Republicans have been arguing for decades that Roe was wrong because it took abortion from the fora in which it should have been decided: states. Alito's draft decision says the same thing: stop the overreaching supreme court from usurping the states' powers to decide their own affairs.

The problem with that logic is that the Alito proposal doesn't do anything of the sort. What it does do is eliminate the right--and possibly the rights to contraception, interracial marriage, and the right to engage in some normal consensual sexual activities in or outside of marriage--and subjects them to normal legislative processes. Once the constitutional right is gone, it's not just the states that can prohibit abortion: it's also the federal government.

Note in this context McConnell's statement that Congress may ban abortion nationally. This puts the lie to all that states rights nonsense. Republicans don't care about states' autonomy; they don't care about the constitution. What the GOP really stands for "big government," meaning a central government that dictates morality to everyone no matter where s/he lives.

"If the leaked opinion became the final opinion, legislative bodies — not only at the state level but at the federal level — certainly could legislate in that area," McConnell said. "And if this were the final decision, that was the point that it should be resolved one way or another in the legislative process. So yeah, it's possible."

I applaud McConnell's newfound frankness. He's a lot more honest than Alito and Thomas and Kavanaugh and Amy Handmaid Barrett and Gorsuch. What their decision would do is enable the Republican majorities likely to emerge from the November poll to ban abortion nationally.



Edited 3 time(s). Last edit at 05/08/2022 03:57AM by Lot's Wife.

We're turning into Saudi Arabia.

When they say States' Rights they mean the wishes of the electorate. Which is fine if everybody gets to vote. But as essential part of their strategy is to ensure that great segments of their residents are not permitted to vote. That is the flaw in their rhetoric.

Oh, wow. I don't know what can be done, but something must be done.

I am (believe it or not,) a registered Republican, and have been for many years. I normally mix my votes, and have found it more interesting to be a Republican in a blue state. I like and approve of our Republican governor.

But, I'm done. I will be switching parties, and I will never again vote for any Republican, no matter how local or small the race. I can't. I'm out. I refuse to participate in my own oppression as a woman, or to see others oppressed.

You've earned your honorary ex-mormon patch.

I just went through my votes in presidential elections. I never considered myself a member of either party, and it turns out I actually voted for the Republican candidate one more time than the Democrat. The reason for that slight imbalance was a belief that the GOP was better on economics and geopolitics.

But that GOP doesn't exist anymore. The only thing the present Republican Party has in common with its predecessor is the name; and nihilistic populism stinks no matter what you call it.

Thank you for that important post.

Recently when there was a Senate vote coming for voting rights, I wrote to my Senators (hey, it's what old people do). I explained my concerns. His response was a long prepared document about STATES RIGHTS, ignoring everything about the systematic changes to discourage or override voting. He went on and on quoting a county case in Alabama for his justification.

It disturbed me even more, because I lived in Alabama where my friends said they were spoon fed states rights to block out the moral problems with slavery.

I'm seeing that often "states rights" is a diversion to distract from atrocious acts they want to enforce any way they can. At least Mitch realizes he doesn't even need to try and cover up what they are doing anymore.

I'm feeling very triggered today after seeing on the news that the Taliban has ordered women to cover faces in Afghanistan. The few women who leave their homes are wearing a full gunny sack. It's absolutely sick. The Christo-Taliban tactics here should be taken seriously.

Sorry to ramble, but here in Idaho, the legislature is working on taking away legal birth control. They will go as far as they can go, and once they get power, they rig everything to keep it. They think they are doing great things for Mother's Day. It's terrifying.

I'm terrified right along with you. And yes, I was very disturbed by what's going on in Afghanistan as well. I wish we could arm the women there.

<<I'm feeling very triggered today after seeing on the news that the Taliban has ordered women to cover faces in Afghanistan. The few women who leave their homes are wearing a full gunny sack. It's absolutely sick.>>

Once they've been trained the argument will be that they have the right to choose, so banning the practice will be opposed by some under the guise of freedom.

Lottie, if anti-abortion legislation is ever passed on a Federal level, could states and/or local governments simply refuse to enforce it (in the same way that certain cities are "sanctuary cities" when it comes to illegal immigration?)

I could definitely see Maryland taking that route.



Edited 1 time(s). Last edit at 05/08/2022 11:42AM by summer.

If such a federal law were passed enforcement would be the responsibility of the US DOJ, not the states. The local US attorney would be the one prosecuting any cases, not the local prosecutor.

When the Red Cross is running a little short, I'm sure the Republicans won't mind if we round them all up, strap them to a table, and exsanguinate them for a bit, whether they like it or not.(I dont preclude the possibility that Madison Cawthorn will be down with it.) After all, bodily autonomy is meaningless if "life" is on the line, right?

Exactly. This is about "states' rights" as much as the Civil War was about "states' rights." Anyone who claims this is about leaving it up to the respective states is either a fool or lying.

It can't happen until at least 2025 though. The christianazis would have to hold all three branches to ram it through, and then only after Mitch ended the filibuster.

With half the country actively working to undermine and subvert the new law, the additional government machinery required to enforce it would be astonishing. Would there be border control agents and TSA personnel with ultrasounds to ensure that no woman leaving the country is pregnant? X-raying all packages to ensure that morning-after pills aren't being shipped in from India or Canada? China-style internet restrictions to prevent ordering contraceptives? Measures like those are precisely the "communism" that the right-wing screaming heads are forever accusing the left of supporting.

I can confidently make one prediction should this dystopia actually come to pass. There will be unforeseen consequences that will come back to bite its proponents. There always are. Be careful what you wish for, conservatives. I'm reminded of a Spock quote from the original Star Trek: "After a time, you may find that having is not so pleasing a thing after all as wanting. It is not logical, but it is often true."

>>Be careful what you wish for, conservatives. I'm reminded of a Spock quote from the original Star Trek: "After a time, you may find that having is not so pleasing a thing after all as wanting.

Normally I would agree with this, but that's not how it works. Conservatives in charge will get abortions. They will pull the "laws for thee but not for me" routine. They will simply continue to use religious less educated masses to keep power and the status quo.

I think conservatives feel especially emboldened now to go as far as they can because they have sufficiently loaded the state legislatures to do anything needed to override opposing votes. They learned well from the last election how to avoid mistakes this time. Jeez, I hope I am wrong.

I fully agree that conservatives, at least those with money, will be able to get their abortions. I wasn't talking about that.

I meant something like what happened in California. Remember Prop 187? The Republicans were all in, and it passed. Yay for them, right? But the longer-term consequences for them were disastrous. It was the beginning of the end of the GOP in CA. They obviously didn't anticipate that. Same with Prop 8 and the mormon church. It passed, but the church has never recovered.

There will be significant and long-term consequences of this, and not at all good for conservatives. 15% of the country (and by that I mean the shrinking fundie christian right) cannot keep the other 85% down indefinitely.

This will turn out much like Prohibition, i.e., an epic failure. And Prohibition had the added teeth of being an actual Constitutional amendment. Will there be damage and misery along the way? Sadly, yes, a lot. But like Prohibition, it will end at some point, and those who suffered through it will know exactly which faction took their rights away and will act accordingly.

I hope that you are right about that.

Conservatives don't seem to understand that a lot of things they take for granted are now on the table. It's not all about abortion.

synonymous, I don't think enforcement will be that difficult.

Many if not most laws are successfully broken all the time. Even if only enforced occasionally, a law can still deter violation. Recall also that many of the laws under consideration include a bounty-hunter provision that anyone can sue a person involved in an abortion, be that the woman, her doctor, the person who drives her to the Planned Parenthood facility, or the person who provides the money. Astonishingly, the supreme court has not indicated that those enforcement mechanisms are unconstitutional.

The laws as adopted by the most conservative states would succeed in their two goals: making abortions much more difficult to obtain and showing the Lord Jesus Christ that his servants love him.

The Texas law, if I understand it correctly, applies only to abortions performed within the state. Granted, some red states are trying to figure out ways of extending their bans beyond their own borders, which again puts the lie to the "states' rights" fig leaf; but blue states are and will be actively working to provide protections against that. Red states recognize the limits of their approach, thus the push to criminalize federally.

The 1984-style enforcement I was discussing was what might be on the table if it were to be federalized. Not practical, and in my view not really sustainable.

I'm not trying to minimize this. I acknowledge that the very existence of the law, and fear of prosecution, would act to some degree as a deterrent, hence my comment about "damage and misery." But it would galvanize many others to deliberately subvert it, come what may.

Finally, I'd like to go back to your statement: "Many if not most laws are successfully broken all the time." Agreed, including this one, should it pass.

There are multiple bills in Missouri and Idaho and other places that seek to illegalize abortions performed in other states, and if the Christo-fascists (I've never used that term before but find it increasingly appropriate) win on the national level I'm confident they will attempt to do the same federally. For what is a federal law but the right to enforce rules across state lines?

I was astounded when, in refusing to enjoin the Texas and Mississippi (?) laws the supremes did not even block their bounty hunter provisions. The court apparently did not see reason for concern in the privatization of enforcement. What is important about this is that in civil law individuals can seek redress for what happens in other states--and the new anti-abortion laws offer financial rewards which are closer to civil law than criminal. I don't think we can presume this supreme court will stop private enforcement or interstate enforcement.

Yes, this law will absolutely be violated--perhaps as much as half the time. But a lot of those violations will occur underground and result in the maiming and death of countless women. I agree with you that eventually the presumed Alito decision will be overturned and yet that is unlikely to happen until decades from now.

In the meantime we will have to live with the official dehumanization of women in matters not only of abortion but also more generally. I don't want my granddaughters, should I be blessed with any, to have to live in a society that denies them the rights to bodily autonomy that men enjoy. That message is just too damaging.

What is interesting is what some in red states are trying to do to stop their constituents from going to blue states to have abortions. In Missouri, a proposed bil, sponsored by a female state representative no less, would allow for private individuals to sue anybody, including other states, if that individual believes that somebody got an abortion in that other state. Since the U.S. Supreme Court let the Texas law stand that allows private individuals to do this (at least for medical establishments and other private individuals), why shouldn't Missouri and other red states take the same tack. The expert prediction (and I agree with this) is that you are going to see a lot of court fights with states suing other states, much like what happened that led up to the Dread Scott decision and which led ultimately to the U.S. Civil War.

A country divided against itself like this cannot long stand.

So much for states' rights --

https://www.huffpost.com/entry/mitch-mcconnell-national-abortion-ban-possible-roe-v-wade_n_62772e80e4b0b7c8f0851155

Hopefully this will motivate Americans to vote again!

Limited government. Individual freedom. Except if it involves these peoples "deeply held religious beliefs" then they're going to attempt to dictate how everyone lives.

why do you keep bringing up the same subject over and over again ad nauseum?

I think she posted more words in this thread than you do in 10 of yours. Funny how you can call a pot dark matter.

I'm not sure I've posted ten threads on RfM in total.

For ideologues hypocrisy is a way of life.

@18:35
Tribe is a constitutional scholar, Harvard Law
https://topnewsshow.com/alex-witt-reports-5-8-22-1pm/

This is not politics.
It's about our liberty.

In a thread subsequently deleted, someone quoted a source arguing that if liberals had been wise, they would have used the last 50 years to codify Roe in law.

This strikes me as the dumbest thing said on this site for some time. In the first place, constitutional rights do not require protective legislation. There is no need to pass a law saying everyone has a right to freedom of speech or to habeus corpus or to be free from unlawful search and seizure. Embodying in laws rights that are already guaranteed by a constitution is ridiculous.

In the second place, what would the point be? 51% of the House and Senate can, with the president's tacit approval, overturn a law. Why would that be more secure than a constitutional right? In what sense is that more secure than constitutional status?

Will Mormons save the constitution? Does Mitt Romney even know how to ride a white horse?

He may need to borrow yours, bradley!

If abortion is important enough for woman to have the right at the federal level then it shouldn't take long for a bill to appear, be voted on and signed into law.The proposed bill must have been on a shelf somewhere in d.c. for 40 years.

I have my suspicion that the bill won't happen despite all the primal scream stations in New York City.

It's scheduled for a vote in the senate on Wednesday.

Don't worry. We have a cut-up wire coat hanger all ready to shove up your a**.



Edited 1 time(s). Last edit at 05/10/2022 12:23AM by Tevai.

I never thought I'd see the day. . .

The next thing you know, Nightingale will let fly with "darn!"

Well, I *am* an urban teacher. In this line of work, you either toughen up fast, or get bullied out of the classroom. You haven't seen the half of it. :)

It's bad when California, Massachusetts,or New York want clean air, clean water, or inclusive textbooks.

It's good when Texas, Alabama, Mississippi, or South Carolina want to end pollution regulation, force school prayer, state funding of "christian" academies, and pass anti‐LGBTQIA+ legislation.

"Once the constitutional right is gone, it's not just the states that can prohibit abortion: it's also the federal government."

COMMENT: This is just flat out wrong! Here is one of the best reviews I have found on the current status of abortion rights:

https://theconversation.com/what-would-it-mean-to-codify-roe-into-law-and-is-there-any-chance-of-that-happening-182406?msclkid=1acf8549d08911ecba0e44900f5485c1

"Should Congress be able to pass a law enshrining the right to abortion for all Americans, then surely some conservative states will seek to overturn the law, saying that the federal government is exceeding its authority."

"If it were to go up to the Supreme Court, then conservative justices would presumably look unfavorably on any attempt to limit individual states’ rights when it comes to abortion. Similarly, any attempt to put in place a federal law that would restrict abortion for all would seemingly conflict with the Supreme Court’s position that it should be left to the states to decide."

Just what I previously stated in the other thread. McConnell (and Schumer) are merely blowing smoke for political power.)

Is that the best you can do?

I challenged you to find experts on constitutional law who agreed with your position. You went away for a day and now come back with Linda McClain who, according to her own official biography, "is known for her work in family law, gender and law, and feminist legal theory." She's not an expert in constitutional law.

What you have done is like going to an podiatrist for brain cancer, or to someone with a degree in philosophy for science.

As I stated before, the supreme court will give us the answer to the question within the next five or six months. We'll see then whether your understanding of the difference between precedent and dicta is correct.



Edited 1 time(s). Last edit at 05/10/2022 04:06PM by Lot's Wife.

These are basic Constitutional law principles. There is nothing controversial about it. The Supreme Court's mandate indicates that it can overturn any legislation--state of federal--that violates the Constitution. This can be found in as a basic principle in any Constitutional law textbook.

Alito's decision expresses the view of the majority that the abortion question is Constitutionally a matter to be resolved by the states. Therefore, the SC could (and the current conservative Court likely would) overturn any federal statute that usurped what was in their stated view within the parameters of states' rights. It is simple law, and simple logic.

Thus, what I said, and what the linked article said is fundamentally correct. What you said is just outright wrong, as any first-year law student would know. It is as simple as that.

Your entire thread is built upon a false premise and bad legal analysis, notwithstanding your definitive "expert-suggestive" language. Virtually nothing in the OP is correct.

Henry, we'll see.

You have for once given us a falsifiable proposition: that the Alito draft prohibits the federal legislature from either allowing abortion or forbidding it nationally.

All your bluster and your citations to family law attorneys don't matter. The decision will issue in several weeks, either this Congress or the post-November one will enact a national law, and the supreme court will then be confronted with the issue.

Within a year, we'll know which of us is right and which wrong.



Edited 1 time(s). Last edit at 05/10/2022 05:22PM by Lot's Wife.

https://www.bbc.com/news/world-us-canada-61311966

https://reason.com/volokh/2021/11/29/why-the-14th-amendment-does-not-prohibit-abortion/


Why the 14th Amendment Does Not Prohibit Abortion
The argument made by Finnis, George, Hammer and others, that abortion is unconstitutional is not supported by text or history.
JONATHAN H. ADLER | 11.29.2021 4:24 PM

On Wednesday, the Supreme Court will hear oral argument in Dobbs v. Jackson Women's Health Organization, in which the justices will reconsider the extent to which the Constitution protects a woman's right to terminate her pregnancy.

Because the law in question is incompatible with the "undue burden" standard as articulated in Casey and subsequent cases, much of the briefing focuses on whether Roe and Casey were correct as an original matter, and (if not) the extent to which principles of stare decisis counsel upholding, modifying, or overturning those decisions. I suspect such questions will dominate the oral argument on Wednesday.

Some Pro-Life advocates have more more ambitious aims. They argue not only that Roe was wrong as an original matter, but also that the Fourteenth Amendment, properly interpreted, protects unborn life and prohibits abortion. This is the argument made in this amicus brief filed in Dobbs on behalf of John Finnis and Robert George and this Finnis article in First Things. This was also an argument made by Texas in Roe, but not one that has ever attracted even a single justice's vote at the Supreme Court.


Last month, I was asked to debate this question with Josh Hammer by the University of Chicago student chapter of the Federalist Society and UChicago Law Students for Life. It was a fun event in front of a packed house. The remainder of this post (after the break) summarizes my argument for why the Fourteenth Amendment does not prohibit abortion.


In order to argue that the 14th Amendment prohibits abortion, one needs to establish two separate propositions: 1) That the unborn are "persons" within the Fourteenth Amendment; and 2) That the failure of a state to prohibit abortion constitutes a denial of either Due Process or Equal Protection. Both are necessary to sustain the argument, but in my view, the Constitution's text, structure and history do not support either.

Let us start with the text. The 14th Amendment extends Due Process and Equal Protection to all persons. Privileges and Immunities, on the other hand, are only extended to citizens, and only those "born or naturalized in the United States" are citizens. As most originalists believe it is the P-or-I clause that is the source of substantive rights under the 14th Amendment, an originalist could stop here and conclude that the 14th Amendment does not extend any substantive rights to the unborn.

Setting aside the P-or-I question does not help much, as there is little in text or history to suggest that the unborn are persons within the meaning of the Constitution. The term "person" is used throughout the Constitution, including elsewhere in the 14th Amendment, and regularly in ways that can (and have always) only applied to those already born, such as Section 2 of the 14th Amendment, which bases apportionment on "the whole number of persons," and makes reference to an individual's age, which has always been counted from birth, not conception.

Some counter that if "persons" is a capacious enough term to include corporations, then it can include the unborn as well. This counter fails on two fronts. First, corporations are not considered persons for all constitutional purposes, and second (as Ed Whelan notes here), the reason for sometimes considering corporations to be persons is because (as the Supreme Court has explained) corporations "are merely associations of individuals united for a special purpose." Accordingly, where denying constitutional rights to a corporation would require denying rights to a collection of individuals, those rights are protected, but otherwise they are not (which is why, for instance, not all rights protected by the 14th Amendment apply to corporations).

All we will see is whether Congress (one side or the other) manages to enact a federal statute that regulates abortion. (Highly unlikely) If it *does* happen, then we will see whether any state challenges the legitimacy of that statute. (Probably likely) Then we will see what the SC's ruling is as to the legitimacy of that statute. That will depend upon statutory language and most importantly the make-up of the Court at that time. The Alito draft--with its emphasis on states' rights--is an indication that the current Court would overturn such a statute.

BUT IN NO CASE WILL ANY OF THIS CHANGE THE BASIC PRINCIPLES I HAVE OUTLINED ABOVE, WHICH IS THAT ANY FEDERAL STATUTE ON ABORTION IS SUBJECT TO BEING OVERTURNED BY A SC THAT BELIEVES THAT ABORTION RIGHTS IS A MATTER FOR THE STATES. What actually happens will not and does not change this basic Constitutional law principle.

Contrary to your assumptions, you do not know more about Constitutional law than Justice Alito (see your other thread on this topic), or his high-level law clerks, or me. Even though I am not a Constitutional law attorney or scholar, I took Constitutional law in law school, which is all one needs in order to arrive at the basic analysis I have outlined here. It is not a matter of 'who knows constitutional law better.' It is very apparent that you do not know it at all.

You took one course in constitutional law? How long ago was that, Henry? First year of law school in the 1970s? 1960s?

-------------------
> BUT IN NO CASE WILL ANY OF THIS CHANGE THE BASIC
> PRINCIPLES I HAVE OUTLINED ABOVE, WHICH IS THAT
> ANY FEDERAL STATUTE ON ABORTION IS SUBJECT TO
> BEING OVERTURNED BY A SC THAT BELIEVES THAT
> ABORTION RIGHTS IS A MATTER FOR THE STATES. What
> actually happens will not and does not change this
> basic Constitutional law principle.

Good try.

You asserted that the Alito decision means that any federal law on abortion would be overruled because Alito said he is sending the issue back to the states. Therefore, if the Roberts court decides that a national law on abortion is permissible, it will have demonstrated that you are wrong.


-------------------
> It is not a matter
> of 'who knows constitutional law better.' It is
> very apparent that you do not know it at all.

What is your basis for making that statement? I may have gone to law school; I may have taken constitutional law courses while in some other degree program; I may just have read a lot about constitutional law. You really don't know.

The bottom line is that you have taken a position that is falsifiable. We will soon see who has a better grasp of this topic.

Just so we know what you originally asserted, here it is. . .

"The Alito draft opinion that rejects Roe v. Wade includes language consistently indicating that this is a state matter, and not a federal matter. . . As such, if Congress were to pass either a pro-abortion law, or an anti-abortion law, it would be a usurpation of state rights, and thus would be rejected as unconstitutional."

https://www.exmormon.org/phorum/read.php?2,2427973,2428144#msg-2428144

You are trying to back away from that now by saying that whatever the supremes decide, you are still right. But that's just sophistry.

Your rejection of my analysis is based on the proposition that under the Alito decision, a pro- or anti-abortion federal law "would be rejected as unconstitutional."

We'll see if that is right.



Edited 1 time(s). Last edit at 05/10/2022 06:09PM by Lot's Wife.

LW, while I fully agree with you that Henry's confidence in SCOTUS is badly misplaced, IMHO your timing is off. Even if (as I expect) both the House and Senate flip in November, neither McConnell nor the new Speaker will have the 2/3 majority required to overrule a presidential veto.

Assuming they do flip, in 2023 the House can (and probably will) pass a bill on strict party lines; the Senate may pass a bill, but only if Mitch nukes the filibuster (he won't have 60). But whatever passes Congress will die on Biden's desk, and there won't be a new national law to reach SCOTUS.

Then, of course, everything resets in 2024-25. If you think my reasoning is off, please let me know.

I think you're right. We may have to wait until 2025 to get the answer.

Parenthetically, the odds are high that McConnell will carve out an exception in the filibuster rule for abortion. He's already done that in several areas, including judicial nominees, and he's not the sort to suddenly discover scruples.

It's times like these that I tell myself I will go ask Soft Machine to put me up in France so I can search for a flat somewhere, where I can take shelter and live in a proper country again.

I hear you on that. I'd love a country that realizes that everyone needs an education, healthcare, etc., and that people do not need enough weapons to stock a small army.

Wouldn't that be nice? Apparently we are regressing. Will we be back to the Salem witch trials in 100 years?

HEY! I thought we were moving to Italy :)

That's where I'm going!

I still hope to. Or Portugal. I wanted the UK, but they did away with the visa that allowed American retirees to live there. But I'm dealing with a lot of push-back by family for just talking about it. They're always like, "This is the US. Nothing bad can happen here."