The big news (coming early with the Order List) is that the Supreme Court punted in one of pending abortion cases, which is fairly unsurprising. Six justices let the brief per curiam speak for the Court, the extended time spent waiting apparently to give Justice Thomas the chance to explain the history of eugenics, covering birth control as well. Sotomayor and RBG (with brief opinion) would have let the lower court overturn of the "fetal remains" (again, a "fetus" is often not involved here) stand. That would have been the right call, but the action here is basically a sigh of relief moment.
The majority, noting that Planned Parenthood here used rational basis review, held the concern for proper treatment of remains here was rational, legitimate (even using precedent when the test was strict scrutiny) and validly applied here. The fit using a lower standard of review need not be a "perfect fit." The opinion did not actually engage with the specifics of why the lower court decided as it did. Thomas added that it was "manifestly inconsistent" with precedent for the lower court to decide as it did. It "would go without saying" that the Constitution allows the state to require "abortion facilities to provide for the respectful treatment of human remains."
The lower court determined that the law was not legitimate because it treated the remains as if a "person" is involved and found that is not acceptable using the Court's precedents. The overlap here with "human" remains was not deemed obvious. It was aware that the Supreme Court upheld past remains laws, but found the specifics here problematic. As noted by RBG, a look at the specifics clouds the state interest. The state broadly allows an individual to dispose of remains and allows the clinics to cremate "embryonic and fetal tissue from multiple pregnancies together" (to quote one lower court opinion with nuanced language), which cannot be done with other "human" remains. The law singles out clinics when setting the rules here and even there we again see abortion is not the same.*
RBG argues the Court should not have granted cert. and summarily reverse since she thinks the law would be suspect if the proper undue burden standard was used. The case simply was not cert worthy given its narrow nature (strategic use of rational basis review). I would underline that it amounts to error correction, which it generally says it doesn't do, and contra Thomas, the specifics make clear error quite debatable. This type of law being repeatedly an issue, this back of the hand treatment may come off as reasonable compromise to toss a bone to conservatives, but a bad use of the Court's power. If -- see however the crisis pregnancy case -- I thought the Supreme Court would actually handle things in an acceptable way, I would wish for full review to show the right way to handle the nuances. Sotomayor, without comment, would have denied review. I concur.
The justices also held that the other provision, an abortion ban "solely because of the fetus’ sex, race, disability or a handful of other protected traits," was not ripe for review since basically only one lower court addressed such a law so far. Justice Thomas concurred alone here to flag the history ("history") of eugenics, including when only birth control is involved. He tossed in a comment that RBG's opinion didn't really make sense, apparently to make sure people really thought him offensive (RBG in part answered him in a footnote). Other than taking the time to actually say it aloud (cf. the trans student case), this is a fairly standard move. Thus, the result here is striking down the law is left in place.
The emotional responses to such laws are to be expected but what is the ultimate argument? Let's say some parent of a child with a condition is very upset at the idea you support aborting a fetus [better phrased since often the decision is made later] of the same type. The basic idea is you do not honor the child's right to exist. An unjust statement, especially to the degree many pro-choice people are more likely to support government resources to care for their needs. But, is the person appalled if a couple chooses not to have children (using sterilization) or perhaps not even marrying because of the risk of conception here. This shows the breadth of Thomas' concurrence. The argument tends to turn on abortion. If so, "eugenics" is at least partially misleading.**
This being a blog post, I can address the merits. First, there does not really appear to be a reason in this country (cf. China) that sex or race in any significant way is being used to have abortions. And, even if it was, the enforcement of such a rule (including "solely") would be problematic. It would basically encourage doctors and patients not to have open dialogues. Or, single out certain groups for suspicion. Of course, there are numerous (though it remains relatively a small percentage of the total) abortions done because of some sort of abnormality or risk of same. At some point, few really would deny them as suggested by the number of states that allow Medicaid funding in such cases. The issue of line-drawing is sensitive but even if you thought it unjust to abort let's say a Down Syndrome fetus, the same issues of enforcement can arise.
At the end of the day, there is a basic right here to choose. A person very well might be deemed wrong to not be friends with a black person, to take a blatant case. Nonetheless, they have a constitutional right of association. The same applies when choosing what to do with one's body in this instance. I can even think of hypos where a sex specific abortion might be deemed acceptable on the merits (what if a fifth pregnancy is involved when you have four children of one sex? is "solely" a problem if the sex might be more likely to carry a condition? if a rape victim or someone who had an affair is willing to have a white but not a black child [or vice versa] is that an issue? etc.). But, ultimately, that doesn't matter on a constitutional level.
The concern for eugenics, putting aside that you probably shouldn't trust Justice Thomas' framing of the history (though he is careful to be somewhat lenient on Margaret Sanger), is particularly dubious if we take this into consideration. The problematic history is forced eugenics. Buck v. Bell is not a problem because Carrie Buck freely chose to be sterilized, even to the extent she was pressured by bad facts and/or principle. It was being forced to do so. Eugenics as a theory as a whole was and is a problem. But, as with miscegenation, the answer is not to remove free choice.
The one case taken will re-examine the question of even letting a lawsuit be raised involving a shooting at a border crossing. Among the cases lost among the cert. denied pile is one involving the sensitive question of trans students using bathrooms and locker rooms (here with privacy stalls) at school that was relisted repeatedly. This suggests one or more justices was concerned, but the denial was made without comment.
The handing down of the full opinions was mostly anticlimactic though we had a rare case of Thomas writing for the liberals regarding removing a class action to federal court. Alito for the other conservatives started his dissent with the concern about the importance of a neutral forum. How does this relate to the federal courts? (ha ha) This is one of those cases where it might be helpful if the advocates could address any specific concerns of Justice Thomas, who can have idiosyncratic views on such issues. Sotomayor spoke for an unanimous Court regarding settling rules involving a Social Security Act claim. And, she had the lone dissent, concerned the majority (with concurrences) was not concerned enough about the problem of retaliatory arrests that raise First Amendment claims. Fairly low drama stuff.
[ETA: Thomas, RBG and Gorsuch dissented in part; Thomas didn't like a protective exception, the other two would have been more protective. This article flags the troubling nature of this case though not sure how much it alone moves the needle.]
(The 5-4 breakdown, happening so far with each conservative but Alito, is atypical enough to be not too notable. What it basically shows is that the justices aren't completely split into ideological camps though even here they are rather notable. The diversity and complexity of issues are going to result in the justices not to be completely able to be put into pigeonholes.)
Meanwhile, will there be no clinics in Missouri?! Note in particular the telemedicine ban, which is particularly important when medical abortion provides a partial relief to lack of abortion providers. It is also important to look at details when a law requires a waiting period. Does the state allow the person to get informed consent over the phone or by video chat?
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* This article provides additional discussion citing three categories of concern: road to "personhood," undue burden TRAP laws and generally unreasonable. Language here repeatedly has a divisive religious connotation. One possible problem is finding an authorized agent that is willing to work with a clinic. Cremation itself, contrary to a few allegations I have seen, is not inherently religious. But, like certain regional hospitals, religious beliefs can cause issues here.
And, there is no one approach that all would support. The ability of a woman on her own to dispose of the remains in part reflects the realization that different people have different beliefs on the matter. Like Thomas' problematic general use of "mother," a true respect for conscientious concerns very well might work against the law. Again, perhaps a more in depth analysis would be helpful.
** Those who have a child with a special condition should not be assumed to be appalled at leaving the choice to the pregnant person. The parent repeatedly talks about the problems such children often bring, including hardships to the child. One story, e.g., recently referenced the death of a young child with a certain facial abnormality. The child had to undergo numerous painful procedures to address the various problems arising from the condition, the visual (which resulted in negative remarks etc. with the human spirit and love winning out details) but part of the issue. The decision that it would be immoral to give birth to someone with such a future is at the very least open to debate.
The majority, noting that Planned Parenthood here used rational basis review, held the concern for proper treatment of remains here was rational, legitimate (even using precedent when the test was strict scrutiny) and validly applied here. The fit using a lower standard of review need not be a "perfect fit." The opinion did not actually engage with the specifics of why the lower court decided as it did. Thomas added that it was "manifestly inconsistent" with precedent for the lower court to decide as it did. It "would go without saying" that the Constitution allows the state to require "abortion facilities to provide for the respectful treatment of human remains."
The lower court determined that the law was not legitimate because it treated the remains as if a "person" is involved and found that is not acceptable using the Court's precedents. The overlap here with "human" remains was not deemed obvious. It was aware that the Supreme Court upheld past remains laws, but found the specifics here problematic. As noted by RBG, a look at the specifics clouds the state interest. The state broadly allows an individual to dispose of remains and allows the clinics to cremate "embryonic and fetal tissue from multiple pregnancies together" (to quote one lower court opinion with nuanced language), which cannot be done with other "human" remains. The law singles out clinics when setting the rules here and even there we again see abortion is not the same.*
RBG argues the Court should not have granted cert. and summarily reverse since she thinks the law would be suspect if the proper undue burden standard was used. The case simply was not cert worthy given its narrow nature (strategic use of rational basis review). I would underline that it amounts to error correction, which it generally says it doesn't do, and contra Thomas, the specifics make clear error quite debatable. This type of law being repeatedly an issue, this back of the hand treatment may come off as reasonable compromise to toss a bone to conservatives, but a bad use of the Court's power. If -- see however the crisis pregnancy case -- I thought the Supreme Court would actually handle things in an acceptable way, I would wish for full review to show the right way to handle the nuances. Sotomayor, without comment, would have denied review. I concur.
The justices also held that the other provision, an abortion ban "solely because of the fetus’ sex, race, disability or a handful of other protected traits," was not ripe for review since basically only one lower court addressed such a law so far. Justice Thomas concurred alone here to flag the history ("history") of eugenics, including when only birth control is involved. He tossed in a comment that RBG's opinion didn't really make sense, apparently to make sure people really thought him offensive (RBG in part answered him in a footnote). Other than taking the time to actually say it aloud (cf. the trans student case), this is a fairly standard move. Thus, the result here is striking down the law is left in place.
The emotional responses to such laws are to be expected but what is the ultimate argument? Let's say some parent of a child with a condition is very upset at the idea you support aborting a fetus [better phrased since often the decision is made later] of the same type. The basic idea is you do not honor the child's right to exist. An unjust statement, especially to the degree many pro-choice people are more likely to support government resources to care for their needs. But, is the person appalled if a couple chooses not to have children (using sterilization) or perhaps not even marrying because of the risk of conception here. This shows the breadth of Thomas' concurrence. The argument tends to turn on abortion. If so, "eugenics" is at least partially misleading.**
This being a blog post, I can address the merits. First, there does not really appear to be a reason in this country (cf. China) that sex or race in any significant way is being used to have abortions. And, even if it was, the enforcement of such a rule (including "solely") would be problematic. It would basically encourage doctors and patients not to have open dialogues. Or, single out certain groups for suspicion. Of course, there are numerous (though it remains relatively a small percentage of the total) abortions done because of some sort of abnormality or risk of same. At some point, few really would deny them as suggested by the number of states that allow Medicaid funding in such cases. The issue of line-drawing is sensitive but even if you thought it unjust to abort let's say a Down Syndrome fetus, the same issues of enforcement can arise.
At the end of the day, there is a basic right here to choose. A person very well might be deemed wrong to not be friends with a black person, to take a blatant case. Nonetheless, they have a constitutional right of association. The same applies when choosing what to do with one's body in this instance. I can even think of hypos where a sex specific abortion might be deemed acceptable on the merits (what if a fifth pregnancy is involved when you have four children of one sex? is "solely" a problem if the sex might be more likely to carry a condition? if a rape victim or someone who had an affair is willing to have a white but not a black child [or vice versa] is that an issue? etc.). But, ultimately, that doesn't matter on a constitutional level.
The concern for eugenics, putting aside that you probably shouldn't trust Justice Thomas' framing of the history (though he is careful to be somewhat lenient on Margaret Sanger), is particularly dubious if we take this into consideration. The problematic history is forced eugenics. Buck v. Bell is not a problem because Carrie Buck freely chose to be sterilized, even to the extent she was pressured by bad facts and/or principle. It was being forced to do so. Eugenics as a theory as a whole was and is a problem. But, as with miscegenation, the answer is not to remove free choice.
The one case taken will re-examine the question of even letting a lawsuit be raised involving a shooting at a border crossing. Among the cases lost among the cert. denied pile is one involving the sensitive question of trans students using bathrooms and locker rooms (here with privacy stalls) at school that was relisted repeatedly. This suggests one or more justices was concerned, but the denial was made without comment.
The handing down of the full opinions was mostly anticlimactic though we had a rare case of Thomas writing for the liberals regarding removing a class action to federal court. Alito for the other conservatives started his dissent with the concern about the importance of a neutral forum. How does this relate to the federal courts? (ha ha) This is one of those cases where it might be helpful if the advocates could address any specific concerns of Justice Thomas, who can have idiosyncratic views on such issues. Sotomayor spoke for an unanimous Court regarding settling rules involving a Social Security Act claim. And, she had the lone dissent, concerned the majority (with concurrences) was not concerned enough about the problem of retaliatory arrests that raise First Amendment claims. Fairly low drama stuff.
[ETA: Thomas, RBG and Gorsuch dissented in part; Thomas didn't like a protective exception, the other two would have been more protective. This article flags the troubling nature of this case though not sure how much it alone moves the needle.]
(The 5-4 breakdown, happening so far with each conservative but Alito, is atypical enough to be not too notable. What it basically shows is that the justices aren't completely split into ideological camps though even here they are rather notable. The diversity and complexity of issues are going to result in the justices not to be completely able to be put into pigeonholes.)
Meanwhile, will there be no clinics in Missouri?! Note in particular the telemedicine ban, which is particularly important when medical abortion provides a partial relief to lack of abortion providers. It is also important to look at details when a law requires a waiting period. Does the state allow the person to get informed consent over the phone or by video chat?
---
* This article provides additional discussion citing three categories of concern: road to "personhood," undue burden TRAP laws and generally unreasonable. Language here repeatedly has a divisive religious connotation. One possible problem is finding an authorized agent that is willing to work with a clinic. Cremation itself, contrary to a few allegations I have seen, is not inherently religious. But, like certain regional hospitals, religious beliefs can cause issues here.
And, there is no one approach that all would support. The ability of a woman on her own to dispose of the remains in part reflects the realization that different people have different beliefs on the matter. Like Thomas' problematic general use of "mother," a true respect for conscientious concerns very well might work against the law. Again, perhaps a more in depth analysis would be helpful.
** Those who have a child with a special condition should not be assumed to be appalled at leaving the choice to the pregnant person. The parent repeatedly talks about the problems such children often bring, including hardships to the child. One story, e.g., recently referenced the death of a young child with a certain facial abnormality. The child had to undergo numerous painful procedures to address the various problems arising from the condition, the visual (which resulted in negative remarks etc. with the human spirit and love winning out details) but part of the issue. The decision that it would be immoral to give birth to someone with such a future is at the very least open to debate.
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