[Sticking this on top for all the obvious reasons. Fresher posts below. — Tengrain]
By now everyone has head the news that Politico broke last night that the SCOTUS has voted to overturn Roe V. Wade. Here is the most pertinent nugget from Justice Sam Alito’s draft:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
The right to abortion docs not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged. because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. 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.” Casey, 505 U.S. 979 (Scalia, J., concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.
Now, I’m only a sonofalawyer and not a lawyer myself, but even I can pick apart some of this nonsense. When the Fourteenth Amendment was adopted (July 9, 1868), it’s true that abortion was illegal in most states. Also illegal in all states:
- women’s suffrage
- Black suffrage
- interracial marriage
- same-sex marriage
All of these things (and more) are now at risk by Alito’s logic, his assertions are silly and meaningless. After all, Choice was also thought to be a right, until it wasn’t.
Here are some things that were legal in all states:
- discrimination on the basis of gender
- discrimination on the basis of social class
Our understanding of the world changes, technology changes, society changes. The Constitution is not something preserved in amber, it is a living document. Amendments to the Constitution are exactly that: changes to the original. To say that the Constitution stopped on July 9, 1868 (when the Fourteenth Amendment was ratified), is profoundly intellectually dishonest. Originalism is an intellectually dishonest argument. We can thank Judge Bork for that.
And as long as we are speaking of intellectual dishonesty, the reaction from the right has mostly been glory to Gawd, but also a call to find out the identity of the leaker. It is very telling that Democrats are upset about the ruling and Republicans are upset about the leak.
I’m going to go out on a limb and suggest that Politico has some journalism standards (and yes, there is nothing in evidence to support that), and they would not have published this unless they confirmed its validity and the validity of whoever leaked it to them. The conventional wisdom says it must be someone clerking for the SCOTUS, but who’s to say it was not a Justice trying to shoring up wavering flanks. The legitimacy of the illegitimate Roberts court is at stake, maybe someone will blink?
By leaking it now ahead of the midterms, there is every chance that the predictive Red Wave might be stopped. I cannot think of much of anything that would get those much-coveted suburban moms to organize as they take their daughters to soccer practice.
I cannot imagine anything that would get women (and the men who love them) more agitated for the primaries. Our illegitimate Supreme Court is a political operation, as much as they like to claim that they are above partisan politics, which is clearly a snare and a delusion.
Vote out all the Republicans up and down the ticket. Vote like your freedom depends upon it. Unpack the court, and unpack it now. It’s our highest calling and greatest challenge.
UPDATE 1: Says the guy who broke the court –
UPDATE 2: Susan Collins is very concerned.