Six Weeks: The Tactics of Sammy Alito’s Abortion
Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.
I’d like to talk about tactics.
This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.
The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.
CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.
CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.
But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.
So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.
It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.
Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.
Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?
But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.
Use the next six weeks to figure out how to isolate them as a radical minority.
Update: Noted that this opinion will just end national protections on abortion access.
Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.
Well framed. Thank you for writing.
I’m going to tack on a reply, Eureka, thanks for letting me draft on your comment.
A note of warning to commenters particularly newbies: advocating violence isn’t acceptable here.
I prefer to keep my advocation of violence to private channels.
Considering the nature of the attack on Roe v. Wade is a fundamental overthrow of the right to privacy, you might want to stick to using Signal.
Advocating violence is never Signal. It is always noise.
*eye roll*
Indeed. Choir member here.
I agree that at least this early disclosure gives activists an opportunity to take real action. If I thought reasoned political discussion mattered to the despotic SCOTUS hacks, I’d point to my post on the nature of American citizenship. Reason doesn’t matter. This is about power. These fanatics have the power, and they plan to shove their personal preferences down the throats of a majority of Americans.
They may respond to shows of political force. But the absurd Democratic party has no ability to cope with these wreckers. That statement by Schumer and Pelosi is pathetic.
It’s possible to imagine a strong response. They could hold hearings on the lies of the nominees with a threat to impeach them. There are other ways of hacking back at the hacks.
I hope Marcy is right, and that massive political action can make a difference.
I’m writing in Hillary Clinton for Prez😊
Don’t waste your vote. It is stunts like that that allowed Trump to be elected. Vote for whoever is the Dem candidate.
Stunts like that also helped defeat Gore. The mainstream media treatment of Gore was devastating because so many Democrats and swing voters believed the things they were saying about him.
I spent a lot of time in 2000 trying to talk college-age Democrats out of voting for Nader not because they wanted him elected but because they believed lies like Gore claiming to have invented the internet. I know I succeeded with a couple of them by proving that not only that had Gore never made that claim, but that he had played a major role in getting his fellow Congresscritters to see the potential of the internet and to fund it. I even heard Newt give Gore credit for doing that!
If you think I exaggerated the media attitude towards Gore, read this:
https://www.vanityfair.com/news/2007/10/gore200710
And this:
https://www.americanprogress.org/?oldid=9654
Thanks for your comment.
A tactical counter-proposal: don’t threaten to impeach Kavanaugh, Alito, and company. (Dems don’t have the votes. Losing an impeachment vote could have the political effect of strengthening Republican justices.) Instead, investigate and hold hearings on all their shady doings—Kavanaugh’s finances, Barrett’s paid speeches, Thomas’ political entanglements through his wife. Chip away at their credibility and legitimacy.
This is exactly right. Until we have an actual majority we have to carefully wield what power we have.
The cynical iteration: don’t strike where weak.
Hold the hearings to generate the record and reports.
Impeach in House with simple House majority.
_Never_ refer the matter to the Senate, cementing the unacquitted, impeached condition.
Yes, this is breaking the norm. But the norm done broke.
Push, push, push HARD for a binding ethics code for the Supreme Court Justices.
Yes. Right now we have a SCOTUS EXTREMUS, Unbound.
Packing the supreme court is the proper reaction to this. This is perfect setup for expanding the court in my opinion. Dilute their power. Don’t worry about escalations in the future. We are deeply divided society, meaning we are going to switch back and forth between dems and reps. If they are willing to break precedent take the power away from the Supremes, pack the supreme court. If GOP adds more justices as a way to escalate, then it dilutes their power even more. Escalate it and really mean it. And campaign on the issue to pack the supreme court.
You gotta have the votes in the Senate, and they are not even 50 votes even if Manchin and Sinema were to consent to nuking the filibuster. So this is not even close to happening.
It does need two more seats, so it again has one justice for each circuit. (I doubt that the Rs would go along, unless they’re guaranteed those two seats. And the current Senate would do that.)
Yep.
Democrats must make this the central argument for getting all Democrats, those college-educated suburbanites who voted for Demos in 2018 and Biden in 2020 and any other person who believes in democracy to vote for Democrats in the mid terms. The Democrats are clearly the only party that now believes in democracy.
Most of the mainstream media and many Democrats are ignoring the horrifying fact that Alito’s draft decision not only destroys Roe, it destroys the Griswold v Connecticut ruling that our constitution implicitly gives us a right to privacy. (I would bet the people who wrote our constitution thought that right was so blatantly obvious it didn’t need to be explicitly stated. That is what them forbidding unreasonable search and seizures was clearly about. )
Destroying our right to privacy will take away a lot more than just access to abortion. Griswold took away a state’s right to ban all birth control even for married couples and may right wing “Christians” want to see the pill and IUDs banned, too. Gay rights will also be at risk.
Privacy is essential to freedom. Totalitarian regimes always act to take that away by spying and by getting citizens to rat out others. Kids are encouraged to report not only on their teachers but also parents if they criticize the state. De Santiago is already doing that by encouraging people to report on teachers and Texas is doing that by allowing people to sue others for providing or having an abortion.
Packing as proven impossible to sustain, even during the New Deal era. I believe another, more attainable change is to put a 25 year term limit on Supreme Court justices. That would immediately effect Thomas and Alito, although the quality of their replacements would be questionable unless the Democrats maintain their majority in the House and attain one in the Senate.
It was mooted but never tried during the New Deal era.
Changing the number of justices on the Court is well within Congress’s authority. It has been done several times. But changing their life tenure to some fixed term would require a virtually impossible constitutional amendment.
Their lifetime tenure demands that they receive full pay during their lifetime. But they could be required to take reserve status at retirement age.
The cynic in me says that just opens new line of warfare: what is “retirement age,” and you just know a future Congress would pass a law making it 40 with an immediate sunset provision that would force all of SCOTUS into retirement status allowing their President to appoint entire new bench.
If you’ll reread my comment, you’ll see that I said nothing about a retirement age.
It would be more expensive if they had to retire at 40 (which of course is a ridiculous age) 65 seems more reasonable, but if this were implemented we would get a new round of judges every 4 to 8 years. That might be a good thing.
Would take a Constitutional amendment, and that will never happen.
@ Mr Walker:”It’s possible to imagine a strong response. They could hold hearings on the lies of the nominees with a threat to impeach them.”
Well, that is bold! There is almost a casual acceptance of perjury, and obvious perjury in this instance, in the United States. On the Principled Left, lying for a good cause; on the Right…just FY, because, why not….FY.!
It would be better for the United States were a wave of truth telling to sweep in like an unbreaking wave…(and for truth telling, I don’t mean truth telling for the purpose of being hurtful–which is its own disease), but rather because it is the right thing to do. Barrett ∧ Brett Kavanaugh certainly owed a duty to say…what was obviously true to everyone in the hearing room, They would vote to abolish Roe & Casey at the first possible instance.
This would have been a signal benefit to body politic of the country…but No, they had to tell bald faced lies.
Of course this reaches down throughout the US Judiciary, (I think), down to the lowest levels where I practice…it is just bad, and something I cannot countenance. Sure we lawyers shade and mold our narratives, but lying…it is a bridge too far…honest mistakes of memory, even curated selective memory is…not good, but it is not lying.
And this is where I suppose I have troubles with Ms Wheeler’s recitation of what is going on in the Sussmann Trial…it is astonishing to me that basic evidentiary & witness issues are still being working out a few weeks before the start of this important trial….is kind of astonishing to me. This puts Judge Carter in a difficult position, (I’m going to catch some flack on this, but in my opinion, Judges do not like ruling against the government in any major way…they will if they have to, but generally they don’t like being put in this position, {I think}), and even maybe forces honest commentators like Ms Wheeler to be more defense oriented than they might always want to be.
I suppose the point of this post is that we should know, and have known long ago, the honest contours of this case and the evidence supporting various propositions. But only now is it kind of coming into final focus. (of course, this could just my failing…lol)
Best Wishes, (and good luck to women), Traveller
Judge Cooper.
He has several means to rule against the govt that will be very conservative, starting with hearsay.
But let’s bring any further discussion back to that thread.
This horrible, disgraceful ruling will not just butally impact women, but entire families, their economic futures, existing and future children, communities, national economy… Losing the right to determine your own reproductive decisions is basic to far, far more than people realize.
I apologize, Traveller, if I’ve missed previous posts from you that might contextualize what you wrote here and cause it make sense. What are you talking about when you reference the “Principled Left, lying for a good cause”? While I accept the premise that all of us lie on occasion, you must provide examples of this behavior you cite. As you phrased it, it amounts to either rhetorically lazy both-sidesism or what may be a serious accusation that demands evidence.
“And this is where I suppose I have troubles with Ms Wheeler’s recitation of what is going on in the Sussmann Trial…” I don’t think your troubles are really with Dr (or Ms) Wheeler’s recitation; what actually troubles you is “what is going on” in the trial itself, right?
After taking vicarious offense at what first seemed like an insult, I managed to convince myself you didn’t mean it that way. It would just be nice to feel sure–we’re very protective around this place.
Dear Ms. Ginevra diBenci:
I understand and respect your query…and I have thought about it, but I am not going to go there. Sigh, we could spend weeks on this as the questions branch here or there…so no, it would not be good for emptywheel, I will let it pass.
However! I will posit to you a very relevant question….on perjury, on lying, on how hard this can be on human beings.
You represent the clerk that leaked the Alito Opinion…at the moment there should be no criminal liability, but reputational issues and that person’s future is….severely at risk.
That person is called in for questioning…how do you advise your client? God this is hard, but you have to do it…tell them to tell the truth and out themselves.
Hard, hard decision, but what must be said.
Best Wishes, Traveller
I don’t know that that is true. If it was a conservative clerk doing it to firm up the majority on this hideous opinion, he or she would be a right wing hero and land very comfortably with any one of the groups who have been pushing this all along. Big if, but we just don’t know yet.
I wouldn’t even go so far as to suggest there may not be any criminal liability at the moment; that’s even before the person gets interviewed by FBI Special Agents who ask him if he’s responsible.
I’m sure any run-of-mill overzealous investigator and prosecutor can easily stretch multiple statutes to envelope this.
Yes, Mr/Ms True….I have worried about this, you make a good point, as does bmaz…I wish Law wasn’t so hard! (grin/grimace…take your picks). Best Wishes, Traveller
Traveller, I do not in fact represent the opinion-leaker, and as far as I understand it so far that person does not have criminal legal exposure. So I’m going to reiterate the question I posed earlier: can you give examples of the left lying for a good cause?
I appreciate your sensitivity regarding the potential waywardness of conversation here. But since you yourself led with this premise, merely changing the subject (and thereby rendering the conversation even more wayward) does not suffice.
Thank you Dr. Marcy.
Ugh. Men still making decisions about women’s bodies. Going backwards. What next? Overturning Loving vs Virginia and Brown vs Board of Education.
That is implicit in the opinion. Personal rights not explicitly in the Constitution are fair game, except for the 2nd and their 1st.
I wonder how Thomas would rule in a re-consideration of Loving. I would be more worried about Obergefell v. Hodges being reversed. We have at least five justices who don’t care about consequences and could reverse that ruling regardless of the confusion and madness that would follow. And Griswold? Could they leave that to the states?
Zirc
If Clarence Thomas hasn’t forgotten that he’s black, his words and actions over the years show he at least has decided he’s been given the full dose of white privilege.
No, what is next is Griswold. [see Griswold v, Ct] The goal in many states is to de-legitimize the right to contraceptives.
Which is the point. According to the Dominionist view, women are to be barefoot, pregnant and in the kitchen while being seen and not heard.
If this doesn’t motivate the Ds to expand the SCOTUS nothing will. I recall noting some time ago after ACB was confirmed by McConnell at lightning speed (in contrast to Garland) that it would take some kind of watershed event to wake the Ds up to the threat here. I see Susan Collins is tut-tutting the apparent decision but she owns this as much as McConnell does.
The Ds also need to make this a part of every campaign ad everywhere because the nation as a whole overwhelmingly support safe and legal abortion options. ‘Women have no rights’.
I did see some speculation that it was one of the RW hacks that leaked this to prevent any flip-flops, but I wonder if this was a cynical ploy to get the discussion on the back burner by the time November rolls around, whereas a June announcement might still be ringing in voters’ ears. I suspect that this topic will not go away, however, nor should it.
More about this at this comment:
https://www.emptywheel.net/2022/05/03/six-weeks-the-tactics-of-sammy-alitos-abortion/#comment-934842
Further regarding Mr Walker’s excellent suggestion…hold hearings anyhow…I do like to see liars squirm…or at least be forced to explain themselves on…”This is Settled Law…” as to being true within the Senate Hearing Room…but suddenly not so settled when a sitting SCJ and besides, “I always had trouble spelling Stare Decisis…” would be interesting testimony to hear.
Best Wishes, Traveller
After reading about the leaked draft, only this morning was I able to tearfully tell my wife what I learned three years ago. That my paternal grandfather impregnated my favorite aunt when she was a teenager and she gave the baby up for adoption. Obviously my parents knew all along and they made us go visit that motherfucker when we were kids and let that motherfucker come into our house. Sorry for the language but I am livid all over again.
Oh, lordy, how ghastly… What a terrible thing to have to carry around with you. I cannot begin to fathom the horror for your aunt.
Things to stress is that this doesn’t stop with individual states — the GOP has long been on record for a nationwide ban overriding state protections.
But even more, this doesn’t stop with abortion. They want the entire modern system destroyed. Civil rights, women’s rights, gay rights, right to privacy, voting rights, all of them thrown out not just on a state by state level but nationwide enforced by GOP federal politicians.
And the press has be forced to admit this comes hand in hand with a Supreme Court and GOP politicians that will destroy *across the country* the First Amendment rights they depend on.
This isn’t simply about the tragedy of a poor woman in south Texas who can’t afford to travel to Illinois to find a legal abortion. This is about a radical assault in the next few years on the modern US.
FYI. A poor woman in South Texas can go to Mexico. The problem is why does she have to go in order to make her own decision about what is right for her body??
I agree with your characterization of “the problem”, but I do note than two of my three forty-something-year old kids don’t have a passport, and (even more fun) I can’t imagine Abbott and his minions failing to criminalize leaving my state in ANY direction to obtain an abortion.
I keep voting against these toads, and they keep getting elected. I am not amused.
People are going to have to rethink a lot of assumptions about how simple it is going to be to go anywhere when a woman is pregnant.
For that matter, same sex married couples are going to find their children and property at serious risk soon simply for driving through the wrong state.
A lot of default assumptions about normalcy will need to be challenged due to the GOP.
My understanding of Texas’ notorious SB8 (already a template for other states) is that the criminalization you speak of, Spencer Dawkins, is a fait accompli, in the sense that tattling on pregnant abortion-seekers and theirs “accomplices” promises the citizen informant(s) a reward.
This Rube Goldberg model was devised to penalize (if not criminalize) those exercising what had been a constitutional right, and to “chill” providers into no longer providing services. In these ways it has been up and running since the US Supreme Court hid their rubber stamp behind the shadow docket last fall. THE Fall, if you will.
You make big assumptions about how easy it is for a “poor woman” in South Texas to travel to Mexico for medical treatment – and return – even if she was born here and speaks Spanish. A lack of money is not the only restraint.
But, yes, she should not have to travel there or to another state for basic medical care. Nor should that travel be criminalized, as GOP-led states will now try to do. But Texas’s current maladministration seems intent only on making that harder.
One of the areas I think will also come under assault that I haven’t heard anything about are criminal defendants’ rights. The whole “it isn’t mentioned in the Constitution, therefore . . .” mode of judicial interpretation applies to Fourth, Fifth and Eighth Amendment rights enunciated in Warren Court decisions. The Constitution doesn’t say anything about the government paying for a defendant’s lawyer. The Constitution doesn’t say anything about giving a defendant a warning of rights. The Constitution doesn’t say anything about suppressing an incriminating statement obtained by torturous interrogation techniques.
I’m a former police officer (civilian and commissioned military) and a retired lawyer who spent nearly 25 years with the criminal-appeals unit of a state-level Department of Justice, hence doing appellate litigation on behalf of the state’s criminal prosecutors. I’ve watched with dismay as, over the years, SCOTUS has whittled away at the scope of the protections the Warren Court derived from the expicit words of the Constitution. Those protections have never impeded criminal prosecutions in any significant way, contrary to popular belief. Miranda, for example, made prosecutions easier by relieving the state of the burden of proving the admissibility of a defendant’s statement and instead shifting the burden to the defendant to prove a statement’s inadmissiblity when the warnings have been administered. I still carry in my wallet one of the Miranda cards I was issued as a police officer in the Nation’s Capital in the early 1970s, and on occasion I have pulled it out to show skeptics how little burden reciting the warnings places on police officers (as if that shouldn’t be obvious from any Law & Order episode or other TV or cable crime show).
All those protections, however, are headed, in my view, for a judicial guillotine, along with all the rights Bobcon notes.
Yes! I’ve been doing this a very long time, and nobody listened to us in the NACDL when we were screaming about slippery slopes back in the mid 80’s and 90’s. Think we are looking pretty prescient about now.
I’m waiting to see this in the glossy pages of The Champion. Because Miranda rested on precedents set in the 1930s, I think it’s a little less threatened. But who knows, given the pernicious notion of “our Nation’s history and traditions.”
Two of my family’s best friends briefed and argued Miranda. They both died thinking it was still sacrosanct.
I am infuriated and exhausted by men making decisions about women’s bodies. Sorry guys, but even the comments here fall into that category for me today.
My father-in-law: born and raised in Oklahoma; served as a Marine in WW2; Catholic; Knights of Columbus; buried with a rosary in his hand”
“When in comes to that (abortion-choice), I don’t think that a bunch of old men should be telling women what to do.”
“…men making decisions about women’s bodies” isn’t really the issue here. There are plenty of women who support this anti-choice nonsense, just as there were plenty of women who opposed women’s suffrage. Turning this into a women vs men issue is nothing more than a distraction from the real issue and only helps the radical minority – men and women – in wielding their ill-gotten power to advance a perverted worldview that is out of step with the overwhelming majority of people in this country.
Oh bullshit, it is a perfectly fine opinion to have and express.
You are conflating the right to express the opinion with whether that opinion is wrong. (And dangerously devisive.)
I am not conflating anything.
What is dangerously davisive – if I have my arithmatic correct – is the movement behind Alito and the opinion that arrogantly encapsulates his commitment to stoking that division. That it is vehemently misogynist is fundamental, as is its racism.
That “movement” probably WROTE the damn thing.
That movement most certainly did. But Alito is a card-carrying member.
“I am infuriated and exhausted by men making decisions about women’s bodies. Sorry guys, but even the comments here fall into that category for me today.”
Read the original opinion that was expressed again. Read it 2xmore.
Why is this /checks notes “dangerously divisive” to you; there is nothing expressed here about anyone else at all, or judgments made about anyone else’s opinions at all. Maybe just accept that someone can be exhausted to point they don’t wish to engage with others by this; in fact this side projection about the opinion expressed somehow being divisive might contribute to the exhaustion trying to be avoided to begin with.
Thank you, silly but true. Some of these posts proved my point.
Your comment dismisses the misogyny and racism fundamental to Alito’s opinion and the minority movement that supports him.
I agree completely that Alito’s draft is misogynistic and racist. And a bad joke in its legal reasoning. We are in the same camp here.
What we can’t do is allow ourselves to be splintered.
You and “sui generis” want to “splinter”, “divide” and lose elections for the sake of all other causes, including those most important to you? Then keep abstracting and otherwise erasing the primacy of women’s voices out of this discussion, any discussion. A “distraction”, LMAO: if so, it’s one of Biblical proportions. Keep dictating and lose some more rights for everyone but yourself. The un-self-aware irony reeks. And whether either of you are one or not, this is a particular tactic of class-first trolls (including Putin’s, btw), to drop into any discussion and attempt to shut down the relevance of any other axis of identity (but mainly gendered ones).
In any narrative — to include political messaging — it’s recourse to the particular that speaks to the universal, not the other way around. You go out and get some Dem senators, reps, etc. elected with that nonsense — tell women why they should vote for your ideals while telling them that direct attacks on their rights shouldn’t be marked by who gets to script, speak, and amplify the discussion and how.
—
Adding: *the very fact* that you @ 12:17 PM call this “dangerously devisive (sic)” — dangerously divisive! — inadvertently points to the very power dynamic you don’t wish to disturb. Why might that be?
What makes you think I don’t want to “disturb” the existing power dynamic? I want to see the people who want to suppress women and other groups without power defeated.
I get the anger. I’m angry, too.
You’re seriously asking (or “asking”) that when you cannot even let go of the mic.
Trope-peddling duly noted, perhaps when you’ve calmed down and are less emotional you can engage with my substantive points, then, or earl’s before them, instead of pretending that I didn’t already address that ‘why’. Check your ahistoric (and otherwise decontextualized) priors while you’re at it.
Because it sounds like your need to dictate the parameters of the discourse outweighs any concern for the success of your stated goals.
Let’s also be crystal clear that you are telling women what to do with their bodies in telling women not to complain (Danger! Danger!) about who runs the chat over men trying to control their bodies. It’s merely a question of which flavor of obtuseness you present with each successive comment more “me”-centering than the last — failing to embody the change you say you wish to see and uninspiring to boot.
I think it’s far more dangerous — and plainly ill-advised — to not call something by its name(s). Take the women-led demonstrations in streets across the land as pragmatic proof that the unbleached truth is motivating and roll it to the polls.
To Former AFPD’s point (which applies more generally), at least dems and democracy-friendly media had the sense to feature prominent women speakers, from VP Harris to Sen. Warren to Reps. Jayapal and Porter and Moore …
Put on your listening ears instead of trying to run the show (into the ground with ego/concern trolling over what’s too “dangerous” to say). This full-frontal assault on women’s (bodily) autonomy is exactly those things — an assault and a front for many other rights, privileges, and taken-for-granteds to be taken away. On that we may at least agree.
Tell me — scratch that, ask yourself: do you drop in to other fresh crises like when communities of color are disenfranchised with a pen stroke, or yet another Black man or other BIPOC person is summarily executed by police and [counting] treble-down about what’s too “wrong” or “splinter[ing]” or “divisive” to opine or discuss?
We’ll have to disagree over whether it divides Democrats by calling a misogynistic movement and decision anti-women.
Yes, this decision is not one thing. But it would be wrong and an own-goal not to call it anti-women.
The issue is not about persuading people who are on the fence about siding with one side or another. Both people still on the fence are probably lost to politics. It’s about energizing opposition, including getting out the vote. If the Dems cannot walk and chew gum at the same time, that would be on the party, not its supporters.
Overturning Roe, of course, will not stop with, “sending the issue to the states.” It will be followed by attempts to ban abortion nationally. Taking away the rights of those states which vehemently support access to women’s health care and right to an abortion is inherent in Alito’s argument.
I agree completely. I can understand women’s outrage at the SCOTUS, but there is a woman involved in the majority opinion and, as you point out, many women are in favor of outlawing abortion and many, if not most, men support a women’s right to choose. It’s a gender issue, but also a personal freedom issue, which has consequences for us all.
One would think that more Dem and democracy-supporting men could be more secure than to not-all-men (and look there’s a woman/women, too) this topic, which both entirely misses and makes the point.
Last night I did a process group. (Mental health trauma specialist)
Half anti choice, half pro choice. Women and one man. We stayed focused on the emotions in the room instead of the context or cognitions. (Or argument).
At the bottom of the anti choice position was shame.
Shame because of an abortion. Sadness because one could not have kids. (Shame. What good is a woman who can’t have kids?)
We need to talk to each other and listen. The anti choice women, like Trump supporters are wounded by power and control. They bought and swallowed the shame. They use shame as a weapon of manipulation. Because they feel powerless.
The only way they perceive they can save their souls is through the addiction of contempt or self righteousness. In other words, by looking down at other women to feel they are better than. (This is the most powerful trick of power and control. If people are in enough pain and trauma they do not access frontal lobe-they look down on others to feel less shame.)
Trying to save themselves of being labeled a “bad girl”, they collude with (power and control-vying for the power by colluding with it). Some body worse than me. Raging at the imaginary women who used abortion as birth control so they could blithely have sex without consequences. (Doesn’t exist for women or men in truth). .
Because they have bought in to the good/girl bad girl narrative that does not exist except for within power and control which says that the only way to have power is to agree with and support the ones who have power. Safety mechanism that means you are eaten by the authority slowly over the course of life as you follow, and give up your path of truth. . (Same for brown people-you know? The good ones vs the bad ones?)
In the room last night it was heavy. Sad. And we all agreed that there is trauma and wounds all over these positions. Thankfully truth speaks through honest emotion. We have to tell our stories. We have to point out every single place where anti choice conflicts with truth.
We must avoid making overly emotional or angry attacks. Women are still not allowed anger. But we can use anger to motivate and activate. Use it as energy. Focus more on the fear and sadness.
What’s keeping us down is the shame of oppression. Shred it.
I know that every woman feels the shame of oppression. The fears of being branded.
White women clinging to their privilege through self righteousness and are looking for more power not less.
Find a way, find a narrative strong enough to heal the shame.
This is one narrative that shares the shame. We need to find every narrative we can to free women from this shame so that self righteousness is not the only path out of pain.
All we need to do is keep muddying the black and white narrative.
Men can help by validating these truths.
1) woman don’t need men to tell them what to do.
2) No woman gets pregnant alone. Share the responsibility. Own it. Don’t make that our burden to carry.
3) point out the ways that anti abortion hurts men. I could lose my wife, my daughter. My wife is more than just a vessel. My daughters need autonomy to be free. Men who need to control women are weak.
3) To be anti choice is to oppress.
Shame on them! We must flip the narrative of shame. Head up. Shoulders back. Eye to eye. Listen. Only shamed people are afraid to hear opposing positions. That means we get activated. Shred the shame. Listen to the other side. Speak to the emotions under the narrative.
Sorry if this is too long.feeling triggered.
Thanks for sharing this, Peacerme. This is very good, quite powerful. It explains to folks who don’t understand how evangelical Christianity works how women remain in the toxic structure.
Is the email you used to comment active? I’d like to ask you a question. Thanks again.
Very moving, Peacerme!
Thank You so much, for sharing that.
Yes. That’s my email.
I told Rayne it would be fine!
Very moving, Peacerme!
Thank You so much, for sharing that.
One woman – who is fine with other women being second-class citizens (at best) and who lied about stare decisis in her very public job interview. The rest are all men who are fine with it, because it won’t affect *them*. Their wives, daughters, granddaughters…well, they’ll have probably have enough money to get care *somewhere*. The rest of us are out of luck, because state-by-state means no consistency across the country – the reason for federal laws! – and won’t want to travel through a lot of states. (No changing planes or layovers at DFW or HIA, for example.)
Now consider what that kind of travel hassle would do if it applies to *your* body.
The women who sell out other women, historically, have one thing in common: the perception or intuition that only those in power can further their interests. Look at Phyllis Schlafley’s endless national tours, during which she gave (increasingly paid) speeches telling her female audiences that *they* should stay home and embrace traditional roles; Ghislaine Maxwell’s determination to “keep the patriarchy happy” as a means to stay protected and financially secure after the death of her father; or Amy Coney Barrett smiling among her bevy of children, basking in others’ praise of her devotion to motherhood but never admitting that, while she pursued of a career anomalous among the women of her religious group, those children were tended by a relative of her husband–who had his own career to nurture, too.
Barrett has publicly encouraged young women to believe that, like her, they can “have it all.” But she does not mention the sacrifices of others, nor does she discuss the lucrative mentorship of Don McGahn and the Federalist Society, upon whose notice and approval her ascent to the quasi-divine status of SCOTUS depended. Utterly.
All white, of course, and either relatively (Barrett and Schlafley) or extremely (Maxwell) privileged. These women had choices, especially Maxwell, now 60, and Barrett, only 50. If they perceived that their best lives meant sacrificing the choices of other women, imagine how it seems to those whom they–the elites–clearly do not see fit to imagine, the ones without the protection of whiteness, education, and money.
The radical Roman Catholic cult that Barrett has long been a part of teaches that such sacrifices are required of every woman. And she is now in a position to be an avatar of that set of beliefs.
Handmaids. All of them, handmaids to the patriarchy. They believe themselves safe — they can have it all — if they serve their master faithfully.
Agree strongly! Why impose half way solutions…the only way the Supreme Court can assure there are no abortions would be forced vasectomy! How you men feel about that?
Stop abortion at the source. Vasectomies are reversible. Make every young man have one. When he‘s deemed financially &
emotionally fit to be a father it will be reversed. What’s that? Did the idea of regulating a man’s body make you uncomfortable? Then mind your fucking business
— wittyidiot (@stephenszczerba) October 18, 2020
This is a good idea. One man can get 100’s of women pregnant in a year. A woman can only get pregnant once. This would really help reduce the need for abortion. Men really need to take an active role in contraception. They are the ones acting irresponsibly, especially now as vasectomies are easy, cheap, reversible and usually covered ny insurance. It’s a very small outpatient procedure. There are more men acting responsible for their part in reducing unwanted pregnancies. Many more should.
What a load of reverse sexist crap. It takes two to tango. “100’s of women pregnant in a year”?? JFC.
Yes! This makes me crazy! Old white men who want to exert their control over women’s bodies (really they’d prefer us to be silent, barefoot & pregnant, but they’ll settle for forcing women to carry pregnancies to term without regard for the circumstances and then washing their hands when it comes to caring for them after the child is born). I am horrified, livid and very worried for this country’s future.
This decision misses on the rights of those that view “choice” in the grounds of their faith.
https://www.cleveland.com/opinion/2021/02/ohios-abortion-laws-interfere-with-the-practice-of-my-religion-megan-doherty.html?
Lying in the service to fulfill the desires of their biblical beliefs is acceptable in religious circles but certainly the 4th estate may never question their faith? I agree that their should be no “litmus test” for selecting a person that believes in a god, but in this day and age can we not ask a few more questions about how deep you are in?
The word of this opinion had gone out to all the pro-lifers before yesterday as they have already invested heavily in producing talking points, mobile displays, fancy stickers and enlisted young zealots to their cause. I spend some time at the University of Wyoming campus, which allows organizations to set up shop and push their ideas and I go by some of the tables asking questions. Each year I get a new crop of Turning Point USA students that have some difficulty answering my questions concerning the parsing of socialism with good social programs.
Two weeks ago I entered the Union and saw a large group massed around a table with 4 pull up displays, computers and stickers, a lot of stickers. I looked over the materials as I was unsure of their exact message or what campus group they may represent. The messaging did not mention religion and they do not mention religion in their presentation BUT they also do not mention the Constitution or the Right to Privacy either. I had already gone down the rabbit hole about wrecking the filibuster to put 3 conservative catholics on the bench before I realized these students were not from the University of Wyoming but from the Wyoming Catholic College, which is located in Lander – 3 hours from Laramie. In the end it was cordial but I certainly left them the impression that their stance was usurping the Constitution and that may result in a back lash against their faith by placing their biblical “beliefs” above the Right to Privacy as well as damaging the credibility of the SCOTUS.
I grew up being indoctrinated in the bible but try as I might I could not get there with that book and I really thought those ideas would be thrown off as I grew up. It is disheartening to be in a place where belief in a stone age religion holds sway over our society today.
They are out loud and proud about turning the USA into a religious theocracy….
https://wyomingcatholic.edu/year-round-pro-life-activities-a-vital-part-of-student-life-at-wcc/
Just what we need right now, one more acrimonious, incoherent shitstorm.
We are lucky here — since Massachusetts has codified “strong abortion rights laws”
The trigger states could be fucked.
Impeach McConnell — he is the culprit.
Yup. Luck it is. I no longer feel like leaving Massachusetts for anything. It’s not perfect but better than most.
Nothing stops them from throwing out Massachusetts laws. They really are that unhinged.
I’m confused. If SCOTUS scuttles Roe v Wade, are state laws that ensure the right to abortion – such as Massachusetts – in jeopardy?
Ultimately, yes, but not immediately.
How would this be accomplished?
A federal law banning the procedure nationwide.
Obviously not going to happen so long as Joe Biden is POTUS and/or Pelosi and Schumer wield gavels, but the GOP seems far less restrained by public opinion than they were in 2017.
And there’s a critical mass of voters that are angrier about $5/gallon gas than they are about the potential end of democracy. And another mass who are willing to negotiate terms with the leopard to not have their own faces eaten, failing to realize that this isn’t how it works. Pastor Niemoller’s words apply today, 100%.
A de facto ban could be implemented, starting with the Supremes upholding state restrictions and punishments on their citizens traveling to other states to obtain abortion and/or reproductive care generally.
The “logic” of such opinions would also support bans on other “wrongs” these radical justices seek to Right, such as interracial and same-sex marriage and LGBTQ rights generally.
Few of those restrictions would limit the practices and rights of wealth elites, who would readily travel anywhere in the world to exercise them.
Look at how quickly Republicans like JD Vance and Lindsey Graham (along with a host of others) did a 180º turn about Donald Trump. And, not to beat a dead elephant, but Sen. Graham’s sudden change of “heart” about Ketanji Brown Jackson’s qualifications and character are another example.
The topic of this thread presents another example of how quickly political stances (e.g.: Roe v Wade, Kavanaugh, Gorsuch, and Barrett) can change with the prevailing winds. All it takes is a little time and a bunch of mendacious politicians.
I agree that this is a major part of a wider movement to overturn civil rights, which are anathema to the Fascists that the Republican Party and its patron have become.
The most likely next targets will be Griswold (access to birth control) and its penumbra of privacy rights, followed by attacks on Miranda and Gideon. (The rights the latter protect will be treated as so well established that the warnings they enshrine are no longer needed, pace the equally fraudulent claims about the VRA.)
A key meme the Right is likely to push about counterattacks is that they – not this egregious discarding of fundamental rights – are politically motivated, not legally well-founded.
So get ready. It’s gonna be a bumpy ride, and this one does not go round and round in an amusement park. It will affect the rights and lives of millions of Americans. The Right, like the inspiration for Dr. Strangelove’s generals – Curtis LeMay – is desperate to launch the first strikes in the civil war it thinks is inevitable.
LeMay wanted to bomb Cuba’s missile installations….not knowing that, had he done so, the Russians operating at the missile sites had authority to decide when and whether to launch the missiles in response to a threat.
What LeMay didn’t know was that the missiles were nuclear.
He was countered by other voices in Kennedy’s WH…and the attack was called off.
One can only guess at what would have taken place had that raid gone forward.
It’s bleak that we can’t count on a single Republican vote in the Senate to enshrine abortion rights.
Perhaps Murkowski and Collins may when this ruling is applied. On the brighter side we may have more Democrat Senators after the midterm election. This is motivating voters. Look what happened in 2018 to Republicans.
What strikes me most is “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision…”
How far could you take that argument?
The counter-argument is that abortion was legal in what’s now the US when the states adopted the Constitution. Roe was merely re-establishing a fundamental right. Another useful factoid is that, like the notion of papal infallibility, the Vatican began to openly oppose it after the late 19th century unification of Italy, when its temporal power and purpose were being challenged.
That argument goes the other direction.
Additional rights endowed by Our Creator which no man or United States can abridge have retroactively been identified no less than 27 times since the Constitution was ratified, including right to freedom of religion, speech, press, assembly, petition of redress, keep and bear arms, limit on quartering of soldiers, prohibitions on unreasonable searches and seizures, requirements for searches based on probable cause, standards for grand jury indictments, regulations on eminent domain, the right to due process, prohibitions against self-incrimination, prohibitions against double-jeopardy, right to speedy public trial by jury, right to notification of criminal accusations, right to confront one’s accuser, rights to obtain witnesses and retain legal counsel, right to jury trial in civil lawsuits, prohibitions against excessive fines or bail and prohibitions against cruel or unusual punishment, grants rights not enumerated are retained by the People, limits on delegated or enumerated federal power and reserves all other powers to the States or the People, immunized states from out-of-state citizens, assigned state sovereign immunity, reestablished Presidential election procedures, limited slavery and involuntary servitude, defined citizenship and established Constitutional Privileges and Immunities, Due Process, and Equal Protection clauses, prohibited the denial of right to vote based on race or color, permitted levying of income taxes, established direct election by popular vote, prohibited then unprohibited the production or sale of alcohol, among the various rights that were not first realized.
It it not the easiest route, but certainly an available route in the universe of “how far can the routes go.”
It says there are other rights not enumerated – and privacy is one of those. It also says that religious freedom is a right, but this decision restricts religious freedom for a lot of people.
Ninth Amendment states…
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Tenth Amendment also makes clear many rights are reserved “to the people.”. So, now we have a Court denying Biden’s, “vaccinate or test” regulation, but mandates a woman deliver a child!”
WTF?
So with a number of rights not being enumerated, it’s up to a majority cabal of justices with political / social / economic / religious agendas to pick and choose which those might be.
There is no mention of money = speech or that citizens can own guns so they can overthrow a tyrannical government.
Freedom of association is not explicit — it’s been ruled as implied by what is explicit in the 1st.
You could easily see Texas, Florida, etc. banning all kinds of liberal organizations on the grounds that only individuals have a right to speech, not associations, and there is no right to join an unauthorized association.
And power mad justices could easily go along.
Mitt tried to convince America that “corporations are people,” therefore entitled to free speech. If our Constitution guarantees “equal protection under the law,” he needs to be asked why the individual named Exxon Mobil does not pay the 24% marginal tax rate this hard working, middle class American pays!
WTF?
They are saying that if it isn’t explicit in the constitution, it doesn’t exist – and that includes privacy as a right. That they’re ignoring the amendment that says explicitly that there are other rights that they didn’t enumerate, that doesn’t matter.
They’re ignoring the Constitution is a set of limits and prohibitions on government — not on the people.
This.
Concise brevity. Thank you Rayne
Amen to that. Thank you, Rayne.
I fully expected this from SCOTUS, what with the extremist wannabe theocrats it’s packed with. But I’m no less infuriated by the blatant disrespect they hold for bodily autonomy.
I don’t think it’s hyperbole to see that the millions of people who bought into decades of disinformation and smear tactics towards Hillary Clinton, which allowed a reprehensible disaster of a person to seat a full fucking third of the SCOTUS with bigots, will push us past the tipping point into fascism-lite.
Alito might be persuaded to soften his final opinion – it’s telling that he was given the job of writing it in the first place. But that would be another subterfuge, as was the Court claiming that Bush v. Gore was not to be used as precedent or that Beer Boy Kavanaugh would honor established precedent.
The ACB Court will attack other fundamental rights. Their target list is long, but it certainly includes privacy rights, access to birth control, inter-racial and same-sex marriage, LGBTQ rights, criminal procedure rights, the rights of government to tax and to regulate business. It just doesn’t want you to oppose it until after it does, when undoing its harm will require far greater resources.
Well-written piece on strategies to respond, but the update “just end national protections on abortion access” caught my eye.
With 5 justices who believe in fetal personhood, I think it is just a matter of a few years before this SC outlaws abortion nationally.
However, I fully expect that the court–and the radical conservative lawyers pushing these cases–will first set up challenges intended to bring Obergefell, Griswold, Loving and maybe even Brown before the SC to be overturned. It will be important to track what cases get financial backing from the ACLJ (Sekulow), the ADF, Liberty, Thomas More, etc., to see this unfold.
Hard to say if this would evolve to a national ban on abortion.
The dark money and proponents of Christian Sharia would likely prefer this to stay at the states, which can be gobbled up one at a time and thus with less national attention.
A de facto national ban would be as effective as a legal one.
I think Peterr is right. If the right wing members leaked this, its timing suggests that it was more likely to get out the vote for GOP primaries, than it was to influence a weak-kneed right wing justice. The liberal wing didn’t need to leak it. The 5 or 6 vote majority is immovable and the furor on the left as inevitable as the glee on the right.
JD Vance’s support among same-day voters yesterday felt like a kind of pile-on effect. As in, “The Court came through for us! Now let’s get Trump’s guy in!” (Whatever The Former thinks his name is.)
This should backfire in the general midterm election as it will motivate voters to come out and vote against the RWNJ Trump candidates.
This isn’t conservative; it’s reactionary.
Might as well stand on the beach and order the tide to stop invading the land, like King Canute.
What hubris it must take to insist on rolling the clock back fifty years! Yikes!
Canute’s motivation, according to contemporary chroniclers and most (but not enough) historians, was just the opposite: he wanted to demonstrate that even he, king of England, Norway, Denmark and part of Sweden, had no power over the tides.
They seem to be aiming to turn the clock back to the 19th century, if not earlier.
I built a website for a right-winger once. Nice guy. Paid well, gave me a bonus when it was done (never happened before or since). It was some site about liberty or something, probably got three visitors a day, counting bots.
Anyway, I never forget the conversation I had with him—I’m always curious how different people view the world and I just listen, never argue—wherein he calmly explained that goal was to completely reverse or eliminate all the progressive legislation of the twentieth century, everything, and he was very clear that it was going to take a long time.
That mindset is what we are up against. Money is behind them (and I know this is not news).
P.S. Should be Knox Bronson—I don’t know why the site autofills just my first name sometimes.
Boy, wait until Clarence finds out that LOVING was decided not so long ago and that in the 1950s, more than half the states in the Union—including every state in the South—still had laws restricting marriage by racial classifications.
In the originalist view, shouldn’t Justice Thomas and Justice Jackson’s votes only count for 3/5 of a white Justice? Logically when Jackson is officially on the bench, Biden can add an extra black Justice because there will only be 8 and 1/5 votes on the court.
I didn’t think anything could make me laugh today, Riktol, but your sardonic take succeeded. Thank you.
The re-subjugation of women’s bodies to the power of the state is more than a triumph of those who have finally succeeded in imposing their morality on everyone. It is a stalking horse for good, old American fascism and its eternal campaign to hollow out American democracy, seize the brand – the real prize – in a hostile take-over, and stage a grand reopening under new management. As noted, the invalidation of unenumerated rights at the heart of the requisite neutering of Casey is an insidious attack on the legal security of everyone not part of the charmed circle of patriots who will be smiled upon by the new regime emerging to push the rest of us around for fun and profit.
The level of dishonesty in this opinion is shocking to me, even considering that it was written by Alito. Despite a few off-hand “this is just about abortion” claims, the legal reasoning says that rights protected by the U.S. Constitution don’t apply to the states unless they applied in 1868. This is just pure White Christian Nationalist Patriarchy.
Lots of folks have brought up the obvious rights that are endangered by this ruling. As someone who grew up in the cultural milieu that spawned this movement*, let me warn you, it’s worse than you think. As one example, the ability of married women to own property was not recognized in common law in 1868. Although many states had passed legislation to allow married women to own property, some had not. Apparently, Alito, et. al., would be A-OK with states passing laws that prohibit married women from owning property, controlling their own wages, and entering into contracts.
*My father attended Bible College for one year at the same time as another student named Jerry Falwell (Sr., not the pool boy pal).
Alito’s intellectual dishonesty is directly proportional to the sweeping character of his fraudulent claims that Roe was wrongly decided, notwithstanding the quality of the original decision and the frequency with which it has been reconsidered.
Alito has acquired the power – the requisite majority – he needs to overturn it. So he does. The rest is political commentary.
Quality decision?
I would argue that they could have held that the Right to Privacy prevails for the entire term of the pregnancy. Instead of doing what was right they did what old King Solomon warned against, they split it, which the left was satisfied with, while the right went to work destroying our Constitution in the name of god.
“On the basis of elements such as these, appellant and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.”
What did 9 men say?
“With this we do not agree….” BS from the beginning.
The quality of Roe and the decisions upholding it, which Alito dismisses – like a half-competent magician – with a waive of the hand. He dismisses, as well, the factual inquiries supporting them as “constitutionally irrelevant.” In fact, his and Clarence Thomas’s jurisprudence are a better demonstration of the constitutionally irrelevant.
Note also that before Roe, most of the states had decided not to prosecute the women because juries refused to convict them. They did go after doctors, though. The first law was in CT in 1821, so it’s not even “originalist”.
If “waive of the hand” was intentional, I salute you. If not, I salute your subconscious mind. That’s a high-quality typo.
A pun and something of a double insult. Appreciation is so rare these days.
Exactly right! It is about grabbing power in advance of the demographic disaster the white power minority will soon encounter. Stack courts, elect vote counters, lie and cheat to hold on to power in a world you can no longer assert majority control over!
Although there are many potential ramifications to the decision and to Alito’s reasoning, it also reads as 98 pages saying “this is what I wanted all along.”
For these past 20 years, the Chicano Veterans Organization developed and published its Agenda of Unmet Needs. Today, the CVO has a membership roster of over 40,000 military vets–Chicanos and Native Americans.
To wit, we, advocated for the following legislation:
….The governments–federal, state, county and municipal–shall not interfere in the subject matter that is Women’s Reproductive Rights…
And this advocacy toward the Clinton, Bush, Obama, Trump and Biden, has not accomplished anything for these Rights.
Now, I am disappointed in my fellow Democrats, for their gross incompetence. And take, for example, had President Biden signed-off on this legislation, Biden could be calling for the “public resignations of All Scotus Members.”
Need more be said?
Decades of RW “moving the goal post” weaponization of reproductive rights.
(One could argue the same has occurred with 2nd Amendment and Tax Reform.)
https://twitter.com/yarbro/status/1521306133645955072
“The 1973 Roe decision was decided 7-2 and written by a Nixon appointee. The 1987 Casey decision upholding Roe was written by a Reagan appointee on a Court w/ 8 justices appointed by GOP presidents.
Rejecting Roe as “egregiously wrong” 50 yrs later = a radical, political act.”
Just to be fair: there is a right to a lawyer in the US CON but nothing in it says the state has to pay for yours.
And sure, you cannot be compelled to testify against yourself but nothing says you HAVE to be told that.
I believe the anti-choice factions are going to attempt a lightning fast try for a national abortion ban. The cases reported, such as Missouri’s state-line grab, Ohio and Indiana’s criminalization of miscarriages and more are part of an organized attempt to get in front of the courts before the pro-choice side mobilizes what now can only be a political strategy, one that is much harder and more belabored. The calendar is on our side, most legislatures are heading for adjournment in an election year, special sessions notwithstanding. My gravest concern is what happens if a plan to federalize anti-abortionism succeeds in the now well-trod path through New Orleans into the Supreme Court and states such as Connecticut, who just passed a comprehensive and clear pro-choice law with a population that has zero appetite for culture war or ALEC legislation, just tells the feds to f-off. Then what, troops? We’re heading into seriously uncharted territory, and I pray the Democrats who get paid to manage such things will act in more of a sense of righteousness than of political expediency.
Orin Kerr can’t find a law that makes leaking a SCt opinion a crime, something that CJ Roberts, if not Mitch McConnell would know. So they’re blowing smoke. Yes, the leak is consequential. It is not remotely as consequential, or as much of an assault on precedent and the Court’s stature, as the apparent decision to overturn Roe.
The leak – whether from a dissenter, or, more likely, from the Court’s majority – merely indicates the level of division Alito and his cohort are willing to tolerate in order to get their way, notwithstanding that a majority of the country disagrees with them and supports the rights they are committed to destroying.
If the right was the source of the leak, it seems probable ti was designed to energize their minority base – to intimidate with the mob, a la Trump, to drown out their status as a minority, and to get their way.
A conservative clerk leaking it might also be trying to lock in the conservative justices to this hideous opinion and not water it down. The leaker will be identified sooner or later, so we shall see.
I don’t see a clerk doing this. They have too much to lose, as the presence of former clerks Kavanaugh, Barrett, Breyer, Roberts, Kagan, and Gorsuch on the Court can attest to. To me, the leaker has to be a justice. They may have used a clerk to get the draft from the court to Politico, but for my money, there’s a justice behind this leak.
Beyond the impact inside the court on the drafting process, there’s a big impact outside the court that needs to be considered. The timing, on the eve of several big GOP primary races (Ohio and Indiana today; Pennsylvania and Georgia coming later this month), suggests to me that perhaps a conservative was looking to remind conservative voters that they need to get behind real conservative candidates. Donald Trump gave SCOTUS Kavanaugh, Gorsuch, and Barrett — and as a result, Alito could craft this draft opinion to bring a bunch of conservative dreams true and it will likely become law in more or less this form. Says the leaker: “You want more rulings like this? Get out and vote for real conservatives.”
Hmmmm . . . Anyone happen to know if Ginnie Thomas had coffee with someone from Politico lately?
Alternatively, could this be Breyer giving Alito one last grand FU before he rides off into the sunset?
Very good question about Ginni [SCOTUS Spouse] Thomas.
Yes, I also think it is Ginni Thomas. She is that willing as we saw from the few txts released about her pushing for the stop the steal, phony electors and seems to have been quite involved in the actual planning and implementation of the Jan6 insurrection to Mark Meadows and others, including Trump.
This leak would serve her ambitions in numerous ways. Pressuring the toxic 5 SCJ to stick with this unconscionable ruling, deflect the public from the upcoming Jan6 report that will likely show her more fully involved as well as numerous republican politicians and like others have said, galvanize the GOP base to the primaries and November election.
Leaking this ruling seems to me like a win win for her all the way around. And if she is discovered what would any of these partisan 6 do about it anyway? Would they keep the information quiet? Probably.
And how, pray tell, did she get the draft? Is it your postulate that her husband handed it to her? Really?
That doesn’t seem that much of a stretch to me… Ethics have never seemed that important to him. Refusing to recuse himself from cases he should have, etc.
Well, we shall see at some point. But the thought that even a cad like Thomas just blithely handed the work product to his wife, knowing what she would do with it strikes me as ridiculous.
I doubt he knew what would happen, if he did that, but I also think he doesn’t *officially* know most of what she does. They’re both on the “right side” of law, after all, so nothing bad will happen to *them*.
Justice Thomas would in any event preserve plausible deniability for himself, and likely for his wife. While I can’t imagine him handing the draft to her, I can envision him leaving it somewhere where she might ‘happen’ to come across it. This assumes she has some inkling of potential compromise among the five assents, but I think she could justify leaking it on the basis that she is a vessel for God’s Plan.
The version I saw and think flies: she talked about it privately with sworn-to-secrecy friends, who then did the same, and after a couple of iterations, someone connected with someone who connected to Politico. All very hush-hush and all that, and of course none of them would leak.
IANAL, but if this decision is truly saying that there is no right to bodily autonomy in the constitution, doesn’t that mean that forced abortions or sterilizations, like those carried out in support of China’s one-child policy, could also be constitutional?
Those have been legal before.
OT
Marcy,
I have no idea what is happening to your Twitter feed.
Just remember, you have live blogging here as a back-up.
Glad to know it’s not glitch that my computer just sprouted.
SCOTS is broken. Our government is broken at the federal, many states, and in many cases local levels.
That, I believe, is the culmination of the Republican plan for many years. I think there is more to come from SCOTUS and the federal level if the Rs take the the Senate and House – think contraception as an example.
If this can’t crystallize a voting coalition against the Republicans – of those who are directly affected if not appalled to simply bothered or even on the fence about this travesty – to vote then I dunno what would.
Oh yeah – the Rs have iced the ability to vote – to oversimplify just need grass roots help to get the affected people to the poles. Gerrymandering will probably have to wait until non R election success is achieved or at least blunted.
Pete
Some months back, I was talking with a smart young grad of a superb small university; she is an avid reader and curious about the world.
She had no inkling how many senators each US state has (2).
Further, she had no inkling that CA has 40,000,000+, whereas Wy has senate approval for each SCOTUS member, and conclude that ACB’s appointment was a legalistic hit job
— more people need to understand just how long Roberts, Thomas, Alito have been on the court
Also, people really need to grasp what Sen Whitehouse is saying about the funding and PR around SCOTUS nominees — any fair-minded person will find it scandalous.
RE: @Wm Ockham and EW, if anyone does a breakdown on Alito’s logic, I’d be more than grateful.
Tactics, IMVHO, require several things, but primarily:
– making clear to the entire US public how un-representative SCOTUS has become over the past 4 decades, accelerating under Trump. It’s small wonder that the court is rapidly losing legitimacy, which is why I say that it is ‘whistling Dixie’.
— making the logical contradictions in Alito’s decision so clear that even a 14 year old can grasp them. Because they are going to matter a great deal to 14 year olds, going forward.
My money is on Breyer since he’s leaving the court at the end of the current term and therefore has the least to lose. I don’t think it was a clerk because they wouldn’t take the risk to torpedo their nascent glorious career.
But with a 98-page opinion, it’s pretty clear Alito has been working on this opinion for years and probably just lightly revised it before sending it to the other justices.
I love the idea of hip pocket judicial B.S.
Ready to be deployed at a moment’s notice.
It is almost impossible to think Breyer did it. Actually impossible to think any of the Nine did. Almost certainly a clerk or other high staff member.
Unlikely to think this, yes. Impossible, no. Also, it’s not impossible to think that one or more of the Justices knew in advance that the leak would occur, even if they did not leak it themselves.
I can fathom Roberts as the leaker in the hopes that it will lead to a watering down of the opinion prior to June.
If it was Roberts, or he thought any other justice did it, he would not have been so quick to call for the FBI to get involved. And any former clerks would not have had access to a draft penned in February.
There are many mystery novels in which the person who hires the detective is actually the murderer. It’s an old trope and old tropes become old because they are often accurate.
PS: I have no idea who actually leaked the draft and refuse to guess.
Well, let’s put it this way, I highly doubt any Justice would do it, but if one did, Breyer by far is the least likely.
Would the breakfast-table talk of a Justice with his political-activist wife count as a leak?
It would if he forgot the copy that he was editing on the breakfast table when he went to the office.
. . . impossible . . .
You keep using that word. I do not think it means what you think it means.
*ducking*
One possibility is that nobody from the Supreme Court sent the document to Politico, but they did share it with a third party which was responsible for the leak.
I could easily see a right wing justice coordinating with an element of either the right wing legal side or messaging machine to help push a future case on, say, gay rights. Getting advance notice of the reasoning behind the upcoming decision would be extremely useful in moving faster.
It seems possible that someone at Fed Soc or a state AG’s office leaked instead if they had an embargoed copy. And it may have come with enough supporting evidence in the form of emails to let Politico validate its authenticity.
Maybe a former clerk?
SCOTUS justices do not hand out embargoed copies of draft opinions or dissents. At most, they might chat about or describe a coming opinion or dissent, but providing a full copy is not done.
Until now, that is.
They shouldn’t, sure. But one reason I suspect that this had a root motive besides just the publicity is that the same effect could have been gained just by, say, Brett Kavanaugh drunkenly yelling in his Washington Nationals box seats about how they were sticking a knife in Roe. Or something more genteel, of course.
I think the draft may have been circulating for more pragmatic reasons of coordinating legal strategy, and once it was leaked the fake outrage about the norms violation was cooked up, knowing it would take Politico a little while to get confirmation.
But to be honest, I doubt we ever find out unless it was a liberal justice’s team that did it.
That would still be a leak from the court.
If only there were a Ginni in a bottle who could have leaked the decision, absolving all nine members from guilt.
LOL! Good one, EOH!
Actually wondering if it’s something as banal and nuts as Ginni Thomas forwarding a copy from her “best friend” to some folks to gloat (after swearing them to absolute secrecy), who then forward it to some other folks to gloat (after having sworn them to absolute secrecy) and so on until it lands in the inbox of someone in the chain letter list who is, in fact, not a total wacko and not completely on board with this, who turns it over to Politico.
This would be a massive victory for fundamentalists and movement conservatives, and a cry for further victories against the godless Left. An unintended leak does not seem the most likely explanation.
Whoever leaked it was looking at the political calendar. Especially since the PR wars are fought on an ever-decreasing window of consciousness. The story becomes about the leak and not the content. It energizes the GOP base for primary races and upcoming midterms. It allows time for the few pro-choice GOP to craft, wiggle and disappear. While for Dem side is much more effective having the outrage happen now rather than later, when the casuals are going to lose interest by election time. And by the time the final court ruling language is crafted, it will be described as less objectionable to the lay audience.
Wondering if this is one step closer to “Every Sperm is Sacred”…
https://youtu.be/bzVHjg3AqIQ
Every sperm may not be sacred quite yet but every miscarriage in about half the states will have to be investigated as a possible crime IF this draft decision becomes real.
Much of that already happens courtesy of the ‘War on Drugs’. I had a friend go through the investigation suspecting nefarious intent event though she wanted the child 30 years ago. We also have the recent example of a woman in TX who was jailed even though she did nothing illegal (too early in the pregnancy for the law to apply). So the intent is clear.
No abortions, no exceptions even if ectopic (which will kill mother and child).
Yep. It’s the absurdity “life begins at conception” leads to.
Eventually, every teenage boy will be guilty of genocide.
Agree with most of what is being said here, except I think it will help Dems in the mid-terms (Marcy does mention this). We needed something to motivate at least a few extra %age points in swing localities. Removing right to abortion even in case of rape should be an easy theme to build on. This (along with J6 hearings on TV) could do it.
It’s worth noting that the so-called “conservatives” are the ones pushing for greater government intrusion into the lives of the citizens. (Abortion, book banning, etc.)
READ this THREAD which Marcy retweeted earlier:
https://twitter.com/ashtonpittman/status/1521468201149906946
8:34 AM · May 3, 2022
Links to:
‘To Rule History With God’: The Christian Dominionist War On Abortion, Part I https://www.mississippifreepress.org/20042/to-rule-history-with-god-the-christian-dominionist-war-on-abortion-part-i/
ASHTON PITTMAN JANUARY 26, 2022
“In a speech to the Notre Dame Law School class of 2006, then-Prof. Barrett urged the graduates to recognize that a “legal career is but a means to an end, and … that end is building the kingdom of God. … If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer.”
Which means she lied when she took her SC oaths of office, i.e. the fundamental purpose in life as a SC justice is to serve the Constitution and the people it serves. Susan Collins is shocked as most likely were atheist or agnostic grads in that ND class.
She isn’t even original by the way. “Why did God make us?” is like the third or fourth Q&A in the Baltimore Catechism. Third grade stuff. The answer was something like “God made us to know him, to love him, and to serve him in this world and to be with him in the next.” She chose the Baltimore Catechism, the ADF, and her People of Praise over the the idea that people make their own decisions in this country. Can’t make this stuff up.
Third question, in the 1941 revised edition; fourth question in the 1891 edition.
1891 answer: “God made me to know Him, to love Him, and to serve Him in this world, and to be happy with Him for ever in heaven.”
1941 answer: “God made us to show forth His goodness and to share with us His everlasting happiness in heaven.”
Well, I suppose I get partial credit for being a product of 1891. Of some note related to what is going on now I would recommend a book called The Rise of Puritanism by William Haller. It’s a worthwhile sludge if you haven’t read it already.
I like Jacques Barzun’s take on Puritanism. “The Puritan legacy as a whole is mixed: toleration of the individual conscience, linked to the democratic right of participation in government and the demand for social justice. These co-exist with the hounding of dissenters and the extermination of witches.Mixed again is the welcome to the full enjoyment of life, art, and pleasures of the body, coupled with a strain of asceticism, born of a high sense of duty. Of these components, the narrow moralism and the social repression of dissent were to affect the future United States for a long time and more deeply than their opposites.” I think still in effect.
You get full credit for recognizing ACB’s subtle reference to the Baltimore Catechism, though – and it doesn’t surprise me that she’d reference the 1891 version rather than a 20th century version.
When someone tells you who they are, believe them the first time.
Dave Dayen:
https://twitter.com/ddayen/status/1521518309833076738
11:53 AM · May 3, 2022
To which Marcy responds:
https://twitter.com/emptywheel/status/1521519883258896384 1
1:59 AM · May 3, 2022
LOL! But I would rather see what’s on Mark MEADOWS’ phone. Since collaborating [with OTHERS] on the COUP attempt, MEADOWS and Cleta MITCHELL are now in leadership positions at the Conservative Partnership Institute [CPI]. MEADOWS is also a good friend of Ginni [SCOTUS Spouse] THOMAS.
Cleta MITCHELL and Ginni THOMAS are also good friends.
Hatched from the same pod, as it were.
[All times Eastern TZ]
8:32 PM Politico publishes: Supreme Court has voted to overturn abortion rights, draft opinion shows “We hold that Roe and Casey must be overruled,” Justice Alito writes in an initial majority draft circulated inside the court.
https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473 JOSH GERSTEIN and ALEXANDER WARD 05/02/2022 08:32 PM EDT
9:52 PM Steve Vladeck tweets:
9:57 PM COUP PLOTTER Jeffrey [“We’ll call you when there’s an oil spill”.] CLARK to Vladeck:
Current Bio: [Former US Dept of Justice Double Assistant Attorney General, Admin. Law Aficionado. Follow me here & on Truth Social RealJeffClark & on GETTR as JeffClarkUS]
10:16 PM Vladeck responds to COUP PLOTTER CLARK [LOL!]
https://twitter.com/steve_vladeck/status/1521312810826878978
10:16 PM · May 2, 2022
On the long list of things I would do if I had the time: Write a Twitter bot that would respond to every tweet by Clark with:
I wonder if that could be done using IFTTT? If Clark tweets, Then reply: “How about you go back to your office, and we’ll call you when there’s an oil spill.”
Probably faster than messing around with a Twitter developer account. :-)
Lol, Steve is even more blunt in private discussions.
You asked who is “Dan K. Eberhart.” He’s an independently wealthy ceo of an oil drilling firm, a hard right Federalist Society and Trump donor and supporter. Vanderbilt undergrad, Tulane Law (headed his school’s FedSoc).
Aw jeez, but of course he is. Hahaha.
He’s young. That means he completely missed the importance of Tulane Law School’s Environmental Law Clinic, and when all of the cancer alley petrochemical companies tried to destroy it because it was good at its job.
ht tps://openscholarship.wustl.ed u/cgi/viewcontent.cgi?article=1459&context=law_journal_law_policy
IANAL nor is my daughter.
Daughter after reading leaked opinion:
“This is chilling. Maybe I’m way off here but some aspects of this opinion read as though they could be reused to write an opinion that could risk a woman’s right to vote? I hope I’m wrong.”
Women’s right to vote is, fortunately, guaranteed by a constitutional amendment. A married woman’s right to own property on the other hand, exactly fits Alito’s logic for something the states can regulate.
They’ll come up with a reason why that amendment is invalid.
From Planned Parenthood v Casey, in a joint opinion authored by O’Connor, Kennedy, and Souter:
I fully expect ACB and Alito to return us to those glorious days of yesteryear.
So appreciative of this site & those supporting it. Like others above, I wonder about long term ramifications. If each State gets to decide what a right is, who does or doesn’t qualify, whether anyone qualifies, whether there is any such thing as a right, etc., who benefits? Who at the table will be smiling? One of my uncles was a marine on Bataan when the Japanese came. He survived the march, and the POW camp. For this?
What James said.
Decades of GOP “moving the goal posts” weaponization of reproductive rights.
(One could argue the similar project occurred with 2nd Amendment and Tax Reform.)
https://twitter.com/yarbro/status/1521306133645955072?s=20&t=aCFXfQ8KrHk_Cx2fr-hcsw
“The 1973 Roe decision was decided 7-2 and written by a Nixon appointee. The 1987 Casey decision upholding Roe was written by a Reagan appointee on a Court w/ 8 justices appointed by GOP presidents.
Rejecting Roe as “egregiously wrong” 50 yrs later = a radical, political act.”
Whatever its origins, the leak of this draft opinion has been a successful crie de coeur to and from the Right: “Don’t lose heart. We’ve done what we committed to do for you. We can do so much more – if you vote the Right way.”
That impact, however, might suggest which members most likely leaked the draft. A clerk might have had their hands on the actual release, but being responsible for it would be professional suicide. A member of the Supremes, however, is untouchable, except through impeachment.
It’s time to change the messaging from “the Right to Choose” to “the Freedom to Choose.” I am pro-freedom.
Most Repubs are against the right to vote, the right to abortion, the right to marry, the right to access to birth control, etc. Let’s re-frame the debate so they have to oppose freedom.
And reverse Rush Limbaugh’s life work?
An excellent idea.
It could not be lost on Alito, his cohort on the Court, and the Republican donors behind them, but the majority of harm this decision would cause will fall upon women of color – the constituency that arguably gave Democrats their 2020 victory. They have the least access to infant and maternal health care and – scandalously – the worst outcomes from it.
I’m thinking the cruelty won’t end there.
If abortion is no longer legal, then the crime for going through with one will have a punishment. Wondering whether ‘loss of right to vote’ will be one of them tossed in for good measure.
They’re going for felony murder in Louisiana. Guess what would happen if a jury actually convicted?
Just to give a little perspective, once this ruling is issued, Taliban ruled Afghanistan will have less restrictive abortion laws than many areas of the US.
54% of Americans don’t want Roe overturned, 81% think it should be legal when the health of the mother is at risk, 79% in the case of rape or incest. So SCOTUS is forcing a minority view on the rest of us. All that from MSNBC. In Texas they want to protect the right of a 12 year old girl not to wear a mask in school, which could kill her, but then force her to full pregnancy when her uncle rapes her and her pregnancy is problematic, which could kill her also.
Back before Roe many teens were ruining their lives by having kids or loosing their ability to have kids by going to the chop shops for illegal abortions as they were called back then and it affected all races religions and nationalities. Looks to me that business will have a rebound if this decision stands and what will they have solved. We will just return to pre Roe.
The answer to abortion was always birth control, and sadly that is probably next on the chopping block. Historically it’s very hard to take back a right, once given, prohibition and the amendments around that should be an example of what happens when governments seek to legislate unpopular social norms.
The percentage not wanting Roe overturned is far higher than that depending on how the question polled is framed. Saying it is only 54% is quite incorrect.
True
You’re going to have to be far more careful about the polling you cite. MSNBC likely quoted a professional polling organization and it makes a difference which one was used. At a minimum a link to an MSNBC article would be helpful.
The earliest GOP complaint about “LEAK!!!” after Politico published their story and pdf of this draft OPINION I’ve seen is the one at 9:57 PM from Jeffrey [“We’ll call you when there’s an oil spill”] CLARK I mentioned upthread.
The SECOND GOP complaint about “LEAK!!!” after Politico published their story and pdf of this draft OPINION I’ve seen is THIS at 10:49 PM from COUP PLOTTER Mike LEE:
https://twitter.com/SenMikeLee/status/1521321077686906881
10:49 PM · May 2, 2022
From the screenshot:
SEPTEMBER 16, 2021 Justice Clarence Thomas Remarks at the University of Notre Dame Supreme Court Justice Clarence Thomas spoke at the University of Notre Dame. Among the topics he addressed were the law, slavery and the Declaration of Independence, his upbringing, and politicization of the Court.
https://www.c-span.org/video/?514679-1/justice-clarence-thomas-remarks-university-notre-dame
Marco RUBIO is now in first place at 9:43 PM:
https://twitter.com/marcorubio/status/1521304509657591808
9:43 PM · May 2, 2022
And Ben SHAPIRO narrowly oozes into second place at 9:54 PM:
https://twitter.com/benshapiro/status/1521307164647825413
9:54 PM · May 2, 2022
Via nycsouthpaw [I altered the format somewhat]:
The Leak Is Good, Actually https://nymag.com/intelligencer/2022/05/the-scotus-leak-is-good-actually.html David Klion 5/2/22 2:53 PM
NOT a GOP cry of
WOLF!LEAK!!!, [or IS it?] but maybe the first, overall, clocking in at 9:07 PM, SCOTUS Blog:https://twitter.com/SCOTUSblog/status/1521295411545260035
9:07 PM · May 2, 2022
A SIN! I like this response:
https://twitter.com/MaxKennerly/status/1521327030306058241
11:13 PM · May 2, 2022
I normally agree with Max, but no court does that. They all issue their opinions when they issue them, and you don’t know what’s coming until you get it. That said, this one leak is not that earth shattering. The Court will survive, and all the caterwauling about it is a distraction from the real thing damaging the Supreme Court, and that is the decision itself.
Yes…I guess, probably not serious, but he might be making an extreme argument to push back at that caterwauling. Both THOMAS and BARRETT complained in public speeches within the last year about OTHERS politicizing the COURT…the COURT as VICTIM. lol! And I’d like to know WHO organized that caterwauling to distract from the real damage being done.
I bet Tucker Carlson knows.
That’s probably a very good bet!
There were barricades up around SCOTUS by at latest 9:10 PM PHOTO:
https://twitter.com/cami_mondeaux/status/1521296227291312133 9:10 PM · May 2, 2022
After 1/6, I don’t blame them.
No, and that was pretty fast, especially if this LEAK!! was indeed unexpected.
Meh, they always have that stuff at the ready. And keep in mind, they likely knew before publication as they would have at least been contacted ahead of time by Politico asking for confirmation.
As well they should. The gods only know what ANTIFA!! has in store. /s
I’m sure some were surprised/disappointed that the
protest was so peaceful.
Marcy this morning:
https://twitter.com/emptywheel/status/1521819744843796481
7:51 AM · May 4, 2022
Yes, though Mike LEE and Clarence THOMAS and OTHERS desperately caterwaul that
SCOTUS is NOT [!!!] political.
And they communicate and coordinate with
the Crazy-Ass Cult Absurdist [CACA] Caucus in Congress.
https://twitter.com/steve_vladeck/status/1522024059730595840
9:23 PM · May 4, 2022
Links to
https://twitter.com/mjs_DC/status/1522020031537758209
9:07 PM · May 4, 2022
These are the screenshots:
1] 6/19/18 AP OPINION: The Abortion Scare Campaign Why Roe v. Wade and same-sex marriage are likely to survive after Kennedy.
2] 5/4/22 WSJ OPINION: The Abortion Disinformation Campaign Don’t believe the claims that other rights are in jeopardy if Roe v. Wade falls.
Lemme guess: written by white men with high incomes.
This decision is a three-alarm fire, but it’s not enough for Joe Biden to support ending the Senate filibuster over, not to pass abortion rights laws or anything else. Even Tevye decided that tradition had limits.
https://www.theguardian.com/us-news/live/2022/may/03/roe-v-wade-us-supreme-court-preliminary-vote-overturns-abortion-ruling-leaked-draft-livev-updates
This is infuriating.
And Nancy Pelosi is campaigning for the only anti-choice Democrat, Henry Cuellar, an incumbent in a tight run-off against progressive and pro-choice Jessica Cisneros in a solid Blue district in Texas.
It’s the DCCC — they’re incumbents amassing donations for incumbents, spending it on incumbents.
What needs to happen: more organization in Democratic groups like Democracy for America which supports more progressive Democrats including primary races. But there’s no one running in CA-12 supported by DFA https://www.democracyforamerica.com/our_candidates#CA though Barbara Lee (D) is now running for CA-12. https://ballotpedia.org/California%27s_12th_Congressional_District
Jessica Cisneros (D) is in the primary run-off against Cuellar for TX-28. The run-off is May 24. We should be throwing money at Cisneros’ race right now so that she’s more competitive against DCCC’s money. https://ballotpedia.org/Jessica_Cisneros
In re: filibuster — it’s not Joe Biden, it’s goddamned Joe Manchin who believes the filibuster is more important than women’s right to self-determination and control over their bodies. He refuses to change the filibuster rule.
Someday, people will understand my problem with Nancy Pelosi. Part of her is historically wonderful; the other part is pretty bleak. And she has set back much of what is currently important for a very long time.
This is very much like Dred Scott. In that decision a southern oriented SpCt wrote that the US could not control slavery in the territories. Many anti-slavery advocates knew the next step was to extend rights to slave labor to national status, and to require paid labor states to allow slavery. This is similar in that the SpCt says the constitution does not protect privacy rights against state infringement. That’s a big limitation on the 14th Amendment.
The 19th century Republicans swept to power and became a permanent political party.
Abortion rights don’t affect a wide swath of the electorate, but the implications on privacy rights affect everyone.
Abortion is a last resort remedy. But sexual freedom has been a growing trend for at least 155 years. A SpCt decision is not going to reverse the trend. Dred Scott could not protect slavery against the world trend to end the institution.
Its going to turn out to be a very important issue.
Dred Scott wasn’t about controlling slavery in the territories. The case was about a slave from Missouri (a slave state) who was taken by his owner into Illinois (a free state), and then returned to Missouri. Scott claimed that taking him to a free state made him free, and when he came back to Missouri, he remained free. He lost in MO state courts, then sued in federal court. going eventually up to SCOTUS and Chief Justice Taney. The question in the case, as they put it in their opinion [60 U.S. at 403], was this:
Their answer was “no.”
We may be drinking the same water or something like that. Independently of this comment I had sent someone an email noting strong similarities between occurrences/situations pre-Civil War and now. Dred Scott and this leaked opinion was one of them.
The two cases seem essentially about a Supreme Court looking for ways refusing to give/taking away liberties and rights of a certain class of individuals. The cases reminded me of the Pirandello play Six Characters in Search of an Author. Only here six SC characters are in search of a rationale for their prejudices. I think there were seven in the Scott decision.
The above is correct. The expansive language limiting federal power over slavery was in the dicta unnecessary to decide the case. I did not want to write too extensively. Thanks for the reply.
Roberts declared the leaking of Alito’s draft opinion to be an “egregious breach of trust.” Perhaps Roberts is too serious a jurist to use wordplay to direct his frustrations at a target, but I found it curious he would speak of an “egregious breach” bemoaning a leak of a draft opinion that repeatedly insists Roe was “egregiously wrong.”
The latest season of the TV adaptation of the Handmaid’s Tale was delayed because of covid considerations. If this ruling comes to pass, in the name of life imitating art, that season finally dropping will suffer from ironic irrelevance. Kind of reminds me of House of Cards, and then Trump gets elected and Kevin Spacey gets Me Too’ed. I have to believe Margaret Atwood would have preferred her tale to have been written and presented in the spirit of a cautionary tale rather than it morphing into actual prophecy. And her books are also being banned in some states. If Ray Bradbury were still alive, I reckon he’d be in the same boat.
And I can’t help but think of Philip K. Dick, whose novel “We Can Build You” about about a simulacrum of Abraham Lincoln being built and and marketed for profit and some other novels (can’t recall the titles now) that essentially predicted the inevitability of a Ronald Reagan type of president – folksy and grandfatherly, full of empty platitudes, but ones that resonated with the public.
Atwood was on some cable show in the last couple of days, and she effectively said just that.
What comes to my mind is Suzette Haden Elgin’s “Native Tongue” trilogy, where women are second-class (at best) and older unmarried women are in orders, like religious sisters, where they’re nurses and teachers.
I keep waiting for RWNJs to target “Idiocracy” as the same kind of cautionary story as “The Handmaid’s Tale” — something to be smothered, lest it be taken seriously.
I wonder if it’s even crossed the minds of Barrett and Thomas that this decision (and the ones obviously following from it) will affect them and their families.
They don’t care about temporal things. They only care about their God. All collateral damage is to his Glory.
Spot On.
George Carlin- On abortion and pro life supporters
(https://www.youtube.com/watch?v=uHRaUUlD00w&t=124s)
Then she should have been celibate for the last 20 years.
Second Class Roe’s
Supremies shake your stiffness,
We’re not second class,
You have your 1st amendment
Isn’t ours as top brass?
Stuff in your co-equal branch
is it always top drawer?
Remember robes you’re wearing
someone wore them before,
It’s no wonder that we feel abused,
You just let us know we’re being used
You give us second class fiats,
Second class prose,
That’s how you cheat us,
and treat us like 2nd class Roe’s!
This time when you gave us all a holler,
Sammy showed us
he’s just a shallow scholar,
Second class rules,
Poorly conceived by you fools.
We never get a single point of view,
You pretend that we are rotten down to the core,
You have the nerve to tell us we’re the ones you abhor,
Everyone knows
you treat us like second class Roe’s,
From 2nd Avenue.
We’re getting 2nd class woes,
Where all the hot air blows,
Six Supremes hand us
their 2nd class lows.
Concurring opinions
when we read them,
Have something stamped
that looks like god speed them,
Second class strings,
We’re sick of second class things,
We just don’t get what
the Supremies do.
Once while strolling through the Ritz
a woman had that bloat,
She nudged her friend and said,
“You know, the world’s so
damn cutthroat.”
Supremies must know
we’re not just 2nd class Roe’s,
From Second Avenue.
https://youtu.be/mxEwMcJ8GXc
“FANNY BRICE sings “Second Hand Rose”, rec. 8th November 1921.”
I’m curious about how a few people have noted the timeframe to produce a 98 pg opinion. Is it possible to get documentation on the evolution of the opinion against the timing of finishing it? The idea that the opinion was pre-readied sounds plausible and concerning. Is there any way around deliberative process privilege?
Lol, no. And the draft could easily been produced in that timeframe as each Justice have a battery of clerks that work on such things. Decision pre-readied is extremely unlikely; however, there are amicus briefs that material could be taken from. It is a shit decision, but some of the conspiracy theories are a bit much.
Here’s an amicus brief: Roe and Casey Were Grievously Wrong and Should Be Overruled
Harvard Journal of Law and Public Policy, Vol. 17, 2021 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4016523
One of the suthors, Rick Garnett, a Notre Dame [spit] law professor, bragged about it on twitter.
Oh, I know. There are many others too.
This THREAD, via Laura Rozen, might be helpful:
https://twitter.com/akapczynski/status/1521494553877962754
10:19 AM · May 3, 2022
Nobody really knows yet (well actually Gerstein, Ward and Politico’s editorial and legal teams do), so we are all guessing, but I find Kapczynski’s analysis fairly compelling, and have since I saw it this morning. If I had to bet, that would be it, thing about betting is sometimes you lose. So despite all the speculation, nobody really knows yet.
Indeed. Speculating about whodunit only takes away from mobilizing to do what we need to do in the next few weeks.
I learned some things of interest about the opinion writing process from that. I’m not primarily interested in who did the leaking, but in which Justice’s employee’s had the environment that allowed [condoned?] it. And, I’m finding I’m suddenly very interested in the clerk-choosing process, which I know nothing about.
Oh, it is an interesting process alright. Am trying to think of a book that really delves into it.
Thank You!
The leaking around Roe v. Wade is way more interesting than the leaking of this decision.
The case was originally argued before a SCOTUS with only seven justices. Five of those seven justices were onboard with the fundamental ruling. Justice Douglas almost immediately wrote a “memo”, which was essentially a draft opinion in an attempt to get the majority opinion assigned to him. Chief Justice Burger wasn’t about to let Douglas write the opinion and assigned it to Blackmun.
However, there was a controversy about whether to issue the opinion or rehear arguments in the case after the confirmation of the two new Nixon appointees joined the court. SCOTUS decided to wait and Douglas was furious. He was worried that the two new justices would pick off Burger or Powell and uphold the Texas abortion law.
So, somebody leaked Douglas’s “memo”. And everyone assumes that Douglas leaked it himself*. And the leak had the intended effect. It locked in the majority votes and made it almost impossible for Blackmun to deviate too much from the basic parameters of the ruling.
So the case was reargued before nine justices. And before the final opinion was published but after it was written, Roe v. Wade was leaked. Burger went nuts, an investigation was instigated and the guilty party was identified as one of Powell’s clerks. And Powell refused to fire the clerk.
*Less than 10 years after these events, I had a graduate level seminar with Dagmar Hamilton who was a long-time editorial assistant to William O. Douglas. The issue of who leaked Douglas’s memo came up. Hamilton was incredibly loyal to Douglas (which I found really odd because Douglas was an absolute asshole) and the only thing she would say was that the leak certainly accomplished what Douglas wanted. I recall one of my classmates muttering cui bono under his breath.
Excellent comment!
Guns have more rights and support than women. Easier to get a gun than an abortion.
[P]SCOTUS
Tacit Putin’s now in [P]SCOTUS,
Who’d have ever thunk?
Their power to penal code us
is like his anti-democratic junk.
Who are the johns for the Supremes,
Who will perpetuate their rape,
and muffle any wayward screams
with a necromancer’s lurid cape?
Now pillaging is de rigueur
and booty’s for the take,
Stare decisis is a voyeur,
It’s all power for power’s sake.
Who asks for his forbearance
with a strident voice so clear,
Oh, yes, that must be Clarence
and Brett who holds his beer.
A bonfire of the vanities
has become a little gamy,
For these latest insanities
don’t forget to thank dear Amy.
For all the grifts to seal the deal
there’s that demented uncle Sam,
And with an ample nod to Neil
who can recite the curse of Ham.
Now we’re all on notice
that theocracy’s in charge,
How dare they motherlode us
with autocracy writ large.
Pence was the lodestar, after all.
Reading through the draft, I was struck by the complete reliance on the history of “Anglo-American” law and, of course, the fact that men controlled that history. Passages from Hillary Mantel’s Thomas Cromwell trilogy came to mind, about all the secrets that are whispered among the women in the queen’s chambers. In the 1980s at a local arts/crafts/farmers market event in the rural (and conservative) area where I grew up, I bought an illustrated cookbook published by a local woman in her 80s. It recipes, her drawings, and reminiscences, including many references to the pot of tansy tea at the back of the stove and definite wink as to what it was for.
Just like with Heller, I find myself thinking the Justices have a pretty limited understanding of history.
And those Christianist justices as well as the party which seated them want to ensure the country is just as limited in its understanding of history.
And local cultural knowledges of abortifacients have vanished or greatly attenuated with the generations like other expertises about the natural world.
As some are rediscovered I can only imagine the lengths to which certain authorities might go to outlaw (some relatively common) consumable substances. (I can see CSI: Orwellian Tox Screen becoming like bad 3-D chess, as many cultural folk lists contain food items that are not really effective. But some dumb anti-science totalitarian wank seeing any such list would surely think, ‘Aha! we’ll ban and test women for [ insert examples ]’.)
Just to put it out there: Ben Franklin published an abortion recipe in 1748, so to conclude there is no historical precedence of a right to an abortion is hogwash
https://slate.com/news-and-politics/2022/05/ben-franklin-american-instructor-textbook-abortion-recipe.html
Ben Franklin Put an Abortion Recipe in His Math Textbook
To colonial Americans, termination was as normal as the ABCs and 123s.
I was at a meeting once where the subject was instructions that weren’t what they looked like. Like the ones on canned grape juice during prohibition that were all “do not do this particular thing; do not do that particular thing” and so on, there were instructions for women to insure a successful pregnancy that were “do no do this thing” – like riding a horse faster than a walk, and eating or drinking certain things.
Yep this is exactly how it’s done in lots of places (e.g. throughout Catholic Mesoamerica); women hand down these types of proscriptive lists for successful pregnancy.
I’m also wondering what’s going to happen with domestic violence cases because of both the escalated risk to women while pregnant, the number of violent acts specifically directed to attempt to cause pregnancy loss, and interaction effects with just the generally difficult nature of (trying to help people in) these relationships.
The opinion is astoundingly dismissive and contemptuous. Everyone knows by now that Alito said “egregiously wrong,” but there’s a lot more where that came from. Reading the opinion, you’d think all the justices who agreed with Roe for almost 50 years were imbeciles. They all should have known that if there was no right to abortion granted in the text of the Constitution – which is itself an absurd notion – then it cannot possibly exist. This text-only idea has very broad implications for things like contraception – as people have already recognized.
Elections matter, as the saying goes. Maybe now a lot of complacent people will realize it.
I propose a national ‘Tell People You Had An Abortion Day.’ Before LGBT National Coming Out Day made it on the calendar, we made it a grassroots mission to come out to our friends, family and coworkers. We knew people’s opinions would change if they found out they knew/loved someone who was LGBT. And it worked. Societal opinion on LGBT rights changed affirmatively fairly quickly after we started coming out. Everybody should learn about all the women they know/love who have had abortions and the men they know/love who went through an abortion with a woman. I’m not connected in a way to advocate for this (and I have a newborn) so anyone feel free to pass this idea on to anybody who could make this a thing.
Oh, for a few SC Justices (just) like Brandeis and Cardozo. Here’s the Old Testament view of contraception – https://www.salon.com/2014/01/05/biblical_birth_control_the_surprisingly_contraception_friendly_old_testament/
Insightful interview by Amanpour. Source: CNN
https://www.cnn.com/videos/tv/2022/05/04/amanpour-schaeffer-abortion-scotus-roe.cnn
Why this former anti-abortion activist regrets the movement he helped build.
Frank Schaeffer once produced propaganda films that helped launch the Christian right. Now he feels regret for what he calls an ‘anti-family’ movement.
Perhaps I missed it, but has anyone seen anything identifying our leaker? I did see that a OANN toady tried to blame the new Justice, but neither she nor her clerks (which is how the OANN toady said it was KBJ’s fault) are in the office yet and FWIW I’m pretty sure this was decided before she was nominated. There are a couple of points:
1. Justice Jackson has far too much class and would not have been part of the process anyhow. She doesn’t have anything to gain.
2. This reeks of an agent provocateur (a classic dictatorship play to discredit the opposition) and I’ve seen in many other places elseweb that the point was to prevent any wavering by the majority. Cui bono applies here, and the left wing would be enraged regardless of timing and would also not get any more votes to their cause. So why did it need to happen now?
3. If I’m correct on the apparent lack of doxxing, then the longer the leak perp remains a mystery makes it more likely that it’s one of the RW justices if for no other reason than if it were the left side, Faux would have published (quite loudly) already.
https://barkbarkwoofwoof.com/2022/05/does-it-matter-who-leaked-it/
I’m really sick of the worrying over the leak when the real problem is a mass of human rights about to be foreclosed upon by this fascist SCOTUS which may have orchestrated this leak to lock in its majority.
Yes, exactly.
Concur on all counts there, I was just noting that this leak was an attempt to scare someone.
Will it be more important than the outcome (which I’ve written about in other posts)? Nope. The RWNM also can’t be allowed to pin this on the new Justice like they blamed ‘ANTIFA’ and ‘BLM supporters’ for J6, so stomp on it where that’s found as well.
Delighted it was leaked because this issue needs to be front and center. Don’t care who leaked it, just grateful. Exposure is vital in order to deal with hidden agendas.
This is not about abortion. This is about CONTROL. Control by the Republican religious right who are extremists, control freaks, manipulators, bullies and authoritarians selling “my way or the highway.” I refuse to be controlled, refuse to be manipulated and refuse to be abused by this religious jihad.
So, I will continue to bring up the fact no one is forcing men to have vasectomies that can be reversed when abortion is discussed because I believe in equality for ALL.
Amen sister, but I would point out that the more likely equivalent for men would be a legal prohibition against masturbation. Since a fertilized embryo is pre-life i.e., the precursor to a human the building blocks of that pre-life are the logical extensions of what must be protected, i.e. the sperm and the egg, and protections should extend to them, logically speaking. It is mostly religious beliefs that fertilization that denotes life. The logical conclusion is that a building block is a building block. All sperm and eggs should be protected!!!
You may think that argument is silly but research the catholic church’s historic beliefs on masturbation.
Now let’s hear a resounding chorus of Every Sperm is Sacred!!!
No, that is silly.
Jenny,
I would suggest irreversible vasectomies for men producing children out of marriage. We could call it the “one and done” law.
Yes. Good one.
Here’s Bette Midler retweeting “wittyidiot”‘s suggestion:
https://twitter.com/BetteMidler/status/1521610549603229697
5:59 PM · May 3, 2022
IANAL
I have been chewing on some thoughts and questions as a result of having two high risk pregnancies – both high risk for different birth complications. One complication was extremely life threatening. I kind of won the “challenging birth” lottery with a cash prize of eye popping hospital bills. Consequently, my experience has keenly impacted my perspectives on abortion.
In both instances I had to write a living will that was maternity specific and related to my birth plan.
I was told that both were advance directives that would promote individualized care and improve outcomes for me individually and for my family so a decision making burden would be mitigated during a difficult time. The process was a bit of a pregnancy lifeboat if you will.
Living wills and birth plans have some common ground for pregnant women:
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1595270/
Isn’t having an abortion essentially an advanced directive?
So does the content of this opinion by the SC void a pregnant woman’s right to having a living will and birth plan that are bound to one another?
Does this mean in a state that has zero abortion tolerance, in the situation where lives are at risk the default decision will be to save the fetus even if that conflicts with the individual’s living will?
If this decision voids living wills and birth plans for women, how are advanced directives made equal for all?
I have a ton of questions on this from my experience but I’ll stop with these questions.
Excellent questions. Unless state laws specifically allow abortion to save the life of the mother, an advanced directive authorizing abortion would be worthless. IANAL but that’s exactly what has happened in other countries with zero tolerance abortion laws.
I’m sure Alito would argue maternal mortality is “deeply rooted in our nation’s history,” as is the inequality of women’s rights since there is no Equal Rights Amendment. ~insert a string of epithets here~
No profanity unless you’re a shellback. Tsk, tsk, tsk.
Let’s also consider the painful death sentence that an ectopic pregnancy is if permitted to proceed, will these states compensate the families for the mandated loss of life in those cases? It’s not like the women can control where implantation occurs, and once the placenta is formed it can’t be re-implanted either. That last item is being tossed around by some of the GQP legislators to justify leaving ectopic pregnancies out.
I wonder as well whether the Dominionists have lost the war by winning this battle, because there are a whole lot of righteously pissed off people that will not be apathetic any more. Another question I see is how many of the other dominoes (Loving, Obergfell, Griswold, Brown, etc.) will the Dominionists try to topple while they have their reactionaries in control at SCOTUS.
That’s why the Senate and House races are so critical this year, because any court expansion (the fastest way to fix this IMHO) needs D majorities in both chambers. I’d say Schumer and Pelosi are mad enough to do it.
“Let’s consider the painful death sentence that an ectopic pregnancy is”
Uh, having been pregnant twice, been there, done worried about it as well as numerous other mortal threats which occur during pregnancy. As many as one in 3000 women die during pregnancy depending on which state one lives in and what race the mother is.
Pregnancy is a mortal threat to every pregnant woman no cis-het man will face. We haven’t even begun to address the other reasons why women need D&Cs which could be outlawed, or what the rights are of women who no longer have a uterus when women’s rights are being degraded substantively.
And in some states, even if GOP might tell you, “Those are exceptions and you would be covered in those cases.” Yet, often even the procedure needed is banned. Had a sister have a late term pregnancy determined non-viable. She did not naturally abort. She was a vbac and her blood count was indicating she was potentially beginning to develop an infection. So no C-section could be done. She lived in a state that had banned late term extraction. She had to travel to a neighboring state for care. She almost died.
It’s what happens when the GQP plays doctor in the legislatures and court rulings (including Alito’s draft). They make all sorts of medical assumptions as absolutes but as your note here clearly shows there are many factors that will determine the options available. That’s why the woman and her doctor should choose.
Alyssa Milano did a pretty good 15-minute explainer on Roe v Wade history, Digby has it.
https://digbysblog.net/2022/05/05/one-step-forward-two-steps-back-2/
It was meant as an example, but thanks for posting a longer list. I wonder about the rate of occurrence on these events, so we can point out to the GQP what their body count will be and make them own it.
First Draft’s Shapiro posted a pretty powerful piece on his family. Link below, might trigger.
https://first-draft.com/2022/05/06/libby/
My husband was not allowed to weigh in writing-wise or signature-wise in both cases. All the possibilities were mine to chose how to proceed and who should live, die or both.
It was an awful experience. The very evangelical Christian social workers (in both instances) were dismayed at my directives in both cases. They felt saving the fetus was the goal no matter what and that my life was expendable.
I wrote out a contract for the social worker to sign during my second time experiencing a pregnancy risk since she was so incensed at my choices. My contract for her stated she would devote her entire life, without compensation, to helping my husband as a single father of three, and one child with high end caregiving needs due to complications at birth. She told me I was crazy. I pointed out her faith was hollow and that her judgement of me needed some self-reflection on her part because she really was not pro-life since her faith has no room for long term follow-through on her stance. She honestly did not comprehend the larger meaning of being pro-life. (Full disclosure: I am Lutheran.)
Marcy tweeted/ retweeted this thread. which explains the full fucked-upedness of Alito citing Mathew Hale. Towards the end of the thread the author says she’s going to mute it- I don’t know that this means in twitter terms. It is very much worth reading.
https://twitter.com/Literature_Lady/status/1522202362366078979
There are a lot of people who Do. Not. Get. It.
I take it you have read the thread, probably via Marcy. The people who Do. Not. Get. It. want to maintain their Power.
Of Course the Constitution Has Nothing to Say About Abortion
There is no mention of the procedure in a four-thousand-word document crafted by fifty-five men in 1787. This seems to be a surprise to Samuel Alito.
https://www.newyorker.com/news/daily-comment/why-there-are-no-women-in-the-constitution?
“If these folks believe Roe was so egregiously decided, why didn’t they tell the senators during their confirmation hearings? Because Americans support abortion at 80%. They knew if they were honest they wouldn’t get the job, so they lied, which is perjury.”
Stephen Colbert
The media fell for ‘pro-life’ rhetoric — and helped create this mess
Perspective by Margaret Sullivan
Since it is okay according WaPo to share a link (gift an article) on Facebook (no I don’t do Facebook) and Twitter I assume it’s okay post it here.
The media fell for ‘pro-life’ rhetoric — and helped create this mess
Perspective by Margaret Sullivan (May 5)
https://wapo.st/3yi6NwU
Click on link above ▲
National Youth Poet Laureate Amanda Gorman on Abortion Bans
8 REASONS to stand up today against abortion bans in the United States, according to Amanda Gorman:
https://nowthisnews.com/videos/news/amanda-gorman-8-reasons-to-stand-up-today-against-abortion-bans-in-the-united-states
THOMAS Watch:
Marcy: Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.
https://twitter.com/hugolowell/status/1522738633610240001
8:42 PM · May 6, 2022
Thomas says government institutions shouldn’t be ‘bullied’ following leak of draft opinion on abortion https://www.cnn.com/2022/05/06/politics/clarence-thomas-stare-decisis-roe-v-wade-leak/index.html Updated 9:21 AM ET, Sat May 7, 2022
So, that will be CLARENCE’s parenthetical:
Clarence [“impartiality might reasonably be questioned”] THOMAS
Clarence [“impartiality might reasonably be questioned”] THOMAS,
re: CLERKS:
https://twitter.com/hunterw/status/1522368350105616386
8:11 PM · May 5, 2022 [SCROLL UP for beginning of THREAD]]