The Roe Countdown

[d4m10n]

A few articles on point:

https://twitter.com/nytimes/status/1466099799673950211

https://twitter.com/imillhiser/statu...23027704426500

https://twitter.com/tribelaw/status/1466254271456948225

[Lurch]

If the right to an abortion is a strongly desired thing, then just rolling over to let 5 or 6 robed radicals installed by a minority to strip said rights should be resisted. How about every woman in the nation who has an interest in this (and the fellas too) go on a general strike? One humongous, convulsive backlash to scare the crap out of the powers that be. I know it would be hard for many, living in poverty because of the system erected in order to make the populace vulnerable and hence disincentivized to take up just such a protest. But sometimes ya gotta fight and sacrifice in order to prevail against tyranny.

[theprestige]

Originally Posted by Lurch

If the right to an abortion is a strongly desired thing, then just rolling over to let 5 or 6 robed radicals installed by a minority to strip said rights should be resisted. How about every woman in the nation who has an interest in this (and the fellas too) go on a general strike? One humongous, convulsive backlash to scare the crap out of the powers that be. I know it would be hard for many, living in poverty because of the system erected in order to make the populace vulnerable and hence disincentivized to take up just such a protest. But sometimes ya gotta fight and sacrifice in order to prevail against tyranny.

If the right to an abortion were that strongly desired, you wouldn't need a general strike. You'd already have new legislation or a constitutional amendment. Meanwhile, judges shouldn't base their interpretation of the law on what kinds of laws some members of the public wish they had.

You can't say the law says what it says, unless people don't like it, and then it doesn't. That way lies madness.

[JoeMorgue]

Originally Posted by theprestige

You can't say the law says what it says, unless people don't like it, and then it doesn't. That way lies madness.

Yeah because doing the wrong thing and going "But it's technically what the law says" is so much better.

I'm so ******* tired of people defending "Evil, but it's by the book"

Especially those who only do it when it's convenient for them. *Cough*

[mumblethrax]

Originally Posted by theprestige

You can't say the law says what it says, unless people don't like it, and then it doesn't. That way lies madness.

That's exactly what's happening, isn't it? The law said what it said, conservatives didn't like it, so they stacked the courts with people who would say that it doesn't say that after all. This is the culmination of that project.

[plague311]

Originally Posted by mumblethrax

That's exactly what's happening, isn't it? The law said what it said, conservatives didn't like it, so they stacked the courts with people who would say that it doesn't say that after all. This is the culmination of that project.

Some of the people who got appointed to the SCOTUS also said that it was established law, but they're now willing to change that law. Why? Because some states didn't like it, and now they want to change it.

[d4m10n]

Originally Posted by mumblethrax

That's exactly what's happening, isn't it? The law said what it said, conservatives didn't like it, so they stacked the courts with people who would say that it doesn't say that after all. This is the culmination of that project.

Only if by "the law" you mean how SCOTUS interpreted aspects of the 14th Amendment in 1973.

It'd be very nice if we had actual statutes protecting bodily autonomy of pregnant people, but those only exist in blue states at the moment.

[TragicMonkey]

Originally Posted by d4m10n

It'd be very nice if we had actual statutes protecting bodily autonomy of pregnant people, but those only exist in blue states at the moment.

Exist for now, you mean. Those will be the next target.

[d4m10n]

Originally Posted by TragicMonkey

Exist for now, you mean. Those will be the next target.

I doubt they can get five justices to sign on to a nationwide ban on abortion rooted in the right to life of unborn persons, but a more salient question might be how that question could possibly come before the court in the first place.

[Cain]

Originally Posted by TragicMonkey

Exist for now, you mean. Those will be the next target.

But how will they be targeted? If it's a five-person super-legislature claiming black smudges are persons so that not even states can recognize a "right" to abortion, then that's the ballgame. It certainly seems Thomas will rule in that direction, but I doubt he can bring over a majority. More likely, the court will kick the issue back to the states and most abortions continue. People in states with restrictive laws will increasingly use the Internet and the mail to carry out medical abortions, which will invite a response from the anti-choice lobby.

[mumblethrax]

Originally Posted by d4m10n

Only if by "the law" you mean how SCOTUS interpreted aspects of the 14th Amendment in 1973.

Either case law is law, in which case Roe v. Wade is law, or case law isn't law, in which case protesting the (anticipated) decision is perfectly legitimate.

Quote:

It'd be very nice if we had actual statutes protecting bodily autonomy of pregnant people, but those only exist in blue states at the moment.

No doubt.

[Random]

Originally Posted by The Atheist

Never mind the bloody Beeb, I say **** off!

This is my thread - how dare you beat me by several seconds?

America, turning the clock back, one state at a time.

Actually, between the states with “Trigger” laws that go into effect if Roe is overturned, and states that had anti-abortion laws prior to Roe that are still technically on the books, abortion will be outlawed in 17 states instantly.

[Random]

Originally Posted by d4m10n

I doubt they can get five justices to sign on to a nationwide ban on abortion rooted in the right to life of unborn persons, but a more salient question might be how that question could possibly come before the court in the first place.

Fetal consent laws...

[SuburbanTurkey]

The elephant in the room is that Democrats have had plenty of opportunities to write Roe into law over the last few decades and simply did not. Hell, Obama walked into his first term with complete control of government, a supermajority in the Senate which is extremely rare. If the Democrats cared about protecting Roe, they could have. They didn't, and with a little help from RGB, here we are.


The right wing has been extremely clear over the years that overturning Roe was a high priority, long term project and the Democrats were totally unresponsive (other than demanding our votes and money to do nothing).

ETA: Smart money says Breyer drops dead after the Republicans win the midterm. The legislature actually getting off their ass and having to deal with the supreme court is going to be the most pressing issue in politics in the foreseeable future. I doubt the D's have the necessary stomach for it.

[d4m10n]

Originally Posted by Random

Fetal consent laws...

Zero hits on google.

[d4m10n]

Originally Posted by mumblethrax

Either case law is law, in which case Roe v. Wade is law...

Until it isn't. I expect the majority opinion in Dobbs will patiently explain how Roe and Casey were reading in liberty interests which were never contemplated by the folks who originally drafted the 14th Amendment.

[Cain]

Originally Posted by SuburbanTurkey

The right wing has been extremely clear over the years that overturning Roe was a high priority, long term project and the Democrats were totally unresponsive (other than demanding our votes and money to do nothing).

This is pretty much all wrong. Some GOP elites are nervous about being the dog that caught the car. For decades, the party's elites have used wedge issues like abortion to get votes, but they deliver tax cuts. You can find staffers on the Hill going back decades saying, "If we could end abortion tomorrow, we wouldn't do it." 2022 was supposed to easy for Republicans, and maybe that will still be the case, but overturning a nearly 50 year-old decision that most Americans say they support could invite a backlash. Greed Over People hope that Americans support Roe the way they support withdrawing from Afghanistan.

Democrats are far more supportive and enthusiastic about abortion rights than they were three decades ago, and more so than Europeans are now. Also, making this a public issue could probably be a good thing for Democrats (though not such a good thing for women birthing people).

The arguments against abortion in the first 15 weeks, which is when the vast majority of abortions are performed, are incredibly weak. Little more than "the Invisible Skywizard implanted a soul..." Activating younger, much more secular people at the polls could be a good thing for Democrats.

[d4m10n]

Originally Posted by SuburbanTurkey

The elephant in the room is that Democrats have had plenty of opportunities to write Roe into law over the last few decades and simply did not.

I don't believe the political strategy of codifying case law into statute law is politically costless, though in retrospect it would have been worth it to avert the return of back-alley surgery in the states where Dobbs will be celebrated.

[Random]

Originally Posted by d4m10n

Zero hits on google.

It was an old bit from The Onion. Can't even find it on their website anymore.

It was a parody of the various anti-abortion bills put forward while Roe vs Wade was in effect. The goal, of course, being to keep adding hoops to jump through to obtain an abortion until there was a de facto ban on abortion, even if still technically legal to have one.

Now we just have the Supreme Court throwing out decades of settled law because of their personal preferences, so such tactics are not needed.

[SuburbanTurkey]

Originally Posted by d4m10n

I don't believe the political strategy of codifying case law into statute law is politically costless, though in retrospect it would have been worth it to avert the return of back-alley surgery in the states where Dobbs will be celebrated.

Nothing is politically costless. Hell, even doing nothing has a political cost, which should be plainly clear as the Biden admin listlessly slides into a resounding midterm defeat.

What is the point of winning elections if not to wield power to achieve your agenda? Time in power in this country always has a short shelf-life, you have to use it efficiently.

[d4m10n]

Originally Posted by SuburbanTurkey

What is the point of winning elections if not to wield power to achieve your agenda? Time in power in this country always has a short shelf-life, you have to use it efficiently.

I don't think it's a particularly efficient use of political power, in general, to pass laws which change nothing on the ground.

[SuburbanTurkey]

Originally Posted by d4m10n

I don't think it's a particularly efficient use of political power, in general, to pass laws which change nothing on the ground.

It would change the precariousness of abortion rights. Rather than some creation of the courts, which was obviously in danger given the decades long judicial project of the right, it would be shored up by legislation.

The coming end of Roe v Wade is a direct consequence of both the right wing focusing on the courts and the liberal's total inaction to protect these rights via legislation.

[d4m10n]

Originally Posted by SuburbanTurkey

It would change the precariousness of abortion rights.

Try running for reelection on decreasing the precariousness of a civil right people already enjoy.

Originally Posted by SuburbanTurkey

The coming end of Roe v Wade is a direct consequence of both the right wing focusing on the courts and the liberal's total inaction to protect these rights via legislation.

Are there any other examples of constitutionally protected civil rights which were later rolled back by the same courts which granted them?

[mumblethrax]

Originally Posted by d4m10n

Until it isn't. I expect the majority opinion in Dobbs will patiently explain how Roe and Casey were reading in liberty interests which were never contemplated by the folks who originally drafted the 14th Amendment.

Well, yeah. That's sort of the problem--the law isn't the law; the law is whatever five or more justices say it is, because the law (especially the unworkably vague constitution) needs interpretation. Given that these interpretations are heavily influenced by the politics of justices who deploy them, and these people are undemocratically appointed by an undemocratically elected president and confirmed by an undemocratic Senate, I'm left wondering how exactly our political obligation is supposed to obtain.

Anyway, a decision that significantly alters Roe v. Wade will settle the question in approximately the same way that stepping on an anthill settles ants.

[Suddenly]

Originally Posted by Cain

This is pretty much all wrong. Some GOP elites are nervous about being the dog that caught the car. For decades, the party's elites have used wedge issues like abortion to get votes, but they deliver tax cuts. You can find staffers on the Hill going back decades saying, "If we could end abortion tomorrow, we wouldn't do it." 2022 was supposed to easy for Republicans, and maybe that will still be the case, but overturning a nearly 50 year-old decision that most Americans say they support could invite a backlash. Greed Over People hope that Americans support Roe the way they support withdrawing from Afghanistan.

The GOP elites have become irrelevant. They caught the dog five years ago and have been retiring in droves or learning to love Trump.

You are right there will be a backlash, but the geographical distribution will cause it to be of little effect. Voter suppression and etc. will further dampen the impact. We will see a 2024 election where the GOP candidate loses by ten+ million votes yet wins the EC.

Until the realities of the electoral map change social issues will be a liability for the Democrats. They can advance policies in that area but making it the leading issue in the national platform is a trap.

[d4m10n]

Originally Posted by mumblethrax

Well, yeah. That's sort of the problem--the law isn't the law; the law is whatever five or more justices say it is, because the law (especially the unworkably vague constitution) needs interpretation.

The advantage of rooting abortion rights in vague judicial language like "undue burden" is that you don't need to get legislators to agree on exactly what is permitted and what can be regulated.

[SuburbanTurkey]

Let's take a trip in the wayback machine

From 2012:

Quote:

Obama Promised To Sign The Freedom Of Choice Act On Day One, Hasn't Touched The Issue Since

https://www.buzzfeednews.com/article...f-choice-act-o

Democrats pretend to be fierce advocates for abortion rights, but the evidence of this is pretty thin. They relied on the courts to uphold Roe v Wade and kept punting on doing anything substantial with legislation, despite having supermajority control during Obama's first term. The right wing has been explicit about their decades-long judicial project which is now bearing fruit, and the Democrats did nothing to prepare for the inevitable result.

They talk a big game, but their follow-through is very much lacking.

[d4m10n]

Presidents don't get to sign legislation which never makes it out of committee.

[SuburbanTurkey]

Originally Posted by d4m10n

Presidents don't get to sign legislation which never makes it out of committee.

Yes, Democratic controlled committees never advanced it. Again, they talk the talk, but the party is not the stalwart defenders of abortion rights they would have you believe. Promises get made during elections and conveniently forgotten.

Hillary's VP choice, Tim Kaine, was anti-abortion for christ's sake. Our current predicament is only possible because the Democratic party has been happy to be fence-sitters on this issue for decades rather than actually shore up Roe with meaningful legislation.

[d4m10n]

Originally Posted by SuburbanTurkey

Yes, Democratic controlled committees never advanced it. Again, they talk the talk, but the party is not the stalwart defenders of abortion rights they would have you believe.

It only takes one or two anti-abortion Senators to make a (barely) filibuster-proof majority into a filibusterable majority.

[theprestige]

Originally Posted by d4m10n

It only takes one or two anti-abortion Senators to make a (barely) filibuster-proof majority into a filibusterable majority.

If the Buzzfeed headline ST posted is true, then this seems to be about Obama's failure to use the bully pulpit, as much as anything else.

Upthread, Lurch suggests this issue is popular enough that Americans could launch a general strike to show the government what's what. I countered that if it were that popular, legislators would have seen the writing on the wall and done something about it already.

The biggest power the president has in this kind of situation is the celebrity power of the office. They can use the bully pulpit to drum up public support for whatever policy they like. Legislators, seeing what side their bread is buttered on, and desiring reelection, will respond by passing the laws the voting public clearly desires. Obamacare got passed, so why not abortion rights protections?

---

The other lever of influence is horse trading. Obama hadn't really spent enough time in the legislature to establish a stable of his own, but surely his VP must have had a barnload of horses to trade.

[SuburbanTurkey]

Originally Posted by d4m10n

It only takes one or two anti-abortion Senators to make a (barely) filibuster-proof majority into a filibusterable majority.

Sure, even with a supermajority and complete control of the government the Democrats are powerless to accomplish their promises.

Not sure that's a message that's going to drive voter turnout.

Why bother voting blue if there's always some revolving villain springing up to explain why important agenda items die on the vine?

[Bob001]

Another view of where we're headed:

Quote:

But that’s just the first of a series of ideas Republicans have to regulate women’s behavior and roll back the clock to the early 1960s when women couldn’t get a credit card without their father’s or husband’s permission, had no legal right to birth control in some states, and faced fully legal discrimination in housing, education and employment.

Next up on the GOP’s agenda to strip women of political and economic power will be banning most forms of birth control used today, including birth control pills and the IUD.

https://hartmannreport.com/p/next-up...enda-stripping

[d4m10n]

Originally Posted by SuburbanTurkey

Sure, even with a supermajority and complete control of the government the Democrats are powerless to accomplish their promises.

A sixty vote supermajority is every bit as progressive as the least progressive among them.

Originally Posted by SuburbanTurkey

Why bother voting blue if there's always some revolving villain springing up to explain why important agenda items die on the vine?

Let's not pretend it was obvious in 2009 which specific laws needed to be passed to avert disaster in 2022.

[SuburbanTurkey]

Originally Posted by d4m10n

A sixty vote supermajority is every bit as progressive as the least progressive among them.

Let's not pretend it was obvious in 2009 which specific laws needed to be passed to avert disaster in 2022.

Yeah, it was a real mystery this could happen as conservatives shrieking about how abortion is a modern day holocaust marched battalions of Federalist Society ghouls into the judiciary. Truly an unforeseeable turn of events.

[cosmicaug]

https://www.texastribune.org/2022/01/07/texas-abortion-law-federal-court/

Delay, delay.

[cosmicaug]

Well, this is nice! Public health, tobacco education and use prevention and... WTF???
https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=76552&SessionId=93 (from a couple hours ago):

Quote:

General Bill by Grall
Reducing Fetal and Infant Mortality: Revises purpose & requirements for Comprehensive Statewide Tobacco Education & Use Prevention Program; requires DOH to contract with local healthy start coalitions for creation of fetal & infant mortality review committees; prohibits physician from performing abortion if gestational age of fetus is determined to be more than specified number of weeks; provides exception; requires directors of certain medical facilities & certain physicians to submit monthly report to AHCA electronically; requires hospitals participate in minimum number of quality improvement initiatives.
Effective Date: July 1, 2022
Last Event: Filed on Tuesday, January 11, 2022 10:01 AM
Lobbyist Disclosure Information

[cosmicaug]

https://www.cnn.com/2022/01/20/politics/abortion-texas-sb8-supreme-court/index.html

Quote:

The dispute settled Thursday centered on whether the appeals court should immediately return what is left of the providers' case to a district court judge who has expressed deep skepticism over the law, or whether the case could remain in the 5th Circuit for proceedings that could take months to resolve, further delaying the providers' case.

The providers asked the justices to step in to demand the 5th Circuit return the case to the district court. Without comment, the Supreme Court's majority denied the request.
The three liberal justices wrote a scathing dissent.

"This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies," Justice Sonia Sotomayor wrote, joined by Justices Stephen Breyer and Elena Kagan. "I will not stand by silently as a State continues to nullify this constitutional guarantee."

[cosmicaug]

https://successwithsahil.com/missouri-lawmaker-seeks-to-prohibit-residents-from-obtaining-abortions-out-of-state/

Quote:

An unusual new provision, introduced by state Rep. Mary Elizabeth Coleman (R), would allow private citizens to sue anyone who helps a Missouri resident obtain an abortion out of state, using the novel legal strategy behind the restrictive law in Texas that since September has banned abortions in that state after six weeks of pregnancy.


Coleman has attached the measure as an amendment to several abortion-related bills that have made it through committee and are waiting to be heard on the floor of the House of Representatives.


Abortion rights advocates say the measure is unconstitutional because it would effectively allow states to enact laws beyond their jurisdictions, but the Republican-led Missouri legislature has been supportive of creative approaches to antiabortion legislation in the past. The measure could signal a new strategy by the antiabortion movement to extend its influence beyond the conservative states poised to tighten restrictions if the Supreme Court moves this summer to overturn its landmark precedent protecting abortion rights.


“If your neighboring state doesn’t have pro-life protections, it minimizes the ability to protect the unborn in your state,” said Coleman, who said she’s been trying to figure out how to crack down on out-of-state abortions since Planned Parenthood opened an abortion clinic on the Illinois-Missouri border in 2019.

[...]

[cosmicaug]

Originally Posted by cosmicaug

https://successwithsahil.com/missouri-lawmaker-seeks-to-prohibit-residents-from-obtaining-abortions-out-of-state/

Similar tactic, different context (but related —ie. same general context of social conservatism):
https://twitter.com/ErinInTheMorn/status/1501314842992467975