Opinion Roe Is Radical. The Conservative Justices Aiming To Overturn It Are Not.

13:22  03 december  2021
13:22  03 december  2021 Source:   thedailybeast.com

Roe redux: Is 'viability' still viable as a constitutional doctrine?

  Roe redux: Is 'viability' still viable as a constitutional doctrine? The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades.Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe's hold over states.

If Roe were overturned , the mandate would be lifted, and individual states could choose to ban abortion if the will and political capital were there. So abortion wouldn't magically go away. The other issue is that if Roe was overturned , abortion will simply move underground in states where it 's illegal. Except to see non-profits and gofundmes start popping up to help those who cannot afford to means to do so, cross state lines/into Canada to get an abortion with news stories coming out about poor women who cannot afford to get an abortion suffering the consequences of an unsafe and illegal abortion.

The "Cancel Culture" rhetoric is an exclusively right-wing phenomenon intended to provide conservatives with a platform for whining about their imaginary victimhood. It is a thoroughly manufactured variant of what they used to call political correctness. While they frequently aimed their animus at targets like children's toys , or sports figures , or even their own GOP confederates who they deem insufficiently obedient, they have now put the Supreme Court in their sights. On Wednesday the Supreme Court heard oral arguments on a case from Mississippi that seeks to overturn Roe vs. Wade.

Even before the Supreme Court’s oral arguments on Dobbs v. Jackson Women’s Health Organization kicked off this week, prominent media voices were preemptively undermining a future decision by declaring this Supreme Court to be “radical.”

Photo Illustration by The Daily Beast/Getty © Provided by The Daily Beast Photo Illustration by The Daily Beast/Getty

But let’s examine the charge of radicalism on its merits.

First, it’s important to reiterate that overturning Roe—which seems increasingly likely (you heard it here first)—would not ban abortion, but would, instead, send the issue back to states to decide via the democratic process. Despite what you might have read, this is hardly a radical idea.

Mississippi asks Supreme Court to overturn Roe v. Wade in blockbuster abortion case

  Mississippi asks Supreme Court to overturn Roe v. Wade in blockbuster abortion case The state's legal argument is the sharpest framing yet of the dispute as Mississippi engages in a frontal assault on the right to abortion.The high court agreed in May to hear a challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy, giving its new, six-member conservative majority a chance to roll back the 1973 ruling that women have a constitutional right to abortion.

The Supreme Court might overturn Roe . It took decades of scorched-earth conservative politics to get here. Upholding Mississippi’s 15-week abortion ban could severely damage American belief in the court’s legitimacy. During the nearly two hours of oral argument, the justices debated whether those earlier courts were correct in previously declaring that abortion could not be limited before “viability” — the 23-week mark at which a fetus can survive outside the uterus. They also sparred over the questionable science about when a fetus could feel pain that Mississippi used to justify the ban.

Even Justice Alito hasn't gone that far; he declined to join Justices Thomas and Scalia in their concurrence in Gonzales v. Carnhart, which said that Roe v. Wade should be overturned . Meanwhile, Justices Gorsuch and Kavanaugh said during their confirmation hearings that they wouldn't overturn Roe v. Wade. Now the question is whether they have five votes now and I think they do. I do not believe for one second CJ Roberts won't vote to overturn it . There was an article/book somewhere discussing an infamous "John Roberts two-step" in that he takes a narrow position on an issue and

Indeed, it seems to me that a more radical idea would be nine men in robes unilaterally imposing a top-down law, under the guise of a purely fictional “right to privacy.” This is to say that Roe was—and remains—radical.

As I noted in June, anyone alive in 1868 would have been stunned to learn the 14th Amendment implicitly legalized abortion, which had become criminalized (except in instances where the life of the mother was at stake) around 1880. For over a hundred years, the amendment did nothing to legalize abortion.

Even some prominent liberals who supported abortion rights conceded Roe is a flawed ruling. Ruth Bader Ginsburg famously agreed that the precedent was reasoned badly. (The subsequent Planned Parenthood v. Casey decision in 1992 similarly reverse-engineered a new rationale not found in the Constitution to justify abortions.)

'Roe' on the line as Supreme Court takes up abortion rights case

  'Roe' on the line as Supreme Court takes up abortion rights case The Supreme Court will hear a case from Mississippi that could transform abortion rights in America, overturning Roe v. Wade and allowing stringent new state laws. "This is the most important Supreme Court case on abortion since Roe in 1973, and I don't think it's particularly close," said Sherif Girgis, Notre Dame law professor and former clerk to Justice Samuel Alito.

Overturning Roe could mean women seeking abortions have to travel hundreds of miles. A recent ABC News/Washington Post survey found that 60% of Americans believe the landmark abortion rights case should be upheld. Only 27% say it should be overturned . Former President Donald Trump nominated three conservative justices to the Supreme Court — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — all of whom acknowledged Roe v. Wade as precedent, but did not say whether they would uphold it or overturn it . During the 2016 presidential campaign, Trump promised that his nominees to

Not all the conservative justices seemed game to debate when life begins, but enough did. In addition to Thomas’ apparent interest, Alito literally asked, “ Are there secular philosophers and bioethicists who take the position that the rights of personhood “The Court is being presented with an opportunity to overturn Roe v. Wade, which is exactly what President Trump wanted his Supreme Court nominees to do,” Sen. Mazie Hirono, D-Hawaii, told Mother Jones on Wednesday after arguments concluded at the Court. While “the attacks on a woman’s right to choose and a right to control her own body had been

Putting the substance of this radical ruling aside, the practical effect of Roe has been to radicalize our politics. Had the legislative process not been prematurely aborted by the Supreme Court in 1973, it’s possible that we might have arrived at some sort of consensus regarding abortion rights by now. But Roe short-circuited that process. It also nationalized and heightened the stakes of presidential elections (not to mention Supreme Court hearings). As a result, American politics has become more nasty and apocalyptic. Every election is the most important in history.

This is not just pablum politicians spout around election time. The stakes are high, and this is a reality that covers a multitude of sins. For example, it’s entirely possible—maybe even likely—that Donald Trump would not have been elected president without the stakes raised by Roe. This is because Mitch McConnell held the seat open, guaranteeing that the winner of the 2016 presidential election would get at least one SCOTUS pick. In so doing, McConnell made it dramatically easier for social conservatives (who, for decades, had been told Supreme Court nominations were the alpha and omega) to hold their nose and rationalize pulling the lever for Trump.

Dobbs v. Jackson Women's Health Organization: What to watch for as the Supreme Court reconsiders Roe v. Wade

  Dobbs v. Jackson Women's Health Organization: What to watch for as the Supreme Court reconsiders Roe v. Wade The Supreme Court hears oral arguments Wednesday in a case that could result in the repeal of Roe v. Wade, the decision legalizing abortion nationwide that's been at the center of American politics for nearly 50 years. © Kevin Dietsch/Getty Images Activists protest during a demonstration outside of the Supreme Court on October 4, 2021, in Washington. Here are the key details: How to listen and follow along Arguments begin at 10 a.m. ET. The court still doesn't allow TV cameras, but it has finally relented on live audio. You can listen on CNN.com and follow along with our live coverage.

"With three new conservative justices all appointed by former President Trump who supported overturning Roe , some see this case as their best chance," Crawford said. Crawford said that according to a CBS News poll, many Americans want abortion to stay although there should be restrictions. "A CBS News poll found a two to one majority supports keeping Roe V. Wade in place with some Americans saying that that would be a backwards step for women. But if Roe is overturned , most Americans say there should still be some restrictions on abortion," Crawford disclosed.

The conservative justices also trained many questions on the issue of why viability of the fetus is a proper standard for setting a limit on abortions. Mississippi’s Stewart argued that viability “ is not tethered to anything in the Constitution. In fact, should Roe be overturned , more than half the states are likely to ban abortion almost immediately, according to the Guttmacher Institute, an abortion-rights research group. Nine states have bans still on the books from when Roe was decided; a dozen states have “trigger” laws that would ban abortion if Roe falls; and several other states have various other

A Supreme Court reversal of Roe this coming summer would only reinforce the sagaciousness of this devil’s bargain (and, in so doing, potentially help lay the runway for a potential Trump 2024 takeoff). But don’t let that stop you from supporting it. Remember, Roe arguably gave us Trump to begin with.

Of course, the court could find some way to uphold the Mississippi law without outrightly or immediately reversing the Roe-Casey framework. This more moderate decision would still be called “radical.” In fact, earlier this week, Speaker of the House Nancy Pelosi referred to “Mississippi’s radical abortion ban…”

But is 15 weeks a radical demarcation? As Chief Justice John Roberts noted during Wednesday’s oral argument, the 15-week ban is “not a dramatic departure from viability [the point at which a baby could survive outside the womb]. It is the standard that the vast majority of other countries have.” He went on to note that “When you get to the viability standard, [America currently shares] that standard with the People’s Republic of China and North Korea.”

Abortion rights at stake in historic Supreme Court arguments

  Abortion rights at stake in historic Supreme Court arguments WASHINGTON (AP) — Abortion rights are on the line at the Supreme Court in historic arguments over the landmark ruling nearly 50 years ago that declared a nationwide right to end a pregnancy. The justices on Wednesday will weigh whether to uphold a Mississippi law that bans abortion after 15 weeks and overrule the 1973 Roe v. Wade decision. Mississippi also is asking the court to overrule the 1992 ruling in Planned Parenthood v. Casey, which reaffirmed Roe. The arguments can be heard live on the court’s website, starting at 10 a.m. EST.

(It’s impossible to dismiss this point, but it is fair to quibble with it. According to PolitiFact, “Abortion laws are subject to interpretation,” but “About 13 European nations have time limits that are clearly shorter than Mississippi’s 15 weeks.” Regardless, Chief Justice Roberts’ point is valid: The Mississippi law is more mainstream in the context of secular Europe.)

It is the act of abortion after 15 weeks that strikes me as radical. According to the Mayo Clinic, “Fifteen weeks into your pregnancy, or 13 weeks after conception, your baby is growing rapidly. Bone development continues and will soon become visible on ultrasound images. Your baby’s scalp hair pattern also is forming.” Whether you want to call it infanticide or simply “terminating a pregnancy,” the idea of eliminating life via invasive surgery seems more extreme than the alternative (putting that child up for adoption).

I concede that overturning Roe could be considered “radical” in the sense that it would be a big change. And, yes, the more conservative (in the sense of being “adverse to change”) decision would be to simply defer to past precedent. But do we want to stick with bad policies that were wrongly decided based on... tradition? Do we want to stick with bad policies that were wrongly decided because some people have come to rely on them?

How to Know If Roe v. Wade Is Doomed at the Supreme Court

  How to Know If Roe v. Wade Is Doomed at the Supreme Court What to watch for in the oral arguments for the Supreme Court’s big abortion case.The concept of viability is a crucial part of abortion rights in the United States. Roe v. Wade and its successor case, Planned Parenthood of Southeastern Pennsylvania v. Casey, recognize the right to choose abortion until viability. That means to uphold Mississippi’s law, the court will have to either hold that there is no abortion right or rewrite what Roe v. Wade stands for, effectively removing any kind of barrier to how early a state may ban abortion.

The good news is, there is precedent for breaking precedent. I am persuaded by what Justice Samuel Alito said on Wednesday: “There was a lot of reliance on Plessy [v. Ferguson]. The South built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.”

Alito’s comparison of a Supreme Court ruling that upheld the “separate but equal” doctrine to Roe is sure to drive progressives crazy, but anti-abortion activists have long looked to abolitionist heroes like William Wilberforce—the British politician who led the movement to abolish the slave trade—for inspiration while fighting to establish the rights of the exploited and the vulnerable .

So maybe we are radicals, after all?

Read more at The Daily Beast.

What Roe Could Take Down With It .
The logic being used against Roe could weaken the legal foundations of many rights Americans value deeply.Many of the dangers of overruling Roe have been long discussed. If women lose the right to an abortion, pregnancy-related deaths are estimated to rise substantially and suddenly. (Currently, 26 states have so-called trigger laws on the books that would outlaw most abortions the moment the Court reverses Roe.) The impact of Roe’s fall would hit low-income women especially hard, as they’re five times as likely as affluent women to experience unplanned childbearing and twice as likely to face sexual violence.

usr: 2
This is interesting!