The Supreme Court Gaslights Its Way to the End of Roe

[maestrob]

Dec. 3, 2021, 5:00 a.m. ET
By Linda Greenhouse
Contributing Opinion Writer

There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”

“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”

In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”

But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”

In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.

(And of course it is extremely odd for a Supreme Court justice to dig into the court’s private work papers to cast aspersions on a published opinion.)

In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?

More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.

But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.

It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.

Justice Barrett’s performance during Wednesday’s argument was beyond head-spinning. Addressing both Ms. Rikelman and Elizabeth Prelogar, the U.S. solicitor general who argued for the United States on behalf of the Mississippi clinic, Justice Barrett asked about “safe haven” laws that permit women to drop off their unwanted newborn babies at police stations or fire houses; the mothers’ parental rights are then terminated without further legal consequences. If the problem with “forced motherhood” was that it would “hinder women’s access to the workplace and to equal opportunities,” Justice Barrett asked, “why don’t safe haven laws take care of that problem?”

She continued: “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”

I’ll pass over the startling notion that being required to accept a vaccine is equivalent to being forced to carry a pregnancy to term. “Gaslighting” doesn’t adequately describe the essence of what Justice Barrett was suggesting: that the right to abortion really isn’t necessary because any woman who doesn’t want to be a mother can just hand her full-term baby over to the nearest police officer and be done with the whole business. As Justice Barrett, of all people, surely understands, such a woman will forever be exactly what she didn’t want to be: a mother, albeit one stripped of her ability to make a different choice.

I will give the gaslighting prize to Justice Kavanaugh and his suggestion that the court should simply adopt a position of “neutrality” with respect to abortion. Abortion is a contentious issue with important interests on both sides, he said to Solicitor General Prelogar. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he said. “And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

Justice Kavanaugh painted a soothing description of a down-the-middle resolution, but Solicitor General Prelogar, for one, wasn’t fooled. “The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not,” she responded.

Can Justice Kavanaugh really believe what he said? We’ll see soon enough. Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.

Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.

https://www.nytimes.com/2021/12/03/opin ... court.html

[Rach3]

Dingus of the Week: The Supreme Court
Pack the court, you cowards
Lyz Lenz, Men Yell At Me newsletter
Dec 3 ,2021


" It’s the weekly dingus! The Friday newsletter that rounds up one dingus from the week in news and popular culture. (I recognize there are often many.) And shares some internet reads and a drink recipe. If you enjoy this, consider subscribing. I also accept hate subscribes. But only paid subscribers can comment to tell me how bad this newsletter is.


Buckle up, because I’m mad. In America, Lady Justice isn’t just blindfolded, she’s also being held down and forced to give birth.

On Wednesday, the Supreme Court heard arguments in a case that threatens the integrity of reproductive rights in America. Supreme Court in Dobbs v. Jackson Women’s Health Organization involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy.

However the case is decided— whether the Mississippi law is upheld or whether it’s upheld and the standard of Roe is decided—the fact that the justices are even hearing a challenge to what ought to be a matter of settled law shows how completely politicized the judiciary has become, and that’s their fault.

It’s worth pointing out that in their confirmation hearings, the conservative justices all demurred on issues about Roe, citing that it was settled legal precedent. And that was clearly a lie. During oral arguments, many of the conservative justices showed their hands.

For example, Justice Amy Coney Barrett simply suggested that since there was adoption, women should just have the babies. Just have them. Like that, as if it were the easiest thing in the world and not costly major surgery, and that’s if you are lucky to be privately insured. If not? Screw you, I guess. Additionally, for many women, forced birth, which is what Amy Coney Barrett is talking about, is a death sentence. America has the highest maternal death rate of developed nations. That number is worse for Black, brown, and Indigenous women.

And should you live through the experience, giving birth results in a loss of wages. Women, particularly mothers, earn less and advance in their careers less compared to men.

America provides little support for parents. We are one of the few countries without a paid leave policy. And also, here is the point that I can’t believe I have to say: Women are human beings with autonomy. If we don’t want to be pregnant, we should not have to be. Women are not cattle. We don’t just birth humans and get back to work.

And actually, after watching how Republican lawmakers acted during the pandemic, rushing to save hogs from being slaughtered while workers caught COVID-19 and died, it’s evident that there are people in this country who see me as less than cattle.

Also, as Elizabeth Spiers pointed out in an op-ed, adoption is traumatic, even when it is works.

But listen, I don’t want to write ad nauseum about how contraception saved my life after a sexual assault in college. I already did that. I wrote an entire book arguing for reproductive freedom and warning about all the multiple forces that were trying to take freedom away from women. Certainly, I don’t want to put here all the stories of women who exist and do their work because they were able to abort a fetus. Those stories already exist. But listen, women shouldn’t have to open our veins and bleed for you to see us as human. We should not have to write and talk about our traumas, our assaults, triumphs, and every secret part of us for you to understand our full humanity.

And a religious definition of when life begins should not interfere with my right to make choices about my body.

Also, the idea that life began at conception was only adopted by the religious right as a political tool to roll back the rights of pregnant bodies and to deny women access to vital health care. And also, that heartbeat you hear at 8 weeks? It’s an electrical current that’s hardly equivalent to my adult heartbeat. But this has never been about reality. Only about spinning a myth in order to exert control.

We can sit here all day and argue about when a fetus becomes a human. But I, a woman, a live woman sitting here before you, I am fully human.

The oral arguments revealed how so many justices do not see me as human.

Amy Coney Barrett is a wealthy white woman who has had every advantage, and now she’s sitting there blithely on the Supreme Court wondering why everyone can’t be like her, while she’s taking away whatever chance other women have to get there. Women do not have it all.

Not by a long shot. As Claire Cain Miller writes in the New York Times in a good story that deserves a better headline:

A group of 154 economists also wrote to the court, saying the idea that children no longer affect women’s trajectories is “premature and false.” Also, the group said, sophisticated economic methods have demonstrated causal effects of abortion access. Researchers were able to compare similar people who either could or couldn’t get an abortion based on a policy change, as Caitlin Knowles Myers, an economist at Middlebury and an author of the brief, has described.

Brett Kavanaugh, who has credible charges of sexual assault against him, said during oral arguments, “The reason this issue is hard is that you can’t accommodate both interests [of fetus and pregnant person]. You have to pick.”

You actually don’t have to pick. The fetus has no interests and viability beyond the pregnant person. And even if you saw it that way, the reasonable choice is to let the pregnant person make those tough decisions with their doctor. And not to have a state impose how to decide in those situations.

This has always been about railroading the nuance of the human body. Divide a woman into parts. Divide her against herself and she will not stand. And it will not end here. The push to control the unruly bodies of America, the queer bodies, trans bodies, Black and brown bodies, has always been in existence and will continue.

Kavanaugh argued that the Constitution was neutral on abortion. But as Moira Donegan pointed out, the Constitution is only neutral on abortion if you don’t see women as actual human beings worthy of rights.

Of course, there is a lot of gamesmanship about the eventual outcome of this ruling and how it will motivate people in the elections, and if that’s you, then may I politely ask you to go to hell. The rights of half the people in this country are not a political football that you can toss about. Also, if that’s you, congratulations because you are also a dingus. If your first thought on considering the loss of female bodily autonomy is how it’s gonna play out for Biden, and not like, the actual loss of human life that will result, that has already resulted. If you are not considering the loss of talent and work and contributions to the world because women will be forced to give birth. If it’s just a political game to you? Well, then, please walk into the sea.

Donegan:
“Trying hard to be upbeat and disciplined but I can’t dispel the knowledge of the sheer quantity of women’s talent, genius, ambition, and creativity that will be lost—wasted—with the end of legal abortion. It is crushing.”


But what could it all mean?? is a refrain, particularly among men, but I’ll tell you we don’t have to imagine what will happen. It’s already happening. Huge swaths of this country already have rolled back access to reproductive care. Women are already prosecuted for using drugs during pregnancies and having miscarriages. Women are already forced to give birth. If you read anything about reproductive care and access you would know this. You would know that there are large reproductive care deserts in America. You would know that in Iowa, Planned Parenthoods have been forced to close and the rates of STDs have sky rocketed. You would know that the state here has a list of places women can go for reproductive care that is an actual joke. And it includes a dentist office.

What could it all mean? WOMEN HAVE BEEN TELLING YOU FOREVER WHAT IT COULD ALL MEAN. WILL YOU PLEASE LISTEN!

Look, Alice Driver, already wrote about it. Read ReWire news. Listen to just one woman. JUST ONE (except Amy Coney Barrett).
Driver:
“ Where Abortion Is Illegal
In 2017, I reported from Illopango prison in El Salvador, interviewing women who had been imprisoned for abortion and miscarriage. In light of the Supreme Court's seemingly gleeful effort to overturn the right for a woman to make choices about her own body in the US, I wanted to share my experience at the prison. “

We don’t have to guess what will happen. We know. Our mother’s remember. Our grandmother’s lived the consequences. I once interviewed a woman who talked to me about when contraception was legalized and how stigmatized it was, but also how necessary it was.

What we saw on Wednesday and what we will continue to see is that whatever freedom we had was tenuous at best.

So, we don’t have to guess what all of this means. What we have to do is what we should have been doing for years and look at the reality of our nation with clear and open eyes. As Charles M. Blow noted in the Times (in a conversation I don’t recommend reading unless you want to watch Ross Douthat call his colleagues murderers to their faces): “Rights are never forever won. They must be constantly, vigilantly defended. And, unfortunately, they are sometimes lost. This dance is beaten into the blood of Black people in this country.”

Freedom isn’t a static state. Freedom is a place we have to keep fighting for.

Anyway, pack the courts, frig the filibuster. Stop playing nice when lives are on the line."

[Rach3]

What specious arguments from the Court’s alt.Right:

The “ viability line” is an objective scientific test , not political or religious dogma / propaganda, and can evolve as science does, just as the Brown Court noted the evolution of social thinking/data in over-turning Plessy's “separate but equal “ approval.But Roberts , as with most of the Right , is anti-science when science does not support his religious bias or intrudes on his arrogant judicial “ prerogatives." He also wondered why a woman would need the " extra " time , between Mississippi's 15-week test and Roe v Wade's 24-26 week test , to make a decision whether or not to abort , breath-taking arrogance and ignorance, and then failed to explain where to draw the line , eg.at Texas' 6-week test (?) , as if such arbitrary math tests were better than Roe's viability standard.

Gorsuch is too lazy to do the type of fact-finding, balancing work and hard judgement calls Judges do every day on equally tough issues that come before them daily in the real World, where real Judges cant duck by denying writs for certiorari. Thus , he's concerned about trying to figure out what might be an "undue burden" on a woman's exercise of her abortion rights.So , since would be a hard decision , better to just find no right must therefore exist.

Kavanaugh apparently believes women’s rights , over half the US population, should just be left to the States to do whatever they wish under the 10th Amendment ( but certainly not an NRA man's 2nd Amend. gun rights, hell no ! ). Still a good ol' frat boy after all these years.

Barrett confirms she lacks the intelligence , morality, and compassion to be any kind of jurist. Her "can just give up child for adoption" may be the worst statement ever made by a SCOTUS jurist since the Dredd Scott case. What a horrible person.

Thomas cant find abortion rights in the Constitution, even under the “liberty “ clauses of the 14th Amendment, Declaration of Independence, and Preamble to the Constitution, but he could find “ separate is not equal " under those clauses. His disingenuous comparison of a law criminalizing ingestion of cocaine while pregnant to a "bodily autonomy" decision about abortion completely and intentionally ignores the fact being pregnant is not a crime.Yet.

Alito, like Thomas, is a Federalist Society attendee and cypher, who should have recused himself.

Sotomayor hit the nail when she asked " What has changed" since Roe.Obviously neither Court cases ( even in Mississippi ), science , nor any other facts, except perhaps abortions safer medically now, more support services were available to women until recently.America simply now has a more empowered group of White surpemicists.

[Rach3]

WAPO,12/3/21 Op Ed
David Von Drehle

The leading cause of death for children in the United States is motor vehicle accidents. A study by the SWOV Institute for Road Safety Research in the Netherlands determined that virtually all car-related fatalities occur at speeds above 40 kilometers per hour, or about 25 mph.
In other words, the leading cause of death in children could be eliminated overnight by requiring a simple device on every automobile to cap its speed at 25 mph.

Of course, that’s never going to happen. Such an idea doesn’t even come up in conversation, let alone as legislation. I mention it only to illustrate a rather chilly fact about coexisting in human society. Even in matters of life and death — even when the lives belong to innocent children — society weighs protection of life with other, competing interests.

Indeed, some government regulatory agencies, including the Environmental Protection Agency, are required to make formal calculations of preventable deaths compared with identifiable costs of preventing those deaths. Presumably, if the cost is too high, the lives will not be protected. Such choices are made all the time by governments. In a very real sense, such choices are a prime justification for governments.

We are surrounded by hard choices constantly: preventable disease that is too taxing to prevent, identified risks that we choose not to eliminate. Ask the men who were drafted for the Vietnam War whether government always protects life from violence.

Writer Ross Douthat nevertheless asserted in the New York Times recently that, “at the core of our legal system, you will find a promise that human beings should be protected from lethal violence. That promise is made in different ways by the Constitution and the Declaration of Independence; it’s there in English common law, the Ten Commandments and the Universal Declaration of Human Rights.”

A more accurate statement would be that protection of human beings from violence is an important value weighed against other values in our system of laws — and that the process of weighing can create difficult, even agonizing, moral choices.

Douthat’s claim was in service of another fallacy: “A striking thing about the American abortion debate is how little abortion itself is actually debated,” he declared, as if the past 50 years never happened. In truth, abortion has been debated so thoroughly, so effectively, for so long that the crux has been accurately reduced to pithy essentials. On one hand, “abortion stops a beating heart.” On the other, “my body, my choice.” It’s all there, ready to be unpacked.

Shooting doctors and screaming at frightened girls ill served the antiabortion movement — which has turned to using police and legislative powers to force people to carry pregnancies to term. The new rhetorical style is a pseudointellectual approach, as Americans observed Wednesday, when the Supreme Court took up the matter of abortion anew. Douthat’s curtain-raising essay was typical, as were several attention-grabbing statements from the bench.

Justice Samuel A. Alito Jr. gravely noted — as if the idea had just then catalyzed within his massive brain — that a developing fetus has a potentially cognizable legal interest in its future. Actually, this interest is discussed extensively throughout the Supreme Court’s abortion opinions going back to Roe v. Wade in 1973, when Alito was 22. It is the essential fact underlying Roe’s trimester analysis.

Justice Amy Coney Barrett didn’t pretend to discover a lightning bolt. She suggested instead that the issue has magically gone away: Women are more integrated into the workforce than they were 50 years ago and needn’t worry about taking time to have a baby. As for pregnant people who don’t have tenure or lifetime appointments — overwhelmed 13-year-olds, say, and the recent high school grads struggling to begin a life that will eventually strengthen them to be good parents — well, after a few months of physical pain and exertion, can’t they just drop their babies at the nearest police station?

In the long term, the end of legal abortion in large parts of the country would hurt the right and help the left by breaking the liberal addiction to court-ordered victories. Having lost the courts, progressives will turn to the grass roots, where sustainable victories are grown. But that’s the long term.

In the near term, where most people live their lives, unwelcome pregnancies will continue to happen. Pregnant individuals and their families will continue to wrestle with moral choices, will continue to weigh alternative futures, will continue to balance the interests of the fetus against the person carrying the fetus when those interests are all too murky for perfect knowledge.

The new court majority will do what it will do. It’s unseemly, however, for the majority and its friends to pretend a difficult issue has suddenly been made simple, and they’re just trying to help us see.

[Rach3]

By Paul Waldman
Columnist,WAPO
12/3/21

They lied.


Yes, I’m talking about the conservative justices on the Supreme Court, and the abortion rights those justices have now made clear they will eviscerate.


They weren’t just evasive, or vague, or deceptive. They lied. They lied to Congress and to the country, claiming they either had no opinions at all about abortion, or that their beliefs were simply irrelevant to how they would rule. They would be wise and pure, unsullied by crass policy preferences, offering impeccably objective readings of the Constitution.
It. Was. A. Lie.

We went through the same routine in the confirmation hearings of every one of those justices. When Democrats tried to get them to state plainly their views on Roe v. Wade, they took two approaches. Some tried to convince everyone that they would leave it untouched. Others, those already on record proclaiming opposition to abortion rights, suggested they had undergone a kind of intellectual factory reset enabling them to assess the question anew with an unspoiled mind, one concerned only with the law.
Unfortunately, that lie was and is still enabled by the news media. Even in the face of what we saw at the court on Wednesday — when at least five of the six conservatives made clear their intention to overturn Roe — press accounts continued offering euphemisms and weasel words, about “inconsistencies” or “contradictions.”


But sometimes the right puts its purposes in the open. There was a particularly striking exchange between Laura Ingraham and Sen. Ted Cruz (R-Tex.) on Fox News, where Ingraham grew inexplicably enraged over the mere possibility that Roe might not be overturned.
“If we have six Republican appointees on this court,” she said, "after all the money that’s been raised, the Federalist Society, all these big fat-cat dinners — I’m sorry, I’m pissed about this — if this court with six justices cannot do the right thing here,” then Republicans should “blow it up” and pass some kind of law limiting the court’s authority.

“I would do that in a heartbeat,” Cruz responded.

In other words: We bought this court, and we’d better get what we paid for.


Like his Republican colleagues, that same Ted Cruz repeatedly insisted at confirmation hearings that the very idea that a Republican appointee might have a political agenda was deeply offensive to whatever fine nominee was before them. So let’s review what those justices — now treating women’s bodily autonomy with such naked contempt — had to say during their confirmation hearings.

The newest justice, Amy Coney Barrett, was already on record stating that abortion is a moral evil. But in her hearing, she insisted, “I don’t have any agenda.” Asked by a Republican senator whether it would be possible to predict how she might rule on subjects like abortion, Barrett responded: “It’s not possible.”

“I’d be kind of like a legal pundit," she said. "I don’t think anyone wants judges to function that way.”

That must be why Republicans were so desperate to get her on the court and so rapturous with joy when she was confirmed: Because they had no idea how she might rule!

Then there’s Brett M. Kavanaugh, who insisted in his hearing that Roe was “settled as a precedent,” because “it has been reaffirmed many times over the past 45 years.” Sen. Susan Collins (R-Maine) emerged from a meeting with Kavanaugh and said he’d assured her that Roe is “settled law." She gave him her vote.

Neil M. Gorsuch was as pure of mind as the others. Asked whether the Constitution protects intimate personal decisions on subjects like abortion and marriage, he said, “I have never expressed personal views as a judge on this subject, and that is because my personal views do not matter.”

Chief Justice John G. Roberts Jr. insisted that as a justice he would merely locate the objectively right decision in all cases, calling “balls and strikes” without concern for any preferences of his own. Asked if Roe was settled law, he replied, “It is settled as a precedent of the Court, yes.”



Confronted at his hearing with a previous written statement that the Constitution does not protect the right to abortion, Samuel A. Alito Jr. vowed that as a judge, he would “put aside” the opinions he had as a lawyer and "think about legal issues the way a judge thinks about legal issues.”

Taking the cake was Clarence Thomas, who swore he had never had a conversation about Roe. He answered a Senator’s question by declaring, “Your question to me was ... do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.”

No one on either side of the issue believed him for a moment.

It was all a lie, a scam, a con: the assurances that they were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want: undermining voting rights, enhancing corporate power, constraining the rights of workers, enabling the proliferation of guns, and now most vividly, allowing state governments to force women to carry pregnancies to term against their will.

From this day forward, no one should be naive enough to believe a word any conservative says on this subject, except for those few who forthrightly proclaim that the Supreme Court must read right-wing policy preferences into the Constitution. There was never any mystery about who these justices are and what they would do. There were only liars saying otherwise, and fools who chose to believe them.

[Belle]

Mate, that's going to be the least of your worries once the majority realizes they're being done like a dinner by the hard Left. Trump - or a trump clone - is waiting in the wings and you can thank your very own ideology for that. But, like Pontius Pilate, you'll wash your hands of it just as you did last time.

I'm curious about what makes you so resentful and angry that you're prepared to trash virtually every institution your country has built over 200 plus years. You'll pull the SC down just to prove a point; trash the police; enable the hugely mistrusted mainstream media - which is just an oligarchy of activism - sneer at religion, white, toxic males; substitute the rule of law with activism in the courts and carceral feminism; the people who built your nation subject to statue-trashing, reputational destruction and accusations of 'privilege'; historic revisionism courtesy of Pravda 1 and Pravda 2. Actually re-dating the year your republic was founded. This is behaviour worthy of Vladimir Putin, with whom I know you are obsessed already. And it's being copied from the old Soviet Project. The Tsar lost his head and history started in 1917. And now universities and educational institutions expect people to check their privilege. It's beyond hideous.

What dreadful folly this is and it can come to nought. We all know wrongs were done in the past and most of them have been redressed (see Loury and McWhorter) but many of us think this 'wrong' of which you are obsessed is really a proxy for some of you personally - that you don't have your fair share of the wealth of your once-great nation.

As Dr. Loury says "I'm fighting for the soul of my nation". It's a rallying cry and more people are listening. An enfeebled old man in the White House - a sad figure - is quite incapable of grasping the nature of the problem - much less capable of doing anything about it. But there's a perfect symmetry about his election; the ideologues wanted somebody who wasn't going to cause them trouble!!

[jserraglio]

My dear Belle, you don’t know what you are talking about.

Roe was decided in 1973 by an overwhelmingly Republican Supreme Court. And reaffirmed in 1992 by a Court still dominated by the G.O.P. What has changed between 1992 and today is the Republican Party.

Chief Justice John Roberts — a distinguished jurist and staunch conservative now outflanked on the right by five supreme mediocrities, three of which are right out of the Federalist Society’s Division of Central Casting — Roberts, aware that the legitimacy of what can now be called the Samuel Alito Court is under threat by radicals on the Right, not the Left, has publicly warned them to back off.

In today’s Court, the applicable maxim is ‘Right makes Blight’. Certainly on the question of Roe, after last Tuesday’s oral arguments, this Court’s writ no longer runs in the nation at large.

[jserraglio]

Why the end of Roe and the transformation of MAGAland from a vibrant democracy to an evangelical Christian theocratic backwater would be just the beginning . . . .

Providers have strategically opened new locations, increased staffing and expanded hours in the past several years. They are now coordinating with colleagues across the country to ensure they could accommodate more patients if abortion is outlawed elsewhere.
“All of our building in the last five years has been with the possibility of a loss of Roe in mind,” said Jennifer Welch, president and chief executive of Planned Parenthood of Illinois.

[maestrob]

Crossing state lines for medical care takes $$$, especially in these days of high gas prices.

Poor women will, as always, suffer the most.

[jserraglio]

The folks who left the South from 1915-1970s had even less. But they still left.

[Rach3]

Crossing state lines for medical care takes $$$, especially in these days of high gas prices.

Poor women will, as always, suffer the most.

Indeed, a fact mentioned in the Briefs, and those poor often women of color , but not mentioned by any of the 6 clueless, unqualified Justices, except indirectly by “let them eat cake” frat boy Kavanaugh who seems to feel the States can take care of them, and fanatic Barrett who feels the child can just be dropped off at the nearest orphanage.


One hopes the 6 were just playing Devil’s Advocate , but nothing to date suggests so.

[jserraglio]

[Rach3]

From The New Yorker today:

Jeannie Suk Gersen is a contributing writer to The New Yorker and a professor at Harvard Law School.

" The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail.


During oral arguments in Dobbs v. Jackson Women’s Health Organization, last Wednesday, the three liberal Justices often seemed to be delivering dirges, as though they had accepted a loss and were speaking for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts the Court’s precedents setting the line at around twenty-four weeks, is likely to be upheld by the conservative Justices. The arguments offered scant reason for hope that Roe v. Wade will be reaffirmed; the newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval.The open challenge to the Court’s authority perhaps broadly reflects a spirit of legal self-help that is running through the land. For instance, we normally think that the role of law enforcement belongs to the states, not to random neighbors, but two recent homicide cases appeared to put vigilantism on trial. On November 19th, in Kenosha, Wisconsin, Kyle Rittenhouse was acquitted of all charges for shooting three people, two fatally, during racial-justice protests in August, 2020. Rittenhouse, who was then seventeen, had travelled to Kenosha from his home in Illinois with a semi-automatic weapon, purportedly to keep the peace and to prevent property destruction. The jury concluded that he shot his victims in self-defense, because he reasonably feared his own death or serious bodily harm.

On November 24th, a jury in Georgia rejected a self-defense claim, returning murder convictions for three white men who, in February, 2020, chased down and shot Ahmaud Arbery, a Black man who was out jogging. The defendants claimed that they had pursued Arbery because they suspected him of committing burglaries in the area, and that the fatal shots were fired in response to his allegedly reaching for a shotgun that one of them was pointing at him. They tried to justify the pursuit by invoking a Georgia citizen’s-arrest law that authorized anyone who had “reasonable and probable grounds of suspicion” to arrest an escaping suspected felon. The law has since been repealed, but similar laws have long existed in nearly every state.



Any vigilante revivalism today goes hand in hand with private citizens’ increased ability to carry guns in public. The Supreme Court is currently considering the most important gun-rights case since it held, more than a decade ago, that the Second Amendment guarantees an individual’s right to keep handguns in the home for self-defense. On November 3rd, it heard arguments challenging a New York law that allows a license for the concealed carry of handguns outside the home, but only upon a demonstration of “proper cause.” The perverse, self-fulfilling truth is that, as gun ownership has proliferated, an individual’s claim to need a gun for protection has become more plausible. But the idea that ordinary people need to carry guns flows directly from the tradition that champions the use of force by private citizens to uphold the law, instead of—or even against—the state. Looking to the history of carrying arms in early America, the conservative Justices appear likely to extend the right to bear arms to toting guns on the street.

The spirit of vigilantism is also notable in a case that the Court is considering concerning a Texas law that bans abortions after roughly the sixth week of pregnancy. S.B. 8 specifically does not allow state officials to enforce the law, authorizing only private citizens to do so, by suing an abortion provider for damages of ten thousand dollars for each procedure performed—what several Justices referred to, during oral arguments on November 1st, as a “bounty.” The law was designed to circumvent its being challenged in federal court. The arguments were about whether a state may indeed insulate unconstitutional laws from federal-court review simply by delegating their enforcement to the general public. An amicus brief filed by civil-rights organizations linked S.B. 8 to “the violent history of citizen’s arrests and racist vigilantism in the South.”

For the most part, even the conservative Justices seemed offended by Texas’s gambit, not least because Texas had to admit that liberal states could use the same enforcement scheme to insulate unconstitutional restrictions on gun rights from challenge. The Court will likely push back and allow abortion providers to pursue a constitutional challenge to S.B. 8 in federal court. But the ground on which such a challenge could ultimately have been expected to succeed will have radically shifted. Unconstitutional when it went into effect, S.B. 8’s six-week ban may well be constitutional in several months’ time, even if its enforcement mechanism is not, if the Court issues a decision in Dobbs that overturns Roe. Yet, notwithstanding what publicly transpired during the Dobbs oral arguments, a compromise might still be hammered out behind the scenes, in which Chief Justice John Roberts enables a basic right to abortion to remain, while allowing Mississippi and other states to ban abortion as early as fifteen weeks, and leaving it for another day to decide how much before that is too early.

During last week’s arguments, Justice Sonia Sotomayor lamented, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” The stench, so to speak, is a by-product of the unresolved ambivalence within the legal system about who has the authority to decide what the law should be.

The conservative Justices seemed eager to “return” the question of abortion to the people. But the point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose. The spectacle of states brazenly flying in the face of the Court’s constitutional precedents, shortly followed by the Court’s discarding those precedents to make illegal actions legal after all, would effectively communicate that the Supreme Court is not, in fact, supreme. "



Published in the print edition of the December 13, 2021, issue, with the headline “Who’s the Law?.”

[Belle]

For all you Einsteins there who want to talk about abortion; I've read comments about 'gestational viability'; the bar keeps moving on when a foetus is a life. Why wouldn't it when you want to keep an argument alive!!

In any case, proving the viability 'date' in pregnancy is fraught with inconsistency and unreliability. In my own case, my doctor said my first child was due end June; he was actually A MONTH out. My son was born naturally in the last days of July. You don't think a month in a 9 month gestation is either here or there? Think again (if you think it's worth your while).

I wouldn't be using dates as any kind of yardstick and to do this is just legerdemain.

And isn't it just too delicious for people to write about 'precedent' in the law when activism is over-taking law and a President can accuse a defendant of being a 'white supremacist' before he actually has his day in court. In Australia we might plausibly argue that is 'contempt of court'.

Stop with the epic hypocrisy.

[jserraglio]

a President can accuse a defendant of being a 'white supremacist' before he actually has his day in court…

The President did no such thing.

[Rach3]

WAPO
Ruth Marcus, 12/8

The vision of getting the courts out of the abortion-deciding business sounds so reasonable, so alluring.It is also wrong, misleading and dangerous.


Mississippi Solicitor General Scott Stewart laid out the argument during the oral argument last week — urging the justices not only to uphold his state’s ban on abortion after 15 weeks but to overrule its decisions finding that the Constitution protects a woman’s right to choose.
“The Constitution places its trust in the people,” Stewart said. “On hard issue after hard issue, the people make this country work. Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone and when the Constitution does not take sides on it, it belongs to the people.”

Justice Brett M. Kavanaugh amplified Stewart’s argument, presenting it as the position of one side but leaving little doubt how much it resonated with him.
The Constitution, Kavanaugh posited, is “neutral” on abortion, “neither pro-life nor pro-choice.” Consequently, “this Court should be scrupulously neutral on the question of abortion … rather than continuing to pick sides.”


How superficially appealing all this is. Who could be against neutrality, especially scrupulous neutrality? Who disagrees with leaving choices to “the people” in a democracy?

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

The Constitution instructs that the majority cannot force its preferred religion on the minority; in fact, it must respect and accommodate individuals’ free exercise of their own religious beliefs. The Constitution teaches that the majority cannot choose to shut down or punish speech that it finds disagreeable or even offensive. It means that “the people’s” decisions about how to reduce gun violence are limited by the court’s interpretation of the Second Amendment.

Conservative justices have had no difficulty taking this disempowering of “the people” to sometimes questionable extremes.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

Abortion is different from these examples, of course, because it is not mentioned in the Constitution. But that does not make abortion unique among constitutional rights. There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

And so in 1972, extending its ruling protecting married couples’ right to obtain contraception to unmarried individuals, Justice William J. Brennan Jr. wrote, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code,” the court plurality noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “The underlying constitutional issue is whether the State can resolve these philosophic questions in such a definitive way that a woman lacks all choice in the matter,” except perhaps in “rare circumstances.”

Stewart, the Mississippi lawyer, blithely assured the justices that the court’s abortion cases are unique, and that its other precedents, on contraception, gay rights or same-sex marriage wouldn’t be next in line if Roe and Casey fell. But why not? Maybe conservative activists have no burning desire to overrule Obergefell v. Hodges, the 2015 same-sex marriage ruling, but as a logical matter the right, without a basis in history or tradition, should be at least as vulnerable as abortion.

“I’m not sure how your answer makes any sense,” Justice Sonia Sotomayor told Stewart. “All of those other cases … rely on substantive due process. You’re saying there’s no substantive due process in the Constitution, so they’re just as wrong, according to your theory.”

To say that the Constitution is “neutral” is another way of saying that women no enjoy no protection, no liberty to decide what to do with their own bodies — or, more precisely, only so much protection as the state where they live chooses to grant them.

And to withhold protection — in the current circumstance, to withdraw the protection that has existed for almost 50 years since Roe v. Wade — is not a neutral choice. It is a thumb on the scale.

[maestrob]

Thus, constitutional protection for the right to abortion is not a deviation from the court’s jurisprudence, it is a logical extension of it. “Our obligation is to define the liberty of all, not to mandate our own moral code.”

Brilliant column, especially this quote.

The fact is that Roe v. Wade has already accomplished what frat-boy Stephens wished for out loud: it gets the court out of the way and lets women choose without judicial interference.

[Rach3]

In case there is any doubt what the 5 SCOTUS misogynists are about:



Supreme Court sends Texas abortion case to appeals court instead of to judge who previously blocked the law

By Robert Barnes and Ann E. Marimow
WAPO today at 1:16 p.m. EST


The Supreme Court returned the lawsuit over Texas’s restrictive abortion law to a federal appeals court Thursday, rejecting a request by abortion providers to send the case to a district judge who had previously declared the law unconstitutional.

The order came from Justice Neil M. Gorsuch, who last week wrote the majority opinion that left in place the law, which bans most abortions after six weeks. The decision granted a narrow path for providers to challenge the law’s unique enforcement structure.

The Thursday order granted part of the request from abortion providers — returning the case immediately rather than after the court’s standard 25-day delay.

But it sent the case to the U.S. Court of Appeals for the 5th Circuit, as requested by Texas officials led by Attorney General Ken Paxton (R).He told the Supreme Court that Texas plans to ask the 5th Circuit to direct the Texas Supreme Court to interpret a provision of state law before the case is sent back to the district court. It is unclear how long that could take.

Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now.

The move by the state is “a transparent attempt to forestall relief,” abortion providers told Gorsuch in a filing.
The state’s request means to “indefinitely prevent petitioners from obtaining any effective relief from the district court in the face of a law that is clearly contrary to this Court’s decisions,” wrote Marc Hearron, a lawyer for the Center for Reproductive Rights, which is representing challengers to the law.

The Supreme Court’s four dissenters in the case seemed to believe that U.S. District Judge Robert Pitman would get the lawsuit quickly.

“Given the ongoing chilling effect of the state law, the district court should resolve this litigation and enter appropriate relief without delay,” Chief Justice John G. Roberts Jr. wrote for himself and the court’s three liberal justices.

Hearron said after Gorsuch’s decision that Texas is “determined to stop the plaintiffs from getting any relief in even the sliver of the case that is left.”

With its decision to send the case back to the 5th Circuit and not the district court, he added, the Supreme Court “has let Texas nullify constitutional rights and upend our system of justice.”

Texas said in its filing to the court that returning the case to the appeals court is normal after a decision and that it was the challengers asking the court for unusual relief. The state opposed the effort to waive the usual 25-day delay.

Future of abortion rights depends on a Supreme Court for which compromise seems elusive
The complicated legal wrangling is pretty much the point of the Texas law.
Texas calls S.B. 8 a “heartbeat” bill — it prohibits abortions after cardiac activity is noted in the embryo. It effectively has stopped the availability of abortion in Texas after six weeks, before many know they are pregnant. It has no exception for rape or incest.

S.B. 8’s unique enforcement regime leaves state officials largely on the sideline. Instead, it deputizes any member of the public to sue anyone who performs an abortion after the prohibited date or “aids and abets” someone getting the procedure, though not the patient.

The structure was intentional, to make it difficult procedurally for federal judges to stop the law before it took effect, even though its terms violate the Supreme Court’s precedents.

The issue of abortion has come to dominate the court’s term, with the justices set to rule on a separate Mississippi law that mostly bans the procedure after 15 weeks into pregnancy. At oral argument in that case earlier this month, the court’s conservative justices seemed open to overturning Roe v. Wade, the nearly 50-year-old decision guaranteeing a fundamental right to abortion.

The court’s Dec. 10 decision a week later in the Texas case said a lawsuit could continue against a small group of Texas licensing officials who govern doctors and others and could have a role in enforcing the law.


“On the briefing and argument before us, it appears that these particular defendants . . . must take enforcement actions against the petitioners if they violate” the law, Gorsuch wrote for the majority. That means they could be proper defendants, he wrote.

But Texas has seized upon that language and says the Texas Supreme Court should decide whether the officials have the power the U.S. Supreme Court presumed.

“It’s yet another obstacle,” said Brigitte Amiri, deputy director of the American Civil Liberties Union’s Reproductive Freedom Project, who was among the lawyers asking the court to return the case to the district judge. “This case is going to be stuck in limbo. Even the narrow path the Supreme Court initially afforded us is now off the table.”

In October, Pitman, the federal judge in Austin, blocked enforcement of the law, which he characterized as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Less than 48 hours later, the conservative-leaning 5th Circuit reinstated the six-week ban.

A declaration from a federal judge finding the law itself unconstitutional would be an important step and potentially give abortion providers a legal defense to point to in state court if they were sued for performing an abortion after the six-week mark. But it would not be binding on the state courts.

An injunction would prevent state licensing officials from taking disciplinary action against physicians, pharmacists and nurses, but it would not shield them and others from legal liability. Private individuals could still file civil lawsuits seeking at least $10,000 against anyone who helps someone terminate a pregnancy after about six weeks.

Abortion rights advocates have tried several paths in court to restore access to the procedure in the second-largest state, with limited success in the slow-moving legal system. In one case, brought by Planned Parenthood and others, a state court judge last week declared the law’s private enforcement mechanism unconstitutional.
But the decision from Judge David Peeples did not halt enforcement of the law and did not comprehensively resolve the case, some aspects of which are now on review before an intermediate appeals court.

“The reality of the state court litigation and the reality of the Supreme Court’s devastating decision last week to preclude relief against clerks and judges is that there is not a clear way in which to provide the kind of certainty for abortion providers to go forward without the risk of being sued,” said Julie Murray, a senior attorney with Planned Parenthood, who argued the state case against Texas Right to Life.

The Supreme Court’s decision, she said, “threw out the most promising avenue to relief and full restoration of abortion access in Texas.”

[jserraglio]

No matter how much you need a kidney donation, the law will not force another person to give you one. Consent, in the form of a donor card, is required even to remove organs from a dead body. If the foetus is a person, it is a person with a vastly expanded set of legal rights, rights available to no other class of citizen: the foetus may make free, non-consensual use of another living person’s uterus and blood supply, and cause permanent, unwanted changes to another person’s body. In the relationship between foetus and woman, the woman is granted fewer rights than a corpse.

But it’s possible that the ban on abortion has less to do with the rights of the unborn child than with the threat to social order represented by women in control of their reproductive lives. —Sally Rooney https://www.lrb.co.uk/the-paper/v40/n10 ... sh-problem

[Rach3]

From New Yorker Magazine today. the continuing nazification of America:


A New Abortion Battleground, in South Dakota
With Roe v. Wade on the chopping block, could reproductive rights be shrunk to the size of a pill?

By Peter Slevin
March 25, 2022


In South Dakota, where reproductive rights are constrained by some of the strictest laws in the country, the Republican governor, Kristi Noem, is targeting medication abortion.

The woman, dressed in a sweatshirt and sweatpants, just out of the recovery room after her abortion, was eager to get back to her two children, who had spent the day feeding cows and pigs on their great-aunt’s farm. In her mid-thirties, she had not intended to become pregnant, and knew immediately that she wanted an abortion. But she lives in a rural part of South Dakota, where nothing about abortion is immediate, or easy. The state’s only clinic, operated by Planned Parenthood, is in Sioux Falls, three hours from her home. It took four weeks to get an appointment. Because of a waiting period imposed by the state legislature, she had to make two round trips in four days to undergo the ten-minute procedure.

In fact, the woman, who asked not to be identified, hadn’t wanted a surgical abortion at all. When she learned that she was pregnant, in early February, another option seemed more appealing: medication abortion. Long approved by the Food and Drug Administration, and safer than Tylenol, the two-pill regimen can, in many states, be prescribed by a doctor via a telemedicine consultation, sidestepping the need to visit a clinic, and can be taken at home, insuring privacy. The American College of Obstetricians and Gynecologists has written that patients can have a safe medication abortion “with a high level of patient satisfaction,” and that in-person visits are not medically necessary.

In South Dakota, where reproductive rights are constrained by some of the strictest laws in the country, medication abortion is being targeted by the Republican governor, Kristi Noem, who wants to “undermine and remove” Roe v. Wade and outlaw abortion “completely.” Last fall, she banned telehealth appointments for medication abortion, and prohibited the pills—mifepristone, to block progesterone, and misoprostol, to cause uterine contractions—from being delivered by mail or courier. Follow-up regulations issued by the state health department would require a patient to travel three times to a clinic—first to meet with a doctor, and then to receive each pill, all within five days

The woman I met at the clinic could not envision making so many trips—leaving her job and her children, and relying on a car that needed repairs. “I mean, living so far away, it just wasn’t going to work that way, that’s for sure,” she told me. After settling on the surgical procedure, which required two trips, she made the first appointment. Her brakes gave out on the drive home, forcing her to scramble to borrow a car. She had called Planned Parenthood to see if she could postpone her procedure by a day, but learned that the clinic only offers abortions one day a week. “When I called, they’re, like, ‘Well, we could send you to Minneapolis or Omaha,’ ” she said. “I’m, like, I can hardly get to Sioux Falls.”

Medication abortion is emerging as the next battleground for reproductive rights, particularly as laws governing surgical abortion grow ever less forgiving, and a conservative Supreme Court considers significantly weakening, or removing, constitutional protections guaranteed by Roe, which have been in place for half a century. By one preliminary estimate, fifty-four per cent of U.S. abortions were performed via medication in 2020, up from thirty-one per cent just six years earlier. In the three months after Texas passed S.B. 8, which banned abortions after six weeks, requests for the pills through an organization called Aid Access nearly tripled. At least eighteen states allow a pregnant person to confer with a doctor by video and receive pills through the mail or from a pharmacy. The pills are also readily available on the Internet. Advocates say the method could ease the burden, and the expense, in places like South Dakota, where the single Planned Parenthood clinic lies near the eastern edge of a state more than twice the size of Ireland.

Ninety-five-per-cent effective until about nine weeks into a pregnancy, medication abortion was approved by the F.D.A. in 2000, when the pill was known as RU-486. It was made available in 1988, in France, and is now legal in more than sixty countries. Despite a growing clinical record showing that trained nurse-midwives could safely guide women through a medication abortion, restrictions in the United States have steadily intensified. In 2020, Senator Ted Cruz, the Texas Republican, along with nineteen other senators, called on the F.D.A. to remove the pills—which, they said, were “designed and intended to kill preborn children”—from the American market. The following year, as the pandemic wore on, the F.D.A. expanded access, eliminating a requirement for in-person appointments.

But without federal legislation protecting abortion rights—Senate Republicans blocked the latest effort, on February 28th—the rules are set in state capitals. Elizabeth Nash, who monitors state laws for the Guttmacher Institute, a pro-choice think tank, told me that, in 2021, eight states adopted restrictions around medication abortion. “This is about eliminating a particular method of abortion on the march toward a total ban,” she said. Noem, whose chief of staff doubles as her “unborn-child advocate,” is at the vanguard. On Wednesday, she signed a bill that would upgrade the three-visit requirement from regulation into law, and would also make it a felony to prescribe abortion pills without a state license. The law, she said, would protect mothers and the unborn, because “abortion has two victims.” Noem had already been sued, in January, by the A.C.L.U. and Planned Parenthood, which argued that the health department’s three-visit rule violated the “undue burden” test established thirty years ago in Planned Parenthood v. Casey. Many patients, the suit contends, would be stopped from returning to the clinic by problems with transportation, duties at work or home, or travel costs. To require three visits for a medication abortion is “unprecedented in the United States,” Stephanie Amiotte, a legal director with the A.C.L.U., told me.

One of the plaintiffs in the lawsuit is a doctor named Sarah Traxler, who flies in to Sioux Falls about once a month from her home in Minnesota to see patients and perform abortions. A security guard meets her at the airport, drives her to the clinic, and escorts her inside, through a door made of bulletproof glass. Traxler, who is the chief medical officer for Planned Parenthood across a five-state region, is part of a rotation of out-of-state doctors who staff the clinic in Sioux Falls. No obstetrician-gynecologist who lives in South Dakota will work there, out of principle or fear. “It’s scary to think about going back to a place where people are not going to have agency over their bodies,” Traxler said. “And, you know, prior to Roe v. Wade, people died all the time.”

On a recent weekday, I met Traxler at the one-story clinic, where windows are situated high on the walls, and cameras monitor the movements of patients and protesters. There were six abortions scheduled. Traxler’s work is tightly choreographed by the dictates of state law.

On what she refers to as Day One, she asks patients a series of questions and directs them to an ultrasound machine, before passing out state-mandated information about abortion. It used to be that a medical staff member could lead patients through the ultrasound and information phase , but, since 2018, the state has required a doctor to perform these roles. The doctor asks the patient to rate her certainty about having abortion on a scale of one to ten; the patient must be told that “the pregnant woman has a relationship with that unborn human being” and that abortion will terminate a human life. By law, the doctor must ask whether abortion conflicts with the patient’s religious or personal beliefs and relay the patient’s name and address of a “pregnancy help center,” which is typically designed to counsel against terminating a pregnancy.


\Day Two, which is when Traxler performs the surgical abortion or dispenses the medication, happens seventy-two hours later, in accordance with a required waiting period. Weekends and holidays don’t count; a patient could not visit the clinic on a Friday and have an abortion on Monday. (Planned Parenthood staff note the exact minute on Day One when the patient signs the forms indicating that she wants to go through with the abortion. Not until that minute, three business days later, will the process begin.) Both visits must take place with the same doctor. On many occasions, a patient Traxler met on Day One has been prevented by a snowstorm or other calamity from returning on Day Two, or Traxler has been stranded in Minnesota because a plane couldn’t fly. The clock then starts over, and the patient must go through the Day One procedures anew.

Traxler grew up in Louisiana, in a Southern Baptist home, “with the mentality that abortion was wrong. Abortion was not something that was supported by my peer group or my church.” After college, she moved to Texas, where she worked with homeless young people, and saw the importance of reproductive health care when she met addicts who were engaging in survival sex. Those experiences, and the abortion story of a close friend, persuaded her to go to medical school so that she could provide them. When Traxler first learned of Noem’s Day Three rule, requiring a patient to return to the clinic to receive the second pill, she found herself wondering if a time would come when doctors, determined to serve their patients, would feel obligated to ignore rules they saw as punitive: “At what point do we start breaking the law? Would I ever do that?” Her question remains theoretical, for now. On February 8th, U.S. District Judge Karen E. Schreier blocked the regulation from taking effect. There was “no rational basis” for the extra visit, she wrote, and “there is a public interest in protecting the right to choose an abortion.” (The state is appealing the decision.)

Even without Day Three, significant numbers of South Dakotans seeking abortion struggle to get one. One reason is poverty. Fifty-six per cent of patients have a high-school education or less, which typically translates into jobs with low hourly wages and inflexible schedules, making it difficult for them to take time off for multiple trips to a clinic. One in four patients who receive a medication abortion in Sioux Falls travel more than a hundred and fifty miles round trip for each visit. “Many of Planned Parenthood’s patients rely on public transportation, ride-sharing or a borrowed car to reach the Sioux Falls clinic,” Schreier wrote. “Many abortion patients experience domestic violence, and some are unable to access health care without an abusive partner’s interference.”


The all-volunteer Justice Through Empowerment Network tries to make things easier. The group offers money for the procedure itself and to get people to a clinic, whether in Sioux Falls or out of state, most often to Minnesota or Colorado. Kim Floren, who runs the organization, told me that seventy-seven per cent of its patients in 2021 travelled more than a hundred and twenty miles round trip. Just before Christmas, a sixteen-year-old girl was returning home from an abortion with her mother. They stopped at a Walmart at 11 p.m. to buy absorbent pads. When they got back to the parking lot, their car wouldn’t start. Floren, drawing on donations, paid for a hotel and child care, and provided gas money for someone to pick them up the next morning. “Everyone is just in panic mode,” she said. “Because of the looming court bull crap, and also all the clinics are understaffed, and no one has any money, and gas prices are making it even harder to travel, and everyone is exhausted, and no one wants to talk about it because the anti-choice bullies have spent the last sixty years intimidating people into silence.”

Noem, who declined to be interviewed for this story, is facing a June primary for reëlection against a candidate to her right, state Representative Steven Haugaard. This month, pressing her challenge to medication abortions, she won passage of the bill that codified the third visit, already enjoined by Schreier, and would add a requirement for the clinic to make a fourth appointment, fourteen days later, to confirm that the fetal material has been “expelled.” The vote in the Senate was 32–2. (The law will not be enforced unless Schreier’s ruling is overturned.) In the late two-thousands, South Dakota voters twice rejected ballot measures that would outlaw most abortions. Times have changed. “We’re very much a one-party state,” Julia Hellwege, a political scientist at the University of South Dakota, told me. “The fight continues to be preventing further and further restrictions. There’s very limited opportunity to even begin a conversation about making things easier.”

Critics contend that Noem is acting out of political ambition. As the pandemic unfolded, she strode into the G.O.P. spotlight—amid speculation about placement on a national ticket—scoring airtime on Fox News when she challenged government mandates and advocated a response that relied on “personal responsibility,” even as infections surged. (Thirty states have lower per-capita death rates than South Dakota.) She welcomed Donald Trump to Mt. Rushmore, in 2020, for a Fourth of July celebration—during which he declared that “our children are taught in school to hate their own country”—and presented him with a sculpture that added his visage to the monument. Trump has endorsed her for reëlection, calling her strong on “medical freedom,” the Second Amendment, and “borders.”

Noem’s appetite for medical freedom can seem selectively applied. She opposes simple covid health measures and is campaigning on a platform that touts personal liberty, but would force a woman to give birth against her will. Lexi McKee-Hemenway, who leads Students for Reproductive Rights, at the University of South Dakota, is twenty years old, and has never known a time when abortion wasn’t legal. “I just don’t know why you’re so obsessed with my uterus,” McKee-Hemenway said. “I wish I could have that conversation with Kristi, because she’s a woman. She probably did have to think, I’m sure, at some point in her life, What would happen if I got pregnant right now?”

I was reminded of another woman I had met at the clinic in Sioux Falls. She already has four children, suffers from chronic kidney disease, and knows from her nephrologist that having another could put her life at risk. At forty-three, she became pregnant, unintentionally, and felt she had no choice but to seek an abortion. It took her twenty-five days to get an appointment. “You don’t have many options here,” she told me, shortly before starting the two-hour drive home. “It’s either Sioux Falls or you drive to Minneapolis. No wonder it took a month to get me in.” She blamed the politicians, like Noem, who have steadily tightened restrictions. “They don’t know the predicament some of us women are in,” she said.

A delayed appointment can push patients past the gestational stage when medication abortion is possible, or surgical abortion—in South Dakota—is legal. Traxler, the Planned Parenthood medical officer, told me that, because no South Dakotan physicians step forward, Planned Parenthood bears the responsibility of recruiting doctors, and the cost of getting them to Sioux Falls. The nationwide nursing shortage, intensified by the pandemic, makes it hard to recruit staff and to pay them competitive rates. The clinic, to Traxler’s frustration, cannot mimic the economies of scale of hospitals, moving nurses and other staffers where they’re needed and offering more appointments. If abortion procedures, including the two-pill regimen, were considered standard health care, she said, that dynamic might change.

On the morning of my visit to Sioux Falls, Ann Wipf stood outside the clinic, holding a sign that said “Pray to End Abortion.” To her white parka, she had pinned a colorful button with the image of a cheerful baby. It read “God doesn’t make mistakes. Choose life!” She was in middle school when Roe v. Wade was decided. “I thought that was probably right, that a woman could choose,” she told me, as cars sped past. But as she became more religious, and read the Bible more deeply, she came to believe that women who choose abortion are wrong. “I don’t want to play God,” she said. “It’s not our choice. You never know whose life you’re extinguishing.” Wipf told me that she is “very worried” about the possibility that mifepristone and misoprostol could become an underground route to ending pregnancies, should the state ban legal abortion. “I would like to see that go away, too,” she said.

[Rach3]

From New Yorker Magazine today. the continuing nazification of America:


A New Abortion Battleground, in South Dakota
With Roe v. Wade on the chopping block, could reproductive rights be shrunk to the size of a pill?

By Peter Slevin
March 25, 2022


In South Dakota, where reproductive rights are constrained by some of the strictest laws in the country, the Republican governor, Kristi Noem, is targeting medication abortion.

A little history from WAPO today:

Barry Friedman is a professor at New York University School of Law and author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.” Dahlia Lithwick covers the courts for Slate. Stephen I. Vladeck is a professor at the University of Texas School of Law.

While everyone is busy gasping at the first leak of a draft opinion in modern Supreme Court history — one the chief justice has now confirmed is authentic — it is worth focusing on what brought us here. It is now clear that politics has triumphed over law. All that matters now is who can muster five votes, long-standing precedent (and confirmation hearing commitments to abide by them) be damned.

Lawyers know this, of course, in their hearts. As Justice William J. Brennan Jr. was fond of telling his clerks, the most important rule at the Supreme Court is the rule of five. Five votes declare the law, often on matters that are up for grabs in any other legal sense.


The problem is: There was nothing up for grabs about Roe v. Wade. The decision is almost 50 years old. It has summoned strong plurality support in the country since it was decided and now, in fact, has majority support. Countless people have structured their lives around it. While undercutting it to some extent, the Supreme Court itself reaffirmed it in 1992, in Planned Parenthood v. Casey.

All this leaked draft opinion is, then, is a naked power grab.

Here’s some history to put it in context. In 1987, in a case called Booth v. Maryland, the Supreme Court decided that in death penalty cases, prosecutors could not put on the witness stand family and friends of victims of homicide victims, because who was killed, and how many people loved that person, should not determine the fate of the killer. The vote was 5 to 4.

Four years later, in Payne v. Tennessee, the Supreme Court reversed itself, letting this evidence in. What changed? Nothing, except the membership of the court. In an outraged dissent, Justice Thurgood Marshall wrote, “Power, not reason, is the new currency of this Court’s decisionmaking. … Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”

That’s what is about to happen in Dobbs v. Jackson Women’s Health Organization — a Mississippi abortion case before the court — assuming the draft opinion remains substantially the same when it is handed down. The facts supporting Roe and Casey aren’t different; the law that governs the case has not changed or proved unworkable. Yes, there are many people who disagree with the law, albeit far from a majority of the country. But the minority manipulated the system of appointing Supreme Court justices, willing to do whatever it took to get the votes to overrule Roe. What happened next is not a change in the rectitude of the legal principles but in the identity of those who articulated them.

It was a decades-long project that happened slowly until it happened quickly. Time after time, those opposed to Roe failed in their attempts to seat jurists who would overturn it, because appointee after appointee — Sandra Day O’Connor, Anthony M. Kennedy, David Souter, even Chief Justice John G. Roberts Jr. — failed to pull the ripcord when the moment arrived. So, when Justice Antonin Scalia died while Barack Obama was president, then-Senate Majority Leader Mitch McConnell (R-Ky.) took the truly unprecedented step of sitting on a nomination for months, until Donald Trump was elected and Neil M. Gorsuch was named to the court. Then, the Republican right, again ruling without a majority of the country in support, got Brett M. Kavanaugh through the Senate. And finally, Amy Coney Barrett apparently was the straw that may break Roe’s back, confirmed mere days before the 2020 election, after voting had already begun. If, as Politico’s reporting suggests, this result in Dobbs is 5 to 4, it was only possible because of each and all of these maneuvers.

Do not mistake principled decision-making for what in reality is the opportunistic and intensely partisan manipulation of circumstance.

So Roe will fall. Countless women will have their lives irreparably altered. Efforts to dress up this opinion as sober constitutional and historical reflection fall flat precisely because of the sneering contempt shown for both Roe and the many, many judges who left it undisturbed. This is a political opinion from a political court, one that doesn’t pretend to be anything else.

Some will say that is how it should be. That politics, and not law, should decide this issue. That is certainly the conclusion reached by Justice Samuel A. Alito Jr. Fine. But let’s call it what it is: naked power, without the thinnest veneer of a black robe.

Of course, what politics gives, politics takes away.

Should this leaked opinion stand, the future of reproductive freedom will depend on voters. A lot of politicians, especially in the South, have made careers lambasting Roe. That was easy when their words, and even their votes, did not matter — because if they swung at abortion too hard, the Supreme Court could be counted on to rely on Roe and strike it down. Now, they have no cover. They have to put their futures where their mouths are. They can vote to criminalize abortion, and they will then see whether the voters are with them. There is federal legislation that would codify the protections of Roe into law. That, too, now lies with voters.

For years, the country’s view of abortion has stood relatively still. A majority of voters favor abortion being legal in some circumstances, and a small minority favor criminalizing it in all circumstances. We shall see whether politicians find the middle or go off the deep end and pay for it.

In the meantime, though, don’t delude yourself. Yes, the leak was unprecedented. But so, too, is what the Supreme Court is doing. Power means that rules and norms and conventions of trust within the court have become immaterial, just as the lives and health of more than half the population have been rendered immaterial. The Emperor of Law has had no clothing on for a good, long time. With the leak, this reality is increasingly apparent to us all.


(Rach3: Alito's spurious, disingenuous referrals to history are rich given women had almost no rights in 1787 and marital rape was not then a crime.)

[Belle]

Nobody allowed to die of Covid - all Trump's fault. Circa one million abortions per annum in the USA and tens of thousands of road deaths never discussed. Never being ALLOWED to be discussed. Nobody able to refuse vaccinations/wearing a mask during Covid without sanction.

I wonder whatever happened to "my body, my choice"??

I think you'll find - if you really thought deeply about it and read a bit beyond Pravda 1 and 2 - that this abortion controversy (or potential reversal) would not have appeared on the horizon were it not for wholesale abuse of abortion rights and women using abortion as a contraceptive technique. The pendulum swings wildly and human beings have shown that they just cannot be trusted to do the right thing in all cases!! Some kind of regulation and safeguards are always needed. You advocate for them for the big end of town as though these are the people who are inherently corrupt when, in fact, the morality of any nation works vertically through all the classes and not just horizontally through one!!

And you want to talk about womens' rights; I would have thought these increased exponentially in the last 100 years. As Muhammad Ali once said, "if you still think at 50 what you thought at 20 you've wasted 30 years of your life".

It's probably time right now to consider childrens' rights and not frightening them to death with climate catastrophism by using them as political pawns. They only grow up to become unsettled, angry lefties!!

[jserraglio]

in the USA … tens of thousands of road deaths never discussed. Never being ALLOWED to be discussed.

Ah, such a sheltered existence you lead, dear Belle.

As a matter of fact, for 7 years now, the Transportation Dep’t in my state has posted digital signs on roads all over the place, many containing the number of traffic fatalities for a particularly dangerous spot on a specific highway. One can hardly drive anywhere now without seeing them.

You really need to get off your tiny island while you are still young. You often make such preposterous judgments about the USA (Americans could care less about Ukraine, OR American women use abortion in place of contraception are just two of your more recent ludicrous howlers) that you owe it to yourself to see the place firsthand.

[Rach3]

I wonder whatever happened to "my body, my choice"??

It's probably time right now to consider childrens' rights and not frightening them to death with climate catastrophism by using them as political pawns. They only grow up to become unsettled, angry lefties!!

Media of all persuasions report that young people are not so much scared about climate as angry that they have handed such a polluted world , and think there may, may still be time to save the planet. I'll also try to post here a new study about to be released .That study’s main finding: children’s educational achievements today are directly affected by the amount of air pollution their grandmothers were exposed to. (!)

Good to know ,though, that the wildfires, floods,dust storms, high temps, droughts, coral reef bleachings recently in Oz are of no concern to Oz children , only scared by the Lefties on ABC.


Whatever choice a pregnant women makes about abortion will not affect my health. If she is unvaccinated and/or unmasked and we cross paths in the grocery store , she will transmit any virus in her system to me , possibly as well as to her unborn child.

[jserraglio]

It's probably time right now to consider childrens' [SIC] rights and not frightening them to death with climate catastrophism by using them as political pawns.

It’s over-the-hill, methane-emitters, not the kids, who proudly sport the Foolscap of Ignorance in the climate-change debate:

One of my friends said to me (with a straight face) about 2 years ago, at a morning tea, "the sea is virtually going to boil within 50 years if we don't fix 'the climate'". I said, "really?" and he replied, "I read this in the Sydney Morning Herald".

My response was swift, "table-ready seafood; what's not to love!!!?"

[jserraglio]

Circa one million abortions per annum in the USA

Yes, but your abortion rate in Australia is only slightly lower than that. Circa 90,000 abortions every year, or about 20 abortions a year for every 1,000 Australian women.

Between one quarter and one third of women in Australia will have an abortion in their lifetime. The USA’s rate is only a bit higher, about 21 per 1,000.

So, Belle, first cast the beam out of thine own eye; and then shalt thou see clearly to cast it out of thy sister's eye.