BREAKING: Arkansas Attorney General Leslie Rutledge has just certified that the Supreme Court has overturned Roe. Abortion is now immediately illegal in Arkansas.
— Megan Messerly (@meganmesserly) June 24, 2022
Abortion is now illegal in six states -- Arkansas, South Dakota, Kentucky, Louisiana, Missouri and Oklahoma.
The day started with a curious split upholding a complicated Medicare funding regulations -- Kagan for the liberals + Thomas and Barrett vs. Kavanaugh for the rest of the conservatives. The case is from November and the dissent is under four pages.
The majority holds that the "regulation is consistent with the text, context, and structure of the DSH provisions" while Kavanaugh says it is not the "best reading." That doesn't sound enough to strike the regulation. Is this some hidden Chevron deference battle and was settled behind doors?
The Court has multiple administrative law cases (at least one left) and have not bit the bullet, so to speak, yet though perhaps they are doing so silently. This is a basic fight, especially given our modern day administrative state and its importance in making policy. But, the issue will be lost in the weeds today, if anything is worthy of comment there anyhow.
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SUPREME COURT ENDS CONSTITUTIONAL RIGHT TO ABORTION
I was not alone in thinking that the abortion ruling would be dropped next week. Both Planned Parenthood v. Casey and Webster v. Reproductive Services were handed down at the end of the term. Roe v. Wade was handed down in January. But, that was something of a special case, including it being re-argued. It would have came down late as well.
There were nine [now seven; they announced a Monday opinion day, but doubt that will be enough] opinions left, and there were various possibilities. For instance, there is the coach's prayer case that four members were dying to decide and finally it was worth it with Barrett coming on the Court. That might make some Establishment Clause news, if somewhat more a matter of clean-up than anything else.
But, the day after they handed down the big gun rights opinion (Thomas), they decided to hand down the Dobbs opinion. And, other than clean-up and response to other opinions (written after the original), the draft reportedly staid basically the same. So, basically, the worst possible person, full of scorn, gets to write the opinion overturning Roe v. Wade.
The SCOTUSBlog headline warrants comment. I do not think the "right" to choose an abortion is gone as a matter of right. The Fifteenth Amendment was not amended out of existence when the Jim Crow society upheld the power to deny black people the right to vote. A right that did matter.
The "ends" there was a matter of reality in practice. There is a difference, an important difference, that should not be ignored. I'm working on a review of Mark Tushnet's Taking Back the Constitution, and it ends with a push for progressives to promote "popular constitutionalism."
The idea is the meaning of the Constitution should not be left to the courts. That is wrongful "judicial supremacy." Suggesting the "right" to choose no longer exists now is of that caliber. And, in our system, and in theory overall, there is an important principle about following the rule of law, including what courts decide. EVEN THERE, defining a legal right for various purposes is not the same as the inherent existence of it.
One place where this is important is when abortion is a matter of criminal law. Certain progressive prosecutors and attorney generals have declared that they will not enforce such laws. We do not know what this will mean. What happens when it becomes known some doctor (or layperson) performed an abortion in one of these states?
But at the same time, abortion rights advocates are eyeing preemption as a possible solution to protecting access to abortion — specifically, medication abortion, which is increasingly being targeted by state legislatures. The argument holds that, because the FDA is the federal agency solely responsible for regulating drugs, states don't have the power to overrule its approval of abortion medication. The FDA approved mifepristone, one of the abortion pills used along with misoprostol, in 2000, and it's now available in all 50 states.
Merrick Garland reaffirmed the right to that drug among other things in a statement strongly dissenting from the opinion. The Attorney General noted the federal law in place to protect clinic access, the right to travel, and counseling are all still in place. President Biden in his remarks cited travel as well. Kavanaugh claims that right is still present.
Yes, Alito wrote the majority for five. Thomas wrote a short concurrence underlining his desire to do away with substantive due process while sorta lying about that being the only basis cited by the respondents here. Equal protection, at the very least, is part of the right to choose, and was cited in Planned Parenthood v. Casey (also overruled today).
Kavanaugh wrote a relatively short (most of the 200+ pages is the majority and dissent) concurrence to say how reasonable he is. He puts forth the b.s. that the Constitution is neutral on abortion. The Constitution bans servitude, supports equal protection (of persons), and protects liberty. Forcing persons (mostly girls and women) to be incubators violate each.
Roberts concurred in result. He argues the viability line doesn't make sense (without really doing much to answer the extended arguments used in Casey in particular to defend it) and basically says 15 weeks is enough for women to decide. It is unclear how that works for special cases, when it is a lot less clear that it is enough (such as if a fetal abnormality is found later). But, anyway, the case was taken for limited purposes, and he wouldn't have gone all the way today.
There was a joint dissent. This happens a very few times (recall the dissent in the PPACA Cases) and is a symbolic way to express a united front. The opinion cannot merely be by Breyer surely, since it has footnotes.
It also has various tones. For instance, "Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor." That's Kagan. Super Snark.
Then, there is angry: "It is a history of women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers." That's Sotomayor.
And, then, there is various things about balancing and precedent and stuff (and maybe even the Appendix -- Breyer likes those) that feels like Breyer.
One thing my perusal did not pick up (yet) is talk about how abortion rights really is a matter of religious liberty, including the basic question of "potential life" being religious. Sotomayor flagged that in the oral argument. The majority started that way, really, by noting how society splits on the morality of abortion. Yes, and the state should not compel people to follow one side.
I have been concerned about abortion rights from the 1980s, when I was a teenager. The whole thing for me personally is largely theoretical, but my loved ones include people who are directly affected. So, it really is not merely theoretical, though all my musings here or whatever might make it seem that way. Anyway, that is who I am -- I have an urge to think things through, make my opinions known, and maybe, maybe, help others a bit while engaging in the development of the matter.
What is next? Well ...
The 18 states with near-total bans on the books are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
and ...
Four other states — Georgia, Iowa, Ohio, and South Carolina — have laws on the books banning abortion after the sixth week of pregnancy, which is before many people who may want an abortion will be aware that they are pregnant.
One or more of those states (we already saw Iowa recently used to be one; we don't know how far it will go now) might have state constitutional provisions that protect abortion. Michigan, for instance, might be a decent bet there. It is not clear that all of the twenty-two will hold firm, especially regarding the usual extreme exceptions.
The majority opinion (surely reliable!) assures us that "only" abortion is involved. But, what exactly is the reason for that? Why should "potential life" make abortion different regarding drawing constitutional lines?
As the dissent and others note, text and history surely would suggest a consistent application would have broad possibilities. Some assume that we are soon on the road to a national constitutional ban. Now, that would be something -- Kavanaugh ASSURES US that the Constitution is neutral. Alito says the matter of abortion is not legislative.
People note we should not be naive. But, it is not like any of these people were not open (other than in confirmation hearings, where being open is allegedly unethical) about their position. The only person somewhat unclear regarding where he might eventually land is Roberts. I do not think he wants to force New York and California to ban abortion.
(Mind you, someone like Thomas very well might disagree. And, we might get some more talk on the matter, one that might very well matter somehow. If a self-defense argument is eventually made, for instance, it really seems like something that has to be addressed somehow.)
We need not "trust them" though. Ditto on Kavanaugh's assurance that there is a constitutional right to travel, so states cannot ban people from traveling to have an abortion. I am not really sure how far that will be taken. I dealt with this in the past, but the matter simply has not been pressed in all of its complexities.
The same with the limits of congressional power, including any minimum limit here, even for the abortion drugs cited. A basic line in the opinion is that "potential life" is special. So, it would be perfectly logical to allow any sort of drug or device that "destroys" it, even if the evidence of them doing so is unclear and involves merely a fertilized egg.
I think not going further than what actually happened the last couple days is bad enough. A Court with four (Thomas's ethical problems have been addressed) members that are tainted in the extreme (no wonder public respect is at historical lows) went full YOLO (including rushing along the gun case without an evidentiary hearing) two days back to back on abortion and guns.
The efforts to defend reproductive liberty and vote for those who do the same are fundamental. We also just had national gun reform passed today though it is unclear how safe it all is from yesterday's opinion. But, ultimately we need bigger change, including to deal with a fundamentally screw up Supreme Court. The people need to "end" some stuff too.
ETA: This website provides a lot of good data on abortion, including the state of play of the law nation-wide. Now, it will be even more important in certain places to know what the law is and the resources available.
Dobbs is not final for 25 days, I believe, which matters if it means some more women will have weeks more of access. But, then, there are reports of clinics closing now. Anyway, a "trigger law" in Texas won't -- as of now -- go into effect in around thirty days.
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Thanks for your .02!