The Supreme Court has already overturned Roe v. Wade!

May 3, 2022 • 8:00 am

I must rush off the boat, but must note this disturbing occurrence. Read Jean sent me a NYT article noting that the U.S. Supreme Court has already written the draft of an opinion that would overturn Roe v. Wade’s decision about abortion. This draft was obtained by Politico, and the link to that draft is in a New York Times article that is giving updates.

From the NYT:

WASHINGTON — The Supreme Court has voted to strike down the landmark Roe v. Wade decision that has guaranteed the right to abortion for nearly a half-century, according to a leaked draft opinion from February published online Monday night by Politico.

In the draft opinion, written by Justice Samuel A. Alito Jr., a majority of the court voted to overturn Roe, according to Politico. Justice Alito called it wrongly decided and said the contentious issue, which has animated political debates in the United States for more than a generation, should be decided by politicians, not the courts.

“We hold that Roe and Casey must be overruled,” Justice Alito writes in the document, labeled the “Opinion of the Court,” referring to a second decision that reaffirmed Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The draft posted by Politico is consistent with the Supreme Court’s published opinions in ways large and small, including structure, length, typography and how legal citations are rendered. Its assertive and sometimes slashing tone reads very much like other major opinions from Justice Alito.

The release of the 98-page document is unprecedented in the court’s modern history: Early drafts of opinions have virtually never leaked before the final decision is announced, and never in such a consequential case. And early drafts of opinions often change by the time the decision from the court is announced.

Shortly after the article was published Monday night, Politico’s editor in chief, Matthew Kaminski, and its executive editor, Dafna Linzer, sent an email to newsroom employees emphasizing its authenticity. In the memo, Mr. Kaminski and Ms. Linzer said that the article underwent “an extensive review process,” describing it as “plainly news of great public interest.”

Asked for reaction to the apparent leak, a Supreme Court spokeswoman said the court had no comment. . .

There’s a lot more at the site.

We all knew this decision was coming, and I haven’t yet read the whole draft, but if this is issued as is, the problem of abortion will devolve to individual states, and you know what that means. I had clung to a thread of hope that the court would abide by stare decisis, but that is not to be—precedent means nothing to this ultraconservative court.

I can’t help but think that a court like this would, besides loosening gun control even further, also be capable of overturning another precedent: preventing the teaching, on First Amendment grounds, of creationism in the public schools.


88 thoughts on “The Supreme Court has already overturned Roe v. Wade!

  1. Already, there is this headline from WaPo: “Supreme Court says Boston was wrong to refuse raising Christian group’s flag”

    1. Another case where Alito’s position is going to be key. Not because he set a new precedent in that case (he didn’t, he concurred with his own opinion), but because his concurrence outlined his new, preferred, extremely narrow definition for what counts as “government speech.”

      So it’s a signal about how he wants to rule in the near future on the High School Coach prayer case. If he gets his way, practically none of what teachers, coaches, police, civil servants, etc. say on the job will count as government speech. Meaning that these folks are all free to “ask” you to pray with them and proselytize you while they are on the job.

      At least, IANAL but that’s the way I read the situation.

    2. The Boston/flag case seems like a good verdict:

      “Occasionally, the city replaces its own flag with another after a group applies to hoist its own banner for a brief time, usually in connection with an event. From 2005 to 2017, the city approved 284 consecutive requests. But then Harold Shurtleff, who leads a conservative group called Camp Constitution, […] was turned down, on the grounds it would appear that the city was endorsing one religion over another.”

      By accepting 284 consecutive requests they pretty much created a “public accommodation”, that should then be accessible to Christians … or Satanists.

        1. Made of glass fibre, lined with lots of little refractory pipes for fuel, continually burning.
          Well, if I had anything to do with building one.

          How I’d manage the eternal screaming of damned souls … hmmm.

      1. I agree with you and Coel, Ben. Here it’s clear that the Free Exercise clause was violated. The city made its flagpole a public forum (though limited), so they must grant Camp Constitution’s request. Now, in addition to a Satanist flag, I’m eager to see a Muslim flag on the pole…

  2. I’ll likely make myself rather unpopular here by saying that I agree with Alito that things like this should be decided by voters not by unelected judges. Neither side accepts the verdict of the Supreme Court in settling this matter, and rightly so, since it’s not a democratic process. (And anyhow, the constitution doesn’t mention the issue.)

    In contrast, people tend to accept the results of referendums (unless they are very close). Thus, Ireland voted 66:33 to legalise abortion in a referendum, and the losers grumbled but accepted it.

    The US needs a referendum on abortion. That’s the only way to draw the poison out of the issue and settle it. According to polls, the US would vote about 60:40 in favour of a legal right to abortion. (Though I gather that the US has no constitutional mechanism for such a referendum.)

    1. My first thought on this was to wonder whether the Republican base might have been more careful about what they wished for. I don’t see a referendum ever happening nationally in the US (I don’t think there is even a mechanism for such a thing), but the dominos could drop state by state leaving the issue to be picked off on a constitutional amendment – something like “all medical care should be decided between a patient and their doctors consistent with best practice and existing standards”

      Sorry got lost in an optimistic dream there….

    2. What makes you think conservatives would accept a referendum? The public opinion needle on whether abortion should be legal has not moved in 50 years. The “never legal” position has always been a small minority, comprising not more than about 20-33% of the population (depending on which polls you reference). Look for yourself.

      So if that 20% has been screaming about getting their way against the will of the majority for the past 50 years, what makes you think they wouldn’t scream about getting their way if choice was enshrined via referendum?

      In fact, what makes you think they aren’t going to scream about the legislative solution that may occur in the next few months? Legislation by our representatives is a “people’s” choice. Yet if the Dems drop the filibuster on this one and pass a federal choice law, the GOP will scream to high heaven about it. Right?

      1. Yet if the Dems drop the filibuster on this one and pass a federal choice law, the GOP will scream to high heaven about it. Right?

        The GOP will scream to high heaven about it until they obtain control of congress and the presidency, in which case they will not only repeal any such federal-choice law, but also enact a nationwide ban on abortion.

        There was a piece in WaPo about Republican plans to do precisely this just yesterday, published before the leak of Alito’s draft opinion overruling Roe and Casey.

    3. You understand that if the US constitution places no constraints on state legislatures’ power to limit reproductive rights, states would be as free to compel women to have abortions as they are to prevent them from obtaining them? A state could, for example, adopt a “one child” policy similar to China’s.

      The text of the US constitution similarly also makes no express mention of the right to travel freely between states, the right to get married, or the right to private association — yet each of these rights has been held to be inherent to the US constitution by the US Supreme Court. Do you think that states should be free to prohibit interracial and same-sex marriage, too (as they were before SCOTUS held otherwise)?

      Also, not only does the US constitution make no provision for “referenda,” but I take it any right granted by referendum could as easily be repealed by subsequent referendum at the next election. That seems no way to address fundamental issues of personal privacy and liberty in the soi-disant “world’s greatest democracy.”

      1. How about compulsory blood (while alive) and organ donation (once dead) for all males. After all, people will die unless you are compelled to use your body for their life support…

        1. If the US constitution has nothing to say about reproductive rights, I don’t see how it could have anything to say about such laws (although states could probably not limit such compulsory laws to males, under the 14th Amendment’s Equal Protection clause).

          1. I’m glad you mentioned the 14th Amendment, Ken, because it is the cardinal issue here. According to my understanding, reproductive rights have fallen under the protection of personal liberty in this amendment. Is this how you understand it?

          2. Ken, I don’t understand how it can be legal to prosecute health care workers, but not the woman who decides to have an abortion. It’s analogous to someone who encouraged another to commit murder, they could be prosecuted, but the murderer could not. If they had to prosecute the women, these laws would never be proposed. Is this any basis to challenge these laws?

          1. I think Eric was attempting to hypothesize something applicable to males equivalent to the forced-birth requirement for women.

            1. Indeed!
              It was a bit of a ridiculous example. Even an “all adults” version would never actually see the light of day.

    4. “I agree with Alito that things like this should be decided by voters not by unelected judges”.

      All of the abortion legislation has included an exception to save the life of the mother. But the anti- abortion people are lying about that, just like they lie about mostly everything. In cases where abortions have been performed to save the life of the mother, the performing doctor and others have faced punitive consequences, such as being excommunicated from their church.

      And now the antis are trying to prevent medical schools from teaching abortion procedures to their students at all. Does that sound to you like they care about the “life of the mother”?

      I don’t think I want my life and death issues decided by popular vote, thank you very much.


      PS: I notice that all the commenters on this thread are guys, except for me.

        1. 😌. I think America should just drop the “United” and go with ‘States of America.’ Unity on big issues, like voting and wanting to control women’s bodies, doesn’t seem compatible with state’s rights. Especially since we now have vigilante laws and bonuses for whoever you can bring in, and apparently at the point of a gun will be OK, too. (They’ll be going after “criminals,” after all.)

      1. I don’t like reference to ‘unelected judges’ because that’s exactly what judges should be: unelected. If they’re elected they become part of the political hierarchy and demeaned accordingly.

        Judges should be interpreting the law and the constitution (inter alia), not pandering to personal bias or public opinion. For 50 years the Supreme Court has acknowledged that rights under the constitution relating to bodily autonomy include the rights of women to choose to abort. Why should a small group (mainly men) decide after all this time arbitrarily that women in California can have this right, but not in Texas or Missouri? It’s insane.

        1. Except that there is no right to “bodily autonomy” in the constitution. If there was you’d have a point. The Roe vs Wade ruling construed such a right out of: “nor shall any State deprive any person of life, liberty, or property, without due process of law”. Which is quite a stretch.

          I agree that judges should be unelected. But they should apply laws, not make them up. The latter is for legislatures.

          [Having said that, I reiterate that personally I favour the law allowing abortion.]

      2. But all rights are ultimately conditional on what the people acting collectively can afford to allow. You might not want them to be so, but they are. Other than voluntary human decency there are no inalienable rights in Mariupol or the rest of Ukraine right now enforceable against the state. There can’t be until the Russians are driven out.

        I’d even go so far as to say that natural inalienable rights require belief in a supernatural divine Creator to endow them. Absent that, we’re down to politics.

        My Hobbesian friend Paul Viminitz asks us to imagine some epidemic that rendered all but six women in the world permanently infertile. How long do you think those six women would enjoy an inalienable right to control their reproductive autonomy? Rather, it would be, “Ladies, one way or another, all six of you are going to be pregnant by this time next month, and will remain in that state for the duration of your reproductive lives.”

        Your “thank you very much” cuts no ice just because you are a woman.

    5. What if the Pro-Choice side lost a referendum? Then what? Best two out of three? Complain it was rigged by the Catholic Church? Sue to have it overturned?

      The Brexit experience should stand as an object lesson: Never allow a referendum on a complex divisive question unless you know the results are going to support what you want to do anyway.

      Referenda —plebiscites really; referenda aren’t binding and so don’t let the politicians off the hook—are useful for politicians who wish to escape the political consequences of taking sides in a contentious no-win controversy. But American state legislatures aren’t shy or reticent about abortion. They are quite willing to step up to the plate and legislate clear (too clear for some!) laws instead of struggling through the implications of a vaguely worded referendum question. They would never agree to be bound by a national vote dominated by a few big faraway cities on a question that is (or will be, if the leak is correct) now within the jurisdiction of the individual states to legislate. No legislature voluntarily surrenders power without getting something in return.

      Liberal activists don’t like leaving issues like this to state legislatures. “Because then we’ll never get what we want.” Exactly.

  3. Wow, I will have to check that out! Hadn’t heard anything about it before visiting Jerry’s site.

    First thought: Someone in the judiciary must be really p*ssed off to have leaked this. I expect someone is hoping that a little sunlight on the early draft will create pressure on the conservatives to moderate their opinion. Which is probably a vain hope, but maybe leaking was considered the in extremis option.

    I’m almost glad it’s a straight-up rejection rather than a Roberts “Roe and Casey still control, but all these Texas etc. restrictions are legal under them” sort of opinion. I think the latter would frankly be harder to fix, as the Dems would have to grapple with passing legislation that fitted in with that new legal framework. But with “no constitutional right,” they have a pretty wide freedom to write a “yes federal right” bill any way they want. And frankly, for voters in the states, it is much easier to understand and vote politicians in or out on “abortion illegal” rather than “abortion legal…but only before x time, and your doctor must have visitation rights, and and and…”

    Let the mid-term games officially begin. This could be the defining issue that determines whether the GOP takes House and Senate control or if Dems can mount a popular defense based on passage of a federal abortion bill.

  4. There are all these legal arguments about why Roe was or was not constitutional, but suppose the justices were legislators and, rather than deciding on the constitutionality of Roe, they were deciding whether it was good policy. Do you think *any* of the votes would have been different? (Of course we don’t know how everyone voted on the leaked opinion, but with the possible exception of Roberts I think we have pretty good guesses.)

    1. Yes, this is the agenda of white Christian nationalists. And although they are in the minority, under the American political system, this could come to pass. And if does happen, expect an “insurgency” where these laws would be defied by tens of millions, resulting in a further breakdown of the notion of the United States as one country.

    1. I think red-state legislatures’ next move will be to grant “personhood” to fetuses under those states’ respective state constitutions, thereby making fetuses ontologically indistinguishable for legal purposes from post-birth human beings.

      This would, per force, make abortion punishable as murder, as well as eliminate any possibility of exceptions from abortion bans for rape or incest or the health of the pregnant woman.

      1. In states without a strong Catholic presence, they will carve out an exception for IVF. Fertilized embryos from that will not count as persons and no penalties will be levied for disposing of the unused/unwanted ones. Despite the glaring and obvious hypocrisy.

        This is because IVF is popular with their conservative evangelical constituents where abortion is not, and this is at least in part about getting reelected as well as controlling women. For both of those factors, being consistent on zygote personhood is completely irrelevant.

        Asked by State Sen. Smitherman (D) why IVF zygotes were specifically excluded from Alabama’s abortion bill, State Sen. Clyde Chambliss (R) answered: “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.”

        For these Republicans, it’s about controlling the women and their wombs. Expect many repeats of that.

        1. An even better reason not to amend the state constitution defining human beings and persons. Simply create the offence of abortion-murder in the state penal code and define abortion (not persons) in such as way as to allow destruction of unwanted embryos after IVF, or the IUD, or pre-heartbeat or whatever expedients are necessary to get the bill to pass. If you want to, you can even exempt the vanishingly rare abortions necessary to save the mother’s life. You can define abortion any way you like, just as killing adults in lawful circumstances can be defined as not murder without taking away the deceased’s personhood.

          The famous failed Ohio bill that would have required surgeons operating for ectopic pregnancy to attempt to re-implant the ectopus (which is impossible) created the new offence of abortion-murder. Once you come up with a definition of what counts as abortion, you’re good to go, no faffing around with constitutions.

      2. The existing pregnant woman can get herself a lawyer. But the clump of cells/baby will have The State as it’s lawyer(s) and should be able to incarcerate or institutionalize any pregnant— or possibly pregnant— woman and force her to give birth. For the good of the baby.

        I never get the idea ‘pro-lifers’ have thought this through, what it could really mean to them.

        1. The wealthy white conservative evangelicals who promote it the hardest have thought it through. And what they know is that they have the money for out-of-state and even out of country trips for themselves or their wives, mistresses, or daughters. And they know they have the money for lawyers and PR campaigns if they get caught doing something illegal. So it really means nothing to them to impose these punitive measures on the population, because whatever horrific cost they level on women getting abortions, they believe it won’t apply to them. And when it comes to the wealthy, they’re mostly right about that.

          Another example of the “freedom for me, not for thee” brigade. This time accomplished by raising the “price” enough so that they can pay it, but poor people can’t.

      3. “This would, per force, make abortion punishable as murder, as well as eliminate any possibility of exceptions from abortion bans for rape or incest or the health of the pregnant woman.”

        I agree about rape and incest, Ken, but wouldn’t lump these in with health of the pregnant woman. Isn’t it true that even murder cases allow an exception if one can establish that one’s life is under direct threat? You’re the lawyer here, so correct me if I’m wrong.

        1. That’s why I said “the health of the pregnant woman” (emphasis added), rather than “the life or health of the pregnant woman” (as abortion statutes are usually worded), Gary.

          I’m at a loss to say how the law would resolve the choice between the lives of what are deemed to be two ontologically equal human beings. There is a legal principle, nonetheless, providing that, as between two innocents, the law generally sides against the one who was in a position to have prevented the situation from arising in the first place — which would seem to bode ill for the pregnant woman.

          1. Ken, if an abortion is necessary to save the life of the mother, the fetus will die anyway, even if the abortion is not done. The abortion is therefore permitted under the doctrine of double effect, provided the moral goal is not to kill the fetus but to save the mother. To rely on it, you must truly have a dichotomous choice where doing nothing would be a conscious decision to let both die when you could have saved one life. Atheists can mock because it descends from St. Thomas Aquinas but that is how doctors think and how we would be judged. Contrary to what someone said here, I don’t believe a Roman Catholic surgeon would be excommunicated for doing this.

            The most familiar example is ectopic pregnancy. Aside from rare obstetrical nightmares during the second stage of labour that is the only life-threatening pregnancy I can imagine today. Health is another matter. A permissive legal regime makes practice much less fraught. No one wants to go to prison because a peer expert testifies that the woman’s health wasn’t nearly as endangered as you thought.

            If a surgeon were to be prosecuted for operating for ectopic pregnancy, that would be the end of surgical on-call support to emergency departments in that state. Anything in a woman of childbearing age can be an ectopic.

              1. If I was Sovereign Dictator for Life, I would have prohibited both of those scenarios purely on outcomes and resource-allocation grounds. I would not have permitted the first or mandated the second. The first baby was described as needing months in the NICU, born at 30 weeks and has only its grandparents to look after it (with whatever disabilities it has) and its older brother. That’s after a long stay in the adult ICU before delivery.

                In both cases, though, the mothers were brain dead and were no longer living persons in law. They could serve as organ donors and at least one did. While these are both hard cases, in neither were the now-deceased mothers’ autonomous rights to life (or any other rights) being subordinated to their fetuses. I suppose Texas would argue it had a state interest in allowing a human-being child to be born (eventually) that trumped the family’s interest in getting on with their lives: pronouncing her dead, removing life support and letting the fetus die.

                In Canada where I know the medical law, I can’t see the state claiming an interest in a fetus. It’s not a human being in our law. Decisions about stopping life support even in patients not yet brain-dead are left to the families. The conflicts arise mostly when the families want to “do everything” and we think it’s futile. (They win.)

                My wife is just telling me she looked after a pregnant woman in the ICU who did go for C-section an hour or so after being determined to be brain-dead, the fetus being already viable. Appropriately it was the family, not the hospital or the province, who drove this decision, outcome unknown to Ms M. (The woman didn’t come back to the ICU.)

                In Canada, viability does not affect any legal interpretation, so if the husband had not wanted the C-section, the fetus would have died lawfully when life support for her stopped. Conceivably the hospital or the patient’s doctors could have asked for judicial over-ride of the husband’s decision if they felt moral distress but I’m not aware of any case and I don’t know what the legal basis for success would be. A Court can’t act as a guardian for a non-human being as it can for a human person who has no capacity to consent. I fully support the way we do it, and not the way Texas did. But I’m not the state of Texas.

                It would have been unconscionable for the Texas family to have pay for the ICU costs in keeping a brain-dead relative in a state to perfuse the placenta against their wishes. But The Lord works in mysterious ways, I suppose.

                I’m impressed that you could find these old cases at your fingertips. Both would have made for good discussion at an ethics conference, and likely have.

      4. Ken, I don’t understand how it can be legal to prosecute health care workers, but not the woman who decides to have an abortion. It’s analogous to someone who encouraged another to commit murder, they could be prosecuted, but the murderer could not. If they had to prosecute the women, these laws would never be proposed. Is this any basis to challenge these laws?

        1. There is no logic to it, Charles; such laws are written solely to placate abortion foes who may be squeamish about punishing women who terminate their pregnancies.* (When any justification is vouchsafed at all, it’s usually along the spurious, sexist lines that women obtaining abortions are agency-less victims of the abortion industry.)

          In their lack of logic and appeal to squeamish abortion foes, these laws are are similar to the exceptions from abortion bans for pregnancies resulting from rape or incest.

          For diehard abortion foes, it’s been all about taking such half-steps as are necessary to get the camel’s nose under the abortion-rights tent. Once SCOTUS releases Alito’s draft as the Court’s majority opinion, that battle will be behind them.

          *You may recall that, during the 2016 presidential campaign, when Donald Trump (who had clearly never given the issue any thought) told Chris Wallace that “there has to be some form of punishment” for women who obtain abortions, he was promptly chastised by anti-abortion activists for letting the cat out of the bag.

  5. Haven’t “the people’s elected representatives” already elected – via a president – the supreme court which established Roe v. Wade?

    IOW isn’t “the people’s elected representatives” a shell game with words? I’m asking seriously, with a perhaps overly-simplified question.

    PS : dumber question: isn’t it


    and not


    1. Nope. If the plural adds an ‘s´, the apostrophe follows it. “One person’s ticket”; “two persons’ tickets” (legalistic and formal) or “two people’s tickets” (common). However, in the legalistic/constitutional sense, ‘people’ is not the plural of ‘person’, but a collective term (historically singular) referring to citizens as a unified bloc; the Latin cognate is the singular noun ‘populus’.

      1. “in the legalistic/constitutional sense, ‘people’ is not the plural of ‘person’, but a collective term (historically singular) referring to citizens as a unified bloc; the Latin cognate is the singular noun ‘populus’.”

        OHHHH right right right…

        Thanks, though – edifying.

  6. One can hope that by jettisoning Roe v. Wade, the conservatives have over-reached and handed the
    Democratic Party an unexpected victory in this November’s congressional elections. But of course, then we can expect the Republicans to bring civil actions against the election process, and try to get the case before the supreme court. Come to think of it, perhaps a retroactive audit is needed for the elections of 1932 and 1934. We can also look forward to Justice Alito (and various state legislatures) pointing out that the constitution contains no mention whatsoever of Social Security and the National Labor Relations Board.

    1. Both of those articles were thoughtful and thought-provoking. Non-partisan. Thanks.

  7. Susan Collins (R, Maine) is very unhappy that Gorsuch and Kavanaugh both gave repeated assurances to her during their confirmation hearings that they saw Roe v Wade as “settled law”.

    1. And Roberts has just confirmed that the leaked document is “authentic, [but] it does not represent a decision by the Court or the final position of any member on the issues in the case”.

      1. One would hope to see a bit more candor from lifetime Article III nominees than from common political candidates.

        Call me a dewy-eyed idealist.

  8. Nothing says freedom and liberty like forcing women to give birth.

    And as regards the inevitable and pathetic skew to unconstitutional Christian nonsense, I leave it to Hitch:

    “How dismal it is to see present-day Americans yearning for the very orthodoxy that their country was founded to escape.”

    1. “How dismal it is to see present-day Americans yearning for the very orthodoxy that their country was founded to escape.”

      I thought that a large part of the reason that the “Pilgrim Fathers” left Britain (and later, travelled to America) was precisely because they wanted to be able to discriminate against non-members of their sect, which was strongly discouraged by the government of the day.

  9. One can safely predict that after the banning of abortion in more states, the laws will come in to prevent (potentially) pregnant women (or pregnant men) from travelling across state borders because they might possibly be seeking an abortion.

    That’ll include the country’s international borders. Without at least peeing in the pot at the departure gate.

    What is that saying wrongly attributed to Margaret Atwood ? “The Handmaid’s Tale was a warning not a manual.”

    1. I expect that the states banning abortion will also ban the importation of medical abortifacient pills from out of state.

      Expect to see a vigorous black market fill the void.

  10. Enlarging on what Su and Historian mentioned above regarding our disunited nation, I want to revisit my idea of consciously and intentionally partitioning our country as amicably and peacefully as possible. The alternative is violence coming from both sides. As Lincoln, quoting the Bible, said, “A house divided against itself cannot stand.” I believe we are irredeemably divided. The original American experiment has failed. We no longer embody our motto, “E Pluribus Unum,” but now rather its opposite, “Ex Uno Plures.” Here’s Charlie Sykes today:
    “If Roe is overturned, cry havoc, and let loose the dogs of unrestrained culture warfare…”
    “And the schism between red and blue America will become wider and starker. While red states impose criminal penalties, blue states will expand taxpayer funding. American women will be living in two very different countries.”
    “There will be protests, boycotts, and calls for sweeping federal legislation. Unified GOP control of Congress and the presidency will inevitably lead to calls to federalize Mississippi-like restrictions. In this environment, the extremes will define themselves by their hostility to compromises of any sort.”
    Read the whole thing.

    1. Let’s trample out the vineyards where the grapes of wrath are stored?

      Oh, be swift, my soul to answer, oh, be jubilant, my feet?

    2. I would support this. I don’t see how the divisions can be healed. At best, one side will dominate the other and the other will seethe.

      That said, it should be unnecessary. We’re supposed to have a system where each state can decide these issues for themselves, and you can move to the state of your choosing. States with better policies will gain people and resources. States with worse policies will lose them.

      Why must one size fit all? There’s no more reason to force Christians in red states to support abortion than there is to force Muslims in Islamic states to support it.

    3. Many states, I suspect, would initially be mighty pleased at getting what they wanted. Until they have to bargain with those other detestable states for their food, or even specialized medical services.

      The Untenable States of America. Choose your own title.

  11. I don’t understand how it can be legal to prosecute health care workers, but not the woman who decides to have an abortion. It’s analogous to someone who encouraged another to commit murder, they could be prosecuted, but the murderer could not. If they had to prosecute the women, these laws would never be proposed. Is this any basis to challenge these laws? Any thoughts on this ?

  12. As I’ve commented before, I’ve long supported abortion, but Roe v. Wade has always seemed to be among the court’s poorer decisions, inventing a new Constitutional right out of little more than the majority’s wish that it existed.

    I’m glad that Roe was overturned as a judicial matter. As I concluded there “I wish the Court would say ‘Hey Congress, you’ve got X years to get your act together and decide the issue.'” Now Congress’s hand may be forced, and finally the law may be written by the legislature – as it should be – rather than a handful of judges.

    And if Congress doesn’t act, I do prefer a system where people can vote with their feet and move to states that most align with their personal ideology. In these sharply divided times, whichever way the federal government rules on this and various other contentious questions, one side will be not just unhappy but deeply aggrieved or even hopping mad. It seems best to return to more local control – as our nation was intended to be – as a way to let different peoples live differently.

    I’ll note that despite all the rhetoric about “hate for women”, from what I’ve seen most opponents of abortion – or at least the most fervent opponents of abortion – are women. It’s not quite so simple as “men hating women” or “men wanting to control women”. It’s a moral disagreement (yes, largely based in religion).

    1. Now Congress’s hand may be forced, and finally the law may be written by the legislature – as it should be – rather than a handful of judges.

      Problem is, if Republicans gain control of congress and the presidency, the law will move in precisely the opposite direction, to a nationwide ban on abortion (as was discussed in this piece in The Washington Post yesterday morning, published even before Alito’s draft opinion was leaked.)

      Once that happens, people favoring abortion rights will not be able to “vote with their feet” (at least not if they wish to remain in the United States). As Sir Thomas More asked William Roper in A Man for All Seasons, “And, when the last law was down, and the Devil turned round on you – where would you hide …?”

      Women with unwanted pregnancies will not cease having abortions, of course; they will simply no longer have access to legal, safe abortions.

      1. This is exactly why none of these things should be decided at the federal level, in my opinion. There is no one-size-fits-all policy, so it’s going to be a constant war back and forth for control.

        That said, I suspect the days of the back-alley abortion with a coat hanger are over. Abortion pills are too small and too easy to smuggle around, and can be mailed and received anonymously. Taking a trip out of state is easier than ever, and there are sure to be many activist groups willing to fund the trip. Republicans have shown little stomach for writing laws that punishing the women (at least so far).

        1. This is exactly why none of these things should be decided at the federal level …

          Sure sounds like you’ve backtracked on your original comment’s desire that “Congress’s hand … be forced” on the issue.

          And what’s wrong with a one-sized-fits-all policy (if that’s what you wish to call it) per which women who want to terminate their pregnancies prior to viability are free to do so and women don’t, can’t be forced to do so?

          Why should state legislatures — all of which are dominated by old men — have ultimate control over the uteri of all women between the ages of menarche and menopause in that state?

          Should the right to get married be left to the whim of state legislators, too?

        2. Some red states are already writing laws to make it illegal to cross state lines for an abortion. I imagine a law like that would head to SCOTUS, and this SCOTUS would probably uphold such a law.

          1. Well, the SC will do whatever the SC wants to do, but I have a hard time seeing how they would justify upholding such a law. Is there any precedence at all for a law like that? Of course, there is also the question of enforcing such a law.

    2. Do you think that the current Court would find a law that codified Roe to be constitutional?

      1. Under traditional jurisprudence, such a law would pass constitutional muster under Congress’s authority to regulate interstate commerce as enumerated in Article 1, Section 8, Clause 3 of the United States constitution.

        But, given the current composition of SCOTUS, traditional jurisprudence clearly no longer serves as a constraint on the exercise of judicial power, so who knows?

        1. The Court didn’t buy that argument with respect to the ACA so I think that would be a tough sell. But, you’re right, who knows?

  13. The only silver lining to this foul thundercloud: it might be a gift to the Democrats in the midterms and 2024. The Republicans have made good on their threats, and the rumors that the court will go after contraception and gay marriage next should add fuel to the fire and energize the liberal base. Additionally, more people will be open to the idea of reforming and/or increasing the Supreme Court. Voters should now understand how high the stakes are and what’s being threatened.

  14. Interfering with the rights of an individual? How un-American… an attack on women rather than a defence of the unborn.

  15. Assuming the draft decision remains essentially unchanged when the final ruling is handed down, we can expect law breaking on a massive scale, similar to what happened under Prohibition, which was in effect from 1921 to 1933 via the 18th amendment to the Constitution. In both instances, government was attempting to legislate a morality that the bulk of the nation rejected. Back alley abortion clinics will proliferate or women will flee to pro-choice states. Women will die as we read about police raids on these clinics. Law breaking will increase when the next step in the white Christian nationalist movement takes effect – allowing states to ban contraceptives. In other words, respect for the law will diminish greatly. Hatred and probably violence will become commonplace. In fact, I think the abortion ban will be worse than Prohibition. I am not sure of this, but I think that those who opposed Prohibition did not hate those who foisted it on the country. I have the sense that those who oppose the abortion decision hate those that are taking away the right with a burning passion. The right-wing has taken an action in the culture wars that makes national reconciliation impossible in the near future, perhaps forever.

  16. “The problem of abortion will devolve to individual states, and you know what that means”: Democracy will happen? Federalism will happen? Instead of an unelected bunch of white males in robes (the Roe majority), the People’s representatives will decide?

  17. I found an apropos Mark Twain quote :

    “Whose property is my body? Probably mine. I so regard it. If I experiment with it, who must be answerable? I, not the State. If I choose injudiciously, does the State die? Oh no.”


    “Osteopathy” (1901), in Mark Twain’s Speeches, p. 253

    Source (AKA where I read it ) :

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