Skip to content

Court leak spells end to constitutional right to abortion

According to Politico, a draft Supreme Court ruling has been leaked that overrules Roe v. Wade completely. If this turns out to be a final opinion, I find it fitting that it was written by the Court's worst member, Samuel Alito, and affirmed by its most crotchety ideologue, Clarence Thomas, along with its three Trump appointees, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

According to Alito, whose history is one of simply supporting Republican positions without much further thought:

  • Roe was a ridiculously stupid decision, "egregiously wrong from the start."
  • The due process guarantee of the 14th Amendment applies only to rights that are "deeply rooted in the nation's history and traditions." Abortion on demand laughably fails this test.
  • Nor does stare decisis matter in this case because Roe is only 50 years old.
  • In fact, the Constitution has nothing whatsoever to say about abortion.
  • Ditto for state constitutions:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right.

....Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State....By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.

  • Abortion law is fundamentally about whether a fetus should legally be considered a "potential life." That is not a decision the Supreme Court is allowed to make. The Constitution reserves it "unequivocally" to the states.

And after Roe is repealed, what restrictions will there be on states regarding abortion? Alito makes it absolutely clear that the answer is none:

It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution,¹ courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.

....A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

Alito is leaving absolutely no wiggle room for state or federal courts. He has literally given legislatures a list of reasons they can set forth that lower courts are explicitly prevented from overruling—and those reasons provide everything necessary for any restriction on abortion favored by a state. In particular, "respect and preservation of prenatal life at all stages of development" plainly allows a complete ban on abortion starting at conception if that's what a legislature decides. All it takes is legislative language that's not obviously religious or racist or otherwise harebrained. It's not even clear if a court could intervene in cases where the mother is virtually guaranteed to be killed if she gives birth. Maybe. Maybe not.

It's possible that there will be changes to this opinion before it is released. Nevertheless, the language is so adamant—Roe is ridiculous; the Constitution is silent on abortion; states can create any regulations they want; and lower courts are powerless to overturn them—that it's hard to see how any but the most minor caveats could be added. It appears that not only is Roe dead, but the earth has been salted behind it.

Fuck.

¹This does not apply to state constitutions. The one exception in Alito's entire opinion is that state courts may overrule legislatures if their own state constitution has relevant language that applies to the case. Needless to say, this is meager solace since states that ban abortion (a) usually have conservative state supreme courts, and (b) can usually modify their constitution if that's what it takes.

134 thoughts on “Court leak spells end to constitutional right to abortion

  1. Jasper_in_Boston

    I've consulted Twitter but can't seem to find out who is suspected of leaking. The libs on the court (that would be my guess) or the right wingers?

      1. Jasper_in_Boston

        Could be. I was thinking maybe it's a liberal clerk throwing a Hail Mary in the hopes the political firestorm that is set off will pressure the five rightists to reconsider or moderate. But an extra six weeks of padding before the midterms make a lot of sense.

      2. Joel

        I don't see how that works. Beginning in July, look for headlines about women dying after self-induced abortions, women arrested in hospitals after self-induced abortions went wrong, women arrested and jailed after miscarriages, women who commit suicide after losing a pregnancy to miscarriage and then being arrested for abortion, women arrested and jailed after returning from abortion in another state. Also women who die from ectopic pregnancies. You can imagine other scenarios. This will be never-ending.

        Also, as states toggle between red and blue, abortion laws will be created and destroyed. Insane.

      3. markk

        I had that thought as well, but I'm not as convinced. Revealing the decision now gives people who are enraged by this decision plenty of time to register to vote (which is where Democrats should be focusing their efforts from now until November). The closer it came to the midterms, the more likely efforts to register them would have bumped up against the latest round of restrictions Republicans have put in place.

    1. haddockbranzini

      Russian bots - needed to change the news for a few days. By Friday, the average CNN viewer will be "Ukraine, where's that?". Not saying this isn't HUGE news, because it is, but cable news can only cover one story at a time for whatever reason.

      1. Mitch Guthman

        I don’t know. Twenty or thirty years ago I would’ve agreed with you. But, at this point, I don’t see anything special or even different about the court that makes leaks any different from those emanating from other political institutions. The Democrats should’ve dealt with this situation when they had the majority.

    2. DFPaul

      I read somewhere that the WSJ edit page last month said that Roberts was looking for another justice to "turn" to join his opinion. It's easy to imagine that Roberts wanted to save Roe in name while cutting back the protected time for an abortion to 4 weeks or something. His comments at oral argument leaned in that direction, as I understand it. That would be the "savvy" political move I think. Headlines would say "Abortion Restricted" (yawn) rather than "Roe Reversed" (yikes) -- probably worth a few points in November.

      So to me it makes sense this was a conservative leak intended to force Roberts to get on board. Surely Alito must feel this is his moment and he's been waiting a long time for it. DT gave him 3 playmates to play with so now's the time. No wishy washy stuff from Roberts...

      1. Jasper_in_Boston

        So to me it makes sense this was a conservative leak intended to force Roberts to get on board.

        Maybe, but why would someone like Alito think leaking this would force Roberts to "get on board?" He's the Chief Justice, after all, and he seems to be comfortable having cultivated a reputation (largely undeserved in my view) as a "resonable" movement conservative. And he faces no objective political pressure (it's not as if he's a Senator).

        To put it another way: why does Alito care if Roberts isn't on board, and issues a separate dissent (or a dissent in part)? The MAGA judges don't need his vote.

        1. Solar

          "To put it another way: why does Alito care if Roberts isn't on board, and issues a separate dissent (or a dissent in part)?"

          To pretend this wasn't a partisan hackjob with years in the making, and is instead a well reasoned argument and completely legit interpretation of the Constitution.

          If even the "reasonable" Roberts is on board the Conservative Justices can't be called extremists can they? /s

      2. J. Frank Parnell

        More likely just some conservative clerk or staffer throwing a premature victory party. Someone who views the laws of (their) god superseding mere man made laws.

    3. KenSchulz

      Not any Justice; and would any liberal Justice’s clerk be naïve enough to think that public protest would sway any of the conservative ideologues?

      1. markk

        Not directly, but given the reaction of Republicans to this leak they're terrified that it's going to energize Democratic-leaning voters at exactly the wrong time. I can see McConnell and McCarthy making some urgent calls hoping to get a less-definitive ruling that will dissipate that anger.

  2. Jasper_in_Boston

    Abortion law is fundamentally about whether a fetus should legally be considered a "potential life." That is not a decision the Supreme Court is allowed to make. The Constitution reserves it "unequivocally" to the states.

    Guarantee you they'll change their tune to "The Constitution reserves it "unequivocally" to the states and to Congress" once the latter gets around to banning the procedure nationally.

    1. chaboard

      I'd go further - I'd bet that Alito himself will end up voting for a fetal personhood rationale to ban it nationwide......

    2. KenSchulz

      I thought that abortion law was fundamentally about whether a fetus is a ‘person’ under the law. Obviously a fetus consists of living cells, and obviously those cells contain human genetic material - but that is also true of tonsils, tumors and various other bits that are removed and discarded without a second thought.

  3. kenalovell

    the elimination of particularly gruesome or barbaric medical procedures ...

    So don't waste your time challenging state laws that ban transgender confirmation procedures, which I'm sure at least five justices would find both gruesome and barbaric. Gay conversion therapies will be neither, of course.

  4. golack

    I like how they never define conception. Most fertilized eggs never properly implant....so arrest everyone who has sex?
    Of the pregnancies that are recognized, 20+ % end in miscarriages. Investigate them all for murder?

    I wonder if the "potential for life" standard will be used by conservative Justices to promote more government regulations?

  5. D_Ohrk_E1

    Like Komatsu and Plessy, Dobbs will go down in history as consequentially terrible opinions that will be blown apart in the future, don't you think?

    I mean, I don't see the US successfully passing a constitutional amendment to explicitly legalize abortion (nor should it have to). So, there are only two options left: Massive protests and constant hounding of the conservative justices to make their lives living hell, or to play the long game and eventually overturn Dobbs.

    In the meantime, I guess this invigorates a lackluster Democratic base and moderate Republicans to finally go into overdrive and stop a midterm flip.

    1. Lounsbury

      Perhaps this is my ignorance, but if the US Constitution on this is silent as this draft leak (purported, some of that language seems highly unlikely in style for such a Court document, although not the underlying substance), it would seem to me the legislative path, at State and National levels is perfectly open.

      And rather than playing Court games that have become too dear to the US Left, provide a broad organising reason for grass roots politics (if this right has as much political support as the Democrats reason), state by state fight.

      One should hope it teaches a lesson to activists that focusing on using courts to drive achievements is a weaker path built on sands as compared to achieving political achievements via legislatures, although the latter is slower.

      1. Jasper_in_Boston

        One should hope it teaches a lesson to activists that focusing on using courts to drive achievements is a weaker path...

        Seems to me recent decisions emanating from the Republican majority court don't teach that lesson at all. Quite the opposite. Two recent examples are the evisceration of both 1960s era voting rights legislation and healthcare legislation (Obamacare) by the court. We've also seen this recently with both state and federal duly-enacted firearms laws. Normally in a democracy, if you don't like legislation the other side has enacted you, erm, pass repeal of or changes to the laws in question. But Republicans no longer bother to do that. Because they control a third legislative chamber that has more power than the two that make up the Congress.

        If there's any lesson from all of this it's: use electoral politics to pack the courts, and don't let anything (certainly not something as meaningless as respect for norms) stand in your way.

          1. Jerry O'Brien

            The presidential elections of 2000, 2004, and 2016 had a lot to do with it. Of course, the election of 2000 was decided in favor of the Republican, because we already had a Republican Supreme Court. So I guess the presidential elections of 1968, 1980, 1984, and 1988 had a lot to do with it, too.

            1. KenSchulz

              The Electoral College made a contribution by giving us two Presidents who received fewer popular votes than their opponents, in this still-young century.

      2. Spadesofgrey

        They aren't the left idiot. It's more right of the individual thingie. Pro-Roe is very bourgeois.

      3. bebopman

        “ One should hope it teaches a lesson to activists that focusing on using courts to drive achievements is a weaker path built on sands as compared to achieving political achievements via legislatures, although the latter is slower.”

        ??????????
        Are you suggesting that those states that have or will soon ban abortions would not have done so over the past 50 years if they had not be forced by Roe to allow them?

        As has been shown with the voting rights of blacks, those states will do what’s right only when the feds force them to do so.

        1. Spadesofgrey

          Voting rights of blacks???? Irrelevant. If you want to make arguments, make arguments. Stop whining about dialectical illusion. You lose respect.

          1. D_Ohrk_E1

            Eventually, it is my hope that you'll remember that the word you're searching for is didactical.

      4. D_Ohrk_E1

        Alito pointed out that "abortion" wasn't an enumerated right in the Constitution. A federal law would not obviate this problem of constitutionality in the eyes of a conservative majority. Alito will go back to the "original meaning" argument and claim yet again that such a law is unconstitutional.

        A similar problem exists at the state level. However the highest court of each state leans, so too would the outcome of any state law -- Alito pointed the way. Plus, you have the problem of having to pass laws that block Texas-like third-party civil lawsuits that conservative cities and counties would chase after, in a blue state. I can think of only a handful of states that would be able to do that right now.

      5. HokieAnnie

        Brit Mansplaining. SIGH. The reason the courts have been the avenue is because the old white men and their female Quislings in the US Senate and state legislatures blocked the ERA and put a plainly unconstitutional time limit on its ratification. It was always understood by those in the know to be a foundation of sand.

        1. Spadesofgrey

          Lol, nope. Your a ignorant retard. Old white globalist men. What are they doing, but hating themselves??? Womensplaining???? Hokie, you need tortured much like Republicans.

          1. RZM

            Kevin, please get rid of this troll. Ok, he's frequently incoherent but he's also an unapologetic anti-semite and now seems to have suggested torture for another commenter though it's hard to say for sure because he's not always very good at translating from Russian to English.

    2. Jasper_in_Boston

      I guess this invigorates a lackluster Democratic base and moderate Republicans to finally go into overdrive and stop a midterm flip.

      I certainly hope so.

      I do believe it's possible one additional silver lining (small comfort to the millions of impacted women and their families in the interim, of course) may be that it will precipitate the eventual arrival of deep reform to the Supreme Court.

      The United States needs a vigorous, independent judiciary just as any democracy does. But what we actually have in the high court is an unelected and utterly unaccountable third legislative chamber drunk on its own hubris. I hope this means its days are numbered.

      1. haddockbranzini

        Do they flip for one party over the other, or for a third party? I mean if the Democrats were the firewall around Roe, and Roe is gone, what does that do to the Democrats electorally going forward? That's just my simple take. Its gonna shake things up though.

        1. Mitch Guthman

          I have been thinking about this, too. Not just in the context of Roe but in terms of the overall situation. The Democrats have gotten weaker with nearly every election in my lifetime. The leadership and the consultants have grown ossified and useless.

          The problem is that there’s never a good time to pay the price that starting a new party or simply withholding support would extract. Unfortunately, the increasing extremism of the GOP has made support for the Democrats imperative. But it’s starting to become clear that a policy of unqualified support has been counterproductive.

          I think the left and center left need to re-examine things. If we’re lucky, we will be in the political wilderness for some time. This is perhaps a good moment to prepare ourselves both for the impending defeat and for a future return to power.

          1. MontyTheClipArtMongoose

            Dukakis: the last electorally strong Democrat.

            FOH with this ever weakening nonsense.

            1. Mitch Guthman

              Al Gore, Bill Clinton, and Obama were all strong candidates and winners. The Democrats could’ve chosen from a dozen other candidates who would almost certainly have defeated Trump.

              Obama could’ve taken his responsibility as leader of the party more seriously and made building a good bench a priority. And he could’ve kept his grassroots organization intact even though it was bad for the consultants.

              So there were many ways to avoid Hillary as the nominee. And there were ways for her to hold the Obama coalition together. She just couldn’t be bothered and to to committed to her centrist bullshit to give anything to the people that put Obama in the White House. Hillary was a terrible candidate,with an immense amount of baggage but no plan to overcome that handicap. Which is why she lost.

  6. bebopman

    Conservatives: Fighting to keep women in their place since the dawn of time.

    It has been proven many times in many ways that easy access to birth control is the best way to prevent abortions. But preventing abortions is not really the main goal of the so-called “anti-abortion” cult.

    1. Joel

      Actually, conservatives are pro-choice. Conservatives want the nanny state out of personal decisions. It's right-wing extremists who are fighting to keep women in their place.

      1. Spadesofgrey

        Incorrect. This is typical big government conservative stuff. Are you are a retard???? I mean, right wing????? Bhahahaha.

  7. Justin

    It was really funny watching the hysteria on cable news last night. The poor pitiful people of color who can’t manage their personal lives are doomed! As if anyone really gives a shit.

    1. haddockbranzini

      Ukraine is the real loser in this. Russia has a few news cycles to do what it wants before coverage comes back that way. Only enough time for one story in the 24/hour news cycle.

  8. chaboard

    "A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.”"

    Reminder - this dishonest lying sack of fecal matter has voted against a wide variety of Covid-19 health welfare laws.......

    1. Jasper_in_Boston

      Laws that advance the goals of movement conservatism deserve wide judicial deference. Otherwise strict scrutiny is the order of the day. Duh!

    2. Michael Friedman

      Actually, I am not aware of SCOTUS invalidating a single COVID-19 health welfare law.

      They have invalidated regulations because there was no law authorizing them.

      Big difference.

        1. Spadesofgrey

          Nope. My view it was none of their business, but there was no set law. You need A eye ripped out.

      1. KenSchulz

        42 U. S. C. §264(a) “The Surgeon General, with the approval of the Secretary [of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dang gerous infection to human beings, and other measures, as in his judgment may be necessary.”
        That last clause didn’t read the way the Supreme Court wanted it to, so they just implicitly rewrote it to read “other similar measures, where similarity is determined by this Court.”
        So you are correct, they didn’t invalidate a law, they invalidated an agency regulation by deliberately misreading a law that clearly authorizes the Surgeon General to take measures not enumerated in the law itself.

  9. Joel

    There's nothing in the Constitution guaranteeing the right to marriage, either. Look for this court to overturn Obergfell with the first test case.

    1. George Salt

      Loving v. Virginia, too. They'll reinstate the anti-miscegenation laws that banned interracial marriage. You know, states' rights and all.

  10. Jasper_in_Boston

    I'm sure I'm not the only one, though, who derives enormous comfort in the knowledge that Susan Collins's brow is going to be highly furrowed.

    So there's that.

      1. George Salt

        We need a special prosecutor to investigate Kavanaugh, Gorsuch and Barrett and determine if they perjured themselves during their confirmation hearings.

  11. Spadesofgrey

    Nobody gives a flip about abortion. They can make all the regulations, crack squads and prevention methods, but it will still occur, happen liberally in other states. The loss of this politically may hurt with swing voters that won't put R on the ticket because they don't bother to vote.

  12. Dana Decker

    So it's exclusively up to individual state legislations and therefore Congress cannot write laws regulating/restricting abortion?

    For those keeping score, if Gavin Newsom hadn't issued marriage certs in *early* 2004 while mayor of San Fran, Bush - who nominated Alito in 2005 - might not have been reelected. The massive publicity he generated resulted in 11 anti-gay marriage initiatives (encouraged by Karl rove) that significantly affected conservative voter turn out. Newsom was excoriated by Democrats after Kerry lost. His action may not be why Bush won, but it did not help Kerry win. He could have waited until after November.

    From Salon's Did this man cost the Democrats the election? (2004)
    https://www.salon.com/2004/11/06/gay_marriage_19/
    Even Newsom admits to some post-election soul-searching. To say he cost Kerry the election "is quite simplistic," he said. "But I'll live with the burden of never knowing," he conceded.

    1. Spadesofgrey

      Well Kerry did better in Ohio then Gore, despite being weaker nationally. It's more complicated then that.

    2. Atticus

      It wasn't just conservatives that were against gay marriage in 2004. Pretty much every democrat at the time was also on record saying marriage should be between a man and a woman.

  13. Rugosa53

    Why not just repeal women's status to the 19th century and be done with it? No property rights, no divorce rights, no right to an education or a job or financial independence. No birth control but plenty of dying in childbirth. That's what Nature and Nature's God intended for women, isn't it?

    1. Spadesofgrey

      Women had property rights. A nostril rip would maybe educating for you. Abortion is not about women either. Lazy sellout.

    2. Atticus

      What does any of that have to do with protecting unborn babies? Why do you think anyone would want any of those things?

  14. haddockbranzini

    I wonder if something like this could help a third party? I know some women who are less than enthusiastic about the Democratic party in general and vote D only because of Roe. Would this make them more passionate about supporting Democrats going forward, or would it be "safe" to cast votes elsewhere since the deal is done?

    This could play out in many strange ways. But at least CNN has something new to talk about...

    1. HokieAnnie

      No third party would ever be viable so nope. Women aren't stupid, they will dig in with their local Democratic committees to make this a top issue in states controlled by the Democratic party.

  15. Rugosa53

    It should be shouted from the housetops every time women's reproductive autonomy is on the blocks:

    Abortion only became illegal when male doctors encroached on and took over the functions of midwives. Before men put themselves in charge of women's reproductive care, abortion before quickening was common and accepted practice. The early fetus was not considered a person. It wouldn't have occurred to the Founding Fathers to include abortion in the Constitution.

    1. Salamander

      And the Bible confirms this policy. Whatever became of "God said it, I believe it, and that's that"? Only for the parts they like?

  16. DFPaul

    Well, I hope this shakes loose some info on DT’s abortion history.

    After all, I’m told the trend these days is toward “free speech absolutism” which surely means Non Disclosure Agreements are unconstitutional. Right?

  17. NealB

    Great. Now the abortion rights distraction is re-energized for another 50 years. All the resources and energy it takes away from bread-and-butter economic issues is the point, after all, isn't it? The more time and money either the anti-abortion or pro-choice forces waste on this issue is time we're not focused on the larger economic crimes the Supreme Court aids and abets every term.

    1. golack

      The Republicans could run on their platform--you know, raising taxes on the middle class and poor; don't restore the refundable child tax credit, attacks against common sense pandemic precautions, etc....
      Or rile up their base with "ABORTION!!!"
      I'm guessing attacking China and being pro-Putin wasn't cutting it....

    2. Jasper_in_Boston

      Time will tell, but I've long believed the overturn of Roe would hurt Republicans politically.

    3. skeptonomist

      But supposedly this is a culture-war issue which actually breaks in favor of Democrats. Banning abortion is clearly not favored nationwide. The political result will boil down to how overturning Roe v Wade plays in swing states. This may affect who controls Congress and also the Presidency, as elections since 2012 have been decided by the electoral college. The media apparently have no detailed information on state-by-state popular opinion, so they are going with matters of little relevance such as who leaked the decisions.

      1. aldoushickman

        "But supposedly this is a culture-war issue which actually breaks in favor of Democrats"

        Yes, now that we've been wounded, surely we'll fight back harder and prevail. Why, getting wounded is probably a gift in disguise! The reversal of Roe sets in play an inevitable row of falling dominos that leads to liberal control of the Supreme Court in just a couple of decades, at which point we'll be able to spend another couple of decades getting back to the status quo of 2022!

        So in some ways, by getting what they've wanted and winning, the conservatives have sealed their own fate.

    4. arghasnarg

      I'm sorry trivial crap like women's health is such a distraction to you.

      Perhaps you should fuck right off to concentrate on you consider big boy stuff and let us worry our pretty little heads about wimminfolk stuff?

  18. George Salt

    Remember 2016? "There's no difference between Trump and Hillary. None at all."

    Trump got to appoint 1/3 of the Supreme Court. We'll be living with the consequences of that for decades.

    1. zaphod

      Remember? Unfortunately I can't forget. Even now, there are those who claim there is no difference between Republicans and Democrats.

      It takes a lot of evidence to break through the stupidity and ignorance of self-satisfied Americans. Even this might not be enough. Emotions Trump reasoning.

  19. jte21

    It will be interesting to find out who leaked this. Conservative Twitter is apoplectic about it, which is funny, because it essentially confirms that they've won. Or perhaps finally caught the car. Who knows what the fallout from this will be. I haven't seen any kind of major groundswell of anger against the antiabortion laws recently passed in Texas or Oklahoma or other states. I would have thought there would be more of an outcry and not just from pro-choice activists, but here we are. Maybe people are shy about telling pollsters what they really think or maybe most women in states banning abortion figure they'll just go to NY or CA if worse comes to worst and so it's not a big deal.

  20. eannie

    It seems that most abortions occur in blue states ( except florida( how will de Santis handle that)…so percentage wise overturning Roe is 13% fewer…however that won’t help the women in red states who will be dead from botched kitchen table abortions.

  21. CaliforniaDreaming

    I worked .gov (small case) and city management recently gave themselves a raise. It followed the rules, it just violated norms and implied agreements between the employees and management. The person who did it has repeatedly got away with this kind of thing but never any consequences. Does it sound like anyone we know, except this is a she and no red hair.

    Employee's are pissed.

    So, I ask people, "you knew this was going to happen, where we the letters to elected leadership, where were you in public comment, where are most of you, period, you don't even show up during negotiations."

    I don't blame them for being pissed. They should be, but the fact is, someone wanted that raise, especially now because there won't be money in a year, more than you wanted to do anything about it.

    Pelosi was right, you only have the power you take.

    1. ScentOfViolets

      Power concedes nothing without a demand. It never did and it never will.
      -Frederick Douglass

  22. skeptonomist

    Kevin slightly but significantly misquotes Alito. Alito actually writes

    "the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people"

    What this means of course is that the question is left to Congress and the states as the Constitution leaves anything it does not specify - not just the states. This means that Congress could pass a law legalizing abortion. There is nothing in the Constitution which prohibits that; indeed the Constitution generally gives precedence to Congress. But a succeeding Congress could overturn that law - no stare decisis on that.

    1. Salamander

      This argument is a strong campaign point for Democrats, nationwide. Only YOUR vote can reverse this Court ruling! And they could give details on how nothing has gotten done these last two years, because there aren't enough Democrats in office and the Republican Party has bowed out of the "governance" racket; just look at Texas. (I was there last week, and frequent power outages and water outages were grudgingly accepted, because what canya do? while the governor played border cop and of course, baby savior.)

      Maybe I ought to be writing my local, county, state, and national Democratic Parties, instead of simply raging here. To work!

  23. lisagerlich

    From Wikipedia: "Current Norwegian legislation and public health policy provides for abortion on request in the first 12 weeks of gestation, by application up to the 18th week, and thereafter only under special circumstances until the fetus is viable, which is usually presumed at 21 weeks and 6 days." You guys like to point to places like Norway as superior to the US. Maybe, a more reasonable law would not than Roe would not have engendered as much controversy. Also, science is on our side. As neonatal medicine has advanced, it is becoming apparent to the ordinary person that life starts early in the womb: sixty million and counting babies killed in the womb since Roe. Abortion is a barbaric form of birth control.

    1. mcirvin14

      Norway pays for all that abortion-related healthcare as a part of their evil socialism. Also you make it seem as though Norway prohibits all abortion after viability. This is not the case. Norway is clearly superior (at murdering babies with socialism).

        1. mcirvin14

          Why do you bother replying to a comment you clearly don't comprehend? I know it's tough to grasp subtleties, but do try a little bit when you post.

    2. Spadesofgrey

      Eh, if it out, it ain't alive in any sense. Do you remember your time in the womb?????? Nope. It's why in prechistiian times, before abortion was a highly scientific process, infanticide was a commonly practiced trait. A large reason why Christianity and Judaism spread, is by women to stop this long held practice.

    3. ScentOfViolets

      Sigh. You're conflating two separate issues and are badly confused on at least one of them: a), personhood is not in the purview of science; never has been, probably never will be. And b) look up the tethered violinist problem sometime. I'm sure it will come as a complete surprise to you that this is the argument, not the one you're trying to redirect attention to.

    4. Brett

      Bite me. We don't require people to give kidneys to save lives, nor even blood - yet you expect women to give up 9 months of their lives and more.

    5. kkseattle

      The entire anti-abortion movement is a farce. The Southern Baptist Convention approved of Roe when it came down.

      Jerry Falwell only got angry and political when the tax-exempt status of his segregated academies was stripped away.

      If abortion is murder, then why aren’t right-wing states putting women who have an abortion

  24. middleoftheroaddem

    I have two points and they both can be summarized down to a single word, HORRID.

    - the draft ruling, assuming it/or something similar becomes law then I say HORRID

    - the process of leaking the draft is also HORRID. If leaks of Supreme Court drafts become common, then this already challenged institution will continue to erode its creditability. The Supreme Court's creditability is important: else, one can imagine states just ignoring ruling they don't like....

  25. D_Ohrk_E1

    God Almighty, let it be that Clarence shared the draft with Ginni and Ginni either leaked it to the press or otherwise shared it with one of her colleagues who then shared it with Politico.

    Nothing would grant me greater pleasure in this clusterfuck than to see the Roberts court put into a quandary and Congress given the opportunity to impeach Thomas.

  26. Brett

    A full Roe strike-down wasn't surprising after the arguments last year, but it is surprising that Alito (the most hackish of all Court justices) got to write it instead of Barrett.

    In any case, I hope it was a conservative clerk on the Court who leaked it and violated the Sacred Decorum they're whining about. It'd be fitting - put it out there so state legislatures can immediately ban abortion now, months further ahead of the election in November, and maybe dampen its political impact.

    This sucks. It's not going to be as bad as the 1970s because of medication abortion, which can be sent covertly (and strictly speaking illegally) to women in red states by mail. But it's still going to suck.

    1. Joel

      " . . .maybe dampen its political impact.""

      The political, legal and moral impact will be felt every day. Beginning in July, look for headlines about women dying after self-induced abortions, women arrested in hospitals after self-induced abortions went wrong, women arrested and jailed after miscarriages, women who commit suicide after losing a pregnancy to miscarriage and then being arrested for abortion, women arrested and jailed after returning from abortion in another state, women sentenced to death or life without parole for getting an abortion. Also women who die from ectopic pregnancies. You can imagine other scenarios. This will be never-ending.
      Also, as states toggle between red and blue, abortion laws will be created and destroyed. Insane.

    2. arghasnarg

      "which can be sent covertly (and strictly speaking illegally) to women in red states by mail"

      Oh, you think that will last? I bet red state AGs abruptly become much more interested in offshore pharmacies than when it was just Viagra and Ritalin.

      Crossing state lines while pregnant is about to become a matter for suspicion too, but next Republican trifecta and it'll be a national ban, so you won't have to worry about that one for long.

      Of course rich girls will still vacation in Europe.

  27. spatrick

    Nobody knows how this is going to play out legally or politicially. It may be consequential or not as much as some people think. To say so either way right now is useless. I mean, when Roe was enacted in 1973, the only protests against it came from Catholic bishops. It took three years before anti-abortion activists started protesting but again, nearly all Catholic. It wasn't until Right Protestants began to agitate against Roe in the late 1970s that this became a contentious question. Had they not, it's doubtful we would be even speaking of repealing Roe. But Roe created the conditions for their political opposition. Again it's those unexpected things that often happens in American politics that changes everything, Not only that, when that reaction comes to some momentous court decision or election or Act, often times it takes a while for a reaction to form if at all. Whatever happens after Roe is repealed may very well take its time to work through current politics.

    But one thing is for certain: nothing about what the court does will settle anything. Anti-abortion activists are not going to be satisfied that half the country allows abortions and will go for an all-out ban and pro-abortion rights activists now have a tangible threat to those rights that didn't exist before or was thought to be safe which will no doubt galvanize them to try and liberalize abortion laws outside of where they exist right now. Lincoln said a country cannot exist half-slave and half-free, it will all be one thing or the other. He was right about slavery. We'll if abortion is the same thing.

Comments are closed.