is reduced to less than human.
The sovereignty of mind and will are the hallmarks of freedom and humanity. By robbing women of their sovereignty, the Court is threatening to declare them non-persons.
WaterGirl
@Priest: Not sure how I missed that, but i will take a look at the site and will correct that.
edit: fixed
Sebastian
Here is what we will have to do:
scream and shout “REPUBS MADE ABORTIONS ILLEGAL!!1!” (even in California) and have the Repubs, or their enablers in the media, explain “well no it is within the first 15 weeks and only in Texas and erm erm”
No measured discussion or criticism, only hanging it around their necks.
currants
@WaterGirl:
I would LOVE that.
Another Scott
Thanks for this thread.
Meanwhile, … StarAdvertiser:
Grrr…
(via nycsouthpaw)
Cheers,
Scott.
SiubhanDuinne
@WaterGirl:
I think it’s a fine idea. I love hearing from experts.
Leto
@Another Scott: I can’t even begin to tell you how many issues bases have wrt this. My previous base, Horsham Air Guard Base, none of the local residents can use any well water in a roughly 2 mile radius. There’s 50+ years of run off contaminates in the soil that’s contaminated the ground water. Multitudes of bases have this issue because they used to just let shit run off into the ground. Even today you still have spills of stuff. Idk, also goes back to the fact that even though the military has a fuck ton of money dumped on it, most of our facilities are roughly 50 years old, if not older. Military construction (MILCON) is a very expensive thing and takes forever to do.
Sebastian
@Another Scott:
Jesus Christ
Fair Economist
@Steeplejack:
The owner of the Kyev Post, Adnan Kivan, is one of the wealthiest oligarchs in Ukraine, and is leading the opposition to President Zelensky’s attempts to rein in the oligarch. Zelensky also claimed the coup planned against him had attempted to recruit Kivan, although unsuccessfully.
Fair Economist
@Immanentize: Amendment 9 of the Bill of Rights is very explicit that there are rights not included in the Constitution:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Dan B
I’d be interested in at least a trial run on a lawyers roundtable although this might be a good test run. It seems there are enough issues that affect us by complicated or confusing (both!?) law that we could find interesting topics.
Omnes Omnibus
@Fair Economist: And, in general, courts have treated it as though it said “blah, blah, blah.” I would not go into any court with an argument premised on the Ninth.
jonas
So could more legally trained folks chime in on what the implications would be for other legal theories premised on a “right to privacy” if Roe is gutted/overturned?
jonas
@Sebastian:
Here’s the issue: if Roe goes away and half the states ban abortion, here’s what happens: for rich/privileged women who can afford to travel to blue states or go abroad for an abortion, nothing changes. For everyone else, particularly poor/disadvantaged? Well, TS. Republicans are figuring, hey, this is about fucking over poor/POC, so who gives a shit? They don’t vote for us any way. So as long as states are safely gerrymandered for Republicans and it’s tough for poorer and working class folks to vote absentee and so on, they’ve got nothing to worry about…. is what I think they’re thinking. I think they may have miscalculated on that one, but we’ll see.
Another Scott
HR 3775 – Women’s Health Protection Act of 2021 passed the House on 9/24 (218:211). It was placed on the Senate calendar on 9/29.
Of course, it needs 60 votes for cloture and that is not going to happen as long as the filibuster exists.
But that’s the path forward.
If we can make the filibuster go away, then lots of good things are possible when Democrats have the majority, and keeping (and growing) the majority is more likely when Democrats are able to get more done.
We don’t have to invent new physics – we need to win more elections. Abrams showed us how it can be done. Let’s get it done so that 2023 is another great year.
Cheers,
Scott.
Victor Matheson
@Immanentize: Essentially every country in Europe has a limit under 15 weeks. France, 14 weeks; Germany, 14 weeks; Norway and Denmark, 12 weeks; Austria and Italy, 90 days (13 weeks); Sweden, 18 weeks; Switzerland, 12 weeks; Belgium, 14 weeks; Spain, 14 weeks; Portugal, 10 weeks.
Dan B
@Another Scott: Joint Base Lewis – McCord dumped fuel, dressers, de icers, etc. They’re on a huge ice age deposit of large gravels which are a water basin where the pollutants have traveled great distances. Their solution was to install towers that pumpp the water up, spray it, and blast air through to evaporate the volatile petrochemicals. Bad water or toxic air. Options!!
Sebastian
@jonas:
I agree with you except for political messaging you can ignore this and here is why: it is obvious what is happening, do you really believe there won’t be a Federal law the next time R control both chambers and the Oval Office?
Political messages work because they target an emotional response, not an intellectual one. To wit, if you were an suburban mom giving me that response to my inflammatory slogan I would simply tell you: “it’s obvious they’ll pass a Federal law like Texas as soon as they are able to. Everyone can snitch you out to the Feds for a bounty. Oh and kiss your birth control goodbye because that’s the next on their to do. They are on a roll and have six judges.”
The slippery slope argument the 2nd amendment nuts are using works perfectly here.
“Republicans outlawed abortions. Now they’ll pass a law to arrest you for it no matter where you live.”
Have them -and the press- explain why this isn’t so.
Sebastian
@jonas:
Apologies for not reading your comment carefully enough. Yes, I agree, they have massively miscalculated because the emotional response is going to blow up in their faces. We need to make sure they never lose that stink.
patroclus
Here’s my view: There are 6 clear votes to uphold the Mississippi statute. Roberts, as CJ, will appoint who writes the Court’s opinion. He will assign either himself or another Justice who he has convinced as to his reasoning to write it. Alito/Thomas will write a separate opinion which will compete for votes among the 6 and it will be strident and overturn Roe and Casey entirely. Roberts’ opinion will do what many have already proffered – uphold Roe as a right but change the viability concept and rule that Casey allows bans at 15 weeks because the burden is not undue. Roberts needs just one other Justice among the 6 to agree – that will be either Gorsuch, Kavanaugh or Barrett. I think Roberts will succeed in getting at least 1 other Justice to go along with his reasoning (or invent different reasoning that Roberts will go along with). Roe and Casey will get lip service, but the new opinion will be the new controlling view. The result will be that the Mississippi law is upheld; the reasoning will be confused because neither of the 2 opinions will have 5 votes. This will be coupled with overturning the Texas statute (on other grounds), so the overall result will be confusing and some will argue that it was a split decision.
This is sort of what happened in Roe itself – a 7-2 decision on the outcome, but differing opinions as to the reasoning. One mentioned the 9th amendment; others the 14th (substantive due process on women’s “liberty”); others broadly as to the “right” of “privacy.”
As with Casey, this will encourage the states to enact new more restrictive statutes that will test the moving goalposts of “undue burden” even further. There will therefore be much more litigation on these new and even more restrictive statutes.
BellyCat
@WaterGirl: Very much in favor of legal threads. Especially good if Q & A format.
frosty
@Frank Wilhoit: I like the way you fight!
frosty
@Omnes Omnibus: The Air Force is an artifact of WWII when strategic bombing made sense, even if it wasn’t always effective. Recently, the strategic retaliation force is submarines – Navy. I read an interesting book awhile ago* arguing that the AF should be disbanded and it’s roles given over to the Navy (missiles) and Army (bombers) or something like that. Unfortunately, we now have a Space Force with Guardians. I’m afraid the ratchet only works one way.
*Sorry, I don’t remember the title.
PS another response to a dead thread. Sigh. My brilliance is lost. Like tears in the rain.
Dan B
@frosty: West coast night owls hear you just fine.
What do the other services do with the religious nuts?
And what does Space Force do with the Flat Earthers or at least how do they plan for them?
mardam
@Almost Retired: I completely agree. And as far as your last sentence goes, I don’t think anyone is making the Susan Sarandon argument. It’s more like trying to make lemonade out of lemons.
WaterGirl
@frosty: I read it!
Madeleine
WaterGirl: I think periodic legal roundtables would be valuable, if the BJ lawyers are willing. This post+comments has been very informative. Thanks to you and our legal experts.
Brantl
@WaterGirl: I think that’s a great idea.
tybee
@WaterGirl:
i am enamored of the idea.
@WaterGirl: