Roe v. Wade overturned

[Arneb]

Evil never rests. I wouldn't have thought this was still possible.

[Мастер]

Evil never rests. I wouldn't have thought this was still possible.

I think that’s probably what some people said about it back in 1973.

But what this would do is throw the whole issue thrown back to the states, where many of the politicians were probably perfectly happy to have it remain with the courts. (Sorry, Supreme Court, can’t do anything, you know!) Many of those politicians will now have to stand up and be counted. Note, however, that this change is far less dramatic than what would have happened with the other measure that has been proposed from time to time, a constitutional ban on abortion. That would have changed things from “nationally permitted” to “nationally prohibited”. This changes it from “nationally permitted” to “up to the states”.

Some states will allow, some will not. I believe some of the states have laws with triggers that place them into effect immediately, in the event of the overturning of the SC decision, so I guess those laws are in effect now. Perhaps some doctors who didn’t listen to the news radio on the way to work today will be prosecuted.

It seems this would primarily affect those who are of limited means, and unable to travel to other states. Even if some states try to outlaw leaving the state for the purpose of having an abortion, how can that be enforced? Perhaps there will be a new medical study that comes out, showing that inter-state travel within the US has a shockingly high risk of miscarriage. And some states will surely pass their own laws/policies prohibiting notifying other states, complying with their subpoenas, etc., not unlike what “sanctuary cities” are already doing to the federal government on immigration.

Someone on the electric television the other day was talking about some of the possible implications of this change. Could, for example, a person from New York, who lives there, works there, who has no job, home, place of business, etc., in Texas, maybe who has never even been to Texas, be prosecuted under Texas law for giving money to a friend or relative, who then uses the money to pay for an abortion? So a person who only knows Texas from looking at the map, could go to jail for violating Texas law? Welcome to the relationship the rest of the world has had with the United States for as long as anyone can remember.

Would the New York person be prosecutable even if they didn’t know what the money was for? Or if they were misled about what it is for? What if they provide money to some medical charity that runs hospitals, treats cancer patients, provides vaccinations for the underprivileged, and oh, also uses a small fraction of its budget to fund abortions in a state where they are not legal? Perhaps; see the Holy Land Foundation case. Maybe an Italian who has never been to the US, but has a niece in Texas who says she needs money to get her car fixed, should hire a private investigator before sending anything.

[Enzo]

Yes and yes. They will be trying to tighten up their grip. That is what they do. Not only that, but Roe was based upon constitutional law that also was a basis for allowing interracial marriage, and some other things.

Places like California and New York will remain safe, but there are tones of "red states" out there with anti-abortion laws already on the books, just waiting for this day, and those laws just instantly took effect today. Michigan voted for Biden, but the state legislature is solidly republican, and they will not hesitate to make use of this advantage. SO seeming blue states can still reliably act red.

As the republican party continues their interpretation of the 1930s German Nazi playbook, I worry that pregnant women migh tbe required to have "travel papers". And all that that implies.

The republicans want to throw it back to the states, except... Mike Pence is already boosting the idea of a national BAN on abortions. I guess it is up to the states unless we can tell the states not to allow it. Itis still very scary.

[Arneb]

As of today, Arkansas, Kentucky, Louisiana.

[Richard A]

Well, Pence's hopes for a national ban on abortion just took a knock with Congress voting for albeit moderate gun control measures. Although the other SC decision might - probably will - lead to a challenge there on that, it does show that conservatives' chances of getting a national ban on abortion through Congress are limited. And as Mactep points out, both sides will make abortion an issue in November's mid-terms - which are at both federal and state level. Already Republicans in the north-east are in a bind. Take a moderate stance and you won't pass the primary; don't take a moderate stance and you won't get elected.

I also liked Mactep's analogy, demonstrating the existing long arm of US federal law. To give others an idea of how far this goes, consider. When I go to Dubai, I generally go to the spice souk and buy saffron which is a) very high quality and b) imported from Iran. Happily, as with most purchases in Dubai, I pay for it with UAE dirhams. But if I paid for it with US dollars, I would breach US federal law - because the courts have ruled that ANY transaction denominated in US dollars, regardless of where and by whom, is cleared through the Federal Reserve Bank of New York. So yeah, I guess that Texas, Florida, Mississippi et al could indeed pass state laws criminalising the financing of an abortion on a resident of their state, regardless of where the money comes from. But in the land where money has even more say in politics than in many, they may want to pause. JP Morgan Chase (among others) have already said they will pay the travel costs of an employee who goes to another state to have an abortion.

So I'm inclined to agree with the commentators - it'll vary from state to state.

[Halcyon Dayz, FCD]

People used to look up to the USA.
Leader of the Free World, a role model, a shiny city on a hill, etc.

Now I'm all grown up and better informed.
The US is the most Third Worldy of developed nations.
The notion that the most powerful country in the world is in fact a banana-republic rapidly sliding in to authoritarianism is just frightening.

[Richard A]

Possibly worst of all is the weird hall of mirrors that the US Supreme Court has become. In many countries, the Supreme Court is the block on authoritarian governments - I remember years ago telling Arneb about a move that the British Government had just introduced and he said, "In Germany, that would last 5 minutes in front of the Federal Constitutional Court". But in the US, we have a liberal President and a relatively liberal Congress - but a Supreme Court that has become the instrument of restoring authoritarianism. Clarence Thomas's judgment made clear he felt that overturning Roe v Wade was merely the first step - there remained work to do.

[Arneb]

It was said early on that Trump's three shots at the Supreme Court was what would haunt the country most. How right that was.

[Мастер]

So, I may be playing with fire here . . .

But, nearly all of the commentary I have seen (including here) focuses on the effect of this decision. Before, states were not permitted to outlaw abortion, or interfere with it too much - now they are. Now, either you like the change, or you don't. And just about everyone is saying it is a good decision, or a bad decision, based on whether they like the effect - abortion may now be restricted or outlawed entirely on a state-by-state basis. If you think that's how it should be, then it's a good decision, and if you preferred the way things were, then it's a bad decision.

I see very little commentary about whether the decision is a correct interpretation of the constitution and laws of the US.

So the US has a constitution. It sets up the basic structure of the government, and also imposes some limits on the powers of the national government. Sometimes, the wording of the constitution isn't as clear as it could have been, and sometimes, it is entirely silent on some issues that people care about. Not surprising - it was written in the 1780s, so it tended to focus on issues that were important to the people of the 1780s. Occasionally it has been amended, but the process is difficult - three-fourths of the states must agree. So largely, it reflects the concerns of the 1780s, and people of the 2020s may care a lot about some issues that really weren't important to people of the 1780s.

Similarly, there is a congress, which (either with the assent of the president, or with a supermajority, against the president's will) passes laws. Like the constitution itself, the laws are sometimes not written as clearly and unambiguously as they could be. And, sometimes the laws don't address important issues, either because an issue has only become important recently, or because there was no majority support for various proposed laws on various sides of the issue. And sometimes laws are passed that exceed the authority of the legislature, that is, that violate the constitutional restrictions on the power of the legislature. The idea that the courts could strike down such laws (rather than, let's say, the legislature policing itself) is actually not in the constitution, but was established fairly early in the history of the country by precedent.

So, sometimes issues go to the courts. At the lower court level, they decide facts - you did or did not rob the liquor store. At the higher level, they deal with interpretation of the laws - you did a certain thing, but does that actually violate the law, which does not state clearly and unambiguously whether the details of your particular case are permitted or prohibited? Or, even if you are clearly guilty of violating the law, did the legislature that passed the law exceed the constitutional limits on its authority, so that the law you have violated is invalid? (One issue with the US system - how do you know if a law is unconstitutional? You violate it, and if you end up in prison, then you know the courts thought it was constitutional.)

The constitution makes no reference to abortion. And it states that the powers not explicitly delegated to the national government, are reserved for the states. So how could it possibly be that abortion is a federal matter, protected by the constitution? If you commit a murder and get caught, you will most likely be tried for violating a state law. If you rob a liquor store and get caught, you will be tried for violating a state law. In fact, many of the ordinary everyday things we think of are regulated by the US states, not by the national government. So how is it that this one particular thing is federally regulated? A person who lives in one particular state, maybe has never left that state, shags someone who has also never left that state, and becomes pregnant. She decides to have the pregnancy terminated, within the same state, by a doctor from that state, paid for by funds working at a job within that state, etc. How is federal jurisdiction asserted?

The logic of Roe v Wade was, although there is no explicit right to abortion in the constitution, there is an implicit right to privacy, and abortion would be included under that umbrella. The recent court decision disagreed. Obviously, both decisions cannot both be correct. But, does the question of whether the US constitution has an implicit right to privacy, including abortion, have anything to do in the slightest with whether you think abortion should be legal?

It is possible to believe that abortion should be legal, and that the US constitution contains an implicit privacy right, which includes a right to abortion.

It is possible to believe that abortion should be legal, but that the US constitution does not contain an implicit privacy right, and therefore no right to abortion.

It is possible to believe that abortion should not be legal, but that the US constitution nonetheless contains an implicit privacy right, including a right to abortion.

It is possible to believe that abortion should not be legal, and that the US constitution does not contain any implicit privacy right, and therefore no right to abortion.

If your position is the first or fourth, then you believe the law says what it should say. If your position is the second or third, then you believe that the law says something different than what you think it ought to say. In that case, what to do? You can accept that the law is different than what you would like it to be, and live with that. Or you can lobby your elected representatives to change the law, or the constitution, if the latter document places the issue outside of the realm of things that the legislature may change at will. Or you can say to the courts, the law says one thing, but I don't like what it says, therefore you should decide that the law says something different than what it actually says. I believe when juries do this, it is called "nullification"; it seems the term "activism" is used when judges do it.

So, nearly all the commentary I see takes one of two positions - "abortion should be legally protected at the federal level, therefore the recent court decision is a bad decision", or "abortion should not be legally protected at the federal level, therefore the recent court decision is a good decision". So the decision is "good" or "bad" based on whether it conforms to the speaker's personal preference, not on whether it conforms to the law.

So, independently of how anyone feels about whether abortion should be legally protected at the federal level, does the recent court decision conform to the law (not anyone's idea of what the law ought to say)? If the law doesn't say what you think it ought to say, should the courts follow the law, or your preference?

[Arneb]

I admit that I have similar thoughts. I was surprised to learn that the Federal ban on States making laws to ban abortion rested on the (implicit) right to privacy - I feel this was rather shaky ground presenting a wide open flank for attack. Because if you assume that the thing growing in a woman's belly is a person, and not a thing, you have two conflicting rights. Privacy on the expecting mother's part, life on the budding fetus'. It is precisely for that reason that our own Constitutional Court has decided that abortion cannot be legal, ever.

If I understand it correctly, the argumuments from the 6 judges striking down Row v Wade did not pursue this road of thought at all. They were purely legal in nature and did not make any assumptions on whether abortion should or should not be legal - they basically said, the reson given when the Supreme Court prohibited States from making laws on the legality of abortion were junk, so the decision has to be revoked, and States should be able to make laws based on what the voters there want. Being a legal idiot, I cannot say whether the argument of the 6 judges is cogent, I can only say I see their point.

I suppose if you are someone who thinks abortions should stay legal, having your hopes rest on a dodgily-argued SCOTUS decision that it is illegal to make abortion illegal is living on shaky ground, and that ground has just given, massively, after Trump's appointments.

Maybe there is hope for those wanting to have abortion stay legal: A majority of voters in one of the most conservative, evangelicals-ridden States of the U.S., Kansas, have just rejected a proposition that would have made abortion illegal
in their State. Maybe at some point the GOP will realise they are not representing The People (T.M.) on this but are merely dancing to the tune that a not very big but very, very vocal minority plays for them.

[Heid the Ba]

It was said early on that Trump's three shots at the Supreme Court was what would haunt the country most. How right that was.

There are also hundreds, if not thousands, of young, unqualified but right wing judges on the federal benches. They are in their 30s with jobs for life.

[Enzo]

Packing as many courts as possible with right-wing judges is the central focus of the McConnel et al plan for America. The courts is where the rubber meets the road.

I am not a fan of the "the constitution doesn't specifically state" arguments. True, the constitution is mute on abortion, but then it also does not specify we will have a federal highway system, nor air traffic control, or the FDA watching our medicines. The constitution was meant to be a guide, not an absolute list of departments and functions. Imagine in 1790 "Airforce? What's airforce?" No need for trained birds in our constitution.

[Richard A]

Coming late to the party. And Arneb is right that the real spectre is a conservative group bringing a challenge against a liberal state for violating the right to life of the foetus. But it could be a roll of the dice. Chief Justice Roberts, although he voted to overrule Roe v Wade, might decline to vote in favour of such an action, for reasons we'll come on to. So, until we get there ...

As Mactep says, the overwhelming majority of legal issues in the US are dealt with under state law. The reason goes right back to the planning of the constitutional framework following the end of the American Revolutionary War. What many outside the US forget (actually, possibly some Americans as well) is that America, qua America in the form that it is now, did not win independence from Great Britain. What rose against the British in 1776 were thirteen separate colonies, which then, following the victory in the Revolutionary War, became thirteen separate states. They even had, post-independence, brief wars with each other - not the Civil War, which came later, but things like a skirmish between New York and Connecticut over where the border should be. So the Convention that led to the Constitution was a pooling of sovereignty: the states agreed that there would be a federal Republic with a federal Government to which they would give certain specific powers - and anything that didn't appear on the list was, by definition reserved to the states. So rather than saying - as I understand Germany did in 1949 (although Arneb may correct me) - OK, the federal government will be in charge of A, B, C and the states will be in charge of X, Y, Z, the US Constitution said (and says), the federal government has the authority to govern in respect of A, B, C and EVERYTHING ELSE comes under the states. That was then supplemented with a series of amendments, the Bill of Rights, which said, OK, across the Republic, everyone holds the following rights, e.g. freedom of speech, the right to bear arms - and the right to privacy. And no one, including the states, can interfere with those rights.

So to go to Mactep's 4 positions. The Supreme Court decision in Roe v Wade in fact combined positions 1 and 3: the US constitution contains an implicit privacy right, which includes the right to abortion. That is made clear, in a different context, in Chief Justice Roberts's judgment in National Federation of Small Businesses v Sibelius, better known as the Obamacare case. There, he made clear that the Supreme Court's job is to decide whether the Constitution allows a government (in that case, the federal Government - I'll come back to that) to do what it's trying to do. He underlined that it is not the Supreme Court's job to decide whether or not the law that the government wants to pass is a good one - that is for the electorate to decide (he explicitly said that last bit).

Now in the Dobbs decision, the conservative justices clearly favoured position 4: Alito's leaked opinion made that clear. But what the majority judgment actually did was combine positions 2 and 4. If the state governments of New York and California want to permit abortion, they have the authority to do that, just as the state governments of Alabama and Texas have the authority to prohibit it. So, possibly the decision was a wrong interpretation of the Constitution, in which case a future Supreme Court decision could put it right. Or it was a correct interpretation, in which case the Court - as it claimed - put right what Roe v Wade got wrong. If you favour position 2, then you campaign at state level for a government and laws that implement a legal right to (or rather, lack of prohibition of) abortion. If you favour position 4, then you campaign at state level for a government and laws that prohibit abortion.

Which brings us to the discussion of what the federal Government - now or in the future - might do. At the moment, we have a broadly liberal Congress and President, that takes position 2. What it cannot do is pass legislation that overrides Dobbs: the Supreme Court has ruled that there is no constitutional right to abortion. But among the powers the US Constitution does give it is the power to regulate interstate commerce, the so-called Commerce Clause. So it could pass legislation that gives a) providers of medical services the legal right to provide medical services, including abortion, to residents of other states and b) persons the right to access medical services, including abortion, from providers located in another state. So, under such a law, Texas could prohibit abortion being carried out in the state of Texas, but could not prohibit Texas residents from travelling to New Mexico to get an abortion there. Checkpoints at the state line stopping pregnant women from crossing would then violate federal law. Similarly, a state law that sought to criminalise pregnant women who mysteriously had a miscarriage while in another state would be pre-empted; even if she did have an abortion, she had a right to it under federal law.

But what if the Republicans win back control of Congress in November; could they pass a law banning abortions even in pro-choice states? Not directly – but again the Commerce Clause gives them a lever. They could prohibit clinics from providing abortions to residents of another state or from using any means of interstate commerce to promote their services. That last bit is the hook on which the federal government regulates trade in securities; any use of a means of interstate commerce (e.g. phone, snail mail, email, the Internet, radio or TV ads that can be viewed out of state) gives the federal government power to regulate businesses even within a state. So a hard-line anti-abortion Congress could prohibit the use of a means of interstate commerce to promote abortion services, even within a state. That would mean that yes, a clinic in California could provide abortions, but it would be severely restricted in how it advertised its services, even to California residents. Basically, it could have a sign outside but that’s about it.

There is also the funding weapon, used by Reagan to compel states to implement a minimum age of 21 to buy booze: a Republican Congress could pass a law making federal healthcare funding (which exists, even to a far more limited extent than in Canada or Europe) conditional on a ban on abortion.

That said, as others have mentioned, the red state of Kansas has just reminded us all that it’s not a given that Republicans will take a hard anti-abortion line. That could give Pence and his friends pause for thought. Especially since, as I mentioned on a different thread, Republicans in certain regions have discovered that a hard-right line is a good way of losing their seats, governorships, etc.