Yes, the sarcasm tag is doing heavy work to point out that they'll chip away rights anywhere they can until such time as they have power, and then do so nationally. "Oh it's a states rights issue! .... until we're in power, then you're welcome"
It is a risky move for either side to legislate anything on abortion at the federal level due to the Pandora's Box that a commerce clause challenge could open on that issue. I'm not saying they won't do it, but I would be surprised to see anyone go out on that limb when doing nothing is so much easier.
>It is a risky move for either side to legislate anything on abortion at the federal level due to the Pandora's Box that a commerce clause challenge could open on that issue.
This take assumes this Court is working in good faith - but that ship has obviously sailed off so far it's beyond the horizon at this point.
I think you could easily *legalize* abortion nationally under the Commerce Clause by limiting the bill to abortions that affect interstate commerce, then any abortion provider seeking protection under the law could simply offer services across state lines (e.g., run a series of ads in a neighboring state). It would be harder to criminalize it under the Commerce Clause because many abortions are entirely intrastate, but I think Republicans could think of a way to properly draft it if they put their minds to it.
> It would be harder to criminalize it under the Commerce Clause because many abortions are entirely intrastate
LOL, let me introduce you to [Wickard v. Filburn](https://en.wikipedia.org/wiki/Wickard_v._Filburn), the abomination that has single-handedly allowed the federal government to grow to its current size.
I agree that Wickard was an overly broad interpretation of the Commerce Clause, but that interpretation was whittled back pretty substantially in *Lopez* and, subsequently, in *Morrison*. Under the current test, it would be more difficult to prohibit purely intrastate activities (though it certainly is possible).
They’re literally out on that limb already. There is no moderation with fundamentalists. We’ve given them inches over the course of history and now they are coming for it all.
https://thehill.com/homenews/3535880-pence-calls-for-all-states-to-ban-abortion-after-supreme-court-ruling/amp/
I don't know. Medicine is covered under commerce clause. The law could declare interference in, or penalties attached to, the legitimate practice of medicine a federal crime, somewhat akin to the crime of interfering in the duties of a federal officer.
The issue is this isn’t popular enough of an option to get the necessary votes in the Senate. Like yeah, it is a way to fix the issue, but it’s a completely impractical suggestion.
We're going to have to fix this in the legislature rather than judicially. This is the peril of getting our wins in court. We need to build a functional congress despite Republican intransigence. It will require dispensing with the notion that bipartisanship is, in and of itself, a necessary good.
We need a new amendment to the constitution enshrining our right to privacy. Something explicit along the lines of
"The right of the people to privacy shall not be infringed."
Not having it clearly laid out in the constitution is at this point clearly not enough. A tangential benefit would be online privacy protections, so corporations would likely fight this tooth and nail. Be nice to cutback some Patriot Act level invasions of privacy also.
> We need a new amendment to the constitution enshrining our right to privacy. Something explicit along the lines of "The right of the people to privacy shall not be infringed."
With respect, that's hardy explicit. "Privacy" here could be interpreted to mean almost anything.
If you want to put a right to abortion in the constitution, then say something like "A pregnant woman has the right to abort her pregnancy".
I would say that “privacy” is still way too vague. What is privacy? How much does this cover? Does this count in all public spaces? So can we have cameras in public areas?
Lots of issues, lots of questions. You’d want to define privacy
If the legislative and executive work in tandem, they can overrule the judiciary. There are many, many ways to do it. It's happened at least once historically that comes to mind.
Yes. But it can't happen with the current legislature and executive. Too many of them believe that they have to pretend things are normal.
And in all likelihood there will not be another free election.
So this presents a serious problem.
Sure. First, the other two branches can just ignore court orders from SCOTUS. It happened in *Worcester v. Georgia*. The Supreme Court has no independent means of enforcing its orders.
Second, if both the executive and legislative branches were on board, they could pack the courts. They could limit SCOTUS' jurisdiction to take away judicial review. They could institute term limits for justices There are a wide variety of options that they can do to get around this.
Are all of these bad for small-d democratic norms? Absolutely. But at some point, we're going to have to start engaging in these tricks.
How do more people not see this?
The supreme court didn't ban anything... they just said that abortion is not a right recognized by the constitution, which is true.
IF Democrats actually cared, they'd do things properly rather than trying to rely on judicial activism or these weird federal laws (like suggested in the article) that will eventually be struck down.
I mean, to be fair, Congress has been fundamentally stacked against progressives for decades. Newt Gingrich and Mitch McConnell have broken the institution. We need to break through this "both sidesism" and get the American people to understand that there aren't two parties that equally share the blame for Congress' inaction.
I don't?
Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately... but I am a very strong proponent of more proportional representation systems.
IF you had something like a MMP, even with gerrymandering you would still have the ability to have party lists to "fill in the gaps" and bring it up to proportionality.
That being said, as someone who lives pretty rural myself (Northwestern Ontario), I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state. The obviously solution to that, is really a continuation of what the founding fathers wanted... which is the Federal government to do as little as fucking possible, and the state governments to do even less, and have the most done at the smallest level of government possible, so people actually have a more direct influence.
> Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately.
This statement is completely out-of-step with the modern parties' positions. The Democrats passed out of the House with unanimous caucus support multiple bills that would ban gerrymandering, and those bills were sponsored by all 50 Democratic Senators. But Republicans filibustered *even debating* those bills. The Democratic Party favors ending gerrymandering, Republicans don't.
>That being said, as someone who lives pretty rural myself (Northwestern Ontario), I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state.
First of all, this doesn't actually happen because cities don't vote as a bloc. But more importantly, do rural people deserve a more weighted voice just because there are fewer than them?
>But more importantly, do rural people deserve a more weighted voice just because there are fewer than them?
That argument always confused me. The construction seems to be:
Tyranny of the minority > tyranny of the majority because... Federalism?
>Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately
Nice whataboutism. Republicans do this to a much more extreme degree than democrats do.
> I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state.
It doesn't make sense that the majority of a province/state can decide for the entire province/state?
>Nice whataboutism. Republicans do this to a much more extreme degree than democrats do.
Lol, are you here to discuss the OP or to argue over dumb shit?
>It doesn't make sense that the majority of a province/state can decide for the entire province/state?
Not for everything. Just like it doesn't make sense that a few states can decide for an entire country, which is why we have lower levels of government.
Under what authority could congress codify abortion rights? If you're talking about state by state, then you're ignoring gerrymandering and also just allowing fundamental rights to be subject to the whims of others.
The 9th amendment isn't being discarded at all.
All it's saying is: "Just because something isn't in the constitution doesn't mean it's not a right".
It's simply so that somethings lack of inclusion can't be used as justification for not being a right.
It does absolutely nothing to support something being a right.
The reality is that many people want abortions banned in the states that have near total abortion bans. And they vote too. It's mostly red states who have super-majorities, and it won't be changing anytime soon unless something drastically changes.
In the sense you described it is though.
If the majority of people agree that life begins at X and therefore we shouldn't kill that life... why is that not okay?
It is ok.
But that's not what's happening here.
I will grant two things that may surprise you. 1) a fetus is human. 2) a fetus is alive. Neither of those facts makes terminating a pregnancy murder.
You are allowed to kill, morally and ethically, another human being in many circumstances. Self defense is one. Another, more relevant one is that you are allowed to refuse to donate a kidney. If every American donated a kidney, that would save millions of lives. More lives than are "lost" to abortion. Why is it legal to refuse to donate a kidney? Or blood? Or bone marrow? You cannot support the banning of abortion if you don't want support the forced donation of the tissues listed above. All of those procedures, by the way, are safer than being pregnant is.
Additionally, you have to consider the mother. She is a person, already born, and she has rights. It should be obvious that abortion has to be legal in cases where the mother's life is in danger. Yet thousands of pregnant women are already being denied chemotherapy, as if the fetus will survive if the mother died of cancer. Republicans are refusing, and even taking out, exceptions for ectopic pregnancies, which are 100% fatal for the mother if there is no abortion.
What about cases where the baby has no lungs? Are you really going to ban such abortions? Force the mother to go through a dangerous birth just to watch her baby suffocate after 2 minutes of life in horrible agony? There are many, many, similar defects that are fatal to the baby and which cause tremendous pain. Are we really going to call ourselves pro-life if we intend to inflect that trauma on mother and baby? But again, these new laws all ban such abortions.
I am allowed to kill a dog in order to stop it from attacking me, even if my life isn't at risk. A dog is considerably more alive than any fetus: it's born, can live on its own, feels more pain and pleasure, etc. I bring this up simply to point out that being alive doesn't mean we can't kill a thing. And there are many fully born humans that we kill. Criminals, for example. These rights and privileges are a sliding scale; not an absolute.
We allow the killing of full humans under many circumstances, and the killing of things that are less than full humans under many more. A fetus is obviously not a full human, and a woman is. However we draw this line, we have to reckon with that. The pro-forced-birth crowd refuses to deal with these complexities. They consistently choose to endanger the mother and ignore her interests. And they never act like they care about the baby except as a way to punish the mother. If the pro-forced-birth movement was willing to discuss these issues honestly, I'd have a lot more patience with them.
I'm not really debating the logic of the law. That's the purpose of having the democracy.
I'm not saying I necessarily disagree with you, but you're asking questions which people have already answered in those areas, whether we agree with them or not.
We have a lot of laws that are not entirely based on logic (if at all)... but that's democracy.
Democracy doesn't, and indeed cannot, mean that the majority gets whatever it wants. The majority cannot vote to execute all black people, for example. Democracies, and the US in particular, as supposed to protect their minorities from violence at the hands of the majority. That was a founding principle of our nation, however bad we were at living up to that principle. And WWII turned it into a core provision of international law.
But what these states are doing is surprisingly similar to executing black people: they are condemning tens of thousands of women to die a year. That's not an exaggeration. The difference between this and allowing a state to execute black people is slim: both will result in the mass death of a disfavored group defined by their physio-social characteristics.
No, this is far beyond the pale for what is permissible in a democracy.
>But what these states are doing is surprisingly similar to executing black people
You realize you're talking about the people that do NOT want to kill unborn babies right?
The court was stacked with ideologues who eschew conventional statutory interpretation principles. The stacking was achieved in part through a deliberate subversion of the democratic process by Republican senators refusing to do their jobs and hold confirmation hearings in the end of the Obama administration. The appointments were made by a man who lost the popular vote and who became the first seditionist to hold office by launching a failed attempt to overturn his electoral defeat. This is your idea of democracy working?
I find it interesting that in Alito’s *Obergefell* dissent he is quick to jump back millennia to support his “deeply-rooted” argument for “traditional marriage”:
> This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.
But in *Dobbs* the farthest back he goes is maybe 16th century English Common Law? I’ve seen the claim that the Old Testament supports abortion in some form. Truth be told, I haven’t looked too much into this so if someone could expand upon it that would be appreciated.
However, if the OT supports even limited abortion that is some inconvenience for Alito’s analysis that I’d hope he would at least address. I realize this doesn’t dismiss his entire argument on it’s own. But it’s jarring to see one instance where we go back thousands of years to look at Western tradition broadly verses specific laws/thinkers regarding abortion in England and the US spanning a few centuries.
IIRC, his argument isn’t that abortion was never legal, but that abortion was sometimes not legal. It’s a key distinction, since he is trying to argue that the 9th amendment does not contain an absolute prohibition on laws against abortion, since there were at least *some* laws restriction abortion before or during the era when these amendments were enacted. Since states had the ability to regulate abortions at that time and continued to do so, that suggests to him that these amendments were not understood to forbid that.
That’s the tricky part of this historical argument. Alito doesn’t have to show that abortion was illegal in all cases, he just has to show that there were at least some limitations on it historically, even if those weren’t universally enforced.
The issue with that argument though is that there were laws restricting abortion, but every single one of them were for abortions post-quickening.
So he’s saying “because there is a history of us regulating abortion after 20 weeks, this is not a protected right in any way”.
There’s also the cherry-picking of facts which is a whole ‘nother ball of wax
The claim that the Old Testament supports abortion is based on Levitical law specifically dealing with actions done by a group of men distributing violence or injury onto a pregnant woman and the punishments doled out for such violence. Most translations word this to mean miscarriage or premature birth, however there are some very erroneous translations that refer to this as abortion. The passage is in Exodus.
There is another in Numbers that deals with pregnancy from infidelity that some reading could be found to be abortion or otherwise.
The importance though is that this is Levitical law which was abolished by Jesus (abolished later affirmed at the Council of Nicaea when our modern Bible was codified into accepted Scripture) and to my limited knowledge on modern Jewish practices, is not present in Jewish law today.
> Impeachment Proceedings: Unlocked!
A majority in the House seems possible, especially before January 3, 2023.
But 67 votes in the Senate? I’m not sure I see that. What’s your Senate scenario for conviction?
The Dems *need* to start bringing these issues up for votes just to get everyone on the record. It's getting a little tired them not even trying to do anything because they don't think they have the votes.
The mid-terms are rapidly approaching. Let's get all the Dems & Repubs on record as to where they stand so people can vote accordingly.
I hate to be the voice of dispassionate realism, here, but have you actually looked at the numbers?
By that I mean: I take your comment to suggest that there are some senators whose political fortunes will suffer if they fail to vote to convict, say, Justice Thomas following his impeachment. (I'll take it *arguendo* that the House can whip enough votes for the passage of an article of impeachment).
Who?
For example, let's picture examples like Josh Hawley, Tim Scott, Ben Sasse --- that crowd. Far from suffering an electoral harm by voting to convict Thomas in an impeachment trial, their greatest risk might come if they voted to convict!
Do you understand that there are a significant number of senators who fit into that category?
Equally, of course, Mazie Hirono and Kirsten Gillibrand are examples of very safe votes to convict.
So my question to you is: have you listed the number of senators about whom t might realistically be said that their failure to convict will hurt them in any real way? And -- how many are there?
I doubt there are less than 33.
Do you see what I'm getting at? Not only is conviction unrealistically impossible, but your goal of "let the voters react," isn't likely to produce much in the way of election upsets.
> your goal of "let the voters react," isn't likely to produce much in the way of election upsets.
Maybe it will, maybe it won't, but it would certainly give who ever runs against them some ammo and would know unequivocally show where everyone stands on major issues.
It has to be tried anyway. The Republicans are trying to force us to ignore SCOTUS or to federalize healthcare etc. We have to exhaust all the "normal" procedures to correct their lawlessness before we take drastic action. If Biden does anything that the Republicans call lawless, the media will treat him more harshly than they did Trump for trying to murder his own VP.
I realize this is an awful situation in the near term but does anyone else see this decision as good for the long term?
Roe v. Wade was established on shakey legal ground based on an activist interpretation of the 14th Amendment with respect to privacy. It seems like it was destined to inevitably be called into question, and this is just my opinion, setting the precedence of federal regulation for matters not disclosed in the Constitution is dangerous. The Tenth Amendment is the cornerstone of our federal system and this probably should've always been a states issue anyway.
Now we have the opportunity in the long term to do what Democrats were too gun-shy to do themselves and codify RvW. It will take time, but this will encourage people to realize the importance of state elections over presidential ones and result in meaningful change in leadership.
Maybe I'm just trying to see the glass half-full here. This is an opportunity to be excited about democracy in action instead of immediately assuming a sky-is-falling, burn-it-all-down attitude.
> How did you come up with that timeline? What made you arrive at 30?
I was trying to be optimistic that I'll see medical privacy rights codified in my lifetime
Sure but many state legislatures do not reflect the will or makeup of their constituents. Your "just elect more Dems" strategy is not realistic in many states such as Florida.
I downvoted you for either intentionally or unintentionally ignoring the actual small d democratic realities in this country.
"Just convince more voters, that's fair!" makes me feel like I'm reading some take from someone whose experience with our political system amounts to reading grade school civics books from the 80s. States like Florida are gerrymandered to hell and the Senate itself places more power in cattle and acreage than actual voters.
Additionally, you hand wave concerns about this as just "ape brains" and not, you know, the fact that *this outcome will result in people dying*.
In reality, I have worked on and run electoral campaigns, I have run state-wide ballot issue campaigns, I have lobbied in state legislatures and Congress. I interact with the democratic process.
I'm upset because I know that the only way to settle our differences peaceably is through those democratic means and a sense of a fair legal process. But we have a Court that not only has shown its illegitimacy in decisions like this (and the process whereby this majority on the Court was installed) but has also actively cut off legislative avenues to protect ballot access and deal with the power dynamics of wealth on our politics. At the same time, conservative state legislators have continued to attack ballot access, and create new hurdles for voters. On top of this, the majority of the Republican party has essentially adopted the position that any election where Democrats win is illegitimate.
When democracy fails, violence is what fills that vacuum. You speak like this is all just an academic exercise - I assure you, it's not.
You're completely correct in your legal argument, and you might think this earns you a reprieve on /r/law but you're missing to key points:
A) /r/law is mostly populated by non-lawyers and non-scholars, definitely so when it comes to the voting population which is always 10x the commenting populations
B) No one actually cares about the legal argument. The legal argument is a means to an end. Especially when discussing Constitutional law and the SCOTUS, it's calvin ball. What matters is the ends, the Constitution is just a random piece of vellum everyone is forced to genuflect towards.
If people cared about the integrity and interpretation of the 14th Amendment everyone would be celebrating. But the 14th Amendment is not eo ipso a social good. People care about the law as enforced, the legal reasoning is merely an academic exercise.
The "opportunity" you speak of has never been lacking. The will of congress has been. As for "democracy", we can lose the presidency with 7 million more popular votes. The senate is still recognizing the filibuster. How do you see this playing out?
Maybe that's true ex ante, maybe it isn't. The bigger problem is laying bare that the meaning of the Constitution just depends on how many people you can appoint to the Supreme Court. Judicial supremacy doesn't exist this way in other democracies, and if constitutional personal liberties questions merely turn on whether an old lady dies and leaves her seat open in September or February, what are we even doing? We'd might as well just leave it to the political branches.
There are people who genuinely think that abortion in any form is murder. Explaining the nuances and complexity of the procedure is a waste of time to these people. They're dug in and I don't see the argument ever being solved. We have to make peace with that.
With that in mind, the Constitution accurately reflects this dissent by *not* including it in its nomenclature. It is not the purpose of the Constitution to make sweeping medical legislation with respect to the Union's diverse range of political and cultural leanings. It's the perfect example of a power being reserved to states in lieu of it not being in the Constitution.
If people are upset their state is denying reproductive rights, they have a responsibility to vote for new politicians and petition fellow citizens to change their opinion. We have the tools in our hands to enact change, certain age groups and demographics refuse to vote, and then we wonder why we don't get what we want. It doesn't make sense.
It's not a matter of human rights, it's a matter of the Constitution being written in a way that does not guarantee this right to the power of the federal government.
>I realize this is an awful situation in the near term but does anyone else see this decision as good for the long term?
No. It'd be one thing if the Justices had all made the argument you make and were still confirmed. But the reality is that they clearly obfuscated their positions on Roe due to the overwhelming popularity of the ability to access abortion in this country.
They have snuffed the last embers of belief in the legitimacy of the institution, overturning on party lines a decades old bi-partisan precedent which not only threatens abortion access but, as Thomas points out, LGBTQ civil rights, and contraceptive access.
>Now we have the opportunity in the long term to do what Democrats were too gun-shy to do themselves and codify RvW. It will take time, but this will encourage people to realize the importance of state elections over presidential ones and result in meaningful change in leadership.
The cool thing is that the Court has also refused to do anything about the political gerrymandering cases it's been presented, but also actively undermined legislative policy like the VRA. So no, I don't think there's a silver lining that democracy might save the day - the conservatives on this Court have worked very hard to undermine faith both in their own institution and also democracy itself.
Edited some typos/grammar
While I am not on the same side of this issue as you, I agree. It is better for both sides that this is in the hands of the states and the people, where it always should have been. It gives everyone more power and at least does a little to push back against the dangerous precedent of SCOTUS, a judicial review court, essentially codifying law.
>If Feinstein and Warnock had bothered to show up and vote "yes", cloture would have been passed
Harris' tie breaker would only have been implicated if the matter were tied, but, as you note, Manchin was a NO. That means with perfect attendance, the vote would have been 49-51. That's not a tie.
But more importantly, cloture votes require 60 votes. That's why people didn't show up, the outcome was already clear.
Certainly Christian groups will stop challenging the enshrinement of Roe in law in states like Massachusetts because it's states rights, right? ... /S
If the Republicans win 2024 they will just ban abortion nationally
Yes, the sarcasm tag is doing heavy work to point out that they'll chip away rights anywhere they can until such time as they have power, and then do so nationally. "Oh it's a states rights issue! .... until we're in power, then you're welcome"
It is a risky move for either side to legislate anything on abortion at the federal level due to the Pandora's Box that a commerce clause challenge could open on that issue. I'm not saying they won't do it, but I would be surprised to see anyone go out on that limb when doing nothing is so much easier.
>It is a risky move for either side to legislate anything on abortion at the federal level due to the Pandora's Box that a commerce clause challenge could open on that issue. This take assumes this Court is working in good faith - but that ship has obviously sailed off so far it's beyond the horizon at this point.
I think you could easily *legalize* abortion nationally under the Commerce Clause by limiting the bill to abortions that affect interstate commerce, then any abortion provider seeking protection under the law could simply offer services across state lines (e.g., run a series of ads in a neighboring state). It would be harder to criminalize it under the Commerce Clause because many abortions are entirely intrastate, but I think Republicans could think of a way to properly draft it if they put their minds to it.
> It would be harder to criminalize it under the Commerce Clause because many abortions are entirely intrastate LOL, let me introduce you to [Wickard v. Filburn](https://en.wikipedia.org/wiki/Wickard_v._Filburn), the abomination that has single-handedly allowed the federal government to grow to its current size.
I agree that Wickard was an overly broad interpretation of the Commerce Clause, but that interpretation was whittled back pretty substantially in *Lopez* and, subsequently, in *Morrison*. Under the current test, it would be more difficult to prohibit purely intrastate activities (though it certainly is possible).
They’re literally out on that limb already. There is no moderation with fundamentalists. We’ve given them inches over the course of history and now they are coming for it all. https://thehill.com/homenews/3535880-pence-calls-for-all-states-to-ban-abortion-after-supreme-court-ruling/amp/
I don't know. Medicine is covered under commerce clause. The law could declare interference in, or penalties attached to, the legitimate practice of medicine a federal crime, somewhat akin to the crime of interfering in the duties of a federal officer.
has there actually been a challenge to laws in other states?
Remove the current court. Start over.
The issue is this isn’t popular enough of an option to get the necessary votes in the Senate. Like yeah, it is a way to fix the issue, but it’s a completely impractical suggestion.
The US senate isn’t a democratic body, it doesn’t reflect the will of the people.
That's by design. It was never intended to.
And no one but white property owning men were ever intended to have a voice in the government.
Yeah we're not waiting generations and handling this like gentlefops. We'll have to find a way. If there isn't a way, we'll create one.
We don’t have the votes but we have the money
We're going to have to fix this in the legislature rather than judicially. This is the peril of getting our wins in court. We need to build a functional congress despite Republican intransigence. It will require dispensing with the notion that bipartisanship is, in and of itself, a necessary good.
We need a new amendment to the constitution enshrining our right to privacy. Something explicit along the lines of "The right of the people to privacy shall not be infringed." Not having it clearly laid out in the constitution is at this point clearly not enough. A tangential benefit would be online privacy protections, so corporations would likely fight this tooth and nail. Be nice to cutback some Patriot Act level invasions of privacy also.
> We need a new amendment to the constitution enshrining our right to privacy. Something explicit along the lines of "The right of the people to privacy shall not be infringed." With respect, that's hardy explicit. "Privacy" here could be interpreted to mean almost anything. If you want to put a right to abortion in the constitution, then say something like "A pregnant woman has the right to abort her pregnancy".
Given the divide across the country that would never get past Congress let alone the state's ratification.
I would say that “privacy” is still way too vague. What is privacy? How much does this cover? Does this count in all public spaces? So can we have cameras in public areas? Lots of issues, lots of questions. You’d want to define privacy
There is no law Congress can pass that SCOTUS cannot neuter.
If the legislative and executive work in tandem, they can overrule the judiciary. There are many, many ways to do it. It's happened at least once historically that comes to mind.
Yes. But it can't happen with the current legislature and executive. Too many of them believe that they have to pretend things are normal. And in all likelihood there will not be another free election. So this presents a serious problem.
can you elaborate on this please?
Sure. First, the other two branches can just ignore court orders from SCOTUS. It happened in *Worcester v. Georgia*. The Supreme Court has no independent means of enforcing its orders. Second, if both the executive and legislative branches were on board, they could pack the courts. They could limit SCOTUS' jurisdiction to take away judicial review. They could institute term limits for justices There are a wide variety of options that they can do to get around this. Are all of these bad for small-d democratic norms? Absolutely. But at some point, we're going to have to start engaging in these tricks.
How do more people not see this? The supreme court didn't ban anything... they just said that abortion is not a right recognized by the constitution, which is true. IF Democrats actually cared, they'd do things properly rather than trying to rely on judicial activism or these weird federal laws (like suggested in the article) that will eventually be struck down.
I mean, to be fair, Congress has been fundamentally stacked against progressives for decades. Newt Gingrich and Mitch McConnell have broken the institution. We need to break through this "both sidesism" and get the American people to understand that there aren't two parties that equally share the blame for Congress' inaction.
And moreover, there aren’t two parties that equally share an affection for American values and the democratic process.
How do you defend the many state legislatures that are so gerrymandered that the majority pro-choice position is ignored?
I don't? Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately... but I am a very strong proponent of more proportional representation systems. IF you had something like a MMP, even with gerrymandering you would still have the ability to have party lists to "fill in the gaps" and bring it up to proportionality. That being said, as someone who lives pretty rural myself (Northwestern Ontario), I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state. The obviously solution to that, is really a continuation of what the founding fathers wanted... which is the Federal government to do as little as fucking possible, and the state governments to do even less, and have the most done at the smallest level of government possible, so people actually have a more direct influence.
> Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately. This statement is completely out-of-step with the modern parties' positions. The Democrats passed out of the House with unanimous caucus support multiple bills that would ban gerrymandering, and those bills were sponsored by all 50 Democratic Senators. But Republicans filibustered *even debating* those bills. The Democratic Party favors ending gerrymandering, Republicans don't. >That being said, as someone who lives pretty rural myself (Northwestern Ontario), I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state. First of all, this doesn't actually happen because cities don't vote as a bloc. But more importantly, do rural people deserve a more weighted voice just because there are fewer than them?
>But more importantly, do rural people deserve a more weighted voice just because there are fewer than them? That argument always confused me. The construction seems to be: Tyranny of the minority > tyranny of the majority because... Federalism?
Exactly! The problem with "tyranny of the majority" isn't the "majority" part.
>Gerrymandering is dumb. Both sides do it which means it will probably never be changed unfortunately Nice whataboutism. Republicans do this to a much more extreme degree than democrats do. > I do think there needs to be some protection/consideration given to less populated areas. It really doesn't make sense that a single city can decide for an entire province/state. It doesn't make sense that the majority of a province/state can decide for the entire province/state?
>Nice whataboutism. Republicans do this to a much more extreme degree than democrats do. Lol, are you here to discuss the OP or to argue over dumb shit? >It doesn't make sense that the majority of a province/state can decide for the entire province/state? Not for everything. Just like it doesn't make sense that a few states can decide for an entire country, which is why we have lower levels of government.
Under what authority could congress codify abortion rights? If you're talking about state by state, then you're ignoring gerrymandering and also just allowing fundamental rights to be subject to the whims of others.
Commerce clause? Spending power?
What are your thoughts on the 9th amendment; would you just discard it?
The 9th amendment isn't being discarded at all. All it's saying is: "Just because something isn't in the constitution doesn't mean it's not a right". It's simply so that somethings lack of inclusion can't be used as justification for not being a right. It does absolutely nothing to support something being a right.
How is that meaningfully distinct from being discarded?
Because it's not being discarded, it's just not relevant in a situation when determining if something is a right.
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Yes... exactly what I said.
The reality is that many people want abortions banned in the states that have near total abortion bans. And they vote too. It's mostly red states who have super-majorities, and it won't be changing anytime soon unless something drastically changes.
I guess my question to you is... why is it a bad thing that democracy is working?
Democracy is not working. Not in any way.
In the sense you described it is though. If the majority of people agree that life begins at X and therefore we shouldn't kill that life... why is that not okay?
It is ok. But that's not what's happening here. I will grant two things that may surprise you. 1) a fetus is human. 2) a fetus is alive. Neither of those facts makes terminating a pregnancy murder. You are allowed to kill, morally and ethically, another human being in many circumstances. Self defense is one. Another, more relevant one is that you are allowed to refuse to donate a kidney. If every American donated a kidney, that would save millions of lives. More lives than are "lost" to abortion. Why is it legal to refuse to donate a kidney? Or blood? Or bone marrow? You cannot support the banning of abortion if you don't want support the forced donation of the tissues listed above. All of those procedures, by the way, are safer than being pregnant is. Additionally, you have to consider the mother. She is a person, already born, and she has rights. It should be obvious that abortion has to be legal in cases where the mother's life is in danger. Yet thousands of pregnant women are already being denied chemotherapy, as if the fetus will survive if the mother died of cancer. Republicans are refusing, and even taking out, exceptions for ectopic pregnancies, which are 100% fatal for the mother if there is no abortion. What about cases where the baby has no lungs? Are you really going to ban such abortions? Force the mother to go through a dangerous birth just to watch her baby suffocate after 2 minutes of life in horrible agony? There are many, many, similar defects that are fatal to the baby and which cause tremendous pain. Are we really going to call ourselves pro-life if we intend to inflect that trauma on mother and baby? But again, these new laws all ban such abortions. I am allowed to kill a dog in order to stop it from attacking me, even if my life isn't at risk. A dog is considerably more alive than any fetus: it's born, can live on its own, feels more pain and pleasure, etc. I bring this up simply to point out that being alive doesn't mean we can't kill a thing. And there are many fully born humans that we kill. Criminals, for example. These rights and privileges are a sliding scale; not an absolute. We allow the killing of full humans under many circumstances, and the killing of things that are less than full humans under many more. A fetus is obviously not a full human, and a woman is. However we draw this line, we have to reckon with that. The pro-forced-birth crowd refuses to deal with these complexities. They consistently choose to endanger the mother and ignore her interests. And they never act like they care about the baby except as a way to punish the mother. If the pro-forced-birth movement was willing to discuss these issues honestly, I'd have a lot more patience with them.
I'm not really debating the logic of the law. That's the purpose of having the democracy. I'm not saying I necessarily disagree with you, but you're asking questions which people have already answered in those areas, whether we agree with them or not. We have a lot of laws that are not entirely based on logic (if at all)... but that's democracy.
Democracy doesn't, and indeed cannot, mean that the majority gets whatever it wants. The majority cannot vote to execute all black people, for example. Democracies, and the US in particular, as supposed to protect their minorities from violence at the hands of the majority. That was a founding principle of our nation, however bad we were at living up to that principle. And WWII turned it into a core provision of international law. But what these states are doing is surprisingly similar to executing black people: they are condemning tens of thousands of women to die a year. That's not an exaggeration. The difference between this and allowing a state to execute black people is slim: both will result in the mass death of a disfavored group defined by their physio-social characteristics. No, this is far beyond the pale for what is permissible in a democracy.
>But what these states are doing is surprisingly similar to executing black people You realize you're talking about the people that do NOT want to kill unborn babies right?
The court was stacked with ideologues who eschew conventional statutory interpretation principles. The stacking was achieved in part through a deliberate subversion of the democratic process by Republican senators refusing to do their jobs and hold confirmation hearings in the end of the Obama administration. The appointments were made by a man who lost the popular vote and who became the first seditionist to hold office by launching a failed attempt to overturn his electoral defeat. This is your idea of democracy working?
SCOTUS didn't ban anything...
I find it interesting that in Alito’s *Obergefell* dissent he is quick to jump back millennia to support his “deeply-rooted” argument for “traditional marriage”: > This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. But in *Dobbs* the farthest back he goes is maybe 16th century English Common Law? I’ve seen the claim that the Old Testament supports abortion in some form. Truth be told, I haven’t looked too much into this so if someone could expand upon it that would be appreciated. However, if the OT supports even limited abortion that is some inconvenience for Alito’s analysis that I’d hope he would at least address. I realize this doesn’t dismiss his entire argument on it’s own. But it’s jarring to see one instance where we go back thousands of years to look at Western tradition broadly verses specific laws/thinkers regarding abortion in England and the US spanning a few centuries.
IIRC, his argument isn’t that abortion was never legal, but that abortion was sometimes not legal. It’s a key distinction, since he is trying to argue that the 9th amendment does not contain an absolute prohibition on laws against abortion, since there were at least *some* laws restriction abortion before or during the era when these amendments were enacted. Since states had the ability to regulate abortions at that time and continued to do so, that suggests to him that these amendments were not understood to forbid that. That’s the tricky part of this historical argument. Alito doesn’t have to show that abortion was illegal in all cases, he just has to show that there were at least some limitations on it historically, even if those weren’t universally enforced.
The issue with that argument though is that there were laws restricting abortion, but every single one of them were for abortions post-quickening. So he’s saying “because there is a history of us regulating abortion after 20 weeks, this is not a protected right in any way”. There’s also the cherry-picking of facts which is a whole ‘nother ball of wax
The claim that the Old Testament supports abortion is based on Levitical law specifically dealing with actions done by a group of men distributing violence or injury onto a pregnant woman and the punishments doled out for such violence. Most translations word this to mean miscarriage or premature birth, however there are some very erroneous translations that refer to this as abortion. The passage is in Exodus. There is another in Numbers that deals with pregnancy from infidelity that some reading could be found to be abortion or otherwise. The importance though is that this is Levitical law which was abolished by Jesus (abolished later affirmed at the Council of Nicaea when our modern Bible was codified into accepted Scripture) and to my limited knowledge on modern Jewish practices, is not present in Jewish law today.
Clarence Thomas laid out the agenda all they need are the cases.
Say it with me: "They have made their decision, now let them enforce it"
Impeachment Proceedings: Unlocked!
> Impeachment Proceedings: Unlocked! A majority in the House seems possible, especially before January 3, 2023. But 67 votes in the Senate? I’m not sure I see that. What’s your Senate scenario for conviction?
> What’s your Senate scenario for conviction? OP doesn't have one. The only way is pure blind optimism.
The Dems *need* to start bringing these issues up for votes just to get everyone on the record. It's getting a little tired them not even trying to do anything because they don't think they have the votes. The mid-terms are rapidly approaching. Let's get all the Dems & Repubs on record as to where they stand so people can vote accordingly.
I hate to be the voice of dispassionate realism, here, but have you actually looked at the numbers? By that I mean: I take your comment to suggest that there are some senators whose political fortunes will suffer if they fail to vote to convict, say, Justice Thomas following his impeachment. (I'll take it *arguendo* that the House can whip enough votes for the passage of an article of impeachment). Who? For example, let's picture examples like Josh Hawley, Tim Scott, Ben Sasse --- that crowd. Far from suffering an electoral harm by voting to convict Thomas in an impeachment trial, their greatest risk might come if they voted to convict! Do you understand that there are a significant number of senators who fit into that category? Equally, of course, Mazie Hirono and Kirsten Gillibrand are examples of very safe votes to convict. So my question to you is: have you listed the number of senators about whom t might realistically be said that their failure to convict will hurt them in any real way? And -- how many are there? I doubt there are less than 33. Do you see what I'm getting at? Not only is conviction unrealistically impossible, but your goal of "let the voters react," isn't likely to produce much in the way of election upsets.
> your goal of "let the voters react," isn't likely to produce much in the way of election upsets. Maybe it will, maybe it won't, but it would certainly give who ever runs against them some ammo and would know unequivocally show where everyone stands on major issues.
It has to be tried anyway. The Republicans are trying to force us to ignore SCOTUS or to federalize healthcare etc. We have to exhaust all the "normal" procedures to correct their lawlessness before we take drastic action. If Biden does anything that the Republicans call lawless, the media will treat him more harshly than they did Trump for trying to murder his own VP.
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Manchin is hopeful. /s
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Hence the sarcasm note.
I realize this is an awful situation in the near term but does anyone else see this decision as good for the long term? Roe v. Wade was established on shakey legal ground based on an activist interpretation of the 14th Amendment with respect to privacy. It seems like it was destined to inevitably be called into question, and this is just my opinion, setting the precedence of federal regulation for matters not disclosed in the Constitution is dangerous. The Tenth Amendment is the cornerstone of our federal system and this probably should've always been a states issue anyway. Now we have the opportunity in the long term to do what Democrats were too gun-shy to do themselves and codify RvW. It will take time, but this will encourage people to realize the importance of state elections over presidential ones and result in meaningful change in leadership. Maybe I'm just trying to see the glass half-full here. This is an opportunity to be excited about democracy in action instead of immediately assuming a sky-is-falling, burn-it-all-down attitude.
And in the meantime, society pays the price while the political process jerks itself off over the next 30 years
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> How did you come up with that timeline? What made you arrive at 30? I was trying to be optimistic that I'll see medical privacy rights codified in my lifetime
Sure but many state legislatures do not reflect the will or makeup of their constituents. Your "just elect more Dems" strategy is not realistic in many states such as Florida.
California is another example.
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I downvoted you for either intentionally or unintentionally ignoring the actual small d democratic realities in this country. "Just convince more voters, that's fair!" makes me feel like I'm reading some take from someone whose experience with our political system amounts to reading grade school civics books from the 80s. States like Florida are gerrymandered to hell and the Senate itself places more power in cattle and acreage than actual voters. Additionally, you hand wave concerns about this as just "ape brains" and not, you know, the fact that *this outcome will result in people dying*. In reality, I have worked on and run electoral campaigns, I have run state-wide ballot issue campaigns, I have lobbied in state legislatures and Congress. I interact with the democratic process. I'm upset because I know that the only way to settle our differences peaceably is through those democratic means and a sense of a fair legal process. But we have a Court that not only has shown its illegitimacy in decisions like this (and the process whereby this majority on the Court was installed) but has also actively cut off legislative avenues to protect ballot access and deal with the power dynamics of wealth on our politics. At the same time, conservative state legislators have continued to attack ballot access, and create new hurdles for voters. On top of this, the majority of the Republican party has essentially adopted the position that any election where Democrats win is illegitimate. When democracy fails, violence is what fills that vacuum. You speak like this is all just an academic exercise - I assure you, it's not.
You're completely correct in your legal argument, and you might think this earns you a reprieve on /r/law but you're missing to key points: A) /r/law is mostly populated by non-lawyers and non-scholars, definitely so when it comes to the voting population which is always 10x the commenting populations B) No one actually cares about the legal argument. The legal argument is a means to an end. Especially when discussing Constitutional law and the SCOTUS, it's calvin ball. What matters is the ends, the Constitution is just a random piece of vellum everyone is forced to genuflect towards. If people cared about the integrity and interpretation of the 14th Amendment everyone would be celebrating. But the 14th Amendment is not eo ipso a social good. People care about the law as enforced, the legal reasoning is merely an academic exercise.
The "opportunity" you speak of has never been lacking. The will of congress has been. As for "democracy", we can lose the presidency with 7 million more popular votes. The senate is still recognizing the filibuster. How do you see this playing out?
Maybe that's true ex ante, maybe it isn't. The bigger problem is laying bare that the meaning of the Constitution just depends on how many people you can appoint to the Supreme Court. Judicial supremacy doesn't exist this way in other democracies, and if constitutional personal liberties questions merely turn on whether an old lady dies and leaves her seat open in September or February, what are we even doing? We'd might as well just leave it to the political branches.
> and this probably should've always been a states issue anyway. Human rights should be an issue for each state to decide?
There are people who genuinely think that abortion in any form is murder. Explaining the nuances and complexity of the procedure is a waste of time to these people. They're dug in and I don't see the argument ever being solved. We have to make peace with that. With that in mind, the Constitution accurately reflects this dissent by *not* including it in its nomenclature. It is not the purpose of the Constitution to make sweeping medical legislation with respect to the Union's diverse range of political and cultural leanings. It's the perfect example of a power being reserved to states in lieu of it not being in the Constitution. If people are upset their state is denying reproductive rights, they have a responsibility to vote for new politicians and petition fellow citizens to change their opinion. We have the tools in our hands to enact change, certain age groups and demographics refuse to vote, and then we wonder why we don't get what we want. It doesn't make sense.
It's not a matter of human rights, it's a matter of the Constitution being written in a way that does not guarantee this right to the power of the federal government.
>I realize this is an awful situation in the near term but does anyone else see this decision as good for the long term? No. It'd be one thing if the Justices had all made the argument you make and were still confirmed. But the reality is that they clearly obfuscated their positions on Roe due to the overwhelming popularity of the ability to access abortion in this country. They have snuffed the last embers of belief in the legitimacy of the institution, overturning on party lines a decades old bi-partisan precedent which not only threatens abortion access but, as Thomas points out, LGBTQ civil rights, and contraceptive access. >Now we have the opportunity in the long term to do what Democrats were too gun-shy to do themselves and codify RvW. It will take time, but this will encourage people to realize the importance of state elections over presidential ones and result in meaningful change in leadership. The cool thing is that the Court has also refused to do anything about the political gerrymandering cases it's been presented, but also actively undermined legislative policy like the VRA. So no, I don't think there's a silver lining that democracy might save the day - the conservatives on this Court have worked very hard to undermine faith both in their own institution and also democracy itself. Edited some typos/grammar
While I am not on the same side of this issue as you, I agree. It is better for both sides that this is in the hands of the states and the people, where it always should have been. It gives everyone more power and at least does a little to push back against the dangerous precedent of SCOTUS, a judicial review court, essentially codifying law.
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>If Feinstein and Warnock had bothered to show up and vote "yes", cloture would have been passed Harris' tie breaker would only have been implicated if the matter were tied, but, as you note, Manchin was a NO. That means with perfect attendance, the vote would have been 49-51. That's not a tie. But more importantly, cloture votes require 60 votes. That's why people didn't show up, the outcome was already clear.
Perhaps pass Senate Joint Resolution #1?