‘Fewer rights than their grandmothers’: read three justices’ searing abortion dissent | Stephen Breyer, Sonia Sotomayor and Elena Kagan
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in US Politics‘Fewer rights than their grandmothers’: read three justices’ searing abortion dissentS More
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in US PoliticsHow Americans lost their right to abortions: a victory for conservatives, 50 years in the making Why, and how, a decision opposed by a majority of Americans came about has everything to do with political power, experts sayThe short version of how Americans lost their right to terminate a pregnancy might be summed up in one name: Trump.The real estate tycoon and reality-TV star first shocked the world by winning the US presidency, then rewarded his base by confirming three supreme court justices to a nine-member bench, thus rebalancing the court to lean conservative for a generation to come.That short road led to Dobbs v Jackson Women’s Health Organization, an opinion released this week in which supreme court justices voted to overturn the landmark case Roe v Wade, which in 1973 granted a constitutional right to abortion.The end of federal protection for abortion is expected to lead to 26 states banning the procedure immediately or as soon as practicable, affecting tens of millions of US women and people who can become pregnant.The decision comes even though about 85% of Americans favor legal abortion in at least some circumstances. Why, and how, a decision opposed by a majority of Americans came about has everything to do with political power, experts said.The anti-abortion movement is “the best organized faction in American politics”, said Frederick Clarkson, an expert on the Christian right and a senior research analyst at Political Research Associate, a progressive thinktank in Massachusetts.“They understand they’re a minority of the population, of the electorate, and certainly a minority set of views on reproductive rights issues,” he said. “But because they know that, they’ve found effective ways of maximizing their political clout by being better organized than numerically greater factions who are less well organized.”Put another way, he said, the anti-abortion movement “mastered the tools of democracy to achieve undemocratic outcomes”.The currents that led to the Dobbs decision are among the most powerful in American politics today. Over decades, a religious movement prevailed by harnessing the forces of polarization, the erosion of constitutional norms and the manipulation of US democracy, scholars said.“It’s not like we’ve had this slow erosion of abortion rights,” said Neil Siegel, an expert in constitutional law and professor at Duke University who clerked for former liberal Justice Ruth Bader Ginsburg. Instead, justices issued an opinion that “is utterly dismissive of what has been constitutional law for literally five decades”, and was “repeatedly affirmed by justices appointed by both parties”.The conservative-leaning court will shatter one more constitutional norm, issuing a once-in-a-lifetime reversal, after another event without modern precedent: the leak of a supreme court draft opinion. Even before Dobbs was released, the leak spelled out the doom of Roe v Wade.“The court is not the institution I served,” said Siegel.Today, abortion is among the most partisan issues in the US, with Republicans and the anti-abortion movement so closely aligned there is little daylight between them. In the 1970s, however, abortion was seen as a “Catholic issue”, with both pro-choice Republicans and anti-abortion Democrats in Congress. The supreme court voted in favor of Roe v Wade by a 7-2 margin.Some of this transformation reflects “deliberate changes by the anti-abortion movement, some of it is structural changes to US democracy, and some of it is just luck,” said Mary Ziegler, visiting professor at Harvard and a professor of constitutional law at the University of California Davis.Contrary to popular belief, there was no immediate political backlash to Roe v Wade. In the years that followed, important bills banned the federal government from paying for abortions, but a constitutional amendment to outright ban the procedure failed.It wasn’t until the late 1970s that Republican strategists, such as Paul Weyrich, saw abortion as an issue that might unlock the votes of millions of white evangelical Christians, alongside opposition to women’s rights and to desegregation court rulings. The plan worked: Catholics and white evangelical Protestants were brought into uneasy alliance with Republicans.“Back in the 70s and 80s, when the anti-abortion movement was maturing, I remember events where you would see one Catholic bishop sitting on stage uncomfortably with evangelicals,” said Clarkson.It would be decades before evangelical Christians and Catholics entirely fused their modern agenda, with abortion, gay marriage and religious freedom as top issues. Nevertheless, the new alliance soon produced a “moral majority” that buoyed Ronald Reagan’s campaign. Like Trump, Reagan initially supported “liberalized” abortion law, before he later promised to oppose abortion as president.This political realignment was helped along by the Voting Rights Act of 1965, which constitutional scholars argued forced segregationist southern Democrats into real competition with Republicans for the first time.“You don’t understand reproductive politics in this country if you don’t understand racial politics in this country,” said Loretta Ross, founder of the SisterSong Women of Color Reproductive Health Collective, a reproductive rights organizer in Georgia.“I believe the current restrictions on abortion, birth control and sex education are all designed to compel white women to have more babies,” said Ross. “I’m not convinced they want more brown or Black babies,” even though brown and Black women would be disproportionately affected by abortion bans, she said.This political realignment also brought Republicans distinct structural advantages based on the architecture of the US constitution – a force Siegel describes as “rural favoritism”.The two-chamber Congress is made up of the House of Representatives, whose seats are based on population, and the Senate, which grants each state two votes no matter the population. “The constitution has always disproportionately favored rural voters, but it didn’t always favor one party,” said Siegel.As Republican senators began to represent more white, Christian and rural voters, however, they also gained advantage of a feature baked into the US constitution. Today, Republicans collectively represent 41.5 million fewer Americans than Democrats, even though the Senate is evenly split. As a result, the new conservative-leaning court was confirmed by a body which represents a minority of voters.“That is reflective of minority rule,” said Siegel.Republican strategists’ appeal to socially conservative voters also began to substantially redefine what it meant to be Republican.“The party professionals and establishment Republicans thought they could control them,” said Clarkson. “They were wrong: they became the party.”The new anti-abortion arrivals pushed for more power, working “to exercise more influence over the composition of the GOP to ensure the nominees would be ideologically pure enough”, Clarkson said.Demography added urgency to the anti-abortion cause, Siegel said. The Republican party is overwhelmingly white and Christian, but the size of its base is threatened by rapidly changing US demographics as America grows more racially diverse and less religious. White Americans are predicted to be a minority by 2045.That has pushed Republicans to practice “existential politics”, made each election cycle feel more critical than the last and forced the parties further apart, said Siegel. At the same time, partisan redistricting, known as gerrymandering, has allowed more extreme candidates to win uncompetitive districts, exacerbating polarization.In the case of Dobbs, power and luck collided when the base elected Trump, a man who once professed to be pro-choice, won the election even as he lost the popular vote and was then offered the rare opportunity to confirm three new justices to the court.The forces behind Dobbs also show how especially American values – autonomy, liberty and self-determination – will be redefined in a new supreme court era.“There’s mutual animosity between members of the two parties, but there is more of an asymmetry in terms of how far to the right the Republican party has moved, and willingness to break norms for short-term partisan advantage,” said Siegel. “Or, in the case of the supreme court, for long-term partisan advantage.”
This article was amended on 24 June 2022 to clarify Frederick Clarkson’s biography.
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in US PoliticsThe supreme court just overturned Roe v Wade – what happens next?Court’s move will allow more than half of states to ban abortion, with an immediate impact on tens of millions of Americans01:39The supreme court just overturned the landmark Roe v Wade case, which granted women in the US the right to terminate a pregnancy. A reversal of this magnitude is almost unprecedented, particularly on a case decided nearly 50 years ago.The extraordinarily rare move will allow more than half of states to ban abortion, with an immediate and enduring impact on tens of millions of Americans.Roe v Wade overturned as supreme court strikes down federal right to abortion – liveRead moreWhat happened?The court decided there is no constitutional right to abortion in a case called Dobbs v Jackson Women’s Health Organization. In reaching that decision, the conservative-majority court overturned Roe v Wade, from 1973.Historically, the court has overturned cases to grant more rights. The court has done the opposite here, and its decision will restrict a constitutional right generations of Americans have grown up taking for granted.As a result of the reversal, states will again be permitted to ban or severely restrict abortion, changes that will indelibly alter the national understanding of liberty, self-determination and personal autonomy.Where will this happen?Twenty-six states are expected to do so immediately, or as soon as practicable. This will make abortion illegal across most of the south and midwest.In these states, women and other people who can become pregnant will need to either travel hundreds of miles to reach an abortion provider or self-manage abortions at home through medication or other means.However, anti-abortion laws are not national. The US will have a patchwork of laws, including restrictions and protections, because some Democratic-led states such as California and New York expanded reproductive rights in the run-up to the decision.Even so, new abortion bans will make the US one of just four nations to roll back abortion rights since 1994, and by far the wealthiest and most influential nation to do so. The other three nations to curtail abortion rights are Poland, El Salvador and Nicaragua, according to the Center for Reproductive Rights. More than half (58%) of all US women of reproductive age – or 40 million people – live in states hostile to abortion.When will this happen?Across most states, this will happen quickly. Thirteen states have abortion bans “triggered” by a reversal of Roe v Wade, though the laws vary in their enforcement dates. Louisiana, for example, has a trigger law that is supposed to take effect immediately. Idaho has a trigger ban that goes into effect in 30 days.Other states have abortion bans that pre-date the Roe decision, but have been unenforceable in the last five decades. Michigan has a pre-Roe ban that is currently the subject of a court challenge.A final group of states intends to ban abortion very early in pregnancy, often before women know they are pregnant. One such state is Georgia, where abortion will be banned at six weeks. Several states, such as Texas, have multiple bans in place.In many cases, court challenges under state constitutions are likely, and experts believe there will be chaos for days or weeks as states implement bans.Can the federal government stop this?The most effective protection against state abortion bans is a federal law, which would precede the states. Public opinion favors such statute – 85% of Americans believe abortion should be legal in most or all circumstances.Such a law would need the majority support of the House of Representatives, a 60-vote majority in the Senate, and a signature from Joe Biden to pass. A majority of members of the House of Representatives support an abortion rights statute, as does the White House.However, Republicans are almost certain to block abortion rights laws in the Senate, which is evenly split with Democrats. One Democratic senator, Joe Manchin of West Virginia, has repeatedly crossed party lines to vote against abortion rights. That leaves just 49 Democrats, far short of the support needed to pass such a measure.To overcome the evenly split Senate, Democrats would need to win landslide victories in the upcoming midterm elections. However, despite the fact that popular opinion favors abortion rights, it is unclear how the midterms could be swayed by the issue.And, regardless of the outcome of the next election, Dobbs will forever change life in the US. The lives of individuals will be irrevocably altered as people are denied reproductive healthcare, face long journeys or are forced to give birth.TopicsRoe v WadeUS supreme courtAbortionWomenUS politicsLaw (US)HealthexplainersReuse this content More
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in US PoliticsRepublicans keep passing extreme anti-abortion bans without popular support. Here’s whyMost Americans don’t want abortion bans but gerrymandering allows politicians to face little accountability Hello, and happy Thursday,As states have passed a wave of increasingly extreme abortion restrictions in recent years, a sort of puzzling contradiction has emerged. The American public broadly supports the right to an abortion, public polling has shown, yet politicians who pass these controversial restrictions are consistently re-elected. Why is that?US braces for House committee’s primetime January 6 hearings – liveRead moreYesterday, we published a story that seeks to answer that question. A big part of why politicians face little accountability is gerrymandering. State lawmakers, who have the power to draw the boundaries of their own districts in most places, can pick which voters they represent and virtually guarantee their re-election.It’s more important than ever to understand this dynamic. In his draft opinion overturning Roe v Wade, Justice Samuel Alito wrote that abortion is an issue that should be resolved by the political process, not the courts. By insulating politicians from accountability, extreme gerrymandering prevents the political process from doing that. In 2019, Alito joined four of the court’s conservative justices in saying there was nothing federal courts could do to police even the most extreme gerrymandering.Few places better capture the link between partisan gerrymandering and extreme anti-abortion measures than Ohio.In 2010, Republicans won control of the Ohio legislature and drew new maps that allowed them to hold a veto-proof majority for the next decade. In 2011, the legislature began to pass a series of restrictions on abortion. Republicans enacted a new law that banned abortion after a fetus was viable and required viability testing after 20 weeks. They passed another measure that prohibited taxpayer-funded hospitals from entering into patient transfer agreements with clinics, making it harder for the clinics to operate. In 2019, the state had banned abortion after six weeks, one of the most restrictive laws in the country. (The Ohio Policy Evaluation Network, which tracks abortion access in Ohio has a good timeline of these bills).When Ohio lawmakers were passing these measures, there wasn’t overwhelming public support for them. Ohio voters are closely divided on abortion and a majority did not support the six week ban (one poll after it passed in 2019 showed that a majority of people opposed it). Even so, Ohio Republicans have maintained their majorities in the state legislature.“That mismatch between what we see in public opinion and what we see at the statehouse, really suggests that what citizens are thinking about abortion access really is not reflected in their statehouse,” Danielle Bessett, a sociology professor at the University of Cincinnati, who closely studies abortion care in Ohio, told me. “That suggests that there isn’t a concern about this being sort of something that they’re going to get held accountable for at the polls.”It’s an imbalance that exists across the country. Nationally, 61% of Americans say abortion should be legal in all or most cases, but states are enacting a blitz of increasingly extreme restrictions, including several that are considering outright bans. Republicans continue to control more state legislative chambers than Democrats do, and very few are expected to flip partisan control (fewer than 1 in 5 state legislative districts are estimated to be competitive this year).In Ohio, Republicans have once again engineered maps that preserve their advantage. After the state supreme court struck down five proposals for a new legislative map because they were too gerrymandered, lawmakers ran out the clock. They convinced a federal court to impose a map for the 2022 elections that will allow them to maintain, at minimum, 54% of the seats in the state legislature.“It’s frustrating. In some ways it’s hopeful that people do think that abortion should be a right and should exist for people in Ohio,” Sri Thakkilapati, the interim executive director of PreTerm, an abortion clinic in Cleveland told me. “It’s helpful to know that there are more of us. But in some ways it’s very disheartening…It feels like it’s not gonna make a difference.”Also worth watching…
Jim Marchant, a QAnon linked candidate running to be Nevada’s chief election official, is seeking his party’s nomination in the GOP primary on Tuesday.
Voters with disabilities are suing Alabama for offering inadequate access to absentee ballots for people who are blind
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in US PoliticsHow Republicans pass abortion bans most Americans don’t wantLegalized abortion in some form is widely supported, but gerrymandered districts allow politicians to push extreme measures through On 10 April 2019, the Ohio legislature easily passed SB 23, a bill that banned abortion after a fetal heartbeat is detected, as early as six weeks into a pregnancy.It was a move that should have carried considerable political risk in Ohio, a state closely divided between Democrats and Republicans. There wasn’t widespread support for the bill – polling showed public opinion was nearly evenly split over the bill (a poll after the bill was passed showed a majority opposed it), John Kasich, a previous Republican governor, had twice vetoed the bill, saying it was unconstitutional, and it had stalled in the legislature for years.But Ohio’s governor, Mike DeWine, a Republican, nonetheless signed the bill into law the next day. And the following fall, when the politicians who passed the measure came up for re-election, Republicans didn’t lose any seats in the state legislature. In fact, they expanded their majority.Pro-choice forces are working to keep abortion legal in Michigan with a ballot initiativeRead moreOhio offers a case study of how US politicians enact extreme abortion measures that don’t align with voters’ views but face little accountability at the polls – an issue even more at stake this month as the supreme court is on the verge of issuing a decision that will probably overturn Roe v Wade, the landmark 1973 decision establishing a constitutional right to an abortion. In Ohio and elsewhere, politicians are protected by their ability to draw their own political districts every 10 years, distorting them in such a way as to virtually guarantee their re-election. Republicans drew the lines in Ohio in 2011 and have held a supermajority in the state legislature ever since. “We can kind of do what we want,” Matt Huffman, the top Republican in the Ohio senate, told the Columbus Dispatch recently.In a leaked draft opinion overturning Roe, Justice Samuel Alito wrote that disputes over abortion should be resolved through the political process. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” Alito wrote, quoting the late Justice Antonin Scalia.But as it urges returning abortion to the political sphere, the supreme court has sanctioned a manipulation of the political process that makes it nearly impossible for Ohioans and voters in other states to make their voices heard on abortion. In 2019, Alito and four of the court’s conservative justices said federal courts could not do anything to police partisan gerrymandering, giving lawmakers in Ohio and elsewhere more freedom to gerrymander their districts.That kind of gerrymandering will probably serve as an invisible, virtually impenetrable fortress that will allow lawmakers across the US to continue to push extreme abortion measures that are unsupported by the public. Although public attitudes about abortion can be complex, the vast majority do not support overturning Roe v Wade and a majority supports legalized abortion in some form. State lawmakers who have pushed measures criminalizing abortion and outlawing it entirely have ignored those attitudes.“They are different strands of the same braid. We don’t have those restrictions without the gerrymandering,” said Kellie Copeland, the executive director of Pro-Choice Ohio, a group that works to protect abortion access in the state.When Ohio was considering the six-week abortion ban, Copeland said, her organization facilitated a “parade of witnesses” – medical professionals, women who had abortions, religious leaders – to give emotional testimony to the legislature. Many lawmakers didn’t stick around to listen. “They don’t care. And they don’t care because they know they’re untouchable because of gerrymandering,” she said.It’s a problem that exists beyond Ohio. The vast majority of Americans believe abortion should be legal in at least some circumstances, but state lawmakers continue to offer a blitz of increasingly extreme restrictions on abortion. Republicans control far more state legislative chambers than Democrats do and only about 17.5% of state legislative districts are expected to be competitive over the next decade. Very few chambers are expected to flip partisan control. In Ohio, Republicans have once again come up with a state legislative map distorted to their advantage and have openly defied the state supreme court’s orders to come up with a fairer map.Extreme restrictions with extreme consequencesIn 2010, Kasich had ousted an incumbent Democrat and Republicans flipped control of the Ohio house as part of a nationwide Republican effort aimed at winning state legislative chambers to control the redistricting process. Armed with complete redistricting power, Ohio Republicans drew new districts that allowed them to win a supermajority in the state legislature throughout the last decade, even as Barack Obama carried the state in 2008 and 2012.A wave of new restrictions on abortion restrictions began to flow. In 2012, the state enacted a new law banning abortions after a fetus was viable, except in cases of medical emergency, and requiring viability testing at 20 weeks (three to four weeks before the accepted medical definition of viability). The next year, Ohio lawmakers tucked a number of restrictions into a budget bill, including a hugely consequential measure that prevented abortion clinics from entering into required patient-transfer agreements with taxpayer-funded hospitals. The state went on to prohibit certain government money from going to Planned Parenthood, ban abortion at 20 weeks post-fertilization outright and, in 2019, passed the six-week abortion ban.“Throughout the ’80s, ’90s, early 2000s, there were occasional laws that would tinker with the informed consent requirement for an abortion or tinker around the edges with minors access to abortion and things like that,” said Jessie Hill, a law professor at Case Western Univerity. “We really started to see an uptick in abortion restrictions after 2010, or 2011, the last time the redistricting took effect in Ohio. It’s been since then, just sort of increasingly extreme restrictions.”Those restrictions produced extreme consequences. Between 2011 and 2015, seven of the state’s 16 abortion clinics either closed or curtailed their operations (six full-service clinics remain open today with three additional clinics providing medication abortion services). A complete ban on abortion in the state could increase the average distance a woman has to travel in Ohio to an abortion clinic from an average of 26 miles to as much as 269 miles in a worst-case scenario, according to one recent study.It’s a burden that significantly harms those in rural areas, who have seen clinics in their counties close and who will have to take more time off work to travel.“It’s kind of death by a thousand cuts,” said Sri Thakkilapati, the interim executive director of PreTerm, an abortion clinic in Cleveland. “Maybe any one or two of these things you could overcome, but all together it becomes a really burdensome process,” As the supreme court weighs overturning Roe v Wade, Ohio is now considering a virtually complete ban on abortion. Such a ban would mean that those seeking an abortion will have to pay “exorbitant amounts of income” to travel to obtain an abortion out of state, said Danielle Bessett, a professor at the University of Cincinnati who studies abortion access. “People who are not gonna be able to afford that travel … are then going to try and self-source abortion care at home. And we’ll probably see lots of inequality in how people are prosecuted and arrested for that,” she said.And lastly, she said, there will be those who don’t try either of those and are forced to carry their pregnancy to term. “There are equity issues there, too, with Black women having the highest rate of maternal mortality,” she said.As lawmakers have pushed these severe restrictions, they have consistently remained out of line with what most Ohioans believe. Polls have consistently shown that a majority of Ohio voters support some form of legalized abortion, while a minority believes it should be illegal.“Those who are anti-abortion and claim a faith tradition, they don’t speak for me. They don’t represent the countless folks who are faithfully pro-choice. Same thing with our elected leaders. They don’t represent who we are and what we believe in our communities,” said Elaina Ramsey, the executive director of Faith Choice Ohio, which works to protect abortion access.Thakkilapati agrees. “It’s frustrating. In some ways it’s hopeful that people do think that abortion should be a right and should exist for people in Ohio. It’s helpful to know that there are more of us. But in some ways it’s very disheartening,” she said. “It feels like it’s not gonna make a difference.”TopicsAbortionThe fight to voteOhioRoe v WadeUS supreme courtUS politicsnewsReuse this content More
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in US PoliticsWill anti-abortionists use ‘uterus surveillance’ against women in the US?Arwa MahdawiIf, as is expected, Roe v Wade is overturned by the US supreme court, 26 states are certain or likely to ban abortion – and data tracking could mean there’s nowhere for women to hide If you are looking for a cheerful column that will make you giggle and distract you from everything that is wrong with the world, click away now. This week I have nothing but doom, gloom and data trackers for you. If you are hoping to sink into a well of existential despair, maybe let out a few screams into the void, then you’ve come to the right place.Here goes: the US supreme court, as you are no doubt aware, is expected to overturn Roe v Wade and the federal right to an abortion very soon. At least 13 Republican-led states have “trigger laws” in place, which means that the moment Roe is overruled, abortion will be fully or partly banned. Other states will follow suit. According to the Guttmacher Institute, a pro-choice research organisation, 26 states are certain or likely to ban abortion when Roe falls.Perhaps you are the glass half-full sort. Perhaps you are thinking: “Well, at least people can travel to a state where abortion is legal.” Unfortunately, it’s not that simple. There are the obvious logistical and financial constraints, for one thing. Then there’s the fact that we live in a world of mass surveillance: pretty much everything we do these days leaves a digital footprint – one that anti-abortion extremists will not hesitate to weaponise. One Democratic senator has described the potential of new technology to track down and punish anyone who might even be thinking of having an abortion as “uterus surveillance”. Expect to see a big rise in this, not least because some anti-abortion states are providing financial incentives to snitch on your fellow citizens. Texas, for example, has passed “bounty hunter” laws promising at least $10,000 to individuals who help enforce the abortion ban by successfully suing an abortion provider.To be fair, there’s nothing new about uterus surveillance. Anti-abortion activists may be stuck in the past when it comes to reproductive rights, but they have always been adept at using modern technology to further their goals. One tactic they’ve used for decades is standing outside clinics and recording the licence plates of anyone who enters. As far back as 1993, extremists were tracing the people connected to those licence plates, obtaining their phone numbers, then calling up to harass them. Years ago tracing someone took a bit of time and effort. Nowadays, you can look up someone’s personal information with the click of a button and a small fee.The wonders of the modern world mean there are a mind-boggling number of ways in which you can now identify anyone who might be thinking about an abortion. To begin with, there’s location data. Vice media recently reported that a data location company is selling information related to Planned Parenthood facilities (many of which provide abortions). The data shows where groups of people visiting the locations came from, how long they stayed and where they went afterwards. That data is aggregated so it doesn’t provide the names of individuals; however, de-anonymising this sort of information is not very difficult. There is plenty of evidence that location data is almost never anonymous.Period-tracking apps, which are used by millions of people, are also a worrying source of potentially incriminating information in a post-Roe world. Experts have warned that rightwing organisations could buy data from these apps and use it to prove that someone was pregnant then had an abortion. Your text messages could also be used against you, as could your browser history. Indeed, authorities in Mississippi have already used a woman’s online search for abortion pills to indict her for second-degree murder after she miscarried. That happened in 2018; imagine what is going to happen in a post-Roe world. Speaking of which, I’ve just realised I Googled the word “abortion” 100 times while researching this. I’m off to scrub my search history.
Arwa Mahdawi is a Guardian columnist
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in US PoliticsDon’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
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in US PoliticsArkansas 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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