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      The Supreme Court Fails Black Voters in Alabama

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      You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolina admissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Tens of thousands ‘march for life’ in Washington as fate of Roe v Wade looms

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      Tens of thousands ‘march for life’ in Washington as fate of Roe v Wade loomsCourt’s conservative supermajority appears open to reversing Roe, overturning nearly 50 years of precedent since 1973 decision In 1974, on the first anniversary of the Roe v Wade supreme court decision, abortion opponents gathered on the National Mall in Washington to “march for life”. They vowed to return each year until the ruling, which established the right to abortion, was no longer the law of the land.Supreme court declines to speed challenge to Texas abortion limitsRead moreOn Friday, anti-abortion activists from across the country braved sub-zero temperatures and the coronavirus pandemic to assemble in Washington, more hopeful than ever that this would be their last march to a court where the fate of Roe will soon be decided.“We are hoping and praying that this year, 2022, will bring a historic change for life,” Jeanne Mancini, president of the March for Life Education and Defense Fund, told a crowd tens of thousands strong and waving signs that read “I am the post-Roe generation” and “The future is anti-abortion”.Praising followers for standing against what she called the “single-most critical rights abuse of our time”, Mancini said they sent a clear message to the supreme court: “Roe is not settled law.”Chris Smith, a Republican congressman from New Jersey, described the mood as one of “fresh hope and heightened expectations”. The court’s conservative supermajority appears open to reversing Roe, thereby overturning nearly 50 years of precedent since the 1973 decision.“There’s optimism in the air, there is a sense that a significant hurdle to protect the unborn is about to move,” he said.The rally took place a day before the 49th anniversary of the Roe decision. The theme of the march, also in its 49th year, was “equality begins in the womb.” Speakers told rally-goers that their cause was bound up with the struggles for racial justice and gender equality and described abortion as “the ultimate form of discrimination”.The march typically draws about 100,000 abortion opponents by the busload to Washington. But this year’s march took place amid a wave of Omicron infections in the nation’s capital that limited turnout.Some activists said on social media they would not attend because of a new mandate in Washington requiring anyone over the age of 12 to show vaccination proof before entering restaurants, conference centers and other public places.Still, the event attracted a large and enthusiastic crowd, priests, pastors and busloads of high school students, among them. Together after the rally they marched to the supreme court singing hymns and chanting “Hey hey, ho ho, Roe v Wade has got to go!”The jubilant demonstration comes as the supreme court reviews a case involving a Mississippi law which bans abortion after 15 weeks of pregnancy, a direct challenge to Roe. At oral arguments, several members of the court’s conservative bloc appeared open to not only upholding the ban, but to overruling Roe entirely. A decision is expected by the end of June, months before the midterm elections.“We’ve been building to this moment,” said Victoria Cobb, president of the Family Foundation of Virginia who spoke on a virtual panel organized by the March. Her group was active in helping confirm Amy Coney Barrett to the supreme court, part of a decades-long legal strategy by abortion opponents to remake the nation’s federal court system.“We heard justices say that precedent shouldn’t be upheld if it was incorrectly decided in the first place,” Cobb said. “That’s a big deal.”Several Republican lawmakers appeared on stage and virtually to voice their unwavering support for the anti-abortion cause, declaring that the movement was “winning this battle”.Last year, states enacted more than 100 new abortion restrictions, a record, according to the Guttmacher Institute, a research organization that supports reproductive rights and tracks state-level legislation. The group has called 2021 “the worst year for abortion rights in almost half a century”, and estimates that 26 US states are “certain or likely” to immediately ban abortion if Roe is overturned.And conservative states are already laying the groundwork for new restrictions as fights over issues like telemedicine and abortion pills gain momentum.Though the anti-abortion movement has made significant legal and policy gains in recent decades, public opinion polls have consistently found that a majority of Americans believe abortion should be legal in all or some circumstances.“If Roe falls, the battle lines will change,” Mancini said. “But make no mistake, the fight for life will need to continue in the states.”Kelly and Greg King, a married couple from Los Angeles, who were attending the event for a third time, said the supreme court decision would likely push their state to expand abortion access. They worry about plans to make California a “sanctuary” for out-of-state patients seeking reproductive care in a post-Roe legal landscape.Clear-eyed about the state’s progressive politics, Kelly King said she would focus her efforts on “changing hearts” rather than changing policy.“Abortion has become … ” Kelly King said, searching for the word. “Normalized,” her husband chimed in. “Yes, normalized,” she said. “That’s the problem.”Hours before marchers arrived on the National Mall, the supreme court declined to accelerate a legal challenge to a Texas law that has effectively banned abortions in the second-largest state.Yet among the speakers, there were few references to that victory or to the Texas law, which is deeply unpopular, including among Republicans.Pro-choice supporters also marked the anniversary, using the occasion to “sound the alarm” on the threat posed to reproductive rights.Mini Timmaraju, the president of NARAL Pro-Choice America, warned that a “small but vocal minority” was “determined to undermine the will of the majority of people in this country who support reproductive freedom”.“They falsely claim to be supporters of ‘equality’ all while working ardently to block abortion access and end the legal right to abortion,” she said in a statement. “Make no mistake – this movement’s end goals would only criminalize and endanger people based on pregnancy outcomes, furthering inequality.”At the White House, press secretary Jen Psaki noted the anniversary of Roe v Wade during her press briefing, saying that “reproductive healthcare has been under extreme and relentless assault ever since, especially in recent months”.She said the Biden administration was committed to working with Congress to pass federal legislation essentially enshrining into law a woman’s right to an abortion. The Democratic-controlled House passed the bill last year, but it remains stalled in the Senate, where it faces a Republican filibuster.“We’re deeply committed to making sure everyone has access to care and we will defend it with every tool we have,” Psaki said.At the rally, the presence of Make America Great Again hats was a reminder of the mutually beneficial relationship forged between Christian conservatives and Donald Trump, who became the first sitting president to attend the event in 2020.As they gathered, Trump voiced his allegiance: “As you gather together today for the March for Life, I am with you in spirit!”While many of the speakers anticipated the end of Roe, several demonstrators said they would continue to attend future marches until its mission “to make abortion unthinkable” was achieved.“I just pray every year that this is the last year we’re here,” said Janice LePage, who works for the youth ministry in the Archdiocese of St Louis. “I’m praying that the following year will be a march of celebration.”TopicsAbortionWashington DCUS politicsnewsReuse this content More

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      Sarah Weddington, attorney who won Roe v Wade abortion case, dies aged 76

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      Sarah Weddington, attorney who won Roe v Wade abortion case, dies aged 76Texan lawyer and Linda Coffee won landmark 1973 case, safeguarding right now under threat from US supreme court

      How dismantling Roe v Wade would threaten other rights
      Sarah Weddington, an attorney who argued and won the Roe v Wade supreme court case which established the right to abortion in the US, has died aged 76.Susan Hays, a Democratic candidate for Texas agriculture commissioner, announced the news on Twitter on Sunday and the Dallas Morning News confirmed it.“Sarah Weddington died this morning after a series of health issues,” Hays wrote. “With Linda Coffee, she filed the first case of her legal career, Roe v Wade, fresh out of law school. She was my professor … the best writing instructor I ever had, and a great mentor.“At 27 she argued Roe to [the supreme court] (a fact that always made me feel like a gross underachiever). Ironically, she worked on the case because law firms would not hire women in the early 70s, leaving her with lots of time for good trouble.”The court ruled on Roe v Wade in 1973. Nearly 50 years later the right it established is under threat from a supreme court packed with hardline conservatives, in part thanks to a Texas law that drastically restricts access and offers incentives for reporting women to authorities.In 2017, speaking to the Guardian, Weddington predicted such a turn of events. “If [Neil] Gorsuch’s nomination is approved, will abortion be illegal the next day? No. One new judge won’t necessarily make much difference. But two or three might.”After steering Gorsuch on to the court – and a seat held open by Senate Republican leader Mitch McConnell when Barack Obama was president – Donald Trump installed Brett Kavanaugh and Amy Coney Barrett. Barrett replaced the late Ruth Bader Ginsburg, a champion of women’s rights.Weddington found her way to Roe v Wade soon after graduating from law school at the University of Texas. Represented by Weddington and Coffee, Norma McCorvey became the plaintiff known as “Jane Roe” in Roe v Wade. McCorvey became an evangelical Christian and opponent of abortion. She died in 2017.In her Guardian interview, Weddington discussed arguing the case in federal court. “I was very nervous,” she said. “It was like going down a street with no street lights. But there was no other way to go and I didn’t have any preconceived notions that I would not win.”She won, but the case continued.“Henry Wade, the district attorney, unwittingly helped us,” she said. “At a press conference, he said, ‘I don’t care what any court says; I am going to continue to prosecute doctors who carry out abortion.’ There was a procedural rule that said if local elected officials continue to prosecute after a federal court had declared a law unconstitutional, there would be a right to appeal to the supreme court.”‘Historical accident’: how abortion came to focus white, evangelical angerRead moreBefore the court in Washington, Weddington said: “It was impossible to read the justices’ faces. The attorney on the other side started by saying something inappropriate about arguing a case against a beautiful woman. He thought the judges would snicker. But their faces didn’t change a bit.“I had to argue it twice in the supreme court: in 1971 and again in 1972. On 22 January 1973 I was at the Texas legislature when the phone rang. It was a reporter from the New York Times. ‘Does Miss Weddington have a comment today about Roe v Wade?’ my assistant was asked. ‘Why?’ she said. ‘Should she?’“It was beginning to be very exciting. Then we got a telegram from the supreme court saying that I had won 7-2 and that they were going to air-mail a copy of the ruling. Nowadays, of course, you’d just go online.“I was ecstatic, and more than 44 years later we’re still talking about it.”Weddington later revealed that she had an abortion herself, in 1967. “Just before the anaesthesia hit,” she said, “I thought: ‘I hope no one ever knows about this.’ For a lot of years, that was exactly the way I felt. Now there’s a major push to encourage women to tell their stories so people will realise that it is not a shameful thing. One out of every five women will have an abortion.”Weddington predicted: “Whatever else I do in my life, the headline on my obituary is always going to be ‘Roe v Wade attorney dies’.”In fact she achieved much more, as Hays detailed in her tweets on Sunday. “Those career doors shut to her led her to run for office, getting elected as the first woman from Travis county in the [Texas legislature] in 1972 (along with four other women elected to the House: Kay Bailey, Chris Miller, Betty Andujar and Senfronia Thompson).“She was general counsel of the United States Department of Agriculture under [Jimmy] Carter and enjoyed her stint in DC. Federal judicial nominations for Texas were run by her as a high-ranking Texan in the administration.“A Dallas lawyer she knew sought a bench. She had interviewed with him while at UT law. He’d asked her, ‘What will we tell our wives if we hire you?’ She told him he was wasting their time and hers and walked out of the interview. He did not get the judgeship.“Ever the proper preacher’s daughter, she would never tell me who the lawyer was. People don’t know that about Sarah. She was such a proper Methodist minister’s daughter. One of the few people I couldn’t cuss in front of.”Hays also paid tribute to Weddington as a teacher and a member of a “Great Austin Matriarchy” that also included the former Texas governor Ann Richards and the columnist Molly Ivins.In her Guardian interview, Weddington indicated she was at peace with being remembered for Roe v Wade. “I think most women of my generation can recall our feelings about the fight,” she said. “It’s like young love. You may not feel exactly the same, but you remember it.”TopicsRoe v WadeAbortionUS politicsUS healthcareUS supreme courtUS constitution and civil libertiesLaw (US)newsReuse this content More

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      The supreme court’s abortion ruling is even more unsettling than it may seem | Moira Donegan

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      The supreme court’s abortion ruling is even more unsettling than it may seemMoira DoneganIn allowing Texas’s outrageous abortion ban to stay in place, the court signaled that it is willing to sacrifice its own legitimacy and power in order to destroy Roe Don’t be fooled by the supreme court’s nominal hedging on its endorsement of SB8, the Texas abortion ban that deputizes private citizens to sue anyone who assists in an abortion after six weeks’ gestation. In a ruling on Friday, the court held that a lawsuit by Texas abortion providers could go forward – but only on narrow grounds. Only those state officials responsible for licensing medical providers may be sued, the court ordered – no one else involved in the state’s practical maintenance of SB8 is liable. The ruling said, for instance, that the providers could not sue court clerks, those bureaucrats tasked with actually docketing the lawsuits that would enforce SB8.For providers, it seems that the best possible outcome for the suit now is that they may be able to secure an injunction preventing medical providers from being delicensed. These perplexing limits placed by the court on which parties can be sued to challenge SB8 ensures that though the suit against the law will be at least partly allowed to go forward, it will be largely toothless.In the meantime, SB8 will remain law. Women in Texas are effectively banned from securing a legal abortion in the state, even though the still-standing Roe v Wade decision says that they have a right to one. It’s likely that SB8 will remain in effect at least for the duration of Roe’s lifetime – meaning that Texas women will not be able to obtain legal abortions after six weeks for the foreseeable future. Many of the initial media responses to the court’s opinion emphasized that since the suit was allowed to go forward, on technical grounds, the ruling was a narrow win for the abortion providers. But in reality Friday was a massive win for the rightwing Texas government, and for anti-choice forces nationwide.That SB8 has been allowed to take effect – now for the second time – by the supreme court reflects the justices’ eagerness to gut abortion rights. The fact of the matter is that the court is already set to overturn Roe and allow states to ban abortion outright. That much was clear to anyone who listened to last week’s oral arguments in Dobbs v Jackson Women’s Health, a case surrounding the constitutionality of a 15-week ban in Mississippi, which devolved into grim misogynist spectacle as the Republican appointees held court on the supposed ease of giving infants up for adoption and their own robust comfort with overturning long-settled precedent.That ruling is scheduled to come down in late May or early June. When it does, a slim majority of states are expected to ban abortion, either immediately or very soon thereafter. That means that soon SB8 – and the copycat bills that it has inspired in states like Florida and Arkansas – won’t be necessary for the anti-choice lobby to achieve their aims. Instead of concocting an elaborate enforcement process in which rogue anti-woman vigilantes enforce their abortion bans, the states will be able to enforce their bans themselves.SB8, then, and the supreme court’s embrace of it, can be understood not only as a harbinger of the justices’ deep contempt for the abortion right, but also of their childish impatience to exert this contempt upon American women. They can’t even wait six months. They want to ban abortion right now. In pursuit of this goal, the supreme court has proven itself willing to undermine its own capacity to oversee state laws, to enforce federal supremacy, and to protect constitutional rights.The anti-choice substance of the court’s decision in SB8 was not surprising; its embrace of Texas’s tactics perhaps was. Aside from its direct attempt to undermine women’s rights, SB8 also took aim at judicial authority. By banning abortion long before viability, the law flouted the supreme court’s precedents in Roe and Planned Parenthood v Casey. But that much a slew of vehemently anti-choice justices would probably forgive: all six of the Republican appointees clearly believe that Roe was wrongly decided, and at least five of them (all but Roberts, who seems more trepidatious) appear eager to overturn it. But in its novel enforcement mechanism, SB8 sought specifically to evade judicial review – not just to give the court an opportunity to overturn its own precedent, but to make it so that within Texas borders supreme court precedent didn’t matter.In her dissent, Justice Sonia Sotomayor compared SB8 to the views of John C Calhoun – a nineteenth-century pro-slavery campaigner who argued that states have the right to nullify federal laws that they do not like. America fought its civil war in no small part over this question. By first allowing the SB8 to go into effect, in September, and then by gutting the lawsuit against it this Friday, the supreme court has, shockingly, endorsed a scheme to undermine its own power, and granted a state the ability to evade federal precedent. Nullification, it seems, is back in style.For years, court watchers have wondered whether the justices’ institutionalist instincts would overcome their misogynist ones: if the Court had to choose between maintaining its own power and legitimacy, and overturning Roe, which would it choose? Now, it seems, we have our answer.
      Moira Donegan is a Guardian US columnist
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      How dismantling Roe v Wade could imperil other ‘core, basic human rights’

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      How dismantling Roe v Wade could imperil other ‘core, basic human rights’Supreme court appears inclined to severely curtail or overturn Roe v Wade after hearing Mississippi case, which could have affect gay rights, contraceptives and fertility treatments Constitutional scholars in the US said a litany of rights, from same-sex marriage and sex to birth control and in vitro fertilization, could come into question if the country’s highest court moves to overrule or weaken Roe v Wade.The supreme court last week heard arguments in the case Dobbs v Jackson Women’s Health Organization, which centers on whether the state of Mississippi can ban abortion at 15 weeks gestation, roughly nine weeks before bans are permitted under current law.The Mississippi case is widely regarded as the most important abortion rights case since Roe v Wade, when the supreme court effectively legalized abortion nationally in 1973. A decision in the Dobbs case is expected June 2022.Although supreme court opinions are notoriously difficult to predict, a majority of justices on the conservative-leaning court appeared inclined to severely curtail or overturn Roe v Wade, which protects abortion rights in states hostile to the procedure.Legal scholars warned that the impacts of such a move would likely be widespread, because abortion rights are rooted in the same implied constitutional right to privacy that is the foundation for other intimate personal decisions Americans now take for granted.Gay rights, contraceptives, certain fertility treatments and even interracial marriage, “are imperiled because they’re all rooted in that right to privacy,” Melissa Murray, a law professor at New York University law school and an expert in constitutional, family and reproductive rights law, told the Guardian.“All of this has been implied because they’re understood to be core, basic human rights,” said Murray. “You don’t need the state to recognize them because they are vested in you by virtue of being a human.”Currently, states are prevented from banning abortions before a fetus can survive outside the womb, a concept known as “viability”. But at the hearing on 1 December, a majority of justices appeared ready to uphold Mississippi’s law, which would require either invalidating the “viability” standard or overturn Roe v Wade entirely.In arguments, justices pointed to several ways they may reinterpret the Roe v Wade decision. Some, such as Justice Clarence Thomas, were skeptical there is a right to privacy and were swayed by the lack of an explicit reference to the right in the constitution, a concept known as “textualism”.“If we were talking about the second amendment, I know exactly what we’re talking about,” said Thomas. “If we’re talking about the fourth amendment, I know what we’re talking about because it’s written. It’s there.”That argument could be paired with one pushed forward by conservatives, such as Mississippi solicitor general Scott Stewart, who argued a right to abortion is not grounded in the “history or tradition” of the country.“A right to abortion [is] not grounded in the text,” said Stewart. “It’s grounded on abstract concepts that this court has rejected in other contexts as supplying a substantive right”.The theory underlying that right to privacy is called “substantive due process”, or the doctrine that the constitution protects both the procedures of due process, such as how criminal law is applied, and “substantive” guarantees of life, liberty and property.“If you ask where rights come from in the US constitution there’s basically two general answers,” said Mary Ziegler, a law professor at Florida State University and a historian who has studied abortion rights since Roe v Wade. “There’s the rights spelled out in the text of the constitution,” such as rights to bear arms or against unreasonable search and seizure, “and there’s other rights, like the right to marry and the right to parent that are not in the text of the constitution”.Those are rights established by substantive due process. For example, in 1965 the court struck down birth control bans for married couples in Griswold v Connecticut. In 1967 with Loving v Virginia, the court invalidated anti-miscegenation laws that barred interracial marriage. In 1972 in Eisenstadt v Baird, the court found people who were not married also had a right to birth control. In 1973, the court recognized a right to terminate a pregnancy.“These rights of parental autonomy are underpinnings of the right to privacy, marriage is included in this,” said Murray. “In a later case, the state says marriage [and] procreation are basic civil rights of man.”Cases based in substantive due process continued into the modern era, when in 2003 the court invalidated anti-sodomy statutes in Lawrence v Texas, and established a right to same-sex conduct. In 2016, the court found same-sex couples also had a right to marry in Obergefell v Hodges.Attorneys for Jackson Women’s Health Organization responded on the principle of substantive due process when quizzed on this principle by Thomas.“If I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be?” asked Thomas.“It’s liberty, Your Honor,” said Julie Rikelman, litigation director for the Center for Reproductive Rights, which represented the abortion clinic.Briefs to the court in Dobbs directly challenge that principle, such as from the conservative, anti-abortion group Texas Right to Life. Attorneys for the group, the conservative legal activists Adam Mortara and Jonathan Mitchell, argued the court does not necessarily need to overturn decisions protecting gay rights.“But neither should the court hesitate to write an opinion that leaves those decisions hanging by a thread,” wrote Mortara and Mitchell. “Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe.” The same brief argued women could control their reproduction by refraining from sex. Neither Mitchell nor Mortara responded to an interview request.Until the supreme court issues a decision, it is unclear exactly how rights protected by substantive due process might be affected. However, scholars consider same-sex and reproductive rights to be the most vulnerable because there is an active political campaign to circumscribe them. By contrast, there is little contemporary criticism of interracial marriage.If Roe v Wade is overruled, “It will be on the ground it was a right that was untethered from constitutional text,” said Murray. If that view prevails on the court, rights to contraception, gay rights and in vitro fertilization could also be quickly implicated, since, “all of these things are untethered from constitutional text and historically were not available in the US”.What’s more, the history of abortion rights may provide a roadmap for other rights to be hobbled, even if substantive due process prevails.Murray offered the example of a 2017 case, in which three conservative justices, led by justice Neil Gorsuch, argued states could restrict birth certificates of same-sex parents. Gorsuch argued there appeared to be nothing unconstitutional about a “biology-based birth registration regime” where only one same-sex parent would be listed on the certificate.“It is a really good example of how they have dismantled Roe piecemeal and incrementally could be applied to these other rights,” said Murray.TopicsRoe v WadeUS supreme courtLaw (US)US politicsAbortionfeaturesReuse this content More

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      Sotomayor decries abortion ruling but court’s conservatives show their muscle

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      Sotomayor decries abortion ruling but court’s conservatives show their muscleThe highest court in the US has been defied by a group of extremist Republicans openly flouting the court’s own rulings Sonia Sotomayor, the liberal-leaning justice on the US supreme court, put it plainly. For almost three months, lawmakers in the Republican-controlled legislature of Texas had “substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body”.“The court should have put an end to this madness months ago,” Sotomayor said.But when the supreme court issued on Friday its majority opinion on SB8, the extreme Texas law that bans abortions effectively at six weeks, in blatant violation of the court’s own constitutional rulings, it still didn’t put an end to the madness.Biden ‘concerned’ over supreme court’s Texas abortion ruling, says White House – liveRead moreIt allowed the law, the most restrictive currently in force in the US, to remain in effect.And by varying margins, the new conservative supermajority of the court, consolidated by Donald Trump’s appointment of three new rightwing justices, restricted the legal route by which abortion providers could challenge the law.From now on the legal battle would have to be focused narrowly on just four state employees responsible for medical licensing in the state. Other Texas officials involved, notably the state’s attorney general Ken Paxton and clerks in state courts, would be let off the hook.Even more provocatively, while the court sent the abortion fight back to a federal district court in Austin, it let the ban itself stand. That adds insult to injury given the supreme court’s much-criticised refusal to stay the ban at the start, not to mention the many weeks it has taken to hand down its decision.Over those weeks, Texas women have paid a heavy price. “The court’s delay in allowing this case to proceed has had catastrophic consequences for women seeking to exercise their constitutional right to an abortion in Texas,” Sotomayor said in a powerful dissenting opinion.In September alone, the first month of the ban, the number of legal abortions performed in Texas plummeted to about half the level a year ago. That was the largest recorded decline in the state’s recent history, with untold numbers of women forced to seek abortions out of state or carry unwanted pregnancies to term.Sotomayor, who is emerging as a pivotal voice of resistance within the post-Trump court, was forthright in her choice of words. Her disagreement with the conservative justices went far beyond a “quibble” over which state officials abortion providers can sue, she said.The question was: is the supreme court prepared to stand up in the name of constitutional rights to the cynical antics of ideologically driven Republicans in states such as Texas?“The choice to shrink from Texas’s challenge to federal supremacy will have far-reaching repercussions,” Sotomayor warned. “I doubt the court, let alone the country, is prepared for them.”Nobody can doubt that SB 8 is a flagrant violation of the constitutional right to an abortion enshrined in the 1973 landmark ruling Roe v Wade. While Roe sets the bar of fetal viability at about 24 weeks, Texas now puts it at the point of earliest cardiac activity, around six weeks – before many women even know they are pregnant.Neil Gorsuch, one of the three Trump appointees, who wrote Friday’s majority opinion, said that the issue of the constitutional right to an abortion was not under consideration in this case. The matter at hand in the Texas law was whether abortion providers could press on with their challenge to the ban by suing specific state officials.That will do little to assuage the jitters of 80% of Americans who think that abortions should be legal in all or certain circumstances. In a separate case before the supreme court based on a new Mississippi ban at 15 weeks, which is now blocked by a lower court, Roe v Wade is very much up for grabs, and the signs are ominous.In oral arguments in the Mississippi case less than two weeks ago, several of the conservative justices indicated they were willing to sharply restrict or even overturn the right to an abortion despite its rock-steady standing as a pillar of constitutional law for almost 50 years.Nor does Gorsuch’s protestation that Friday’s case was merely focused on procedural matters offer much comfort. SB 8 was devised by Texas Republicans as a juridical trick to skirt around constitutional protections by making it more difficult for abortion providers to challenge the law in federal court.At the heart of the legislation is a ruse designed to make a mockery of federal oversight. Enforcement of the abortion ban is transferred from state officials who are vulnerable to federal challenge to private individuals, armed with financial inducements of up to $10,000 to cover legal fees.Supreme court rules Texas abortion providers can sue over ban but won’t stop lawRead more“SB 8 is structured to thwart review and result in ‘a denial of any hearing’,” Sotomayor decried. “The events of the last three months have shown that the law has succeeded in its endeavor.”That is why the vote of the court’s new post-Trump majority to issue such a narrow opinion over SB 8 is more than a “quibble”. The highest court in the nation has been defied by a group of extremist Republicans openly flouting the court’s own rulings.In response, the conservative majority emboldened by Trump has opted not to insist on respect for the constitutional law of the land, but instead to blithely play along.As Sotomayor put it: “By so doing, the court leaves all manner of constitutional rights more vulnerable than ever before, to the great detriment of our constitution and our republic.”Perhaps most tellingly, the idea of appeasing Texas Republicans in their attempt to undermine the supreme court’s own precedents proved too much even for John Roberts, the chief justice.In important aspects of Friday’s decision, he broke with his five fellow conservative justices and sided pointedly with Sotomayor and the liberal minority.“The clear purpose and actual effect of SB 8 has been to nullify this court’s rulings,” Roberts said, in words which may reverberate down the years.“The role of the supreme court in our constitutional system is at stake.”TopicsUS newsTexasAbortionUS politicsUS supreme courtnewsReuse this content More

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      Republicans confident supreme court will overturn abortion rights

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      Republicans confident supreme court will overturn abortion rightsMississippi governor Tate Reeves says state ‘snap-back’ legislation will ban almost all abortion if Roe v Wade is thrown out entirely

      Opinion: the supreme court is coming for women’s rights
      As the supreme court weighs the future of abortion access in America, Republicans on Sunday expressed confidence that the landmark 1973 Roe v Wade decision would soon be overturned, paving the way for a raft of anti-abortion legislation around the country next year.‘Historical accident’: how abortion came to focus white, evangelical angerRead moreOn Wednesday, the supreme court heard arguments over a Mississippi law that bans abortions after 15 weeks of pregnancy. Observers suggested that the conservative supermajority on the court appeared poised to uphold the law and potentially go further by overturning Roe, which protects a woman’s right to choose. A decision is not expected until June next year.Mississippi’s governor, Tate Reeves, told CNN’s State of the Union he had “some reason for optimism” after this week’s arguments.He also confirmed that if the landmark ruling was overturned entirely, Mississippi would enforce a ban on almost all abortions in the state under a so-called “trigger law”.“That is a yes,” Reeves said when asked if he would enforce the “snap-back” legislation.“Because if you believe as I believe very strongly that that innocent, unborn child in the mother’s womb is in fact a child, the most important word when we talk about unborn children is not unborn, but it’s children.”The position is not representative of the majority of Americans. According to recent polling, seven in 10 are opposed to overturning Roe v Wade while 59% believe abortion should be legal in all or most circumstances.Nonetheless, according to the Guttmacher Institute, a global research and policy organisation “committed to advancing sexual and reproductive health and rights”, 21 US states are certain to attempt some form of ban on abortion should Roe be overturned, using laws already on the books.Reeves caveated his answer by cautioning that Mississippi’s response to the forthcoming supreme court ruling would be “dependent upon how the court rules and exactly what those opinions allow us to do”. He also noted that any decision would not lead to a national ban but could permit states to make their own determinations.Mike Braun, a Republican senator for Indiana, echoed a number of Reeves’ arguments. He told NBC’s Meet the Press he wanted “abortions to be eliminated from the landscape” but would not be drawn into specifics regarding potential laws in his state.Indiana has enacted 55 abortion restrictions and bans in the past decade, according to the Guttmacher Institute, but does not have a “trigger law” or equivalent on the books. It is listed by the institute as one of five states without these laws that are still likely to move towards almost total bans should Roe be overturned.“When it comes to things like abortion, I think it’s clear it’s time to turn it back to the states,” Braun told NBC.Since former president Donald Trump installed three conservative justices to the supreme court in just four years, both sides of the fight over abortion rights have been preparing for a legal showdown.According to the Associated Press, campaign finance data reveals that pro-abortion-access groups donated $8m in 2018 and more than $10m in 2020.Those numbers outpace the public contributions of anti-abortion groups, which donated $2.6m in 2018 and $6.3m in 2020, according to data. But the complexity of the network of nonprofits and “dark money” funds makes it difficult to produce a full accounting of the money flows.TopicsRepublicansMississippiUS supreme courtAbortionUS constitution and civil libertiesLaw (US)US healthcarenewsReuse this content More

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      ‘Historical accident’: how abortion came to focus white, evangelical anger

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      ‘Historical accident’: how abortion came to focus white, evangelical angerA short history of the Roe decision’s emergence as a signature cause for the right Public opinion on abortion in the US has changed little since 1973, when the supreme court in effect legalized the procedure nationally in its ruling on the case Roe v Wade. According to Gallup, which has the longest-running poll on the issue, about four in five Americans believe abortion should be legal, at least in some circumstances.Yet the politics of abortion have opened deep divisions in the last five decades, which have only grown more profound in recent years of polarization. In 2021, state legislators have passed dozens of restrictions to abortion access, making it the most hostile year to abortion rights on record.This schism played out in the US supreme court on Wednesday, when the new conservative-dominated bench heard oral arguments in the case of Dobbs v Jackson Women’s Health Organization, the most important abortion rights case since Roe.In somber arguments, justices questioned whether the state of Mississippi should be allowed to ban nearly all abortions at 15 weeks gestation, nine weeks earlier than the current accepted limit. While the ruling, expected by the end of June next year, is far from a foregone conclusion, justices in the conservative majority appeared to signal their support for severely restricting abortion access, a right Americans have exercised for two generations.The divisive question among the conservative majority appeared to be whether abortion should be restricted to earlier than 15 weeks, weakening Roe, or if the precedent set in Roe should be overturned entirely.Summarizing Mississippi’s argument, the conservative justice Brett Kavanaugh, who was controversially nominated to the court by Donald Trump in 2018, said “the constitution is neither pro-life nor pro-choice … and leaves the issue to the people to resolve in the democratic process.” If the issue is returned to the states, 26 states would be “certain or likely” to ban or severely restrict abortion access.The religious right in the US has been laying the foundations of this decisive challenge to abortion rights for years. According to historians and researchers, it has taken decades of political machinations for the campaign to reach this zenith. The movement has intersected with nearly every major issue in American politics for the last five decades, from segregation to welfare reform to campaign finance.The conservative anti-abortion movement “was a kind of historical accident”, said Randall Balmer, a professor of American religious history at Dartmouth University and author of the recently released book Bad Faith: Race and the Rise of the Religious Right.It wasn’t until Republican strategists sought to “deflect attention away from the real narrative”, which Balmer argues was racial integration, “and to advocate on behalf of the fetus”, that largely apolitical evangelical Christians and Catholics would be united within the Republican party. Balmer argues that advocacy was nascent in 1969.Although the supreme court decision in Brown v Board of Education called for an end to racial segregation in schools in 1954, many schools continued de facto segregation 14 years later.Then, the supreme court weighed in again, and ordered schools to integrate “immediately”. This prompted white southerners to form “segregation academies”, whites-only private Christian schools which registered as tax-exempt non-profit charities. African American parents in Mississippi sued, arguing this was taxpayer-subsidized discrimination. They won, and in 1971, tax authorities revoked the non-profit status of 111 segregated private schools.In Balmer’s view, revoking the non-profit status of segregated private schools catalyzed evangelical Christian leaders, but even in the early 1970s defense of racial segregation was not a populist message. However, defense of the fetus could be.Republican operations began to test abortion as a vessel for the collective anxieties of evangelical Christians, and Roe as a shorthand for government intrusion into the family after the sexual revolution of the 1960s. Eventually, abortion became the reason for evangelicals to deny the Democratic president Jimmy Carter, himself an evangelical Christian, a second term.Evangelical opposition to abortion “wasn’t an anti-abortion movement per se”, said Elmer L Rumminger, an administrator at the then whites-only Christian college Bob Jones University, said in Balmer’s book. “For me it was government intrusion into private education.”At the same time, the anti-feminist Republican activist Phyllis Schlafly was connecting anxiety about women’s changing roles in society with abortion. In a 1972 essay, she described the feminist movement as “anti-family, anti-children, and pro-abortion,” and the writing of contemporaneous feminists as “a series of sharp-tongued, high-pitched whining complaints by unmarried women”.By the 1978 midterm congressional elections, Paul Weyrich, one of the architects of modern conservatism, was testing abortion as a campaign issue with evangelical Christians with a small fund from the Republican National Committee. Roman Catholic volunteers distributed hundreds of thousands of leaflets in church parking lots in Iowa, New Hampshire and Minnesota, and their efforts prevailed. Four anti-abortion Republicans ousted Democrats.The groundwork laid by Schlafly and Weyrich made “Roe shorthand for a host of worries about sex equality and sexuality”, wrote Mary Ziegler, a law professor at Florida State University and author of After Roe: The Lost History of the Abortion Debate.“Even as late as August 1980, the Reagan-Bush campaign wasn’t certain abortion would work for them as a political issue,” said Balmer. However, as Reagan sailed to victory, he was carried in part by religious voters hooked on the promise of a constitutional amendment to ban abortion. When a constitutional amendment failed, a new strategy took hold: control the supreme court.Historians said segregation was only one part of a complex and multifaceted movement, which has long seen itself as a human rights campaign. By the 1970s, “there was an anti-abortion movement which was influential and pretty effective in the states that was ready for the new right to work with,” said Ziegler.In the coming years, Reagan would recast the politics of reproduction through a new racist prism, as he introduced the mythical stereotype of the “welfare queen”. The image allowed politicians to portray “all single mothers as persons of color and all persons of color as dependent on public assistance”, wrote the reproductive rights activists Loretta Ross and Rickie Solinger in their 2017 book Reproductive Justice: An Introduction.The image divorced family wellbeing and welfare support from abortion access and rights. Thus, the “broad middle ground” of issues that anti-abortion and pro-choice voters agreed on became “firmly partisan”, said Julia Briggs, author of How All Politics Became Reproductive Politics, and professor and chair of women, gender and sexuality studies at University of Massachusetts, Amherst.By the 1990s, anti-abortion activists had professionalized. So called “right to life” organizations rallied the base, and religious law firms dedicated themselves to fighting abortion in courts. The supreme court weighed in on abortion again in 1992, in another watershed case called Planned Parenthood of Southeastern Pennsylvania v Casey. The case allowed states to restrict abortion, as long as such restrictions did not create an “undue burden” on the right to abortion and served the purpose of either protecting the woman’s health or unborn life.States hostile to abortion passed “Trap” laws, or targeted regulations of abortion providers, which required abortion clinics to become the “functional equivalents of hospitals”, according to legal scholars. States instituted 24-hour waiting periods for abortion, state-mandated inaccurate information and invasive sonograms.Many clinics went out of business as they struggled to meet the expensive new requirements, and pregnant people struggled to obtain abortions as they had to travel further and spend more to find a provider.These laws would also play an outsized role in the Dobbs hearing. Conservative justices debated whether they could keep the “undue burden” standard while jettisoning a central tenet of Roe, that women can terminate a pregnancy until a fetus can survive outside the womb, or “viability”.“Why is 15 weeks not enough time?” asked Chief Justice John Roberts, a conservative, in the hearings.The politics of reproduction spurred new debates on acceptable restrictions on birth control, stem cell research and sex education during the George W Bush administration. But it was the election of Barack Obama, America’s first Black president, that supercharged Republican opposition.In 2010, the Tea Party swept the midterm elections. More extreme candidates entered Congress and statehouses through the practice of challenging incumbents in districts gerrymandered to be reliably Republican. And, in a decision not typically thought of as an anti-abortion victory, the chief counsel for National Right to Life successfully argued a supreme court case that would unleash vast sums of dark money into American elections – Citizens United v Federal Election Commission.“The anti-abortion movement, over time with other conservative allies, worked to change things like the rules of campaign finance for the conservative movement,” said Ziegler. “Anti-abortion lawyers played an integral part in cases like Citizens United.”By the time Donald Trump ran for president, evangelical Protestants had become more anti-abortion than the Catholic voters who were once the bedrock of anti-abortion advocacy. Seventy-seven per cent of white evangelical Christians say the procedure should be illegal, compared with just 43% of Catholics, according to the Pew Research Center.Trump harnessed the anger of white evangelicals for a victory in 2016, with a mix of hardline anti-abortion politicsand xenophobic nativism. Trump abandoned his 1999 stance as “very pro-choice”, saying there should be “punishment” for women who have abortions, and promised to nominate conservative supreme court justices who would “automatically” overturn Roe v Wade.Today, overwhelmingly white “Christian nationalist” voters believe their religion should be privileged in public life, a goal to be attained “by any means necessary”, according to social researchers such as Indiana University associate professor Andrew Whitehead.Supreme court decisions are notoriously difficult to predict, but abortion rights activists believe Wednesday’s hearing shows that conservative justices are ready to significantly weaken or perhaps overturn Roe v Wade. If that happens, young, poor people of color will disproportionately suffer, forced to carry unwanted pregnancies to term. Such an outcome is so severe human rights advocates have said state abortion bans would violate United Nations conventions against torture and place the US in the company of a shrinking number of countries with abortion bans.On Wednesday, the court’s three outnumbered liberal justices argued neither the science, the enormous consequences of pregnancy nor the American polity had changed since the court last decided a watershed abortion rights case. But, because of the work of anti-abortion politicians, the makeup of the court’s bench had.“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” asked the liberal justice Sonia Sotomayor. “I don’t see how it is possible.”TopicsAbortionRoe v WadeUS politicsRaceUS supreme courtfeaturesReuse this content More