Ruth Bader Ginsburg has died.

[grumbler]

Yeah. I think it's a solid attempt to set out a principled approach, but ultimately I think it does boil down to grievance and power. This does seem to be the line that's influencing Romney though.

I don't think it is a solid attempt at all.  It is weaseling on the principles in order to be able to support an outcome that ignores principles in favor of righting some vague historical grievances.  "Stab in the back" justifications don't promote principled behavior.

[Berkut]

You know what, sorry Beeb - but the "right to life" movement is, mostly, a fucking lie. It is something people can hold up and justify their support for racists, bigots, and "build that wall". It has nothing to do, for most of them, with actually caring one bit about abortion.

[Sheilbh]

I agree about Roe v Wade - but I would note it was a 7-2 decision. The two dissenters had been appointed by Nixon and Kennedy, while the 7 had been appointed by FDR, Ike, Johnson and Nixon.

I think the key judgement is actually Planned Parenthood v Casey because that starts the sort of meme of treachorous Republican-appointed judges. Because it went 5-4 and the majority included judges appointed by Reagan (2), Nixon, Ford and Bush while the four dissenters were appointed by Reagan, Bush and Nixon (2). So even an all Republican-appointed bench was not sufficient to overturn it.

At a certain point surely you query not if it's the judges that are the problem but the law. So just making more and more Republican judges might not be enough, you might need to campaign for a constitutional amendment to clarify that there is no right to privacy. Because surely if the courts keep coming back with the same answer you need to ultimately change the text to make it clear.

Of course one of the reasons people don't want to do that and focus on judges instead is that only about 30% of Americans want it overturned (even 68% of Catholics don't want it overturned):
https://www.pewresearch.org/fact-tank/2020/03/03/with-religion-related-rulings-on-the-horizon-u-s-christians-see-supreme-court-favorably/

[Sheilbh]

Yeah. I think it's a solid attempt to set out a principled approach, but ultimately I think it does boil down to grievance and power. This does seem to be the line that's influencing Romney though.

I don't think it is a solid attempt at all.  It is weaseling on the principles in order to be able to support an outcome that ignores principles in favor of righting some vague historical grievances.  "Stab in the back" justifications don't promote principled behavior.

I mean, what's the better principled approach?

[grumbler]

It all comes back to the original sin of Roe v Wade though, a case that creates a constitutional right to an abortion out of thin air (abortion certainly isn't mentioned in the Bill of Rights).

It all comes back to the original sin that conservatives pretend that the ninth amendment to the US constitution simply does not exist.  On the contrary, the right to privacy was so commonly accepted that the founders didn't see the need to explicitly mention it (nor the right to walk freely in public spaces, to claim parental authority over one's children, etc).

And, of course, there is no "right to abortion" no matter how the conservatives howl about it.  The state can restrict aborton under specified circumstances, after its interest in the fetus becomes manifest at viability.

So ordinarily if you don't like a certain public policy, you go and lobby congress, you fund raise and elect politicians.  You engage in electoral politics.

But because of RvW, your only outlet is to get the case overturned.  Which right-to-lifers have tried to do for 40+ years.  They've gone out and helped elect Republicans who have in turn appointed USSC Justices.  Over the last 40 years Republicans have appointed 10 Justices, compared to 4 by Democrats.  Yet RvW remains because a number of Justices just haven't been willing to vote down RvW when given a chance.

Like any other right, the right to privacy isn't subject to a legislative over-ride.  The state must make a compelling case that restrictions on the right to privacy are necessary and justified.  What conservatives want is to have the court eliminate the right to privacy to serve their own religious needs.

Look, I oppose trying to ram through an appointment during a lame duck session after what happened with Merrick because I don't think they understand the long-term implications.  But there's a perhaps understandable frustration from the right to life movement.

The anti-choice movement would be better-served if they focused their efforts on medical advances that allowed the extraction f a viable fetus from an unwilling mother, rather than on forcing the unwilling mother to carry the fetus to term.

[Barrister]

Of course one of the reasons people don't want to do that and focus on judges instead is that only about 30% of Americans want it overturned (even 68% of Catholics don't want it overturned):
https://www.pewresearch.org/fact-tank/2020/03/03/with-religion-related-rulings-on-the-horizon-u-s-christians-see-supreme-court-favorably/

Which is why I talked about the dog catching the car.  The implications of repealing RvW are... unclear.

You know what, sorry Beeb - but the "right to life" movement is, mostly, a fucking lie. It is something people can hold up and justify their support for racists, bigots, and "build that wall". It has nothing to do, for most of them, with actually caring one bit about abortion.

Those in the actual right to life movement generally seem pretty sincere in their beliefs.

There are those who are happy to use people in the right to life movement in order to advance whatever other policy goals they have.

[grumbler]

I mean, what's the better principled approach?

The better principled approach is to concede that the rules that applied to Scalia's replacement should apply to RBG's.  There is no principled approach to "the Constitutional duties of the senate depend on the partisan advantages to be gained by fulfilling or failing to fulfil them.

[DGuller]

I have a question about legalizing abortion in a legislative setting:  can it actually be done without getting Supreme Court involved anyway?  If Democrats get all three branches and legalize abortion legislatively, can be it overruled by Supreme Court on account of it violating some constitutional protection?

[Sheilbh]

Those in the actual right to life movement generally seem pretty sincere in their beliefs.

There are those who are happy to use people in the right to life movement in order to advance whatever other policy goals they have.

I know I always reference it but there's a really good Talking Politics episode on this with historian Sarah Churchwell:
https://www.talkingpoliticspodcast.com/blog/2020/214-the-great-abortion-switcheroo

In the final episode of our American Histories series, Sarah Churchwell tells the incredible story of the politics of abortion during the 1970's.  How did evangelicals go from supporting abortion to being its die-hard opponents, what did the switch have to do with the politics of race and what have been the lasting consequences for American democracy?

[Barrister]

Those in the actual right to life movement generally seem pretty sincere in their beliefs.

There are those who are happy to use people in the right to life movement in order to advance whatever other policy goals they have.

I know I always reference it but there's a really good Talking Politics episode on this with historian Sarah Churchwell:
https://www.talkingpoliticspodcast.com/blog/2020/214-the-great-abortion-switcheroo

In the final episode of our American Histories series, Sarah Churchwell tells the incredible story of the politics of abortion during the 1970's.  How did evangelicals go from supporting abortion to being its die-hard opponents, what did the switch have to do with the politics of race and what have been the lasting consequences for American democracy?

Can't listen to a podcast at work, but I did note the weird switcheroo some of them have done on birth control over that time period.

[Sheilbh]

Can't listen to a podcast at work, but I did note the weird switcheroo some of them have done on birth control over that time period.

It's interesting. Basically in 1968 Teddy Kennedy and other Democrats (a party with a lot of Catholic immigrants) are pro-life, while Christianity Today (then still Billy Graham's magazine and the premier magazine of Evangelicals) prints that abortion wasn't sinful and that ending a pregnancy was a matter of individual health, family welfare and social responsibility. By 1978 those positions are reversed.

And some of that change reflects real evangelical feelings after Roe v Wade, but some of it is also the result of quite cynical political entrepreneurship by Evangelical leaders and conservatives who were looking for a way to activate/unite social conservative voters against an over-reaching progressive Federal government/Federal courts (in part because of issues around segregated Christian academies) and on the other side Democrats moving from the party of Catholic immigrants to the party of women.

[Grey Fox]

It's not about abortion, it's about women deciding to have an abortion. Agency is the issue.

[OttoVonBismarck]

I consider myself pro-life and always have, but how that intersects with the law is a different thing. One of the great lies of the politicized pro-life movement is more or less that abortion was invented out of whole cloth when Roe was decided. In fact of course, abortion has been practiced in varying ways for thousands of years. While the numbers are obviously very speculative, I've read that in some years in America immediately prior to Roe, they think anywhere from 200,000 to 1.2m illegal abortions were happening every year.

In modern times something like 40% of all abortions in America are done via the two-pill combination of mifepristone and misoprostol, there is strong reason to believe barring the effects of Roe v Wade, it would be even more difficult for red states to prevent its citizens acquiring these drugs than they could prevent women from getting in-person abortions in the 1960s. You have to do some really draconian shit to really go after the practice of abortion, things like raids, mass arrests of women and doctors and nurses etc. It almost certainly will happen some early on, and cause such profound political blowback it will cease very quickly, and we will get to a point where in red states you have about as much trouble acquiring an abortion as you do acquiring marijuana, which is to say it's not trivial if you don't already know someone, but it's not exactly hard either.

To some degree I almost wonder if Roe being overturned would be a net good. I actually don't agree with the jurisprudence of Roe, I do agree there is a right to privacy, and I do agree the state should be very limited in its ability to inject itself into the doctor patient relationship. However I also think when you start doing things like breaking down the trimester framework established in Roe, or the rights-weighing/viability framework laid out in Casey, the courts got pretty deep in the weeds on this issue and it's a sticky issue. I'm not at all convinced it was correct law, and I'm quite certain it was societally better for America had it been decided by legislatures instead of judges.

On some level the Fascists that took over my former political party should probably fear a real overturning of Roe, from a craven political standpoint the GOP actually benefits more from the "issue" than they do "winning" it. Unlike tax reforms and other political issues where winning is the reward and you reap benefits, the party actually loses a lot from winning the abortion debate because the boogeyman of Roe is gone and you're left having to advocate far more unpopular policies--like laws that try to force blue states to ban abortions, and efforts to try to criminalize crossing state lines to get abortions and etc.

[Zoupa]

I guess the GOP has the votes then.

In a scenario where the Dems win the WH and a majority in the Senate, I hope they pack the court. It's no use trying to find common ground with an arsonist.

[The Minsky Moment]

The work of the Supreme Court involves a lot more than deciding abortion cases, it decides other matters of great consequence.  The right's obsession with overturning Roe has had significant and malign impact on the Court.  For a while it means finding justices who not only strongly believe Roe was wrongfully decided but are willing to break with decades of established and elaborated precedent.  It means finding someone who is hardline and ideological and activist, because a regular small "c" conservative judge like Souter, O'Connor, Kennedy or Roberts won't do that. And that means packing the Court with hardline activist, right wing ideologues who are right wing ideologues on everything from speech rights to religion and state to guns.

And what you get when you do that is a Court that will say that states have the right to force women to carry all pregnancies to term even if it literally kills them, but will also rule that the same states are helpless to prevent corporations funneling millions in bribes to politicians or from preventing everyone from carrying AR-15s onto a crowded subway.