The Supreme Court is in a bit of a break, with today a scheduled day to release orders and next week ending with a conference. An execution is scheduled next week so we might have a last minute order or two. Last Friday, after a week for consideration, a stay in a case was lifted.
The notable thing in today's orders is the expected acceptance of a case to replace the "D.C. sniper" case, which was mooted given a change in state law. The importance of such a case is suggested by the facts: "Today the justices announced that they will take up the question presented by Malvo’s case again, as they granted a petition filed by Brett Jones, who was 15 years old when he killed his grandfather during an argument about Jones’ girlfriend." If such a person is the extreme case left open by the previous case involving LWOP for minors, the exception is somewhat limited.
ETA: SCOTUS is ever active. On 3/10, Justice Sotomayor, explaining the conflict check for some reason didn't catch it earlier, recused herself from one of the faithless elector cases given her friendship with the party. On the docket page, there is a letter explaining this, which would be the rule (unless there is some good ground for privacy such as a medical condition) per a House bill previously covered on this page.
It is simple act of openness and avoiding the appearance of conflict that advances public respect and other good stuff. I think orders should be linked to docket pages generally which shouldn't be too difficult -- so someone doesn't need to do a search in these cases to check out the case materials. A person who is not aware of the docket page here might just see the order [more than once I saw even a person somewhat famiilar with the SCOTUS website was confused merely with the different order pages, so doing a "deep dive" is one level further] without knowing why she recused. The media page also would be a logical place.
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I listen to the Strict Scrutiny podcast, which involves three women in law and still get a bit confused about the voices (Kate Shaw has a deeper voice and I'm fairly sure about Leah Litman .. but not quite there yet). I made a comment on Twitter that Melissa Murray's voice was not quite as expected (wouldn't say it, but she at times sounds "cutesy"), which got a Obama shrug .gif from her over a month later. Tad embarrassing (didn't tag her).
This is a long aside to explain why I checked out the C-SPAN Landmark Cases episode for which she took the pro-choice side. Skipped it at the time since I figured I had enough about abortion, something for one thing I wrote two papers on (one in my Catholic high school!) over the years alone. It was pretty good with the page having some resources, but as is usual with something that condenses a lot of stuff into a short episode, a good amount of stuff is skimmed over at best. Thus, sometimes I am like (including when she speaks) like "wait ...!!!!"
The pro-life guy wrote a book and promoted the thesis that there is a major problem with the facts of the cases, including that they did not have in depth factual records. I find it doubtful this would have changed much. It is not like there weren't a range of lower court cases here, which had a mixture of records. Listening to Doe v. Bolton also suggests the range of material available, if at times in briefing. It is noted that ultrasounds aren't referenced in Roe v. Wade as well, thus suggesting times resulting in changing understandings of prenatal life. In what sense? Heck, the state in Roe v. Wade itself alluded to evidence of the current knowledge helping their case. Prof. Murray politely said the record could have been more "fulsome" though noted Justice Blackmun's medical knowledge.
[Looking at the lower court opinion, there is also a reference to a "Jane Roe," but no not the one in Roe v. Wade!]
Again, even when doing a hour and a half presentation including calls and so forth, the complexities of these cases are important to cover the best one can. The two abortion cases were the product of an extended process, which was touched upon in the episode (e.g., they both were re-argued). Something like twenty lower court cases, state and federal (see the main opinion itself for a listing of most of them), suggests as well this didn't come from nowhere. Neither did the open-ended reach of the opinion.
The Supreme Court had already decided United States v. Vuitch, dealing with the D.C. abortion law, if deciding things on procedural due process. I have previously noted that this was an important case all the same because of the broad definition of "health," which did not just include a narrow reach to mean something like "to prevent very serious harm."* This finding avoided a vagueness challenge (repeatedly at issue in the abortion litigation with multiple courts striking laws down on that ground) but it also moved things fairly far along by itself. Roe v. Wade itself was partially decided below on vagueness grounds though that turned out not to go over well on the Supreme Court level, in part because Justice White said its limitation to "life of the woman" was much more clear. Cf. the lower court ruling itself and the concerns of Justice Douglas' separate opinion in Vuitch.
The "reform" approach that Georgia practiced had a health exception, which if broadly applied could basically cover nearly any abortion likely to be performed.** And, a law without a "health" exception would seem irrational even to many who would not support so-called "abortion on demand." Which is exaggerated since abortion like other medical procedures would remain regulated and subject to availability in various instances. Doe v. Bolton could have dealt with things like requiring a panel of doctors to decide if an abortion was justified or blocking out of state patients. It might have been better to leave the trimester scheme and related particulars for another day.
Justice Stewart's separate opinion in the D.C. case basically said as long as a physician in good faith deemed it necessary for health, it was not a criminal abortion under the federal statute. Given abortion is safer than childbirth, etc., when isn't that really the case? And, back to that concern for factual findings. The main opinion cited another lower court opinion (the lower judge here taking judicial notice and resting on briefs) that did have factual findings, in particular to give a broad meaning to "mental" health. A key determination:
The tweet still was a bit ill advised.
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* So, "mental health" would include "for mental health reasons whether or not the patient had a previous history of mental defects." Furthermore:
** The Georgia law had more restrictive language: "would endanger the life of the pregnant woman or would seriously and permanently injure her health." But, the Supreme Court agreed with the lower court that a doctor should have wide discretion, "that the medical judgment may be exercised in the light of all factors," expressed in the earlier opinion.
And, again, this was in part to avoid vagueness grounds since just what would "seriously" etc. mean if a procedure safer than childbirth, one avoiding a range of physical and mental health problems, does not meet that test?
The notable thing in today's orders is the expected acceptance of a case to replace the "D.C. sniper" case, which was mooted given a change in state law. The importance of such a case is suggested by the facts: "Today the justices announced that they will take up the question presented by Malvo’s case again, as they granted a petition filed by Brett Jones, who was 15 years old when he killed his grandfather during an argument about Jones’ girlfriend." If such a person is the extreme case left open by the previous case involving LWOP for minors, the exception is somewhat limited.
ETA: SCOTUS is ever active. On 3/10, Justice Sotomayor, explaining the conflict check for some reason didn't catch it earlier, recused herself from one of the faithless elector cases given her friendship with the party. On the docket page, there is a letter explaining this, which would be the rule (unless there is some good ground for privacy such as a medical condition) per a House bill previously covered on this page.
It is simple act of openness and avoiding the appearance of conflict that advances public respect and other good stuff. I think orders should be linked to docket pages generally which shouldn't be too difficult -- so someone doesn't need to do a search in these cases to check out the case materials. A person who is not aware of the docket page here might just see the order [more than once I saw even a person somewhat famiilar with the SCOTUS website was confused merely with the different order pages, so doing a "deep dive" is one level further] without knowing why she recused. The media page also would be a logical place.
===
I listen to the Strict Scrutiny podcast, which involves three women in law and still get a bit confused about the voices (Kate Shaw has a deeper voice and I'm fairly sure about Leah Litman .. but not quite there yet). I made a comment on Twitter that Melissa Murray's voice was not quite as expected (wouldn't say it, but she at times sounds "cutesy"), which got a Obama shrug .gif from her over a month later. Tad embarrassing (didn't tag her).
This is a long aside to explain why I checked out the C-SPAN Landmark Cases episode for which she took the pro-choice side. Skipped it at the time since I figured I had enough about abortion, something for one thing I wrote two papers on (one in my Catholic high school!) over the years alone. It was pretty good with the page having some resources, but as is usual with something that condenses a lot of stuff into a short episode, a good amount of stuff is skimmed over at best. Thus, sometimes I am like (including when she speaks) like "wait ...!!!!"
The pro-life guy wrote a book and promoted the thesis that there is a major problem with the facts of the cases, including that they did not have in depth factual records. I find it doubtful this would have changed much. It is not like there weren't a range of lower court cases here, which had a mixture of records. Listening to Doe v. Bolton also suggests the range of material available, if at times in briefing. It is noted that ultrasounds aren't referenced in Roe v. Wade as well, thus suggesting times resulting in changing understandings of prenatal life. In what sense? Heck, the state in Roe v. Wade itself alluded to evidence of the current knowledge helping their case. Prof. Murray politely said the record could have been more "fulsome" though noted Justice Blackmun's medical knowledge.
In Memory of my beautiful Tigger
We had a wonderful 19 years together. You showed me that I could love unconditionally at a young age, and I will never forget you.
>^..^ <
MeowShowing what is available online these days, I found an interesting college thesis discussing the background and aftermath of the Doe v. Bolton case. The paper first provides the above dedication though adds: "And for Mom and Andy. I would not be the person I am today if it weren’t for your love and support." Priorities. The author appears to be doing well. One thing noted is that the legal team had available a lot of factual material [a range of plaintiffs were also provided, such as nurses, clergy and physicians] and "had prepared multiple witnesses for such testimony and were dismayed at the judges’ dismissal of [the need of] such evidence." Plus, lots of cases on appeal (the three judge court approach perhaps factored in?) in these constitutional cases do not rest on factual hearings.
[Looking at the lower court opinion, there is also a reference to a "Jane Roe," but no not the one in Roe v. Wade!]
Again, even when doing a hour and a half presentation including calls and so forth, the complexities of these cases are important to cover the best one can. The two abortion cases were the product of an extended process, which was touched upon in the episode (e.g., they both were re-argued). Something like twenty lower court cases, state and federal (see the main opinion itself for a listing of most of them), suggests as well this didn't come from nowhere. Neither did the open-ended reach of the opinion.
The Supreme Court had already decided United States v. Vuitch, dealing with the D.C. abortion law, if deciding things on procedural due process. I have previously noted that this was an important case all the same because of the broad definition of "health," which did not just include a narrow reach to mean something like "to prevent very serious harm."* This finding avoided a vagueness challenge (repeatedly at issue in the abortion litigation with multiple courts striking laws down on that ground) but it also moved things fairly far along by itself. Roe v. Wade itself was partially decided below on vagueness grounds though that turned out not to go over well on the Supreme Court level, in part because Justice White said its limitation to "life of the woman" was much more clear. Cf. the lower court ruling itself and the concerns of Justice Douglas' separate opinion in Vuitch.
The "reform" approach that Georgia practiced had a health exception, which if broadly applied could basically cover nearly any abortion likely to be performed.** And, a law without a "health" exception would seem irrational even to many who would not support so-called "abortion on demand." Which is exaggerated since abortion like other medical procedures would remain regulated and subject to availability in various instances. Doe v. Bolton could have dealt with things like requiring a panel of doctors to decide if an abortion was justified or blocking out of state patients. It might have been better to leave the trimester scheme and related particulars for another day.
Justice Stewart's separate opinion in the D.C. case basically said as long as a physician in good faith deemed it necessary for health, it was not a criminal abortion under the federal statute. Given abortion is safer than childbirth, etc., when isn't that really the case? And, back to that concern for factual findings. The main opinion cited another lower court opinion (the lower judge here taking judicial notice and resting on briefs) that did have factual findings, in particular to give a broad meaning to "mental" health. A key determination:
This Court finds that the determination as to whether an abortion should be performed involves a professional medical judgment by a physician and that judgment, when made in good faith, should not be challenged.I did not read the pro-life side's book challenging the factual basis of the two opinions, but suffice to say, there is a pretty good chance that someone on the other side would be able to refute the analysis. Plus, I read and reread these cases repeatedly and skipped over the reference that other D.C. court case. Putting aside college papers and so forth with dedications to cats, there is so much material out there even in the opinions themselves. And, with current day search availability, you have that much more material to go over. For instance, Justice Powell's notes are available. So, we shall continue to have these entries.
The tweet still was a bit ill advised.
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* So, "mental health" would include "for mental health reasons whether or not the patient had a previous history of mental defects." Furthermore:
Certainly this construction accords with the general usage and modern understanding of the word "health," which includes psychological as well as physical wellbeing. Indeed, Webster's Dictionary, in accord with that common usage, properly defines health as the "[s]tate of being . . . sound in body [or] mind."Justice White in his own separate opinion (the case split the justices in various directions) made clear to underline that an abortion had to be for "health" reasons. His brief dissent in the abortion cases later underlined his belief (in rather crude terms) the opinions basically allowed abortions for any reason. Justice White very well might have at least provided the eighth vote for a more narrow opinion that allowed abortion for "health" reasons.
** The Georgia law had more restrictive language: "would endanger the life of the pregnant woman or would seriously and permanently injure her health." But, the Supreme Court agreed with the lower court that a doctor should have wide discretion, "that the medical judgment may be exercised in the light of all factors," expressed in the earlier opinion.
And, again, this was in part to avoid vagueness grounds since just what would "seriously" etc. mean if a procedure safer than childbirth, one avoiding a range of physical and mental health problems, does not meet that test?
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