Supreme Court has voted to overturn abortion rights, draft opinion shows

[CountDeMoney]

This is just step one. Step two is making allowing abortion unconstitutional.

Breaking
Business
Republicans Will Try To Ban Abortion Nationwide If Supreme Court Overturns Roe V. Wade, Report Reveals

Updated May 2, 2022, 02:20pm EDT
Alison DurkeeForbes Staff

Topline

The fight over abortion restrictions could soon go from statehouses to Capitol Hill, as the Washington Post reports Republican lawmakers and anti-abortion rights activists are working to enact a federal abortion ban if the Supreme Court overturns Roe v. Wade this summer as expected and the GOP regains control of Congress.

Key Facts

Republican senators have met to discuss legislation that would ban abortion nationwide, Sen. James Lankford (R-Okla.) told the Post, and Sen. Joni Ernst (R-Iowa) would reportedly likely introduce the bill.

Anti-abortion groups like the Susan B. Anthony List are working to garner support for the legislation, and have met with Republican contenders for the 2024 presidential nomination about such a ban, including former President Donald Trump.

"Most of" the potential candidates support the ban and would make it a "centerpiece" of their campaign, Susan B. Anthony List president Marjorie Dannenfelser told the Post.

A federal abortion ban could restrict the procedure as early as six weeks into a pregnancy, based on current proposals, with anti-abortion advocates believing a 15-week ban wouldn't go far enough.

While many states are already taking steps to ban abortion—even before the Supreme Court rules—a federal law would stop those seeking abortions from being able to obtain one by traveling out of state, and overrule legislation in Democratic-led states that enshrines the right to the procedure.

Crucial Quote

A coalition of anti-abortion groups led by Students for Life Action wrote to every GOP lawmaker in Congress Monday, calling this a "pivotal moment in which almost anything is possible" when it comes to abortion restrictions. "We ask you to join us in ensuring that the strongest measures possible are employed" to ban abortions, the letter reads.

Chief Critic

"By [Republicans] saying out loud that their goal is to push a nationwide abortion ban, it makes it clear that we have to elect more pro-reproductive health champions on the national level and in the states," Planned Parenthood Action Fund executive director Kelley Robinson told the Post, calling the federal proposal "terrifying."

Big Number

60%. That's the approximate share of Americans who oppose Roe v. Wade being overturned, according to multiple recent polls. Polling has consistently shown a majority of Americans support legal access to abortion, though higher shares are willing to back restrictions on the procedure later into a pregnancy.

What To Watch For

Whether Republicans will get the chance to take action. The Supreme Court is now deliberating in a case on Mississippi's 15-week abortion ban, which will broadly consider whether states can restrict abortion. A ruling is expected by late June, when the court's term wraps up, though issuing decisions could stretch into early July. Justices signaled during oral arguments that they're likely to side with Mississippi, but it still remains unclear whether they'll narrowly uphold the 15-week ban or go further and overturn Roe v. Wade entirely. Republicans' fate will then depend on the midterm elections in November, where the GOP stands a chance to take back the House and Senate.

What We Don't Know

Whether a federal abortion ban could actually be enacted, as even if Republicans gain control of Congress, they still face long odds. An abortion ban would need 60 votes to pass the Senate, which remains unlikely, as the Post notes even some GOP lawmakers could vote against the ban. Even if it passes, any legislation would likely be subject to legal challenges.

Key Background

The potential federal ban comes as Republican-led states have become increasingly emboldened to take action against abortion as the Supreme Court decision looms. States enacted more than 100 abortion restrictions in 2021 alone, according to the pro-abortion rights Guttmacher Institute, with another 33 so far enacted in 2022 as of April 15. Texas imposed the most severe restrictions in the U.S. since Roe v. Wade was decided in 1973 when its six-week abortion ban took effect in September, which courts have so far allowed to stand. Idaho and Oklahoma have already followed Texas by passing similar bans of their own, in addition to a separate Oklahoma ban that makes performing an abortion a felony. Idaho's measure has been blocked in court, however, as has a law in Kentucky that effectively banned all abortions in the state.

[Valmy]

That doesn't sound like a compromise...

[CountDeMoney]

That doesn't sound like a compromise...

[The Minsky Moment]

Is there any legal meaning behind justices exclaiming over and over that their reasoning is only applicable to some narrow interpretation?

How does that even make any sense? If I say that all rectangles have four sides, therefore a square must be a rectangle, saying that you should not apply that same principle to a trapezoid doesn't make any sense.

Roe was based on the recognized right to privacy. If you are arguing that Roe was bad law, then how can you argue that the recognition of a right to privacy is not ALSO bad law?

Exactly so.  And Alito's draft isn't just saying it is "bad law" he is saying it is "egregiously wrong."

This isn't 1973 anymore, there is now an entire edifice of constitutional law built around recognizing the limits of state power to invade indvidual autonomy and privacy - prohibiting the state from meddling in the choice of marriage partners, from policing the use of safe contraceptives, prying into the sexual positions and acts of consenting adults, even interfering in parental rights in choosing the education of their children. If you pull the privacy strand, the entire body of law unravels.

The answer to "Is there any legal meaning behind justices exclaiming over and over that their reasoning is only applicable to some narrow interpretation?" is yes - the meaning is that as of the day the opinion is issued, its effect applies only to that issue.  But that is so until all the other shoes drop, and those are just a handful of ~$150 case filing fees away.

The way Alito deals with this question in the draft opinion is telling.  He doesn't say that the other privacy cases remain good law and by his legal reasoning they cannot be.  Instead, he engages in a gedankenexperiment: assuming "for the sake of argument" that the other privacy cases remain good law, it is still theoretically possible to overturn Roe.  He argues yet but the reasoning defies common sense and lacks logical coherence.  The distinction is:

1) The right to choose was not widely recognized historically at common law or the early Republic.  But even if true (a historically contested fact that leads Alito to dump a cartload of moldy 19th century statutes onto the end of the opinion) that obviously does not distinguish Roe from the other privacy cases - plenty of states had laws about sodomy, "miscegnation", etc.  More generally, conditioning a constitutional right to privacy on the perquisite of a long historical pedigree of state power respecting those rights renders those protections close to meaningless - is essentially limiting protected individual rights to those rights that states don't bother trying to infringe.

2) The right to choose is unique in that its exercise threatens another life.  But it makes no sense that a legitimate right simply disappears because there is a significant consequence on the other side.  Rather, the presence of countervailing values simply means that the competing rights need to be balanced.  But that is exactly what Roe and Casey did and what Alito's draft is eliminating.

[crazy canuck]

I blame Malthus' aunt.  For some reason she thought it was a good idea to give right wing religious folks an aspirational goal.

[The Minsky Moment]

IIRC, from the first comments on the draft that appeared last night, somebody commented that as part of the arguments in favour of limiting abortion was a proposal from one of the justices (Barrett, I think), about reforming adoption processes in order to establish "no questions asked" surrenders of newborns from mothers that wouldn't be able to properly take care of their babies, which also included "the increased demand for adoptions" as part of the rationale for restriction abortion.

Barrett raised the issue in oral argument.
It testifies to the bubble of cosseted self-delusion in which these people live that adoption safe havens would be viewed as "solving" the problem.

[Zanza]

IIRC, from the first comments on the draft that appeared last night, somebody commented that as part of the arguments in favour of limiting abortion was a proposal from one of the justices (Barrett, I think), about reforming adoption processes in order to establish "no questions asked" surrenders of newborns from mothers that wouldn't be able to properly take care of their babies, which also included "the increased demand for adoptions" as part of the rationale for restriction abortion.

Barrett raised the issue in oral argument.
It testifies to the bubble of cosseted self-delusion in which these people live that adoption safe havens would be viewed as "solving" the problem.

The underlying idea that a pregnancy has no impact at all on the mother and the only reason why a woman might want an abortion is that she does not want the child is especially bizarre coming from a mother of seven...

[crazy canuck]

Every sperm is sacred

[The Larch]

coming from a mother of seven...

Five biological (one of them with Down's syndrome), two adopted. She's hard-core anti abortion.

[Barrister]

Hans always assured us that without Roe we would all song kumbaya and work out some delightful legislative compromise we could all live with. Well...here it is dude. I look forward to all the compromising and level headed legislating to come.

And I suspect medium to long term that is what is going to happen.  But the short term is going to be ugly.

over 50 years all kinds of powerful lobby groups have grown up around the abortion issue, primarily wanting Roe v Wade to be repealed.  But of course those groups aren't going to close up shop once they've won - they have to justify their existence by pushing for more restrictions.

But I do feel like attempts to fully ban abortion will not go over well...

[Valmy]

I have yet to see the US mellow on cultural issues. But we'll see.

[grumbler]

What rankles me, is that the same anti-abortionists cease their support as soon as the child is in the world. Can't afford support yourself and your kid? Shouldn't have gotten pregnant. Uninsured and have to pay the doctors etc. for the delivery? Shouldn't have gotten pregnant. Can't afford to take time off work after birth, and have no one to look after your kid? Shouldn't have gotten pregnant. Also, we'll make sure you have limited access to contraceptives. You slut.

It has been obviouis for years that "anti-abortion" is a dogwhistle for "anti-sex."

[Jacob]

Looks like the vast right wing conspiracy is really delivering the goods.

[Barrister]

I have yet to see the US mellow on cultural issues. But we'll see.

Gay rights and gay marriage.
Segregation.
Gambling.
Sunday shopping.

And it's only tangentially a "culture war" issue, but think about Obamacare, how vociferously it was fought, yet a decade later there's no serious moves to repeal or replace it anymore.

[Jacob]

Gay rights and gay marriage.

They're coming for this.

Segregation.

They'll nibble at the corners here too. Not in a straight up "it's public policy", but in support of "voluntary" / "exclusive membership" segregation.

Gambling.
Sunday shopping.

Yeah this is settled, I agree. But while this is a fundamentalist Christian position, it's never been part of the culture war. That was settled before the Evangelical Right was even founded, and that's what kicked off the culture war as a political concern.

And it's only tangentially a "culture war" issue, but think about Obamacare, how vociferously it was fought, yet a decade later there's no serious moves to repeal or replace it anymore.

Obamacare was fought vociferously because the GOP oppose the Democrats reflexively nd because they hate Obama specifically. It was also opposed because it's against GOP orthodoxy to do anything helpful for poor people, unless it can be limited to helping only poor white people (and even then it's a stretch). But it was never part of the culture war in any way, except if you extend the concept to cover every conflict between the GOP and the Democrats.