Thursday, December 02, 2021

We're doomed.

 That's the feeling of Roe supporters after the Supreme Court argument yesterday.

SCOTUSblog covered the oral argument:

Sotomayor is also prepared to put the case in stark perspective.

“Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices,” she says, adding that the same was true about a separate Mississippi law, passed earlier this year and not before the high court, that would ban abortion after six weeks of pregnancy.

“Will this institution survive the stench that this creates in the public perception — that the Constitution and its reading are just political acts?” Sotomayor says.

I’ll confess that I thought I heard her say “political hacks,” as if she were playing on the phrase Justice Amy Coney Barrett used during a speech this summer, when she insisted the justices are not “a bunch of partisan hacks.” But a close listen to the recording seems to confirm what is in the transcript: “political acts.” There was no mistaking, though, that Sotomayor said “stench,” a strong word not often heard in this courtroom.

Stewart has an answer for her.

“Justice Sotomayor, I think the concern about appearing political makes it absolutely imperative that the court reach a decision well grounded in the Constitution, in text, structure, history, and tradition, and that carefully goes through the stare decisis factors that we’ve laid out,” he says.

“Casey did that,” she replies.

“No, it didn’t, Your Honor, respectfully,” he says.

The chief justice, as he has done before, decides to interrupt Sotomayor after she has gone on at some length. (She will come back a few minutes later with, “May I finish my inquiry?”)

Roberts asks Stewart how fetal viability was addressed in Roe, noting that Justice Harry Blackmun, the author of that decision, revealed with the release of his personal papers that the viability line was “dicta.”

Roberts calls the papers, released five years after Blackmun’s 1999 death, “an unfortunate source.” Later in the argument, Roberts says the release of the Blackmun files “is a good reason not to have papers out that early.” So I think we will be waiting for the Roberts papers for a good long time.

Rikelman, who argued and won June Medical Services v. Russo in 2020, which struck down Louisiana’s abortion restrictions, takes to the lectern and tells the court, “Mississippi’s ban on abortion two months before viability is flatly unconstitutional under decades of precedent.”

After a few questions from Thomas, the chief justice zeroes in on Mississippi’s 15-week ban. Fifteen weeks is well before the point of fetal viability, which occurs around 24 weeks of pregnancy.

“If you think that the issue is one of choice — that women should have a choice to terminate their pregnancy — that supposes that there is a point at which they’ve had the fair choice … and why would 15 weeks be an inappropriate line?” Roberts asks. “Because viability, it seems to me, doesn’t have anything to do with choice. But, if it really is an issue about choice, why is 15 weeks not enough time?”

Rikelman says that, among other reasons, “without viability, there will be no stopping point. States will rush to ban abortion at virtually any point in pregnancy.”

Justice Samuel Alito presses Rikelman on a more philosophical question.

“What is the philosophical argument, the secular philosophical argument, for saying [viability] is the appropriate line?” he says. “There are those who say that the rights of personhood should be considered to have taken hold at a point when the fetus acquires certain independent characteristics. But viability is dependent on medical technology and medical practice. It has changed. It may continue to change.”

“No, Your Honor, it is principled,” she says, “because, in ordering the interests at stake, the court had to set a line between conception and birth, and it logically looked at the fetus’ ability to survive separately as a legal line because it’s objectively verifiable and doesn’t require the court to resolve the philosophical issues at stake.”

Prelogar, arguing for the United States in support of Jackson Women’s Health, says, “The real-world effects of overruling Roe and Casey would be severe and swift. Nearly half of the states already have or are expected to enact bans on abortion at all stages of pregnancy, many without exceptions for rape or incest. … If this court renounces the liberty interests recognized in Roe and reaffirmed in Casey, it would be an unprecedented contraction of individual rights and a stark departure from principles of stare decisis.”

6 comments:

Anonymous said...

Your welcome.

Anonymous said...

Conflicting stuff.

I hate abortion and find it deeply troubling. I see my children being born and remember holding them all gross looking and wonderful. I remember them moving inside of my wife. They could hear us and would respond!!! It was amazing. How were they not "humans" just moments before? How could someone reach in and kill them? It's unimaginable and monstrous. But I also think that it is not up to me to decide for someone else whether they should carry a pregnancy or have a baby. Who am I to decide for a young woman of no means? Maybe she's sick, or maybe she's just not up for it - how can I demand of her to literally give her genetic material, share her food and energy, alter her body and move her internal organs, GO THROUGH LABOR, and the rest of it? What more personal and intrusive thing could a government require of someone who has not committed any crime?

When I read it, I think that Roe was legally wrong when and how decided. I often find myself agreeing with Thomas's dissents on cases and almost always agree with conservative type thinking on interpretation of the Constitution. But after 48 years (almost 49 years)overturning Roe on what feels like politics would be a dramatic and improper shift of law and interpretation of the constitution. There is real legal and social value in long term stable interpretation of the constitution. Predictability of law creates the conditions on which a society thrives. I do not like the idea of weakening stare decisis.

Seems sort of like damned if you do, damned if you don't territory.

Ultimately, I hope the justices overturn the Mississippi abortion ban and uphold Roe, despite its faults. Whatever the interpretation of the Constitution, we live in a presumptively free society, and in a free society, government that governs least governs best.

Anonymous said...

There's an elephant in the room that nobody wants to acknowledge when looking over the present composition of SCOTUS. It helps explain how Justices representing 11% of the population can interpret the Constitution for the rest of us.

Anonymous said...

11% of the population went to Ivy League law schools?

Anonymous said...

2:31, these aren't jurors looking at facts based on a "reasonable person" standard. absolutely we should want the most informed legal analysts interpreting two hundreds years' and a million pages worth of federal precedent. too bad we have politicians rather than legal scholars making up the majority of our court.

Anonymous said...

The central question in the abortion debate is not whether a fetus is a person, but whether a woman is.