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      Austin resolution aims to ‘decriminalize’ abortion if Roe v Wade is overturned

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      Austin resolution aims to ‘decriminalize’ abortion if Roe v Wade is overturnedGroup of city council members seeks to protect patients from criminal prosecution if supreme court ends abortion rights A group of Austin, Texas city council members is preparing a resolution to “decriminalize” abortion there in the event the US Supreme Court overturns Roe v Wade, a landmark case decided nearly five decades ago that protects the federal right to terminate a pregnancy.An unprecedented leaked supreme court draft decision showed a conservative majority of the nine justices are open to reversing Roe v Wade entirely. If that happened, 26 states would be certain or likely to ban abortion, including in Texas. The state has a “trigger” ban that would almost immediately ban abortion.A final supreme court decision is expected in June.“The resolution does two things – one, [it] restricts city funds from being used to essentially investigate any kind of alleged abortion crimes,” said José “Chito” Vela, an Austin councilman. “The other thing it does is to make the investigation of any abortion-related crime the lowest priority for our police department.”The resolution seeks to protect patients and medical professionals from criminal prosecution and would also advise Austin police not to assist other law enforcement, such as state police, in such investigations.Texas has already proven to be a legal pioneer in restricting abortion. The state banned abortion after six weeks gestation, before most women know they are pregnant, through a novel law that allows citizens to sue anyone, anywhere who “aids or abets” a woman in terminating a pregnancy.“We need them focusing on historically classic criminal activity – not politically disfavored groups that factions in the government want to harass and punish,” said Vela. “That’s the real core of what we’re trying to do.”Mainstream anti-abortion groups have long argued they oppose prosecution of women and cast women as victims of abortion providers. Similarly in Texas, the trigger ban would make the performing of an abortion a first degree felony punishable by up to 99 years in prison, an article likely to heavily impact medical providers.However, a vocal minority of abortion “abolitionists” , a word appropriated from anti-slavery campaigners, have also recently pushed lawmakers to classify abortion as murder.In May, Louisiana lawmakers considered a bill to charge women who have abortions with homicide. “We all know that it is actually very simple – abortion is murder,” one of the bill’s supporters, state representative Danny McCormicktold colleagues, according to CBS News. The bill was pulled after it failed 65-26.Although many anti-abortion groups say they oppose prosecution of women, anti-abortion restrictions and rhetoric have nevertheless resulted in more than 1,600 instances of women since 1973 being, “arrested, prosecuted, convicted, detained, or forced to undergo medical interventions that would not have occurred but for their status as pregnant persons,” National Advocates for Pregnant Women said in a recent brief to the supreme court.At least one recent, high-profile example from Texas, 26-year-old woman Lizelle Herrera was charged with murder via “self-induced abortion”, a criminal statute that does not appear to exist. Charges were dropped after public outcry. The prosecutor apologized.Austin’s Guarding the Right to Abortion Care for Everyone or “Grace” Act is still in draft form, and text is not expected to be immediately released. Vela said the council would likely consider the act after the supreme court releases its final decision in the highly anticipated abortion case.It is a case out of Mississippi, formally called Dobbs v Jackson Women’s Health Organization, in which the southern state has argued that the court should use the case to overturn Roe.“Whatever your thoughts on abortion, criminal prosecution of women who have abortion is absolutely unacceptable and abuse by the criminal justice system,” said Vela. TopicsTexasAustinAbortionUS supreme courtLaw (US)US politicsnewsReuse this content More

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      Turning Pregnant Women and Doctors Into Criminals

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      More from our inbox:A Piercing Inquiry Into the History of Haiti’s PlightA Self-Fulfilling Election Prophecy? Ben HickeyTo the Editor:In “Punishing Women Who Have Abortions” (Opinion, Sunday Review, May 15), Jane Coaston mentions the possibility being discussed in some anti-abortion circles of charging those who have abortions with homicide. There is another way some in the anti-abortion camp speak of punishing women who seek abortions, in this case very ill women — letting them die.This is not a majority position in the anti-abortion movement, but it is not a new idea. In 1984, Paul Weyrich, an influential conservative activist, stated, in explaining his opposition to exceptions to abortion bans in cases of threats to a woman’s life: “I believe that if you have to choose between new life and existing life, you should choose new life. The person who has had an opportunity to live at least has been given that gift by God and should make way for new life on earth.”In the likely event that the Supreme Court overturns Roe v. Wade and about half the states ban abortion, it is in the realm of possibility that extremist politicians in some of these states will be successful in blocking any exceptions whatsoever. Doctors in those states will be placed in a horrible position, facing years of jail time if they abort the fetus, and women will die needlessly.Carole JoffeSan FranciscoThe writer is a professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco.To the Editor:An important problem in criminalizing abortion is frequently overlooked: policing it.New York County abortion trial transcripts in the John Jay College of Criminal Justice archives (1883-1927) show that because illegal abortions invariably took place in private locations — usually the home of the doctor or midwife who performed the abortion — the authorities had to rely on unsavory detection methods.These included threatening the hospitalized victims of botched abortions with arrest unless they named and testified against their abortion providers; making deals for leniency with pregnant women arrested for unrelated crimes if they agreed to help entrap a suspected abortion provider; and setting up elaborate sting operations with women employed by the police.Even with the more sophisticated surveillance methods available today, law enforcement personnel will often be obliged to rely on entrapment to prosecute abortion providers in states where abortion is illegal. The surprising number of acquittals in the historic abortion cases I have studied suggest that entrapment can be distasteful to jurors. Entrapment methods may also have a demoralizing, demeaning and potentially corrupting effect on the police.Elisabeth GitterNew YorkThe writer is emerita professor of English and interdisciplinary studies at John Jay College of Criminal Justice.To the Editor:I’d like to see an article about “How Will We Punish Men Who Don’t Support Women Who Have the Pregnancies.” We are still focused on the women, but now we have the technologies to identify the fathers and expect them to fully support the children they conceive. Would this change the dynamics of pregnancy, abortions and support? You bet it would.Janice WoychikChapel Hill, N.C.A Piercing Inquiry Into the History of Haiti’s PlightAn illustration depicting plantations burning in 1791, during the Haitian Revolution.Universal Images Group, via Getty ImagesTo the Editor:Your comprehensive May 22 special section on Haiti, “The Ransom,” was eye-opening. It showed that debt is a tool of the rich comparable to slavery — and has been throughout history.But the special section, sadly, also shows the limits of talking about reparations as justice. Even if the French government paid Haiti back all that it took, with interest, the resulting payment would scarcely account for the lost opportunities and social dislocations caused by its aggression.Andrew OramArlington, Mass.To the Editor:When I arrived in Haiti for the first time, in 1996, I had already been in a number of poverty-stricken countries in this hemisphere. There were similarities, of course, but the depth and pervasiveness of impoverishment and the unreliability or absence of the most basic physical and governmental infrastructure were on a scale I had not previously encountered.It was not surprising that Haitians felt that they had little control over their lives — lives spent in surviving day to day.How did it come to this? Your series “The Ransom” provides well-researched, convincing answers to that question.George Santayana warned that “those who cannot remember the past are condemned to repeat it.” We cannot heed that warning if that past is not known to begin with. Now that the reality of that Haitian history is more widely known, will it continue to be repeated?John CosgroveLumberton, N.J.The writer is professor emeritus in the Graduate School of Social Service at Fordham University.A Self-Fulfilling Election Prophecy?To the Editor:Current reporting from many Democratic and Republican pundits presumes that Republicans will take over the House and the Senate in the November elections. No doubt they base this prediction on polling and the historical results of midterm elections. Perhaps they are right, but perhaps not.While such a prediction serves the Republicans well, for the Democrats, it’s toxic. An attitude of “it’s all over but the voting” has the potential to discourage Democrats from bothering to vote, turning that presumption into a self-fulfilling prophecy.Mary-Lou WeismanWestport, Conn. More

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      ‘The G.O.P. Has Gone Even Farther to the Right Than I Expected’: Three Writers Talk About the Midterms

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      Frank Bruni, a contributing Opinion writer, hosted an online conversation with Lis Smith, a Democratic communications strategist, and Matthew Continetti of the American Enterprise Institute about a month of primaries, how they have shaped the midterms and what Democrats and Republicans can hope for and expect.FRANK BRUNI: On Tuesday, at least 19 children and two teachers were killed in the latest mass school shooting in a country that has witnessed too many of them. In my heartfelt (and heartsick) opinion, that should change the political landscape. But, realistically, will it?LIS SMITH: It should, but I unfortunately don’t think it will move the needle a ton.MATTHEW CONTINETTI: I agree. Unfortunately, history suggests that the political landscape won’t change after the horror in Texas.There’s a long and terrible list of school shootings. Each incident has been met with public horror and with calls for gun controls. But little has happened to either reduce the number of guns in America or to shift power to advocates for firearm regulation.SMITH: After Sandy Hook, we did see a number of states — Colorado, Connecticut, Maryland, New York — take strong action on gun control, and I still believe that we will most likely see gun-control legislation on the state versus the federal level.And this does raise the stakes of the midterms. It will allow Democrats in marginal, suburban seats to use the issue against their Republican opponents, given that nearly every Republican in the House voted against H.R. 8, which would implement background checks and common-sense restrictions of the sort that have had broad public support.BRUNI: After that cheery start, let’s pull back and zoom out to a bigger picture. Have the primaries so far conformed to your expectations — or are there particular results or general patterns that surprise you and that challenge, or throw into doubt, your assumptions about what will happen in November?CONTINETTI: I’d say they are shaping up as one might expect. The president’s party rarely does well in midterms. The Biden Democrats appear to be no exception. What has surprised me is the depth of public disillusionment with President Biden, his party and the direction of the country. My guess is Democrats are surprised as well.SMITH: We have seen common-sense Democrats like Shontel Brown in Ohio, Valerie Foushee in North Carolina and Morgan McGarvey in Kentucky win against far-left Democrats, and that’s a good thing for the party and our chances in November.The G.O.P. has gone even farther right than I expected. Just look at Doug Mastriano, who won the Republican governor’s primary in Pennsylvania. He funded buses to shuttle people to the Capitol on Jan. 6 and helped efforts to overturn the 2020 election in the state. He opposes abortion without exceptions. He makes Ron DeSantis look like Charlie Baker.BRUNI: Matt, do ultra-MAGA Republican candidates like him or for that matter Ted Budd in the North Carolina Senate race potentially undermine what might otherwise be a red-wave year? I’m thinking about a guest essay you wrote for The Times not long ago in which you raised the concern that Donald Trump and his minions would spoil things. Does that concern persist?CONTINETTI: Indeed, it does. Where Republicans got the idea that Trump is a political winner is a mystery to me. By the end of his presidency, Democrats were in full control of government. And he has been unpopular with the independents and suburban moderates necessary for any party to win a majority.I draw a distinction, though, between Mastriano and Budd. Mastriano is, as you say, ultra-MAGA. Even Trump was wary of him until the very end of the primary. Budd is a more typical fusion of conservative movement traits with Trump MAGA traits. If I had to guess, Budd is more likely to win than Mastriano.BRUNI: Lis, is Matt splitting hairs? I mean, in the House, Budd voted to overturn the 2020 election results. I worry that we’re cutting certain Republican conspiracists a break because they’re not as flagrant conspiracists as, say, Marjorie Taylor Greene or Madison Cawthorn.SMITH: It’s splitting hairs a bit. But he’s right — Mastriano proved so polarizing and so toxic that you had a former Trump adviser in Pennsylvania, David Urban, say that he was too extreme. He was too MAGA for the MAGA crowd. The G.O.P. has been more welcoming of Budd, but he also wanted to overturn 2020 and he also opposes abortion in every instance. North Carolina voters have a history of turning back candidates with extreme social views. That’s one of the reasons Roy Cooper won his first race for governor — the G.O.P. overreached on the bathrooms issue, the law that restricted restroom access for transgender people.BRUNI: What shall we call “too MAGA for MAGA”? Mega-MAGA? Meta-MAGA? Maxi-MAGA? Regardless, we keep asking, after every primary: What does this say about Trump’s level of sway? Is that question distracting us from bigger, more relevant ones?SMITH: Trump is a factor here, but Democrats really need to keep the focus on these candidates and their beliefs and make this an election between the Democratic candidate and the Republican candidate. As we saw in Virginia, Democrats can’t rely on painting their opponents as Trump 2.0 — they need to explicitly define and disqualify the opposition, and these mega-MAGA extremists give us plenty of material. The people who aren’t as out there as Mastriano give us plenty of material, too.BRUNI: Matt, I know you’re not here to help Democrats, but if you were advising them, what would you tell them to do to head off a possible or probable midterms drubbing?CONTINETTI: If I were a Democratic consultant, the first thing I would tell my clients would be to take shelter from the storm. There is no escaping Biden’s unpopularity. The best hope for Democratic incumbents is to somehow denationalize their campaigns. Even that probably won’t be enough to escape the gravitational pull of Biden’s declining job approval.BRUNI: Lis, the “plenty of material” you refer to must include abortion. Along those lines, do you see anything potentially happening in the months ahead that could change the trajectory of the midterms? For example, what if the Supreme Court in June in fact overturns Roe or further weakens gun regulations? What about hearings on the Jan. 6 storming of the Capitol?SMITH: Roe is an example of something that could change the trajectory of the election. I usually think of the presidential election as when the broad electorate turns out and midterms as when pissed-off voters come out to vote. The Supreme Court taking away something that has been a fundamental right for 50 years will definitely piss people off and bring some of the Biden voters who might have otherwise voted Republican this year back into our corner. But voters have more reasons to be angry than just Roe.BRUNI: What are you thinking of? I’d like to hear it and then what Matt has to say about it.SMITH: We need to be screaming from the rooftops about what the Republicans in Congress are doing. They voted against the American Rescue Plan (then took credit for the checks that went to American households), mostly voted against infrastructure (then took credit for projects in their districts), mostly voted against capping the price of insulin, voted against stopping oil companies from price gouging, mostly voted against a bill that would include importing baby formula.Why? Because they want to impose as much misery as possible on the American people so that voters blame Biden and vote Republican in November. It’s really cynical, dark stuff. And then when they win, they want to criminalize abortions and ensure that we never have free and fair elections again. That’s my rant.CONTINETTI: Voters will hear a lot of what Lis is saying before November, but the Democrats’ problem is that they are in power as inflation comes roaring back after a 40-year absence. I am open to the idea that the end of Roe v. Wade may induce pro-choice voters off the sidelines in some swing districts, but in the weeks since the leak of Justice Samuel Alito’s draft opinion, the evidence of a pro-abortion-rights surge among voters is scattered at best. As the great Mark Shields likes to say, “When the economy is bad, the economy is the only issue.” Right now the economy is the issue, and it’s hurting the Democratic Party.BRUNI: As we were all typing, Beto O’Rourke, a Democrat who’s running for governor in Texas, where this latest horrible massacre occurred, interrupted a news conference being held by the incumbent Republican governor, Greg Abbott, to shout at Abbott that he was doing nothing to stop such bloodshed. In its urgency and passion, is that smart politics that could make a difference, Lis?SMITH: That’s a great example of going on the offensive, generating the emotion and pissed-off-ness that Democrats need to turn out our voters in the midterms. We often lose the gun debate because it’s about policy particulars. If Democrats can channel the outrage that a lot of Americans feel — particularly parents — toward the politicians who are just sitting behind tables and choosing inaction and make this about political courage, we can potentially flip the script. Sometimes these sorts of confrontations can come across as a little stunt-y, but in this case, it was executed well and made Governor Abbott and his lackeys look cowardly.CONTINETTI: O’Rourke is running 10 points behind Abbott, and I don’t think his outburst will help him close that gap. Many Democrats believe that pissed-off-ness is the key to winning elections, but I don’t know what evidence there is for that case. The key to winning elections is to appeal to independent voters and moderates in the suburbs.SMITH: Trump’s whole pitch is to play on grievances! And midterm elections are traditionally where voters air their grievances: They’re mad about inflation, mad about gas prices — in 2018, they were mad about Republicans’ trying to repeal Obamacare. This is a strategy that appeals to independent and moderate voters in the suburbs — they are often with Democrats on abortion, with us on guns.CONTINETTI: As you know, Trump did not win the popular vote in either 2016 or 2020. Pissed-off-ness gets you only so far. I agree that it helps when you are the out party in a national election and can blame the incumbent for poor economic and social conditions. Whether getting angry will work in Texas this year and for this candidate is another matter.BRUNI: Matt, why aren’t the Republicans who are losing to other Republicans in these primaries, as Lis put it earlier, “screaming from the rooftops” about election irregularities and rigged results the way they do when they lose to Democrats? Either a state holds trustworthy elections or it doesn’t, no?CONTINETTI: We’ve been reminded in recent weeks of what you might call Trumpian Exceptionalism. Whenever Trump loses, he says the result is fraudulent. He’s been urging his choice in the Pennsylvania Senate primary, Mehmet Oz, to declare victory in a race too close to call. Yet Oz has refrained, as have other Trump picks like the former senator David Perdue, who lost in a landslide in Georgia to the incumbent governor, Brian Kemp. Is there a Republican future in which candidates regularly ignore Trump? Some of us hope so. Though we’ve learned not to hope too much.BRUNI: Let’s end with a lighting round of short questions. At this point, just over five months out, what percentage chance would you say the Democrats have of holding the House? The Senate?CONTINETTI: Math, much less statistics, has never been my strong suit. Let’s just say that the Democrats have a very slim chance of holding the House and a slightly less-than-even chance of holding the Senate.SMITH: Emphasis on “at this point”: 51 percent chance Democrats hold the Senate, 15 percent House.BRUNI: In 2028 or 2032, will we be talking about Sarah Huckabee Sanders, possible Republican presidential nominee?!?!SMITH: Wow, I’ve never thought of that, but I can see it. At some point the Republicans will nominate a woman for president — let’s hope that you didn’t just conjure this one.CONTINETTI: I can see that, too — maybe that’s when Alexandria Ocasio-Cortez will make her presidential debut as well.BRUNI: Thoughts on Herschel Walker (potentially) in the Senate, in five words or less.SMITH: Death of an institution.CONTINETTI: Fun to watch.BRUNI: Lastly, in one sentence without too many conjunctions and clauses, give me a reason not to feel too despondent-verging-on-hopeless about our political present and immediate future?SMITH: We’ve gotten through worse.CONTINETTI: When you study history, you are reminded that America has been through a lot like this before — and worse — and has not only endured but prospered. We’ll get through this moment. It will just take time.Sorry, that’s three sentences — but important ones!Frank Bruni (@FrankBruni) is a professor of public policy at Duke, the author of the book “The Beauty of Dusk,” and a contributing Opinion writer. He writes a weekly email newsletter and can be found on Twitter, Instagram and Facebook. Matthew Continetti (@continetti) is a senior fellow at the American Enterprise Institute and the author of “The Right: The Hundred Year War for American Conservatism.” Lis Smith (@Lis_Smith), a Democratic communications strategist, was a senior adviser to Pete Buttigieg’s presidential campaign and is the author of the forthcoming memoir “Any Given Tuesday: A Political Love Story.”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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      Don’t believe those who say ending Roe v Wade will leave society largely intact | Laurence H Tribe

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      Don’t believe those who say ending Roe v Wade will leave society largely intactLaurence H TribeIf the high court adopts Alito’s draft opinion, it will be a legal tidal wave that sweeps away a swath of rights unlike anything America has ever seen Now that the dust has begun to settle after the initial explosive news that the US supreme court is poised to overrule the right to abortion and that Justice Samuel Alito’s draft opinion in Dobbs v Jackson Women’s Health Organization represents what a majority of the court initially voted to do, among the most revealing ways to understand the devastation the court appears ready to wreak on America’s long march toward “liberty and justice for all” is to examine the kinds of arguments being made in the opinion’s defense.The argument that such a ruling would simply return a divisive issue to the people had long since been widely dismantled. It certainly wouldn’t be returned to the people most profoundly affected once women were told they may have to remain pregnant despite whatever urgent reasons they might have for seeking a safe and legal abortion. It couldn’t be described as returning the abortion issue to the states, now that the possibility of a nationwide ban that the supreme court might uphold is on the horizon. And to the extent the issue is returned to the states, it would be returned to state legislatures so gerrymandered that they often represent the views of a distinct minority of the people anyway.Ending Roe v Wade is just the beginning | Thomas ZimmerRead moreThe argument that “only” abortion is involved because Alito’s draft assures readers that the supreme court’s opinion won’t be treated as precedent for anything that doesn’t involve killing an unborn human is both profoundly insulting and manifestly misleading. It insults every sentient person by minimizing the significance of commandeering the bodies and lives of half the population – and re-inserting government power into every family. And it misleads every reader of Alito’s words by suggesting that a court has the power to shape how future lawmakers and judges will build on its decisions and the reasoning underlying them. Alito’s hollow promise brings to mind similar assurances in notorious cases like Bush v Gore, is inconsistent with how the judicial process works, and wouldn’t offer any solace to anyone who might become pregnant or whose miscarriage might be treated as a crime scene for police to investigate.The foolishness of the argument that there’s nothing to see here other than the future of abortion law is underscored by some of what is said in its support. We’re told not to worry about the future of decisions like Loving v Virginia, ensuring the right to marry someone of a different race than your own because, after all, Justice Clarence Thomas is in an interracial marriage. We’re told not to worry about the right to same-sex marriage because, after all, Justice Brett Kavanaugh would never vote to overturn Obergefell v Hodges, the most iconic opinion written by his proud mentor, Anthony Kennedy – the man who left the court only after he had hand-picked Kavanaugh as his successor. We’re told not to worry about contraception (despite the way quite a few people view Plan B or IUDs as forms of abortion) because even supreme court nominees like Amy Coney Barrett, who were cagey about just how “settled” a precedent they deemed Roe v Wade, said they couldn’t imagine anybody today challenging Griswold v Connecticut. All that prognostication is cold comfort to the millions of people whose lives are profoundly affected by these shaky predictions.The most substantial argument is one that is equally fallacious but more sophisticated and in some ways more devious and dangerous: it is the argument that supreme court reversals of precedent, like the reversal of Plessy v Ferguson by Brown v Board of Education, are often to be welcomed as needed course corrections, and that this “course correction” wouldn’t be the first time the supreme court has rolled back decades-old constitutional rights. The many commentators who persisted in describing Alito’s draft in those terms – as an unprecedented retreat in the arc of ever-expanding rights – have recently been denounced as either inexcusably ignorant or deliberately duplicitous by distinguished scholars like Yale’s Akhil Amar, who says that every first-year law student learns that the very same thing happened during FDR’s second term as president, when the supreme court in 1937 in West Coast Hotel v Parrish overturned a long line of decisions that had blocked minimum wage and maximum hours and other worker-protection laws in the name of employers’ rights of “private property” and the “liberty of contract”. To be sure, Amar’s argument echoes that of the Alito draft, which cites Parrish and says, in effect, “nothing to see here, we did the same thing before” when we rolled back the liberty of contract line of decisions in 1937.Justice Alito and Professor Amar are simply wrong: profoundly so. That so-called (and quite misleadingly labeled) “switch in time that saved the nine” was nothing like the switch that Dobbs would represent. The 1937 “switch” was no sudden politically driven turnabout but was in fact the culmination of long-simmering movements in legal and economic thought – movements that were reflected both in scholarship and in judicial opinions from the earliest days of the 20th century in places like Justice Oliver Wendell Holmes’ dissent in Lochner v New York insisting that “the 14th amendment does not enact Mr Herbert Spencer’s social statics,” movements that represented the growing conviction that the “freedom” to work at low wages and in miserable conditions was an illusion lacking both moral and legal foundations and one that simply helped perpetuate economic inequality and the exploitation of relatively powerless, not-yet-unionized workers by wealthy and powerful corporations.Indeed, it is noteworthy that West Coast Hotel v Parrish – the 29 March 1937 decision that is usually marked as the pivot point in the great constitutional upheaval – was handed down by precisely the same set of nine justices as the nine who had rendered a decision pointing in the opposite direction less than a year earlier, on 1 June 1936, in Morehead v New York ex rel Tipaldo. One justice of the nine, a moderate Republican named Owen J Roberts, who had been rethinking his position on the underlying legal theories, had foreshadowed his shifting views by writing a landmark opinion upholding milk price regulation, Nebbia v New York, by a 5-4 vote in 1934 – less than two months after the court had upheld a state mortgage moratorium law by a 5-4 vote in Home Building & Loan Ass’n v Blaisdell, a decision clearly foreshadowing the 1937 repudiation of Lochner’s legacy by reconceiving the meaning of the constitution’s clause forbidding all state impairments of the obligation of contracts.That history is important to keep in mind if one is to understand the depth of the error made by those who seek to compare the 2022 tsunami that Dobbs would represent with the gradual shift in current represented by the 1937 movement away from liberty of contract to protection of workers and consumers. The head-spinning and altogether untimely switch in the supreme court’s abortion jurisprudence that Dobbs would represent – if the decision the court announces late this June or early July is in substance what the leaked Alito draft indicated it would be – will reflect not the steady maturation of a long-developing jurisprudential movement but the crude payoff to a partisan political program to take over the federal judiciary, one beginning with Ronald Reagan’s presidency and the rise of the Federalist Society, and advancing with supreme court appointments made by Republican presidents all of whom lost the popular vote (George W Bush, appointing Justice Alito and Chief Justice John Roberts; Donald J Trump, appointing Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett), and made in circumstances of dubious legitimacy.Professor Amar treats as laughably naïve the observation by ACLU national legal director and Georgetown law professor David Cole that, although “Parrish took away some rights of business owners … its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.” Amar’s rebuttal? He says, and I’m serious here, that it’d be equally legitimate to say that “Dobbs’ real effect would be to expand rights protection for millions of innocent, unborn Americans … unborn humans, subject to extermination by society.”It’s hard to know where to begin in unraveling that alleged parallel. Suffice it to note that the status as rights-bearing persons of embryos and fetuses remains a matter of profound sectarian controversy in America and throughout the world while no such controversy attends the status as rights-bearing persons of the array of workers whose rights, at least under laws designed to limit economic exploitation if not directly under the constitution itself, were indisputably expanded by virtue of the Parrish decision and the overturning of the Lochner line of cases.Perhaps no less important is the indisputable fact that, although there remain a few commentators who continue to think that Lochner was rightly decided and Parrish was wrong, there is a nearly universal consensus, certainly covering the ideological spectrum on the current supreme court, that the “rights” protected by Lochner and the other decisions that Parrish tossed into the dustbin of history were not constitutionally sacrosanct, and that inequalities of bargaining power prevented the common-law baseline that Lochner treated as immune to legislative modification from having any special constitutional status. At the same time, the notions of personal autonomy and bodily integrity that provide the constitutional foundation for the substantive “liberty” at stake in cases like Roe and Casey are almost universally accepted as real, although deep disagreements remain about whether, to what degree, and from what point in fetal development the protection of the unborn fetus can properly trump that liberty.The upshot is that the radical change in law and society that Dobbs would represent truly has no parallel in the history of the supreme court or in the history of the United States. As David Cole writes, the “proper analogy is not Brown overruling Plessy, but a decision reviving Plessy, reversing Brown, and relegating Black people to enforced segregation after nearly 70 years of equal protection.” For, as Jamelle Bouie rightly observed, “equal standing is undermined and eroded when the state can effectively seize your person for its own ends – that is, when it can force you to give birth.” Whether or not one compares that compulsion and forced labor to literal enslavement, as I did in my 1973 article on Roe v Wade, attempts to minimize the huge retrogression this would represent must be dismissed as little more than shameful efforts to camouflage the carnage the supreme court of the United States is about to unleash both on its own legitimacy and, even more important, on the people in whose name it wields the power of judicial review.
      Laurence H Tribe is the Carl M Loeb University Professor of Constitutional Law Emeritus at Harvard University, the author of numerous books and articles, a distinguished supreme court advocate, and holder of 11 honorary degrees
      TopicsAbortionOpinionUS politicsRoe v WadeUS supreme courtLaw (US)commentReuse this content More

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      Arkansas Republican admits abortion trigger law would cause ‘heartbreak’ if Roe is reversed

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      Arkansas Republican admits abortion trigger law would cause ‘heartbreak’ if Roe is reversedGovernor Asa Hutchinson signed near-total abortion ban bill, even though he disagreed with the lack of exceptions for incest and rape The Republican governor of Arkansas, Asa Hutchinson, has admitted that an anti-abortion trigger law that he signed on to the books would lead to “heartbreaking circumstances” if Roe v Wade is overturned, in which girls as young as 11 who became pregnant through rape or incest would be forced to give birth.Hutchinson’s remarks give a revealing insight into the twisted human and political quandaries that are certain to arise should the US supreme court, as expected, destroy the constitutional right to an abortion enshrined in Roe v Wade when it issues its ruling next month. The governor told CNN’s State of the Union on Sunday that in 2019 he had signed the Arkansas trigger law, Senate Bill 6, which would ban almost all abortions the instant Roe were reversed, even though he disagreed with its lack of exceptions for incest and rape.Asked why he had put his signature on the law, despite the fact that it would prohibit all abortions other than in cases where a pregnant woman’s life were in imminent danger, he said: “I support the exceptions of rape and incest … I believe that should have been added; it did not have the support of the assembly.”Under intense questioning from the CNN host Dana Bash, the governor was asked why an “11- or 12-year-old girl who is impregnated by her father, or uncle or another family member be forced to carry that child to term?”He replied: “I agree with you. I’ve had to deal with that particular circumstance even as governor. While it’s still life in the womb, life of the unborn, the conception was in criminal circumstances – either incest or rape – and so those are two exceptions I think are very appropriate.”He added that if the supreme court does throw out the constitutional right to an abortion, then “these are going to become very real circumstances. The debate and discussion will continue, and that could very well be revisited.”But Bash pressed Hutchinson on what would happen if the absence of rape and incest exceptions can’t be revisited in the law that he had personally approved, pointing out that his term as governor comes to an end in January. “If you can’t change [the trigger law], that means girls who are still children, 11- and 12-year-olds, might be in that situation in a very real way in just a couple of months,” Bash said.“Those are heartbreaking circumstances,” Hutchinson replied. “When we passed these trigger laws we were trying … to reduce abortions, but whenever you see that real-life circumstances like that the debate is going to continue and the will of the people may or may not change.”A report by the Guardian this month found that at least 11 US states have passed laws that ban abortions without any exceptions for rape or incest. Such trigger laws are legally written in such a way that they would come into effect the second that the constitutional right to an abortion embodied in Roe were overturned.Earlier this month, a draft majority opinion of the supreme court written by Justice Samuel Alito was leaked to Politico. With the apparent backing of five of the six conservative justices on the nine-member court, it would eradicate federal abortion rights in the most aggressive terms.The court has insisted that the draft is not final and that changes to its wording or outcome are still possible. But the country on both sides of the abortion divide are bracing now for Roe to be undone and power over women’s reproductive choices to be handed to individual states like Arkansas.TopicsArkansasRoe v WadeAbortionUS politicsHealthRepublicansUS supreme courtnewsReuse this content More

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      Warning Signs of a Future Mass Killer

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      More from our inbox:The Republican Checklist After Another ShootingNew York Mayor’s Rejection of Covid MandatesVoters, Defend DemocracyEstonia’s Tough Voice Against Russian AggressionAbortion Funds Already ExistA crowd gathered Sunday outside Tops Market for a vigil the day after the shooting in Buffalo.Joshua Rashaad McFadden for The New York TimesTo the Editor:Re “Before Attack, Solitary Teen Caused Alarm” (front page, May 16):In the days after the mass shooting in Buffalo we have witnessed a heightened focus on the mental health of adolescents. A few months ago, after the Michigan school shooting, we heard a similar concern.In each case the youths, when confronted with their potentially homicidal “behaviors,” denied them. They offered explanations that were accepted by school authorities and mental health professionals.Having worked in an emergency room where individuals were brought by the police for “behavioral issues,” I needed after assessing each of them to decide whether they should be hospitalized or discharged. These assessments frequently occurred in the middle of the night. In all cases the individuals I assessed assured me that they were fine and would harm no one. Some I hospitalized and some I allowed to leave the emergency room.One morning when my rotation was completed, I was afraid to turn on my car radio for fear I would hear of a shooting by two young men I let leave. I did not.Mass shootings are not simply a mental health problem that mental health workers can fix. They are also societal problems fueled by the availability of guns and the ubiquity of prejudice.Sidney WeissmanChicagoThe writer is a clinical professor of psychiatry and behavioral science at Northwestern University Feinberg School of Medicine.To the Editor:Re “Others Joined Chat Room With Suspect Before Attack” (news article, May 18):I’m a 70-year-old tech dinosaur. I don’t understand what an algorithm is, but I do know that we have a significant problem if a racist openly discussed in chat rooms his plans to carry out an atrocity and no one did anything to stop it.Robert SalzmanNew YorkTo the Editor:Pages and pages about the recent tragic shooting in Buffalo. And in newspapers across the country, other incidents of gun violence involving young people as shooters. In schools, churches and places where people shop. The beat goes on, and the conversation remains the same. Hate. Gun control. Political bickering. And inaction.What’s missing in all too many of these gun tragedies are parent controls. Parents asleep at the wheel or parents being complicit or enabling seems to be a common thread. But not much discussion about that, by either journalists or political leaders. Maybe there should be.George PeternelArlington Heights, Ill.The Republican Checklist After Another ShootingTo the Editor:The Republican checklist after a mass shooting:Thoughts and prayers: Check.This is not the time: Check.Let’s not politicize: Check.Guns are not the problem: Check.Just enforce the laws we have: Check.More mental health care: Check.(Repeat.)Jon MerrittLos AngelesNew York Mayor’s Rejection of Covid MandatesSuzette Burgess, 79, of Morris Heights in the Bronx, gave out free masks on Thursday as part of her own personal campaign to fight the virus.Dave Sanders for The New York TimesTo the Editor:Re “Adams Resists New Mandates as Covid Rises” (front page, May 20):We just don’t get it. Every time we “open up” and remove protective measures, Covid soars. Over a million Americans have died from the virus, depriving their loved ones of their presence. And needless hospitalization costs more than prevention and taxes the health system, already enormously overwhelmed.As physicians, we aim to prevent disease. New York City’s mayor thinks that it is better to treat Covid (with expensive drugs that don’t always work and can cause serious side effects) than to take the necessary steps to avoid it. And it may be more than just the mayor’s “tickle in my throat” if you wind up in the I.C.U. or get long Covid.Yes, the economy is vital, but more disease makes fewer people able to shop or eat out or go to work. And we don’t yet know the long-term effects on the brain and body. So prevention is key, and we need to follow the advice of public health experts who should be in control of this, not politicians.It is not a burden to get vaccinated and boosted and wear a good-quality mask. It is a responsibility to our fellow citizens and ourselves. We used to care about each other. Taking these steps would help us finally emerge from this scourge.Stephen DanzigerBrooklynThe writer, a physician, is a member of the Covid-19 Task Force of the Medical Society of the County of Kings (Brooklyn).Voters, Defend Democracy Jason Andrew for The New York TimesTo the Editor:Re “In Primaries, G.O.P. Voters Reward a Lie” (news analysis, front page, May 19):In November, voters must decide to cast their ballots either for congressional candidates who view fidelity to the rule of law as sacrosanct or for those who consider the oath to “support and defend the Constitution” a hollow pledge. The outcome may determine whether or not our constitutional republic survives.John Adams pessimistically asserted: “Democracy never lasts long. It soon wastes, exhausts, and murders itself.” If, as Adams suggested, our form of government is on a path toward suicide, then we must look to the electorate for intervention.To prove Adams wrong, the electorate must once again rise to the occasion as it did in the 2020 presidential election when it ousted Donald Trump for undermining democratic governance.Jane LarkinTampa, Fla.Estonia’s Tough Voice Against Russian AggressionPrime Minister Kaja Kallas of Estonia in Brussels just after Russia invaded Ukraine in February.Pool photo by John ThysTo the Editor:Re “Estonian Leader Warns Against Deal With Putin” (news article, May 17):As an American living in Estonia, I have watched with great admiration Prime Minister Kaja Kallas’s leadership on all issues related to Russia’s invasion of Ukraine. She has been a firm and unyielding voice urging tough measures against Russian aggression.Estonia is a small country, but it punches well above its weight in terms of its commitment to NATO, its commitment to helping Ukraine, including taking in a huge number of refugees relative to its population, and its commitment to freedom and democracy.Ms. Kallas has advocated a 21st-century strategy of “smart containment,” appropriately building on the 20th-century Cold War “containment” policy first advocated by George F. Kennan. She has insisted on Western resolve to stop Russia before Vladimir Putin’s desire to re-form the Soviet Union through war is realized.The West should heed Ms. Kallas, especially her forceful argument that Russia must lose this war, and any result short of that is unacceptable. Tragically, if her policy of “smart containment” had been largely implemented before the Russian invasion, Mr. Putin would have never invaded.It’s not as if the war in Ukraine was a surprise — certainly not to those in the Baltics who through history and proximity know Russia well.Michael G. BrautigamTallinn, EstoniaAbortion Funds Already ExistTo the Editor:Re “An Abortion Fund” (letter, May 16):We appreciate Jack Funt’s interest in a national fund that would support people traveling for abortion after the Supreme Court’s decision in Dobbs v. Jackson. Mr. Funt will be delighted to learn that a network of more than 80 abortion funds already exists.Legal abortion has never meant accessible abortion. The cost of a first-trimester abortion averages $575, but can exceed $1,000. Three-quarters of abortion patients are low income. Even with Roe in effect, many Americans struggle to pay for their abortions and travel to clinics. Since before 1973, abortion funds have helped people access care that would otherwise have been out of reach.We encourage people to learn about and support the work already being done to ensure abortion access. Readers can find their local abortion fund by visiting the website of the National Network of Abortion Funds.Rhian LewisAriella MessingThe writers direct the Online Abortion Resource Squad, which connects people to high-quality information about abortion. More

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      Abortion and America’s Polarized Politics

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      More from our inbox:A Threat to DemocracyU.S. Should Focus on Diplomacy, Not Arms Shipments to UkraineDon’t Name the Gunman Damon Winter/The New York TimesTo the Editor:Re “How Roe Warped the Republic,” by Ross Douthat (column, May 8):Mr. Douthat argues that the 1973 Roe v. Wade decision was “an inflection point where the choices of elite liberalism actively pushed the Republic toward our current divisions,” but he ignores three glaring facts.First, Roe v. Wade still aligns well with the American people’s best sense about the complexity of abortion: that it be safe, legal and rare. Second, it was deliberate decisions by conservative elites that weaponized minority opposition to abortion for their own goals. Third, it is the unyielding minority religious belief that personhood begins at the moment of conception that has been driving the divisive politics of abortion for decades.Frederick CivianDedham, Mass.To the Editor:Ross Douthat lays the social divisions of this country at the feet of the liberal elites who foolishly made the mistake of codifying a constitutional right not specifically delineated in our Constitution. He overlooks the deliberate choice of abortion as a politically galvanizing issue by movement conservatives who, seeking to unite a party in disarray after the “Southern strategy” and Watergate, fixed on abortion as a standard to unite under.Abortion was not originally a significant concern of evangelicals and was simply one tool they picked to create and sustain the quest for political control. Mr. Douthat, while thoughtful, is simply dead wrong on this one.Andrew MishkinPortland, MaineTo the Editor:Ross Douthat’s column about Roe was exceptionally brilliant. In an age when so much opinion content is designed to simplify complex issues, to create easy distillations that fit into previously established convictions, it takes courage to present issues with nuance and complexity and trust that readers will reward you for it.Well done, Ross!Ben LincolnMount Desert Island, MaineTo the Editor:I am a strongly pro-choice feminist, and I understand and respect the perspective of people who are opposed to abortion. However, opposition to abortion has taken on an element that is not pro-life. Not making an exception for instances of rape and incest suggests a lack of compassion, rather than reverence for life. Criminalizing and instigating vigilante injustice suggest not just lack of compassion, but also punishment and vindictiveness.Where in this response is the love and mercy that are at the heart of the message of Jesus?Berne WeissEstoril, PortugalA Threat to Democracy Bernardo BagulhoTo the Editor:“Running for Office to ‘Stop the Steal,’” by Barbara McQuade (Opinion guest essay, Sunday Review, May 15), should strike fear in the heart of every patriotic American.Between now and November, honest Americans of every political stripe need to get the word out that Donald Trump is working frantically to elect “his” state legislators, secretaries of state and election officials who will replace the honest bipartisan ones who said there was no election fraud in 2020. His apparent goal is to have Trump electors tallied instead of legally chosen ones in what could be our last free election.People need to be reminded how Mr. Trump attempted to cajole officials — even his own vice president — into overturning an honest election. Now he’s learned a better way to do it, and only the voters can prevent this electoral calamity and national tragedy.Two years from now our democracy could be in as much danger as Ukraine’s is now, but without one missile being launched or one shot being fired.Bobby BraddockNashvilleU.S. Should Focus on Diplomacy, Not Arms Shipments to Ukraine Ivor Prickett for The New York TimesTo the Editor:Re “The Perils of 2 Ukraine War Endgames” (column, May 15):Ross Douthat is right to envision these endgame scenarios. He fears that if the Ukrainian military (with U.S. weapons support) should come close to expelling the Russian forces, “nuclear escalation suddenly becomes more likely than it is right now.”If the Russians should decide to end a protracted war with a tactical nuclear strike on Ukraine, the U.S. might be tempted to retaliate against Russia with its own nukes. Both sides have put the nuclear option back on the table.Even short of World War III, a continuing military stalemate in the Donbas would likely have serious consequences: global grain shortages, starvation in poor countries and eventual upheavals and mass migration. U.S. arms aid would also come with high domestic costs, including the likely abandonment of needed social programs.The U.S. and NATO should make the reduction of nuclear war risk a top priority. They should stop stoking the conflict with arms shipments. Instead, they should encourage Volodymyr Zelensky to engage in meaningful negotiations with Vladimir Putin, even if it means territorial concessions in the Donbas region.President Biden’s objective should now be peace through diplomacy, not endless war through the continuing supply of weapons.L. Michael HagerEastham, Mass.The writer is co-founder and former director general of the International Development Law Organization.Don’t Name the GunmanFBI agents stand outside the supermarket in Buffalo where a racist attack occurred Saturday. Gabriela Bhaskar/The New York TimesTo the Editor:According to the F.B.I. expert who spoke to my synagogue on Sunday about how to survive an attack by an “active shooter,” we should not encourage mentally ill bigots by giving them heroes, that is, by naming other shooters they can emulate.In other words, every time the news media repeats the shooter’s name, sick folks will have another person to admire. So stop saying those names. What is horrific to us is cool to them. Don’t name them.Emily FarrellPhiladelphia More

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      Oklahoma Republican-led legislature passes nation’s strictest abortion ban

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      Oklahoma Republican-led legislature passes nation’s strictest abortion ban Bill bans abortion at conception and if signed into law it would allow citizens to sue anyone who ‘aids or abets’ a patient Oklahoma’s Republican-led legislature passed the nation’s strictest abortion ban on Thursday. The bill, if signed into law, would allows citizens to sue anyone, anywhere who “aids or abets” a patient in terminating a pregnancy.The bill bans abortion from conception, even before an egg implants in the uterus, and would go into effect immediately if signed by Republican governor Kevin Stitt. Abortion providers expect he will do so before the coming week.Like a six-week abortion ban in Texas, Oklahoma’s bill would be enforced by citizens. It would allow anyone, anywhere to sue for $10,000 and “emotional distress”, even if they do not have a relationship to the patient in question.Oklahoma’s bill, “is not one more ban, it is not another ban – it is a first,” said Emily Wales, interim president and CEO of President of Planned Parenthood Great Plains, which serves patients in Arkansas, Kansas, Missouri and Oklahoma. The law, “encourages bounty hunters to sue their neighbors”, and is a “reversal of history happening before our eyes”.UN official on Roe v Wade: reversal would ‘give legitimacy to growing anti-women’s rights’ Read moreThe bill is part of an aggressive push in Republican-led states across the country to scale back abortion rights.“It’s outrageous, and it’s just the latest in a series of extreme laws from around the country,” Vice-President Kamala Harris said in reaction to the law. She said the new bans were designed to “punish and control women”.It comes on the heels of an unprecedented leaked draft opinion from the supreme court, which suggested a majority of conservative justices support a total reversal of Roe v Wade. The landmark decision legalized abortion nearly 50 years ago and invalidated dozens of state abortion bans.A final ruling in a key case from Mississippi, called Dobbs v Jackson Women’s Health Organization, is expected next month.If the final decision does not change substantially from the leaked draft, the court would effectively return the issue of legal abortion to the state. At least 26 states would be certain or likely to ban abortion. The leaked opinion sparked uproar from Americans who support abortion access, a roughly two-thirds majority according to polls, and human rights leaders.The Oklahoma bill by Collinsville Republican representative Wendi Stearman would prohibit all abortions in the state, except to save the life of a pregnant woman or if the pregnancy is the result of rape or incest that has been reported to law enforcement.“Is our goal to defend the right to life or isn’t it?” Stearman asked her colleagues before the bill passed on a 73-16 vote mostly along party lines. At least one lawmaker suggested the bill did not go far enough, and suggested also banning treatment for ectopic pregnancies, a life-threatening medical condition in which an embryo implants inside the fallopian tubes. An ectopic pregnancy is never viable.“These people have no idea what they’re talking about, and they are making laws controlling our medical practice and people’s basic rights,” said Dr Iman Alsaden, medical director of Planned Parenthood Great Plains.The bill is one of at least three abortion bans sent to Stitt this year. The other laws include a six-week abortion ban and a criminal abortion ban, though the way the laws will interact is not yet known. The criminal abortion ban, set to take effect this summer if Roe falls, would make it a felony to perform an abortion punishable by up to 10 years in prison, with no exceptions for rape or incest.‘This is real’: in Oklahoma, a post-Roe world has arrivedRead moreThe lead attorney on challenges to Oklahoma’s various abortion bans, Rabia Muqaddam from the Center for Reproductive Rights, called the legislature “extraordinarily sloppy”.“My understanding is the most restrictive law that take effect latest controls, but it is extraordinarily bizarre,” said Muqaddam. “We’re challenging everything as it comes.”The laws passed by Oklahoma also have an outsized effect on women in Texas, the state which pioneered civil enforcement of abortion bans. Oklahoma was briefly a haven state for Texan patients, after the supreme court allowed Texas to ban abortion at six weeks in 2021 September.“At this point, we are preparing for the most restrictive environment politicians can create: a complete ban on abortion with likely no exceptions,” said Wales. “It’s the worst-case scenario for abortion care in the state of Oklahoma,” she added.TopicsOklahomaAbortionRepublicansUS politicsnewsReuse this content More