The big news at SCOTUS this week was not three statutory questions, even if one or more might have some importance regarding the ability of agencies to have wide discretion (so-called Chevron deference). It is, of course, the big 15 week abortion ban case. The oral argument was Wednesday.
So much can be said about this issue and I have been saying some of it since I was a damn teenager. Someone on Twitter made the well worn reference that pulling a string of privacy rights will lead to more damage to the garment. That reference was made during the oral argument in the Webster case. I wrote about that long hand in a notebook.
Justice Stevens in his separate opinion flagged the argument that abortion rights is a matter religious liberty. Justice Sotomayor, perhaps the last true separation of church and state true believer left on the Court, flagged that during the oral argument. After it was made in passing here, I took part in extended discussion about the matter in the comments.
As noted by the same law professor, the case here (Dobbs) really should not about the so-called "undue burden" test. The question presented was to determine if any pre-viable abortion bans are allowed. Two other questions more open-ended, more about replacing the test were not taken.
But, everyone knows what is at stake here. The oral argument simply did not suggest this was about anything limited in scope, from the very opener of the state. The conservatives (except for Roberts) did not show much support of only tinkering with the current law. And, since under the current constitutional rule the Mississippi law is clearly unconstitutional, it is naive to think the wider questions weren't at stake at any rate.
The state's portion of the oral argument was dominated by Breyer and Sotomayor. Breyer was very concerned with the legitimacy of the Supreme Court. They were tasked with dealing with the particularly sensitive issue, did so, and overturning the law now without a very good reason would be really bad. The clear background is also WHY we are here. Trump judges and all that. The "stench" of political acts, to reference Sotomayor's comments.
(Sotomayor attacked, attacked hard, on the merits. Kagan raised precedent, but seemed resigned, and didn't talk much.)
The argument was ridiculed here, but I think some form of it has some reasonable ground. He might have overdid it, but what else is new? Breyer has a bit of cred on the abortion argument, repeatedly chosen by the lead liberal (Stevens and then Ginsburg) to write post-Casey abortion rights opinions. The one time they lost, Ginsburg wrote the dissent. But, he wrote the majorities, and even a major dissent in the crisis pregnancy disclosure case. That was some bullshit and foreshadowing.
The last case was a plurality handed down last June. Telling point. Roberts concurred in judgment on precedent grounds. But, and this was flagged in one of the original questions the state here wanted them to decide, did so using a weaker test. To remind, the Casey test is "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right and are therefore “constitutionally invalid.”
I'm quoting Breyer's plurality opinion for the remaining liberals at that point. I can imagine some sort of law -- no very unsafe abortion procedure allowed -- that would not violate the rule.
Again the question presented -- see the SCOTUS website -- is "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Guess that is meant to mean categorically, not a certain means used, but the language is probably intentionally vague.
Bettors suggested that the Supreme Court might ultimately wind up going the Roberts route (however he phrased it) this time, but the oral argument made it look less likely. Kavanaugh surely looks like a "no." When you have to rely on Barrett (who some thought up in the area, probably a tad optimistically) and Gorsuch (who didn't ask much), you are in trouble.
A lot more can be said, but I'm so tired of it all by now. For instance, John Roberts with his stupid (and confused) reference to Blackmun's papers to help his attempt to attack the viability line. Linda Greenhouse, who had early access to them to write her book, has the receipts there.
Kavanaugh listed a slew of cases that overturned previous cases. Yeah. People are not against ever changing precedent. The argument is there is not a very good reason to change this one. And, if you look at how all the precedents he cited occurred, you would see a rather different thing than here. From a more legitimate Court, to an extended drawn out process that reflected an actual changing situation. Plus, again, the merits.
Then, we have Alito bring up Plessy, to show how you can change precedent, even based on something being wrong the day it was decided. Again, Casey wasn't the wrong the day it was decided. But, as Justice Souter noted in his Harvard Speech (find it yourself), Plessy was a creation of its time. The state of the law in the 1890s was such that upholding a segregation law was not surprising at all.
There was no realistic chance of the Court saying "oops" a year later. It took a long time, with much development, to change the law here. This change of the times was flagged in Casey as a major way what one might call "superprecedents" change. Such rules are more art than science, but it had a point. But, this is not the case with abortion.
The situation did not really change in any fundamental way. At best, you might say a tweak is warranted, but even there, abortion access has a ways to go. The same basic divisions are in place. The same basic constitutional rules are in place. "Abortion" is not in the Constitution remains a stupid argument. Can we have forced abortions? It is not just that various rights (like marriage) are not expressly listed. It is that those that are in various ways will in some fashion involve abortion rights.
I'm glad there were oral arguments, including live oral arguments for people to listen to and live tweet, since they were informative. We got a sense of where the judges are and the main arguments were provided in a basic hour plus package. Too bad there was no video, which is present for many other courts. As to the result, sigh, we will see.
One thing that did not come up was the still pending Texas cases. They underline that some fifteen week ban that covers a limited subset of abortions (the typical reference is that 90% of abortions occur in the first trimester -- twelve weeks) is surely not the only thing at issue. The state also passed a six week ban.
We are into the third full month where the second most populous state in the union is largely deprived of abortion rights. As Justice Blackmun once noted, "a chill wind blows."
[I can add a lot more, but guess this piece on labels is important since it was something that repeatedly threw me as well, including back fifteen years ago when I wrote "Joe's Constitution."
One reply, a conservative who once claimed Trump was doing the best he could and then tossed in some trolls about Pelosi [and was pissed off when I called him on it], complains she is wrong on "person." Another term that people fight over. It very well is not usually applied to fertilized eggs. Biologically, they are human eggs. But, "person" is not the same thing.]
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A few things of note coming next week. There is an execution scheduled. A few oral arguments, including a fairly notable one regarding public funding of religious schools. There will be a Presidential Commission on SCOTUS meeting on Tuesday. And, an Order List on Monday.
And, whatever else this tainted Court decides to give us.
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