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Wednesday, May 4, 2022

2022 Mother's Day greetings from Justice Alito

Mother's Day will now be mandatory. "It is so ordered."
JUSTICE ALITO delivered the (Dobbs v Jackson, leaked first draft] opinion of the Court.

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.

For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussion of abortion in antiquity) to the plainly incorrect (c.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature.’

Under this scheme, each trimester of pregnancy was regulated differently, but the most critical line was drawn at roughly the end of the second trimester, which, at the time, corresponded to the point at which a fetus was thought to achieve “viability,” ic., the ability to survive outside the womb. Although the Court acknowledged that States had a legitimate interest in protecting “potential life,” it found that this interest could not justify any restriction on pre-viability abortions. The Court did not explain the basis for this line, and even abortion supporters have found it hard to defend Roe's reasoning. One prominent constitutional scholar wrote that he “would vote for a statute very much like the one the Court ended up drafting ”if he were “a legislator,” but his assessment of Roe was memorable and brutal: Roe was “not constitutional law” at all and gave almost no sense of an obligation to try to be.” …

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”…

…As we have explained, ‘procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our nation's history…

‘We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

‘The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

it is so ordered.
98 pages of arrogant, disingenuous, cherry-picking, confirmation bias "argument." (Though, really, the latter third comprises simply a summary compilation of the various state suits seeking to overturn Roe and Casey.)

The vapid "Originalist / Textualist" assertion.
OK, there are 171,476 "active" words in the English language (per Oxford Dictionary). There are 7,591 words comprising the U.S. Constitution—Preamble through the 27th Amendment. Within those there are 1,153 discrete words, 555 of which appear only once. Pick any English word at random. The base probability of it not being in the Constitution is 99.7%.

apropos of this issue, a curious small sample of other words not to be found therein: explicit, implicit, male(s), woman, women, child, children, female(s), reproduction, reproductive, ovum, conception, contraception, pregnant, pregnancy, gestation(al), fetus, unborn, birth, childbirth, infant, baby, mother, personhood...

You (should) get the idea.

Phrases not found: Separation of powers, separation of church and state, co-equal branches, checks and balances, Unitary Executive...

Seriously, need we continue?
Justice Alito wants it both ways. Imagine my surprise. Who wouldn't? So, pro-choice advocates "must show that the right is somehow implicit in the constitutional text?" What part of the 14th Amendment "Equal Protection clause" clear, explicit language escapes you, sir? Yeah, I know, back during the time of the 14th Amendment debate, women were not regarded as "persons," right? They were politically "not part of our nation's history."
It was in fact argued in 1868 during Senate debate that that had been Framer James Madison's view.
Being at one demonstrably "pro-life and pro-choice," I've been posting on this issue for 14 years. As a male, I have misgivings about even proffering my opinion (but, my opinion is hardly grounded in philosophical abstractions).

Cutting to the chase, a woman's reproductive decisions are no one else's business, male or female, individual or institutional. These decisions are not the legitimate turf of socio-politcal plebiscites, nor judicial interventions.
“How dare they? How dare they tell a woman what she can do and cannot do with her own body?” —Vice President Kamala Harris
And, I know full well we may lose that argument, politically. The adverse upshot will extend far and wide.

Yeah, he festooned his draft with enough window dressing to keep Ginni Thomas measuring the White House drapes for years
OK, what's the "logic" here? The "if/then/therefore/else" stuff?
And, yeah, I know Dobbs is not a "law." It's at this point a "legislative fetus."

We might also note the prior "case-law" references:
Heller, 509 U.S, at 319, 320
FCC v. Beach Communications, Inc., 508 U.S. 307, 313
New Orleans, 421 U.S, at 303
Williamson v. Lee Optical of Okla., Inc. 348 U.S. 483, 491
Gonzales, 550 U.S, at 157-158
Roe, 410 U.S. at 150
Glucksberg, 521 U.S., at 728-731
Of course, properly, we'd have to assess their materiality individually, in full. What "evidence" do they add? "You get what you inspect, not what you expect."
This type of exasperating pedantry comes from the tedious grad school "Argument Analysis and Evaluation" method. You first thoroughly and clearly establish what is being argued. Only subsequent to that deconstructive effort can you undertake to "evaluate" it.
The foregoing is from one paragraph. There are well in excess of 100 (not counting footnotes) in Alito-Dobbs.
Note that the foregoing assertive passage makes no mention whatsoever about the woman's right to physical and moral autonomy, which is apparently assumed to be subordinate, notwithstanding the charming cover-your-ass sop proffered in 3.2. (And, 3.6 simply leaves me scratching my head.)

Alito asserts [pg 9] that Roe “held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
Yeah, that insipid albeit hardy perennial "textualist" beg-off.
I am not a lawyer, and certainly make no claim to constitutional expertise broadly, but I will put my 4th Amendment chops up against his any day. e.g., two chapters from the online draft of my 283 pg 1998 graduate thesis: Chapter 4, and Chapter 5.
...While the word “privacy” admittedly appears nowhere in the text of the Bill of Rights, neither do the terms “obscenity,” “sodomy,” “pregnancy,” “sacred marital bedroom,” or “drug abuse.” Those who espouse a view of the Constitution as a document of broad moral principles find such lack of specificity compelling in their argument against simplistically limited textual “strict construction.” Indeed, the 9th Amendment—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—is universally cited by “broad construction” advocates to counter the observation that the specific term “privacy” is absent from the Constitutional language. To the “Constitution-of-Principle” advocate, the very brevity and generality of the Constitutional text is dispositive evidence that, far from being a document essentially no different than a commercial insurance contract, the “large-C” Constitution provides the general vision of justice and procedural guidelines for those who must administer ongoing the “small-c” constitution comprised of the very breadth of our social fabric..
C'mon, people.

"I think it [the Alito Dobbs draft opinion] is intellectual and historically bankrupt. The founding document did not list all of the rights we have. It doesn't say anything about our right to marry, our rights to decide how to bring up our children, our freedom to think what we will. It protects liberty in very broad terms. It protects equality.”

"This idea by Justice Alito -- he is backed by the right-wing of the court and by many right-wing activists, this idea that the Constitution protects only those rights that are listed and those rights that are rooted in a misogynist history that really did not take account of women at all. It is simply a prescription for turning the clock back, not just to the 1950s, but to the 1850s. It is a regressive approach, it is not consistent with our trajectory of constitutional rights, which have expanded and expanded."

   — Harvard Law Professor Emeritus Lawrence Tribe, on MSNBC

Demand more of men. Some men are out front of this issue; most of them are not. Where are the men in your life? Are they speaking out about how abortion rights have made their lives better, directly or indirectly? Are they only willing to support pro-choice politicians? Are they also protesting, making phone calls, talking about this with their friends, and donating their money? Are they as invested in this fight as you are? And if not — how much do they really value you, or women more generally? What role do you want them to play in your life? If you’re a man reading this, consider how abortion rights have affected you. If you got someone pregnant who had an abortion (and maybe that happened but you don’t know about it), how did that choice allow you to live the life you have now? If a loved one has had an abortion — and I promise you, someone you love has had an abortion — how did that allow her to live the life she has now? How have all of the ways in which abortion rights made women freer and safer improved your life and the lives of those you love?
Am I doing enough? Probably not.
Click here.
Just came to my attention via PBS Newshour. Kathryn Kolbert, Julie F. Kay. Bought it.
BTW, tangentially, broadly apropos,

Liberty No More
If Roe v. Wade is overturned, the very definition of what it means to be American will change for women and girls in the United States.
By Adrienne LaFrance

How strange it is, the condition of having a body, of being a body. Consider the sponge of the marrow that makes your blood, the skeleton frame that holds in your organs, the tendons that attach your muscles to bone, the heart that pumps blood through your veins, the electrical signals that travel along the optic nerve from your retinas, the neural networks that light up the galaxies of your brain like constellations.

A person’s interiority—your sense of youness—is typically understood to be situated in the mind, yet the mind and the body are inextricable. What, then, must it mean to be in possession of a body in America? This is, we are told, a land of tremendous abundance, of self-reliance, of liberty, and of invention. The promise America makes to its people, the covenant that we Americans can feel in our bones and in our blood and in our beating hearts, is the guarantee that we are free.

Liberty is given to us by God, by nature, by our own humanity—not by government. I am American and so I am free to speak, free to publish, free to worship, free to assemble, free to keep and bear arms. It is to me self-evident that I am free to pursue the life I choose, without interference from the state. Freedom of mind does not come without freedom of body.

If Roe v. Wade is overturned, as now appears likely, the very definition of what it means to be American will change for women and girls in the United States. If the state makes a claim to your body—a claim therefore to your self—you can no longer be American, not truly. To allow the state to control the body of a citizen is to deny her full personhood. To allow the state to control the body of a citizen is to undermine the very notion of what America is, the core promise it makes.

Abortion presents, as Justice Samuel Alito writes in his draft opinion in the Dobbs case, “a profound moral issue.” None of us can claim to understand with certainty the mysteries of human life. As medicine and science have advanced, the moral questions about abortion that we must contemplate have only grown more complicated. But none of that changes the fact that government control of women’s bodies—interference from the state that obliterates women’s freedom and in some cases ends their lives—represents a monumental blow to human rights…
Read all of it. Pay it forward. Below, one last report.
Republicans Are Wasting No Time Pushing Dystopian Post-Roe Laws
It’s gonna get so bad
Having all but won the SCOTUS abortion war—the GOP’s twisted, totalitarian worldview is being laid bare for the entire world to see.
Max Burns, Daily Beast

It’s only been a week since the explosive leak of a draft Supreme Court decision presaging the end of 50 years of legal abortion in America. But the GOP is wasting no time building its bleak, authoritarian successor state.

Having seemingly won their signal victory on abortion, Republicans do not have time for messy things like participatory democracy, only the raw exercise of power.

 What Republicans are planning goes far beyond ending legal abortion as defined in the landmark case Roe v. Wade—and past what even many self-identified Republican voters want.
In court challenges and proposed legislation from Idaho to Florida to Congress, the GOP has expanded its war on reproductive freedom to include their worst theocratic fever dreams.

Criminalization of miscarriages. Bans on condoms, IUDs, and other forms of birth control. Stripping pre-existing abortion protections from state constitutions.

These laws and bills represent not only the biggest backwards step in reproductive freedom in American history, they finally showcase the GOP’s twisted, totalitarian worldview for the entire world to see...

My veneration of both parenthood and Motherhood is unassailable.

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