With the current Supreme Court, state protections of reproductive liberty are particularly important. It was is therefore somewhat reassuring that Ohio used its own state constitutional protections to strike down what it saw as an arbitrary and discriminatory (other disposal of human remains were not similarly treated) tissue disposal law. IOW, it isn't some really horrible law, just one of many dubious ones, but they still were strongly opposed.
A few years ago, the Kansas Supreme Court handed down a strong abortion protective decision too. Discussions of the effects of Dobbs should make some note, with helpful maps, of such developments. The general assumption of some, in a fashion that seems to be a bit much (usual "yeah Candide" responses such as when people talk about elections after 2016), is some national ban, upheld by the Supreme Court. We aren't there yet.
[After publishing, I see that this is a decision of a trial court.]
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Eric Segall, who I engage with online, wrote some reflections about teaching Roe and Casey. He has been doing it basically since Casey first was a thing. He's older than me, but I have been at this since around Webster too. He is one of those New Republic sorts who strongly support abortion rights, but opposes protecting them via a U.S. Supreme Court backed constitutional right.
And, he sanctimoniously talks about how horrible the results were. This in the face of multiple scholars (who at times he had on his podcast though he avoids repeatedly seriously pushing back on it to give us a debate on basic issues -- it is a tad annoying) who at best put forth a more nuanced take. He's a bit tiring though he's a great guy overall. Does have issues.
The analysis was praised by various people, but it has multiple issues. The analysis covers a lot of ground, if for those in the know fairly familiar. I guess I'll just go down the list.
[1] It is true that in some fashion that the 7-2 Roe did not "immediately spark major political opposition" as shown by the Stevens nomination. All the same, abortion was already a significant political issue, including in the 1972 presidential election. The original Hyde Amendment, which denies coverage for abortion in Medicaid, was passed in 1976.
[2] Yes, abortion was not such a significant issue for evangelicals at first. This was seen by the statement of the Southern Baptists when it was handed down (guarded support) and Linda Coffee noted her own religious beliefs in an interview. Sarah Weddington was also the daughter of a Southern minister.
But, it was building, along with other general concerns about sexual revolution / women's place type issues. There is this usual argument that Roe aggravated this and this is included in Segall's own argument against the courts being used.
There was a much wider open-ended concern here, including involving contraceptives, gender equality, and religious liberty issues. Just what abortion (the courts were liable to protect abortion rights SOMEHOW) added to the mix is far from clear to me (and scholars). And, society's concerns here, a backlash of the 1960s etc., will be reflected in politics.
Yes, evangelicals took low hanging fruit (abortion) along with other stuff, including racism and school issues.
[3] I too find that paragraph very good and it underlines for me that I think allegations Roe didn't properly respect the rights of women is a tad overblown. It also underlines what even a more limited ruling that protected abortion for "health" reasons would truly entail.
[4] The denial of funding was strongly argued by John Hart Ely Jr., who wrote a (flawed) famous denunciation of Roe (he wasn't a big fan of Griswold either), as a violation of constitutional equality.
Given the rules in place, as compared to some Segall dream state, I also think at least in respect to abortions clearly needed for one's health and life, the laws are not just mean, elitist (itself another word for discriminatory really) etc., but unconstitutional. The "support by religious right" in practice also can be shown here to be religiously discriminatory.
Anyway, tragically I don't see this happening with this Senate, the Hyde Amendment is clearly a horrible piece of legislation and should be repealed. People should have the right to health care and not be blocked because of religiously motivated opposition that in the process for many people will inhibit (not that the opponents care -- wrong religions!) their religious beliefs.
Isn't it ironic.
[5] Yes, conservatives do not consistently apply some "specifically in the Constitution" rule, arguing that there are implicit rules in various respects. Furthermore, I think the specific provisions (especially the Thirteenth Amendment, darn literally really) also have a lot to say here, even without more categorical provisions like "liberty."
[6] Casey did change the law though Blackmun and Stevens type judges probably could apply it to strike down many of the same things, especially if other provisions were added (e.g., the dissent in Rust v. Sullivan on First Amendment grounds). Casey did clearly change the law but the original "partial birth" ruling again shows the limits of the change.
Nonetheless, he exaggerates regarding the laws struck down (though funding and minors are significant by themselves). Regular consent laws were upheld as were various medical regulations, physician only laws (a concern in some areas where nurses and medical assistants do a lot), disclosure and record-keeping and so forth. And, the Supreme Court simply left many laws in place, the lower courts dealing with them.
State courts played a role in these cases too, largely out of the view of most observers. One problem I have with Prof. Segall is that he says things with a Supreme Court focus.
He keeps on talking about how changes of personnel changes the results ... is this really "law"?!!! ... but STATES judges change too. They even change via highly competitive partisan elections! He NEVER seems to talk about this, except to note that the Supreme Court has more powerful reach. Which doesn't really answer my concern here. The principle holds either way.
[7] Casey argued that Roe was incorrect in certain particulars while the "central holding" of the opinion holds. And, simply put, basic state of abortion law held -- yes, a range of burdensome regulations had more of a chance to be upheld. But, the basic ability to choose to have an abortion remained. Not having a right would be a BIG FUCKING DEAL.
So, I don't think the precedent stuff is as b.s. as he makes it out to be. Justice Souter (the apparent author of this section) explained how a blockbuster [RBG liked the word "pathmark"] change of the law (like Brown) historically and as a matter of sound principle requires a significant degree of justification.
The details? That is a regular deal. So, yes, the plurality argued that changing the trimester scheme, e.g., was appropriate without requiring the same degree of justification. A steady development of the details, shades of Justice John Harlan Jr., was normal judicial process here.
I myself don't see why this is so complicated on a basic level, even if I'm wary about how they handled the situation here.
[8] "If changing judges changes law, do we know what law is?" See above. Chief Justice Taney changed the law of Chief Justice Marshall. Why is this even an issue? It's asinine. Jack Balkin wrote about this, for instance, noting that over time, this was an significant driver in the change of the law, also allowing a democratic input given who chooses the judges.
[9] Scalia's remarks aren't good. They are not true, surely in the blunt way he framed it. Yes, conservatives are not honest (to themselves too) in suggesting they have a magical unicorn way to avoid wrongful value judgments. The Constitution involves value judgments, including judicial interpretation.
This very well in various respects might suggest judges should practice more restraint. Fine enough. But, that is a matter of degree and line drawing. For instance, Segall accepts federal judges should have wider power to rule on criminal justice matters, judges more appropriately able to do so. Fine. But, they involve a range of value judgments too!
How he does so might be off in some details, but Justice Breyer is much more honest about this overall matter of human judging.
[10] I agree judges should "brood" in various ways, having some humility about the hard judgments they make. They ultimately have to make some, but again on human judges, using human qualities including empathy.
He is not "pro-choice all the way down." If he was, he would think it correct for the courts to protect abortion rights. He thought it correct, even using his strong rule of restraint, for the Supreme Court to protect same sex marriage. But, when it is abortion, suddenly he talks about moral value choices that the legislatures can use to block abortion rights.
It is quite possible to be strongly something and feel that it is a matter of legislative choice. Questions of war and peace come to mind. On the issue of abortion rights, and overall reproductive liberty, I think there is a clear floor. Forcing girls and women (and the perhaps thousands of trans and non-binary people involved) to remain pregnant is a blatant violation of equality, a form of slavery, and the laws also tend to violate other provisions.
Segall ends with a humble statement that he might be wrong. I think he realizes some absolute rule here would be wrong. Forcing fourteen year old rape victims to have children against their will is both inhumane and rank violation of constitutional liberty. You can debate details, but the basic core is less in doubt.
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Other SCOTUS News: While Gorsuch is scheduled to give a speech at a Federalist event that is part (if not this specific event) of a wider weekend that talks about the end of Roe, doing so without access of the courts, ethics again comes to mind.
This article references a letter by ethics experts to Chief Justice Roberts pushing a SCOTUS ethics code. It is the sort of bare minimum, not enough (like the Electoral Count Act vs. wider voting rights) by far, thing that there is at least a CHANCE of happening.
We are maybe a few weeks from determining who will be the likely next Supreme Court justice. It still is likely to be Ketanji Brown Jackson. But, likely Michelle Childs is getting some attention, given an important Biden supporter being on her side. Note that the talk of "bipartisan" support here seems to me to focus on the state's two senators. So, maybe calm down.
Childs, who otherwise is likely going to be on the D.C. Court of Appeals (not a bad consolation prize of sorts), has an interesting background. She would provide some state politics experience along with non-elite schools vibes. Some point she was a corporate lawyer, concerned about her anti-worker clients basically. Such accounts do not seem to pay much attention to her state political positions in employee protective roles.
I like Jackson, including her time as a public defender. But, either would be a good choice. And, either would open another slot on the prime D.C. COA. Let's just keep the lower court confirmation line going, even if the health problems of an under 50 (!) senator might delay things somewhat.
As one article notes, however, COVID alone repeatedly removes one or more senators from being able to show up. I think, like the House, some system of proxy or remote voting should be set up.
