Breaking: claims that the American Supreme Court will strike down Roe v. Wade

[PurgatoryOfPotholes]

extract from article tonight

Headline:

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

Continues: Article on leaked draft opinion

@EmbarrassingHadrosaurus - this is from a BBC News report from yesterday:

Women in their 20s account for the majority of abortions - in 2019 about 57% were in this age group. Black Americans get abortions at the highest rate - 27 per 1,000 women aged 15-44.

So how does this work?

My current understanding is thus:

1. Roe v Wade concluded that abortion was already mandated as permitted per the Constitution and therefore States were mandated to permit it.
2. If that is overturned then States won't be required to permit it.
3. To my English mind the next obvious thing to do would be legislate for it at a federal level, but the tenth amendment would mean: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." that it had to be done at a state level.
4. So then in my brain the next question is a) what does reserved to the people mean - could they just do a referendum on it? I have no idea who would win in a referendum but if 70% oppose RvW being overturned would this be an option? I don't know who has the power to call a referendum in the USA?
5. Part b) of the next question is if you can't have a referendum could you amend the Constitution? This seems to have happened a number of times but it's not happening now - is it impracticable in the current political climate essentially?

As you can see my understanding has a lot of ? so if anyone knows the answers to those bits I'd really appreciate it.

it will simply put more and more women into poverty and ill health.

And children.

Since it won't be anyone with interesting gender choices who gets stuck trying to raise a child as a single parent. That'll be all sex based.

Hope this helps?

1. Roe v Wade determined that the constitutional right to privacy in regards to medical matters extended to abortions. As such, it was unconstitutional for federal or state governments to unduly impinge upon the right to access an abortion
2. If overturned then it isn't unconstitutional for the federal or any state government from impinging on the right to access healthcare for the purposes of having an abortion
3. This one is complicated. Simple version is that matters of healthcare aren't reserved to the federal government and instead are the province of state governments. But as with the ACA, there may be ways around that. The problem is that even if one was found (unlikely, tbh, as states that have banned or have trigger bans in place for abortion also criminalise seeking abortion in another state, cutting off the Commerce Clause route that would otherwise have been one avenue the federal government could have explored) it could and would be repealed by the next Republican-controlled House, Senate, and Presidency
4. Reserved to the people is dependent on the State. Some States allow for referendum, others do not. There is no overarching right for a referendum across the US as a whole in the way a referendum was held in Ireland
5. In theory the Constitution can be amended. In practice it's now impossible for that to happen. Any Amendment must be proposed by either 2/3rds of the States, or 2/3rds of the US House of Representatives and the Senate. After that three quarter of States must vote in favour of any Amendment to the Constitution, so that's currently 38 out of the 50 States. That's not happening for fairly obvious reasons

tl;dr: If Roe v Wade is overturned then there's no viable route back that would stop States from criminalising those who seek abortions as well as medical providers

Alito seems to have specifically held that this particular lack of right privacy doesn’t say anything at all about other things such as gay marriage which are also based on the right to privacy but I don’t believe that the <words do not suffice to describe him> explained why. Probably because they are all also at risk.

Thanks for that explanation, LowKeyLockee.

If the implication of this bill is not just that abortion will no longer be provided, but that people obtaining abortions will be prosecuted, that's significantly more horrific in ways that people who've never lived under such laws will find hard to wrap their heads round.

I have lived in countries with these laws.

Women suffering pregnancy loss have to report to the police for investigation as their body is now a suspected crime scene. They have to prove they did not cause the loss.

Judith Thomson's excellent philosophical thought experiments in A Defense of Abortion need to be brought to the attention of a new generation: en.m.wikipedia.org/wiki/A_Defense_of_Abortion

(Full text here: spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm )

Senator Tom Cotton, Republican of Arkansas, tweeted Monday night that “Roe was egregiously wrong from the beginning & I pray the Court follows the Constitution & allows the states to once again protect unborn life.”

Just one representative opinion from a right wing lawmaker among many. You can just see how they are becoming practically orgasmic as they sense that victory is theirs.

And not a word as to what they'll do to help women raise these unwanted children...

America is officially a backwater.

It’s been heading that way for some time. It’s now official.

From Mississippi Today - just one of many states where women are likely to enter a world of Gilead:

Mississippi is one of 13 states that has a law on the books that would be triggered if Roe is overturned. That 2007 law would ban abortions in most cases in Mississippi. The state Legislature also passed another law — being blocked by a federal court — that would ban abortions at six weeks.
It would appear the decades-long push by conservative lawmakers in Mississippi is nearly won. But Currie and Sen. Joey Fillingane, R-Sumrall, another anti-abortion advocate, said there would likely still be work for the Republican supermajority state Legislature. Both said they would focus on banning abortion-inducing drugs.
“Depending on the outcome from the court, and if in fact abortions are outlawed in Mississippi, then the issue of chemical abortions, with drugs being overnighted from out of state, would certainly be fair game to address,” Fillingane said.

This is chilling but I think an accurate summary. What astonishes me is the number of women that buy into it. I can understand why it benefits men, particularly those of a particular ilk, but women?

This board was talking some months back about an Abigail Shrier interview with Tom Cotton, on trans issues. I pointed out then that Tom Cotton is no friend of women and never has been. This crisis on womens rights is made so hard in the US by there being no home for womens rights in the US (Hilary Clinton is an exception)

Thank you! I feel like I understand this so much better now. That's a sorry state of affairs but a really really useful explanation. Thank you again!

Yellownightmare

I’ve looked at a few pro-life positions and a couple of them in women:

• There’s a woman who came to a ‘life begins at conception’ position gradually after her very distressed best friend was pressured to have an abortion by her boyfriend (she didn’t have one). The friend started to believe life was sacred and once she thought that, she couldn’t support abortion for anyone.
• Another woman says she had two abortions when she was young and the grief and guilt afterwards nearly drove her to suicide. Now she opposes abortion.

It seems to be a genuine position, but it doesn’t explain how it’s reasonable to force a woman who absolutely doesn’t want to be pregnant (including women who were raped, or who conceived a baby despite serious ill health, or where the pregnancy is a serious risk to her mental health) through pregnancy and birth.

My position is that life begins at conception. I can’t see a way round that conclusion. But people are entitled not to support a life with their own body.

Name change fail above, apologies.
Thanks @LowKeyLockee

Assuming it’s correct as I have seen reported that the majority of the judges are Catholic and are basing their decision on that, the ethical position is much less simple than they seem to think.

The Catholics for Choice argument is in a nutshell:

’Everyone deserves equal access to the full range of reproductive healthcare services, including safe and legal abortion. The majority of Catholics believe that abortion should be legal. When navigating Catholic teachings on abortion, your conscience is the ultimate authority ‘.

I’d recommend this US organisation and webpage to anyone looking for a Catholic perspective on the anti-choice position: www.catholicsforchoice.org/issues/abortion/

While it's far from unknown for opinions and votes to change between a first draft and a final one, you have to wonder how publishing the first draft affects that process. The judges are human, so socially and psychologically there is an impact. For example, they may now find it more embarrassing to switch their vote than if their original opinion had been private, so it may be less likely than before that one of the five anti-abortion justices changes their mind.
There are protests outside the supreme court. I would have thought that justices would be determined to show that such protests have no effect. So again these would reduce the likelihood of them changing their votes.

I imagine they write draft arguments so they can be tested against other arguments, as part of the process of coming to a final vote. They’re not meant to be writing an opinion on what they think about abortion, but what they think the Constitution says about abortion. That will be subject to a lot of debate.

I’m reading the Alito decision and it seems to rest on the flaws perceived in the reliance of Roe v Wade on the Due Process clause in the Fourteenth Amendment, that (if I’m reading right) makes any state action without due process of law unconstitutional, and can mean some state actions are deemed unjust whatever process is attached to them, because the matter is considered to be one of fundamental liberty (and privacy?). But the Alito draft decision claims that abortion isn’t one of those matters, as there was no history of unlimited abortion ‘deeply rooted in this Nation’s history and traditions’.

Can anyone comment on this as a matter of Constitutional law?

And that’s why the going theory seems to be it was a conservative clerk or staffer leaking. To set the decision.

Yes, that theory makes sense.

Surely women’s bodily autonomy must fall under ‘privacy’ or ‘liberty’?!

‘Surely women’s bodily autonomy must fall under ‘privacy’ or ‘liberty’?!’

In my personal value system, yes it certainly would (and that’s why I support abortion). But what they are arguing is that the clause in the Constitution relied upon for the actual Roe decision never covered this particular interpretive matter of ‘liberty’ and (I think) never covered privacy at all.

The decision instead moves us towards territory where the Court is trying to avoid ‘judicial activism’, ie making law when it should only be stating law. The Alito draft decision claims Roe and Casey overstepped what the Court could actually declare as a matter of Constitutional provision, and that the decision on abortion rights is a matter for ‘the people’, ie State legislatures.

That’s the same as saying it’s a matter for Parliament here. Each State legislature is a Parliament of its own.

(I’m not defending it here, just trying to understand the reasoning.)

I should say, I support the right to safe and legal abortion.

If the decisions go back to the individual states, won't law makers have to make decsions in line with what the electorate want or they will get voted out for someone who will.

So states planning to ban abortion will only do so if the electrorate supports it and the law will be changed again if they don't.

While we might diagree with the view, isn't this at least democratic? e.g Ireland had a referedum on abortion which seemed a fair way forward given the division among the population on this issue.

You may hold the view that there should be no laws at all goverening womens bodies, inclusing abortion, but democratic states and countries are free to make that decision for themselves in line with the electorate. If it is not a majority supportde view in the state it will not be implemented.

Not any comfort for women who live there, but a fair and legal & democratic process?

Cross posted with TabbyCat who explains it legally so much better!