Dobbs v. Jackson Women’s Health Organization: U.S. Supreme Court Overturns Roe v. Wade by 5-4 Vote, Thereby Leaving it to States to Make Their Own Abortion Laws

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The United States Supreme Court on Friday issued its 5-4 opinion in Dobbs v. Jackson Women’s Health Organization, overturning the long-settled precedent of Roe v. Wade, which in 1973 had established a constitutional right to abortion in the United States.

Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett voted in favor of Justice Samuel Alito’s majority opinion to overturn Roe. Chief Justice John Roberts filed an opinion concurring in the judgement  – affirming the abortion-restricting Mississippi state statute that had been challenged in the lawsuit- but arguing Roe should not have been overturned.  Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan issued a joint dissent, and Justices Thomas and Kavanaugh each authored separate concurrences.

This post will not engage with the reasoning or logic of the opinion, concurrences, or dissent. This isn’t a law review article addressed to legal scholars and lawyers. I’ll instead focus on  what comes next, both politically and practically, pitched towards a general audience with no particular legal knowledge or training, now that Roe has been overturned

First the political level. Over the last five decades, both parties exploited the  Roe-based status quo, as extended in 1992 in Planned Parenthood v. Casey, which allowed each of them to pander to their respective bases, while not changing all that much at the practical level, since the baseline was the Court’s 1973 decision that abortion was a constitutional right. (I don’t deny that at the practical level, it has become increasingly difficult for many women to obtain access to abortion in many no choice states.)

Those who want to see abortions restricted have obviously won the day’s abortion battle – a seeming win for Republicans, for whom overturning Roe has been a public priority for decades.  Yet the party may come to rue the day that they got what they wished for, after stacking the Court so that Friday’s result was inevitable.

Consider what the NYT reported Friday about the reaction of Donald Trump, who arguably  did more than anyone else in recent years to secure Roe’s overturn, as he nominated three justices – Gorsuch, Kavenaugh, and Barrett – who voted to do so in Dobbs.

According to the NYT in Trump Privately Called a Roe v. Wade Reversal ‘Bad’ for His Party Trump spent the weeks following the leak of the draft Alito opinion in May harboring misgivings. The NYT pointed out that for many years, Trump had supported abortion rights – while saying he abhorred the procedure.

The man most responsible for shaping a United States Supreme Court that delivered the conservative movement a long-sought victory has spent weeks saying he didn’t think it will be good for his party.

Publicly, after a draft of the likely decision leaked in May, former President Donald J. Trump was remarkably tight-lipped for weeks about the possible decision, which the court ultimately handed down on Friday, ending federal abortion protections. But privately, Mr. Trump has told people repeatedly that he believes it will be “bad for Republicans.”

The decision, Mr. Trump has told friends and advisers, will anger suburban women, a group who helped tilt the 2020 presidential race to Joseph R. Biden Jr., and will lead to a backlash against Republicans in the November midterm elections.

In other conversations, Mr. Trump has told people that measures like the six-week abortion ban in Texas, which allows people to file lawsuits against those who enable abortions beyond that time-frame, are “so stupid,” according to a person with direct knowledge of the discussions. The Supreme Court let the measure stand in December 2021

Now, these alleged private misgivings didn’t prevent Trump from taking a victory lap Friday after the Dobbs decision was handed down. Per the NYT:

But in an interview that Fox News published after the decision on Friday, Mr. Trump, asked about his role, said, “God made the decision.” He said the decision was “following the Constitution, and giving rights back when they should have been given long ago.”

“I think, in the end, this is something that will work out for everybody,” Mr. Trump told Fox News.

By early afternoon on Friday, Mr. Trump put out a statement taking a victory lap, including applauding himself for sticking by his choice of nominees. All three of Mr. Trump’s appointees to the court were in the majority

“Today’s decision, which is the biggest WIN for LIFE in a generation, along with other decisions that have been announced recently, were only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court,” Mr. Trump said.

Whether or not Dobbs will prove to be a boon for Republicans or not in part depends on how  important the issue is to influencing voter’s electoral choices. Here a Friday poll result reported by the Washington Examiner, Just 5% call abortion top concern is on point. Yes, I am aware of the bias of the source – but the poll result seems sound:

Abortion, the No. 1 concern in today’s media and politics, ranks nearly dead last among areas voters care about as they struggle with paying daily bills, soaring inflation, and interest rate hikes, according to a just-released survey.

While the Supreme Court’s decision overruling the 1973 Roe v. Wade right to abortion has dominated today’s network and cable coverage, the latest McLaughlin & Associates poll said just 5% of voters call it a top concern.

Just below abortion, at 1%, is reviewing the 2020 election, over which the media are also obsessing.

Permit me to speculate a bit here. Respondents may have answered this way because the status quo for nearly five decades is that abortion is legal nationwide- no matter the difficulties women in some states may have faced when they tried to obtain them. Responses  to pollsters as well as actual votes cast may be very different once states close the door on legal abortion – especially if state prosecutors seek to put women in jail if they prove they’ve traveled out of state to obtain an abortion.  At least some Republicans are waking up to realization that going after women for obtaining abortions might not prove to be politically all that popular, as The Hill reported in Hutchinson says Arkansas abortion providers should face ‘criminal penalty,’ not women:

Arkansas Gov. Asa Hutchinson (R) on Sunday said abortion providers should face criminal penalties for performing procedures but said women would not be prosecuted in his state for getting an abortion.

In an interview with NBC’s “Meet the Press” moderator Chuck Todd, the GOP governor said only doctors who perform an abortion to save the life of a mother would not be prosecuted.

After the U.S. Supreme Court overturned Roe v. Wade on Friday, Arkansas’s trigger law banning abortions with the only exception to save the life of the mother went into effect.

The law makes it illegal to perform an abortion, with violators facing up to 10 years in prison. There are no exceptions for rape or incest.

The Hapless Democrats: Always Fighting For, But Never Actually Achieving Anything

So, I suggest, in the longer-term, over-turning Roe may not prove to be such an outright  victory for Republicans as it seems at present.

How do things look on the blue side? Just after the Dobbs decision was released, Democrats quickly went to the time tested plays in their playbook, invoking the memes that turn out their base – and goose their fund-raising – but never seems to result in any concrete protections for abortion rights.

True to form, Chuck Schumer – my Senator – sent me a fundraising email within hours of the opinion’s release:

The Supreme Court just officially overturned Roe v. Wade and the constitutional right to abortion in America.

Mitch McConnell has indicated that if Republicans take back control of the Senate, they could pass a nationwide abortion ban. And the Supreme Court would stand by it.

Chuck Schumer is fighting like hell to get more Democrats elected so we can restore reproductive freedom – but he can’t do it without you. Rush a donation now to help elect more Democrats who will defend and restore the right to abortion! {Jerri-Lynn here: emphasis in original.]

Sorry, Chuck the game’s now changed. Abortion is no longer constitutionally protected throughout the country. Blaming it on the Republicans and saying the Democrats will fight like hell to fix this ain’t good enough.

The Democratic move here is to blame the loss of nationwide access to abortion completely on Republicans – and particularly, Trump. See this tweet from Laurence Tribe, the distinguished emeritus professor of constitutional law at Harvard Law School (HLS), citing TrumpPacking:

Alas, Tribe makes the mistake of seeing the failure to protect abortion rights as a wholly partisan issue, placing blame for the Dobbs decision solely on Republicans, and failing to own the mistake Democrats made in failing to ensure that the ability of American women to secure abortions, nationwide, would be protected – regardless of who sits on the Supreme Court  – when they had the chance to do so.

No amount of wriggling should now absolve leading Democrats for the roles they played in placing women who live in a large and growing number of no choice states from losing access to safe, legal, local abortions.

I’m sure Professor Tribe had the best of his intentions when he fired off that tweet. I’m sick of good intentions in the service of tactically stupid manoeuvres.

Now, allow me to indulge for a moment in a bit of inside baseball disclosure here. In 1990, Tribe published Abortion: The Clash of Absolutes. At any time, Tribe always had a legion of current and former HLS students working for him as research assistants. Many worked on the abortion book, and in his foreword to the book, he singled out a full half dozen ‘especially’ for their help, including me, and another name you’d all recognize.

Who played his assigned role Friday and stepped up to the plate and denounced the Dobbs decision.

I’m not the only one who has remembered, however, that when this Tribe student had power to do something about protecting abortion rights nationwide, he didn’t. He didn’t merely whiff. In fact, he hid in the locker room and didn’t even step up to the plate:

I think that Tribe makes a major tactical mistake in seeking to place blame for the present situation on Republicans alone doesn’t get us any closer to figuring out how to secure access to abortions in states where they remain legal for women who live in no-choice states. By hammering the nasty Republican, anti-Trump memes one can rightly be accused of politicizing the sufferings of individual women. Not to mention failing to give Trump-voting, pro-choice women a reason for supporting measures to open up new options for women who live in no- choice states. I want to see formation of a broad, national movement, to make abortion safe, and legal, throughout the United States again. Which politicians and pundits will sit down and think through the winning strategy and tactics to get us to that point?

Practical Steps the Biden Administration Can Take

So, please spare us the outrage, and the empty rhetoric. It may energize the base, but other than helping with fundraising, what real impact has it had?

Here’s the current scorecard with regard to state abortion laws, as reported by Politico, Abortion laws by state: Where abortions are illegal after Roe v. Wade overturned.

In some states, patients who were waiting for an abortion at a clinic on friday were sent home when the Dobbs decision came down, as reported by the 19th,   Patients sat in abortion clinic waiting rooms as Roe fell. They all had to be turned away.

Patients were in the lobby, waiting, the moment it became a post-Roe America.

The staff at Alamo Women’s Reproductive Services Clinic in San Antonio had just received a call from their attorney: Abortion procedures in Texas would have to stop immediately. The dozen or so patients in the lobby Friday morning would have to be turned away. The clinic staff would have to be the ones to tell them.

Andrea Gallegos, the clinic’s administrator, and the rest of the staff walked out and addressed the room: “The Supreme Court made this decision today and, unfortunately, your geographical location affects your bodily autonomy,” she said they told waiting patients.

I’ll discuss three issues, each affecting women who live in what are – or will soon be no-choice states  – and which may improve their future access to abortions – even if they must travel to another state to obtain one.

The first is in ensuring nationwide access to mifepristone, an abortifacient approved by the FDA in 2000 to terminate pregnancies. I remember reading about such drugs when I was working on Tribe’s book – although I cannot recall precisely whether mifepristone, was one. IIRC, it was, but I don’t have Tribe’s book to hand to check. The Biden administration has moved quickly to deploy federal drug regulatory authority to ensure access to mifepristone nationwide. As reported by Stat, The Biden administration wants to get tough on states’ abortion pill restrictions. It won’t be easy:

Attorney General Merrick Garland is hinting he’s ready to get tough on states that block access to an FDA-approved pill used to terminate pregnancies.

He’s got a lot of work ahead of him.

On Friday, the Supreme Court ruled that the U.S. Constitution does not protect the right to an abortion, overruling the landmark 1973 Roe v. Wade decision. In response, the Justice Department declared that it will “work tirelessly to protect and advance reproductive freedom.” Namely, it warned that states can’t restrict access to mifepristone, a drug approved by the FDA in 2000 to terminate pregnancies.

“The FDA has approved the use of the medication mifepristone. States may not ban mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy,” Garland wrote in a statement.

Despite Garland’s declaration, more than 30 states have already enacted some form of mifepristone restrictions, according to the Guttmacher Institute, a think tank that supports abortion rights. Some states have had those restrictions on the books for years, and even Democratic administrations have never challenged them.

Legal scholars who spoke with STAT say that states’ mifepristone restrictions are, in fact, vulnerable to a potential legal challenge. That’s because the FDA has the sole authority to approve drugs in the United States. There’s legal precedent, too, for courts striking down states’ restrictions on FDA-approved drugs. Massachusetts’ effort to ban the opioid Zohydro, for example, was struck down because the FDA’s approval of the drug “preempted” the state law.

Precisely how these legal challenges will pan out is uncertain – although Stat suggests that the feds will likely win, once the issue finally wends its way through the courts:

Patti Zettler, an associate professor of law at Ohio State University, put it simply: “When state and federal law conflict, federal law wins.”

But it won’t be easy to crack down on the mifepristone restrictions — and the process will take some time and creative lawyering.

“It’s true that it is not a slam dunk,” said Greer Donley, an assistant professor of law at the University of Pittsburgh, who authored one of the first papers arguing that mifeprestone laws could be challenged to protect abortion access.

Donley guessed it could take “at least a year, if not two,” for mifepristone restrictions to be overturned — and even longer if the fight gets caught up in appeals.

But that outcome is by no means certain, and in the interim, women will almost certainly be prosecuted in no-choice states for violating state statutes that criminalize the drug’s use.  A lively black market for mifepristone will no doubt develop as well and that reality raises its own set of issues.

A second issue is how location data could be used by those who oppose abortion to target women who travel out of state to obtain an abortion. Recall that Texas has enacted an abortion bounty statute that allows bounty hunter plaintiffs The Texas Abortion Law Creates a Kind of Bounty Hunter. Here’s How It Works. to collect bounties and legal fees from abrtion providers. Similar enforcement measures are mulled or pending in other state statutes, some targeting women who seek abortions, and will no doubt proliferate, as new state legislation is introduced in the wake of Dobbs.

One’s smartphone and computer data could provide a considerable boon to bounty hunters who might pursue individual residents of no choice states, as reported by Insider, Internet history, texts, and location data could all be used as criminal evidence in states where abortion becomes illegal post-Roe, digital rights advocates warn.

On Friday – before the Dobbs decision was announced – three senators, Ron Wyden, Elizabeth Warren,  and Cory Booker, and House member Sara Jacobs, wrote to Federal Trade Commission chair Lina Khan, asking that she investigate Apple and Google for allowing the collection and sale of the personal data of mobile users:

We write to request that the Federal Trade Commission (FTC) investigate Apple and Google for engaging in unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data. These two companies knowingly facilitated these harmful practices by building advertising-specific tracking IDs into their mobile operating systems.

Apple and Google both designed their mobile operating systems, iOS and Android, to include unique tracking identifiers which they have specifically marketed for advertising purposes. These identifiers have fueled the unregulated data broker market by creating a single piece of information linked to a device that data brokers and their customers can use to link to other data about consumers. This data is bought or acquired from app developers and online advertisers, and can include consumers’ movements and web browsing activity.

While purportedly anonymous, these advertising identifiers are easily linkable back to individual users. This is because some data brokers sell databases that explicitly link these advertising identifiers to consumers’ names, email addresses, and telephone numbers. But even without buying this additional data, it is often possible to easily identify a particular consumer in a dataset of “anonymous” location records by looking to see where they sleep at night.

Both Apple and Google now allow consumers to opt-out of this tracking. Until recently, however, Apple enabled this tracking ID by default and required consumers to dig through confusing phone settings to turn it off. Google still enables this tracking identifier by default, and until recently did not even provide consumers with an opt-out. By failing to warn consumers about the predictable harms that would result by using their phones with the default settings that these companies chose, Apple and Google enabled governments and private actors to exploit advertising tracking systems for their own surveillance and exposed hundreds of millions of Americans to serious privacy harms.

With the Supreme Court likely to overturn Roe v. Wade, individuals seeking abortions and other reproductive healthcare will become particularly vulnerable to privacy harms, including through the collection and sharing of their location data. Data brokers are already selling, licensing, and sharing the location information of people that visit abortion providers to anyone with a credit card. Prosecutors in states where abortion becomes illegal will soon be able to obtain warrants for location information about anyone who has visited an abortion provider. Private actors will also be incentivized by state bounty laws to hunt down women who have obtained or are seeking an abortion by accessing location information through shady data brokers.

The last issue is whether states can restrict travel to other U.S. states – which some no-choice states might seek to do to prevent their residents from obtaining an abortion. This issue is discussed at length in an article in The Hill, The right to travel to seek an abortion in a post-Dobbs world. The constitutional status of interstate travel isn’t altogether clear. Although  interestingly, Justice Kavanaugh – part of the Dobbs majority – does think there is a constitutional right to interstate travel:

The news was bleak in Friday’s Supreme Court holding in Dobbs v. Jackson, and I am not here to tell you otherwise. But the opinion itself contains a few glimmers worth analyzing. One is from Justice Brett Kavanaugh in a concurring opinion: “For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no, based on the constitutional right to interstate travel.”

The right to travel has not been adumbrated extensively in case law. With respect to international travel, it received a bump of attention during COVID-19, when some Americans were forced to quarantine out of the country until they could produce negative COVID tests; and also when, at the beginning of the pandemic, some governors sought to ban interstate travel from states deemed to be “COVID hotspots” — a futile exercise that was soon abandoned. Almost no case law emerged.

The Hill article does a deep dive into arguments supporting a constitutional right to interstate travel (albeit a journalistic deep dive; it’s no law review article). Due to space considerations, I’m not going to discuss those here, but refer interested readers to that discussion. I’ll instead  focus on a more immediate and pressing concern. If a state were to enact a travel ban for residents who travel out of the state to seek an abortion – as is the case in Missouri, where such a bill is pending, according to The Hill – a similar difficulty arises  as in the mifepristone discussion above. Even if the Supreme Court eventually clearly and expressly recognises a constitutional right to interstate travel, for any reason whatsoever, it would take time for the judicial process to run its course. In the interim, the pregnant woman entangled in the lawsuit would be trapped in her home state – unable to obtain an abortion.

Several pro-choice states, including California, Colorado, Connecticut, Maine, Massachusetts, and New York are expected to see an upsurge in women visiting their states in order to obtain abortions. California Governor Gavin Newsom announced a plan Wednesday to add $57 million in funds to the state budget so as the influx of out-of-state patients that might travel to the state to access abortion care, as reported by Axios, Newsom unveils plan to increase funding for abortion access in California. Many corporations have also announced they will provide funding and support for employees who live in no choice states to travel out of state to obtain abortions.

Due to reasons of space, I won’t consider how prosecutors in no-choice states might seek to go after people in other states who help women procure abortions in states where abortion remains legal. I again refer interested readers to The Hill’s travel article cited above for further details. I do want to note that at least one pro-choice state, Massachusetts, is taking steps both to shield its state’s abortion providers from liability in other states, and to prevent disclosure of state medical records:

At the other end of the spectrum, citing the Massachusetts Constitution’s protection of reproductive rights, Gov. Charlie Baker on signed an executive order designed to shield Massachusetts-based health care providers from liability for providing services to abortion-seekers from out of state, prohibiting extradictions, and protecting records from disclosure to states with criminal penalties against abortion seekers, allies and service providers.

And now for another personal anecdote to bring home why this all matters. I doubt whether many Javert-like prosecutors have time or inclination to themselves investigate and pursue women for obtaining out-of-state abortions. Those who promote restrictions know that bounty statutes would allow individuals to do the heavy lifting. And there are enough no-choice zealots who probably don’t need all that much incentive to act as bounty hunters, perhaps combing through rubbish, for tell-tale evidence – positive home pregnancy test, or a mifeprestone packet – or examining location data and smartphone data trails.

I have a cousin, who for decades has brayed on at family gatherings about his considerable no-choice activities. Blockades of abortion clinics, that sort of stuff. The same cousin whom when we meet for lunch insists on grabbing the hands of everyone sitting around the table and loudly ‘saying the blessing.’ I’m sure he’s celebrating this weekend. He has visited me and once chided me for merely having a magazine on my coffee table that featured a cover story profiling Faye Wattleton, then head of Planned Parenthood. It annoys him intensely that I don’t engage, and just smile sweetly and ask about how his children are.

I remember being at my sister’s wedding in 1989, when this cousin buttonholed my father and told him he shouldn’t pay my HLS tuition if I was going to take a constitutional law course with Larry Tribe.

This was a ludicrous thing for him to say, on so many levels. But I’ll deal here with one only.

Now, one thing my parents were always very good at during my childhood and beyond was encouraging my intellectual curiosity and independence. They supported me as early as the first grade, when an elementary school librarian objected to me borrowing books that weren’t on the children’s table. Once I learned to read, I was off and running, and I didn’t want to be limited to reading  what I disdained as ‘baby books’. I told the librarian I was reading the book with my daddy, and the librarian retorted that my daddy could borrow his own books. My mother stepped in to support me, and wrote to that librarian, asking her not to interfere with my choice of books.

My father listened carefully to my cousin’s tirade, nodded, but didn’t say anything. That wasn’t unusual; Dad was a man of few words and wasn’t going to waste any on what was my sister’s wedding day in a  debate with my cousin, over what Dad regarded as my HLS choices. My parents eventually ensured, however, that my cousin received a response. Some months later, when I was selected to join Tribe’s legion of research assistants, Mom gleefully told my aunt – i.e., my cousin’s mother – how proud they were that I’d scored the Tribe research gig. Message sent!

Alas, all too many women who now live in no-choice states are now potentially more vulnerable to the undue concern of the likes of my cousin when they seek an abortion – even in a state where to do so remains legal.  I want to know what politicians are going to do to help them. I don’t care what party these protectors of women’s rights belong to.

But please don’t tell me you’re going to ‘fight for’ anything. Certainly not if you want me to send you any funds. Nor should you claim it’s all the other party’s fault: there’s ample blame to go around for the position we find ourselves in. Those who’ve been paying attention know that.

I’m not listening to any more sweet nothings.

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  1. voteforno6

    If the Republicans could hold the line at this decision, maybe they can establish a (rather shaky) new equilibrium on abortion. I suspect that some leaders of the party would like that to happen, but I’m not so confident they’ll be able to hold back the crazies. I suspect that they will find it an untenable situation. Enforcing these bans in no-choice states will be invasive enough; how will they attempt to enforce bans on abortions outside of their states? What happens if they press forward with a national abortion ban? Abortion may not be the top priority now for many choice supporters, but that opinion may change if the crazies force their views on the whole country. What happens if they pursue banning contraception and same-sex marriage, which Thomas suggested in his opinion?

    My prediction is that things are going to get very messy in the country. I don’t think either party is adequately prepared to address these challenges, particularly the Democrats, since to do so would upset a system in which the leaders of the parties have rather handsomely profited. There’s already a lot of stress on the political system in the country; I have a feeling that this is going to accelerate the erosion of this system.

    1. Fraibert

      If the Republicans generally make state laws conforming with the Mississippi law at issue in the recent case, I think they might actually achieve a new equilibrium. To my eyes, the actual law appears calibrated to match the average American citizen’s views: permissive abortion up to 15 weeks, limited abortion for medical emergencies or severe fetal abnormalities after that point.

      For reference, the text of the law can be found here:

      The question, as you raise, is whether the Republican Party can hold to that basic framework, or whether that’s too much of a compromise for enough of the base.

      1. marym

        Mississippi and other states already have laws on the books that will take effect with the end of Roe.

        “Now that the U.S. Supreme Court has overturned Roe v. Wade, ending the constitutional right to abortion, Mississippi’s 2007 trigger law looks set to take effect. The law permits abortions only when the mother’s life is at risk or when the pregnancy resulted from a rape that has been reported to law enforcement.

        The trigger law takes effect 10 days after the attorney general issues a determination that Roe has been overturned. For the first time in 50 years, it will be nearly impossible to obtain a legal abortion in the state of Mississippi.”

      2. voteforno6

        I have doubts that something passed in Mississippi can be described as conforming to the views of the average American. And there are laws much more restrictive than that one already being floated. It sure seems like the Republicans are really letting their inner freak flag fly now. So, the answer to the question is that I don’t think the Republicans can hold the line here or anywhere, until someone stops them.

    2. drumlin woodchuckles

      They will simply send their Terrorist and Assassination Team task forces into the choice states to bomb and burn all the abortion-provision clinics and hospitals, and keep assassinating doctors till the surviving doctors give up and stop.

      Seems simple to me.

  2. fresno dan

    I am going to restate what I posted in the links today and make it a little clearer

    I don’t have access to the NYT, but I assume what I read basically is the same thing as written in Rolling Stone about Trump saying privately that overturning Roe was a bad thing. One doesn’t know what ANY politician REALLY thinks, and then to have it filtered through a reporter’s “background” sources makes it even more dubious. It says something about the NYT’s ability to perceive reality.

    The problem is, that saying what Trump privately says is NOT what Trump is saying to the public. I get the impression that these reporters and writers are hoping that Trump will come down on the side of NOT outlawing abortion – it’s like they believe (or hope – dare I say HOPIUM) that as the dems failed to keep abortion legal, now it is as if they are pinning their hopes on Trump keeping abortion legal or available. Astounding…

    There are two things that matter – the minor thing is what Trump actually says:
    “God made the decision,” Trump said in an interview with Fox News. “This brings everything back to the states where it has always belonged,” Trump also said. “This is following the Constitution, and giving rights back when they should have been given long ago.”

    The major thing is that the republican appointees on the Supreme court made a decision reversing a prior Supreme court ruling. Trump, more than anyone is most responsible for having the Supreme court that reversed Row. The idea that Trump would somehow, someway back away from that is…inconceivable. I really don’t think the Dems are in much of a position to utilize the overturning of Row to advance their electoral prospects. It seems to me, time after time after time, many Dems did not oppose Repub Supreme court nominees when it was BLATANTLY obvious that the nominee would oppose Roe. Dems believe in “choice” as a fundraising tool – but they don’t actually believe abortion should be legal.

    1. Jason Boxman

      The liberal Democrat position all this time is quite revealing: Vote for us, because Roe v. Wade. But then, because of (choose one or more of the following):

      – Projection: Liberal Democrats aren’t serious about their politics, so perhaps why would Republicans be?
      – Grifting: Self explanatory

      They did nothing. And given the specific fundraising language, it isn’t like they were unaware that this could happen. That was the entire pitch! Vote for us, and it won’t… and it did.

      Pelosi and the DCCC getting a “pro-life” anti-woman candidate elected in a Democrat primary just this past week in TX puts this is sharp relief.

      Makes ya wonder.

    2. John Zelnicker

      fresno dan – A quibble, I think many Democrat leaders believe that abortion should be legal, but they’re not willing to actually DO SOMETHING about it because that might reduce the fundraising potential of the issue.

      Or, it might use up some of that powder they’ve been keeping dry for the past few decades. Gotta save it for the important stuff, don’cha know.

      1. neo-realist

        I think many Democrat leaders believe that abortion should be legal, but they’re not willing to actually DO SOMETHING about it because that might reduce the fundraising potential of the issue.

        The Democratic leaders can’t get the brought and paid for blue dogs to override the filibuster to do a carve out for abortion rights. This was a problem before Sinema and Manchin for the short time the dems had 60 votes; there were always blue dogs who would not go to the mat to get abortion rights codified.

        It’s kind of a wait and see as far as how the reversal plays out for the dems in the mid-terms. Betting it will help dem senatorial candidates in the swing states elections, particularly as we see the impact of state restrictions on abortions play out, e.g., refusal of treatment for ectopic pregnancy, jailing of women who get abortions or caught doing illegal ones.

  3. herman_sampson

    If only one bounty hunter could collect from each patient, why couldn’t a pro-choice “bounty hunter” pre-empt any other hunter’s claim? Could not the pro-choice hunter seek only $1 from the patient?

    1. Noone from Nowheresville

      That’s still legalizing stalking.

      What’s being unleashed just as The Jackpot is picking up momentum is far beyond reproductive health. It also won’t stay in its original lane, if that was truly its intent.

      Great distraction to cover the ever-changing terms of surrender for the class war. Remember politicians of both social clubs are on the winning class side. Or they are wannabe class members.

      What would be interesting to me is if this caused people on both sides of the issue to come together and find common cause with one another to reverse the class war loss.

      1. drumlin woodchuckles

        Bounty Stalking is already legal. To object to pre-emptive ” only a dollar” swoop-in bounty short-circuiting because ” that’s still legalized stalking” exemplifies everything that Beautiful Loser Liberalism has always been about. I mean the beautiful loser liberalism from before the days of Tom Franks’s PMC class. I mean the beautiful loser liberalism from the days of subhuman pacifism exemplified by subhuman pacifist subhumans like Joan Baez.

        ( I was raised to believe in subhuman pacifist subhumanism, and I suffered physically because of it.
        I will not even discuss the “merits” of subhuman pacifist subhumanism with any subhuman supporters it may still have today).

  4. Carolinian

    The Hill article seems to suggest a solid precedent that states cannot prosecute for behavior that happens in other states, or at least not prosecute the providers. And didn’t the SC whiff on the Texas law due to procedural issues rather than the substance?

    As stated above the Republicans have tried to make great hay out of abortion as a political issue. Now that the Supreme Court side of it is seemingly settled it’s hard to see what they get out of persecuting women as individuals. Politically. I doubt that even hard core religious would approve of this, other than a few cranks.

    1. voteforno6

      They may try to prevent women from getting abortions in other states, but that is untenable. That’s why I think that you’ll see a big push for a national abortion ban. If/when that happens, things will really get, umm, interesting.

      Do you think the religious crazies will be satisfied with abortion still being allowed in some states? They’re the ones that pushed the Republican Party to this point…are they going to stop now? I doubt it.

      1. Objective Ace

        >They’re the ones that pushed the Republican Party to this point

        I think its the democrats who pushed the republican party to this point. When your campaign promises are nothing will change and you continually deliver on that, the only way the country can go is more and more conservative since the other party isnt reluctant to actually govern.

      2. Noone from Nowheresville

        Do you think the religious crazies will be satisfied with abortion still being allowed in some states?

        Do you think religious crazies as you call them really drive the politicians and the law without it serving other purposes?

        Look at the carve-outs for all females who might be suspected of pregnancy. Professional bounty hunters (if there’s real money to be had they will come) & ordinary people are allowed to stalk, terrorize, invade a woman’s privacy, interfere with the doctor / patient relationship, etc. They are publicly creating and publicly rewarding government sanctioned snitch networks. Politicians are floating the possibility of limited freedom of movement.

        What message do we think ordinary people not invested in the topic receive?

        We talk about legalizing abortion through Congress. Great. Fine. Get back to me in another 20, 30, 50 years. In the meantime, can we instead talk about getting rid of legalized stalking, legalized interference between a doctor & patient, legalized lying (the noble lie to prevent birth control or abortion), etc. If women truly had legal autonomy, these legal carveouts and the granting of special privileges to others with no legal standing, wouldn’t be possible.

        1. drumlin woodchuckles

          You can talk all you like about changing Texas’s legal stalker bounty law. Texas doesn’t care.
          If Texas even hears you, Texas just laughs.

  5. Screwball

    Democrats Tweets today;

    The extremist decision to overturn Roe v. Wade could go far beyond abortion. It could threaten:

    – the right to use birth control
    – the right to same-sex marriage
    – the right to interracial marriage

    In November, we must elect Democrats who will fight to protect these rights.

    Personal freedoms and the rights to privacy, liberty, and equality are all on the ballot.

    The stakes in November couldn’t be higher.

    There is also a Sirota Tweet with Obama saying he was going to get this codified into law. We all know that didn’t happen. My PMC friends are on board with the above. Vote in more democrats so they can fix this (because they have to fix everything). They fact they immediately received fund raising letters did compute. They blame Trump (of course), the GOP (of course), Bush (both), and…drum roll…Bernie Bros for not turning out for Hillary. Nothing is ever EVER the fault of the democrats themselves.

    What a bunch of deluded clowns.

    1. Fraibert

      Sounds about right from what I’ve been hearing about Democratic Party rhetoric.

      Legally speaking, the same-sex and interracial marriage rights are safe because they can be defended solely based on the Equal Protection Clause. It’s true that the same-sex marriage case (_Obergefell v. Hodges_) was based in Substantive Due Process (probably because Justice Kennedy loved to write lofty sounding opinions) but it’s not hard to reframe in Equal Protection. in my opinion, that case should’ve been framed in Equal Protection terms from the start as it’s a much cleaner rationale.

      The problem with framing marriage equality rights in Substantive Due Process is that there is _no such thing_ as a general “right to marriage.” Government does NOT have to offer any legal recognition of marriage. Once that reality is understood, speaking of a “right to same-sex marriage” does not make sense–the right from _Obergefell_, better understood, is the “right of homosexual couples to marry on the same terms as heterosexual couples.” This reframing shows that an Equal Protection rationale fits much better.

      The above consideration probably is why the interracial marriage precedent (_Loving v. Virginia_) primarily relied upon Equal Protection. It just makes more sense.

      The birth control precedent (_Griswold v. Connecticut_) is more open to challenge. It’s not clear the Court has the political appetite to deal with the issue. In any case, it would take an actual law and subsequent litigation for it to become an issue. But, again, being based on a broad Substantive Due Process “right to privacy”, it is more vulnerable.

      1. voteforno6

        You’re assuming that the Supreme Court actually cares about any of this. Their decisions are clearly outcome-based. If it’s something that Republicans will want, they’ll find a way to do it.

        1. genezip

          While I mostly agree about the decisions being “outcome-based”, hopefully that gives a glimmer of hope for Obergefell in light of Gorsuch’s decision on Bostock.

      2. MG

        You assume that a deeply conservative federal court will follow this logic & legal reasoning. Already had either 6 state AGs or leading state politicians say that Obergefell needs to revisited per Thomas’ opinion.

        I’d bet good money Obergefell is challenged in a case taken up by SCOTUS before 2024 and it will come through the 5th Federal circuit. It will overrule Obergefell and kick it back to states with a majority of states still have their anti-gay marriage laws on to the books.

        It’s a winner for the GOP too tight now too and helps to continue to energize the base without a ton of potential blowback.

  6. Jeremy Grimm

    timbers nailed it with the comment to today’s links:
    and I am with John from lower in the same thread:

    I do not believe the principals [nor principles] of either political party really care one way or the other about abortion, though I also believe neither party is interested that it be finally resolved one way or another. The issue makes for such great kabuki dramas. As for the current supreme court, I have no idea what principles guided their decision. In any case, I believe the beliefs and principles that placed each justice on the court were much much more a matter of where they stood on the concerns of Big Money and Corporations.

    So — as the Imperial ship of state approaches the edge, the government works tirelessly to create further chaos.

  7. flora

    Thanks very much for this post. Lot’s here to consider.

    My suggestion for people in their own states who want to change laws to ensure right to women’s reproductive health is this: There are as many moderate GOP women and men who want this women’s health availability in their state as moderate Dem women and men. The party establishments make it look otherwise for vote getting and donations.

    1. Fraibert

      I’d note that even the Mississippi law at issue in the recent Supreme Court case generally permits abortion up to 15 weeks, and has exceptions after that line for medical emergencies and several fetal abnormalities. This is Mississippi we’re talking about, too.

      Interestingly, the 15 week line is relatively in line with the standards of Western Europe, the region of the world that many political liberals seem to think the US should emulate.

  8. Tom Stone

    I’ve been thinking through some of the implications of a State banning Abortions.
    By doing so that State is asserting the right to control the reproductive system of every fertile woman in that State.
    A classic example of a “Taking” and the exercise of Eminent Domain.
    The taking of someone’s property for the public good by the State or Government requires that the person or persons property whose property is taken must be compensated monetarily at “Fair Market Value”.
    We’re going to need a new class of Appraisers and finding comparable sales is going to be a whole ‘nother problem.

    1. Fraibert

      It’s a clever argument, though bound to fail.

      For example, no one has claimed a taking from compulsory vaccination, even though herd immunity is for the public good. Likewise, criminal law by its very nature prohibits human bodies from undertaking certain actions and that’s not a taking, though criminal law generally is for the public benefit. Nor is there a taking for the military draft.

      The point being that regulation of the human body generally isn’t going to be a taking under the law. Otherwise, in one sense or another, most laws on the books are takings.

  9. Sue inSoCal

    Thank you J-L. I won’t bang on because I’m tired. I much appreciate the time you took for this excellent analysis and discussion. Can relate about this: the first things that hit my inbox were fund raising emails so we don’t lose our democracy. Sigh.

  10. Jeremy Grimm

    I think it might be time that I discuss abortion with my adult unmarried daughter. We live where the decision remains hers to make but I want her to give me an opportunity to weigh in on any such decision. Paying for a baby and paying support to help raise that child or raising it myself, would be a difficult burden, but my daughter is nearing an age where it could be the only hope I might have of enjoying a grand child.

    If she were younger and lived in a different state, I would also hope to weigh in on any decisions about getting an abortion. A legal abortion performed by a physician offers the best chance my daughter might remain able to conceive a child later in life under conditions she regards as more favorable. I would want a chance to help make sure my daughter could get to a state where she could obtain a legal abortion and return without fear of being arrested, which would also reduce the chances she might later have a child under more favorable conditions.

    As the world population approaches 8 billion and Climate Chaos and political stupidity conspire to constrain food supplies — how strange to be concerned about legal complications to such a difficult decision as whether to bring a child into the world.

  11. drumlin woodchuckles

    Party Democrats didn’t care about abortion rights “then”. They don’t care about abortion rights “now” or in the future either.

    The one thing Party Democrats care about is the money and votes they think they will raise by waving the Bloody Coat Hanger.

    Abortion rights supporters will have to find some other way to survive for now and perhaps win totally in the future against the Sharia Law Christianazi Satanofascists who currently rule the commanding heights of power in this country.

    1. ex-PFC Chuck

      It’s not money in general they care about. It’s the money they get from the big donors.

      Thanks, Jerri-Lynn, for this great post.

      “No-choice state” is a great meme. Everyone here should spread it far and wide.

  12. Tom Stone

    Another complication that came to mind is that when a State asserts that they have a property interest in the reproductive system of every fertile Woman in that State ( Which is what banning Abortion does) What happens to said woman’s right to own property,or to vote?
    If said reproductive system amounts to 1/8th of her body mass is her vote worth 7/8ths as much as the vote of an infertile Woman or a Man’s?
    If the State owns 1/8th of every fertile Woman’s body does the State in turn own 1/8th of the property of all kinds that that fertile Woman owns?
    Can Property own Property?

    1. Fraibert

      If you go too far down that rabbit hole, then is every significant assertion of state power that regulates the body an indication of state ownership of the body? For example, per my reply to you above, is criminal law a significant state ownership claim? Similarly, is the military draft a 100% property interest in all military-age males?

      I raise these questions because I’m not sure your approach works versus an individual liberty analysis.

      1. Tom Stone

        No, it probably won’t hold water.
        The timing of this decision is interesting, and if it was intended as a distraction I suspect the blowback is going to be a lot greater than these evil old men expect.
        I find those that dress their sadism in a cloak of morality particularly repulsive, it’s a darnshame that horse whipping has gone out of style.

    1. Yves Smith

      Do not get me started on the ERA. This is how feminist organizations scammed women in the 1970s, the era of peak feminism. Rather than nailing down concrete rights individually via Federal legislation, most importantly the right to abortion and equal pay, they pursued the “never gonna happen” ERA. A Constitutional amendment has a vastly higher hurdle than passing Federal laws. It requires a 2/3 majority in the House and Senate AND ratification by 3/4 of the states.

      1. JBird4049

        >>>This is how feminist organizations scammed women in the 1970s, the era of peak feminism.

        So the thinking is that the Equal Rights Amendment was used in the same way as abortion or guns as a grift for for the parties, non-profits, and their apparatchiks?

          1. flora

            It also fired up Phyllis Schlafly and a host of conservative groups to push back, groups that likely wouldn’t have been so organized and focused on efforts to pass specific rights in Congress alone. In that moment, the wind seemed to be at the liberal women’s back for greater womens rights. The long, long process of amending the Constitution gave the ‘Schlafly’ type conservative opposition time to organize, fund raise, and build support based on “what if’s”: what if they draft your daughter, what if your husband can divorce you with no consequence to him?” That worked to stall and defeat the ERA. It would have been better if NARAL and NOW had focused on doable wins in the moment, building step by step. Instead, they made a grand play that failed.

      2. jeff

        Thank-you for your reply. You might be unaware that it has passed and now awaits legislative action. That’s the point Biden was making in his statement.

        I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA.

        1. Yves Smith

          Your statement is not coherent. It has not passed. I don’t even know what “a resolution recognizing ratification” means. This comes off as a Biden brain fart.

          A resolution is not a bill. Congress hasn’t even put a bill on its calendar. It is questionable as to whether any bill if actually drafted by the Administration for Congress would pass the Senate. Even if so, it will never never never be ratified by 3/4 of the states. This is just a handwave.

        2. flora

          Jeff, I do believe you have the best of intentions. I’m endlessly frustrated by well meaning liberals and leftists who fail to learn the basic rules of our system. The proposed ERA Constitutional amendment time for ratification expired decades ago, even with a one time extension to the deadline, to my sorrow. A vote by the House cannot now retroactively change this deadline. I’m sorry. (More sorry than you can imagine. However, I accept the rules.)

    2. Fraibert

      I’m not sure it would matter. Section 1 of the Equal Rights Amendment, which is the operative section, states:

      “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

      Because the Equal Protection Clause has been interpreted to cover sex, the most natural judicial approach would be to treat Equal Rights Amendment as coequal with the existing Equal Protection jurisprudence. However, the Court’s Equal Protection cases have found that laws that in practice affect only one sex (or mostly affect one sex) do not automatically trigger Equal Protection concerns. There has to be some showing of discriminatory purpose.

      On the other hand, one could treat the Equal Rights Amendment as broader than the Equal Protection cases. But there’s still a big problem when dealing with an issue like abortion: the concept of equality only applies if there are two sides to the equation, and there simply aren’t two sides in the case of abortion, unless one takes a very broad view of abortion that it equalizes the ability of the sexes to pursue personal development (or something along those lines–I’m struggling to articulate the idea).

  13. Louis Fyne

    a pro-bottom 85% economic agenda will never pass when the Culture Wars divide the country. fact since the 1960’s, fact for another 60 years.

    convenient feature, not a bug.

    1. voteforno6

      I think that’s a big reason why the leadership of both parties has pushed the abortion issue so much – it’s something that they can both argue about, and you’ll never get a definitive conclusion. Now, though, that equilibrium has been upset, and I don’t think either party is prepared for the fallout. This is something that could swallow up both parties, and if that happens, everything is in play.

  14. The Rev Kev

    Before the fight has even started, old Joe has already give away one of the biggest tools of leverage that he has – the ability to add more Supremes. Said that he is not interested in that, not even as a threat. I guess that he learned that tactic from Obama-

    I seem to recall reading how FDR used this threat back in the 30s to make sure the Supremes back then did not kill his reforms – and it worked. But that was then and this is now.

    1. drumlin woodchuckles

      He has the Supreme Sharia Law Court he likes and approves of, public lies on his part to the contrary notwithstanding.
      He began work on this Supreme Sharia Law Court of his by ramrodding Clarence Thomas onto the Court.

      I’m beginning to think that the most accelerationist thing we can do is to re-elect President Biden or President Kamoolah or whatever they give us.

  15. Ghost in the Machine

    Well, it seems like an obvious tactic for pro-choice advocates to watch female politicians, and the wives, daughters, and mistresses of politicians who vote for abortion restricting legislation like hawks to make sure they suffer the same consequences when they inevitably seek abortions. I am sure you could get sympathetic leakers in pro choice states to leak info on the most egregious hypocrites traveling for abortions.

    1. drumlin woodchuckles

      That’s a good idea. The louder the Beautiful Loser Liberals object to it, the better an idea that shows it to be.

      Dox them. Destroy their lives. If their spouses are in politics or “the law”, destroy their spouses’ careers.

  16. JBird4049

    The bounty hunter scheme reminds me of the Fugitive Slave Act, which empowered slave catchers to go and kidnap “escaped slaves.” It became gangs of kidnappers taking anyone who merely looked Black which was used to justify their kidnapping and enslavement, and the victims had almost no recourse to the law. Add that police officers (what there were of them), judges, and bystanders would be threatened with violence if they tried to intercede.

    It essentially was a form of slave raiding and much like the British corruption, incompetence, and stupidity along with writers like Thomas Paine, created the broad base needed for the War of Independence, the Fugitive Slave Act and the violence in Kansas and Missouri, helped by traveling speakers and books like Uncle Tom’s Cabin coalesce the Northern Abolitionists and the Southern Slavocracy into solid, effective movements.

    I predict that there will be a version of the Underground Railroad and that fanatics (or just greedy and violent people) will get into fights with the conductors. Charming.

    1. drumlin woodchuckles

      I think a better approach would be for Legal Abortion states to ban non-residents from getting abortions in the Legal Abortion states. That would raise the level of pain, tension and hopefully socially destabilizing hatred within the Shariah Law States.

      It would also establish that the only way for a woman to get an abortion in a Legal Abortion state is to already have been a resident of that state. If that basic fact could be established, then the Legal Abortion states could work on encouraging potential future-seekers-of-abortions to move to the Legal Abortion states.
      It could also be used to encourage Legal Abortion supporters of whatever sex and gender to move from the Sharia Law states to the Legal Abortion states.

      Over time, the Sharia Law states could have their population base brain-drained and their economy and society, and hence their political power over the United States, attrited and degraded.

      If Sharia Law supporters in the Legal Abortion states could all be encouraged to move to the Sharia Law states, then the cultural quality of the population remaining in the Legal Abortion states would be further improved, as would the Legal Abortion states themselves.

      We could begin setting the stage for dividing the country into a United States of Modernia ( or Secularia or whatever we want to call it), and a United States of Christian Gilead Shariastan.

  17. Tom Stone

    I wonder how much internal migration will occur due to this ruling and how many companies located in restrictive States are going to have a problem retaining or hiring female members of the PMC to work in those States?

    1. The Rev Kev

      Not so much internal migration as the return of the Underground Railway. But there might be a twist now. How about those politicians who previously get girls pregnant in affairs and who would then pay for an abortion. If those girls are now forced to come to full term, there might be some interesting paternity suits going forward in some of those conservative states.

    2. the last D

      When all the dark stars finally align, and they will, and our facist republican brothers and sisters hold both chambers of congress, like they do guns in their palms, and someone like president desantis sits atop the most private and powerful office in the american madhouse, then the republican leader of the senate, will shoot down and kill the filibuster more quickly than you can say “president manchin,” and then abortion shall be criminalized throughout the entire country and God can finally beat a retreat back to heaven, and american women will have no place to flee save to sit somewhat lower, and beneath, their man. At his feet, most assuredly. Say, Amen, everybody. Amen.

    3. expr

      This is a repeat of something I posted to links yesterday: Josh Hawley thinks this would be good for Repugs (via lawyers guns money;
      “I would predict that the effect is going to be that more and more red states are going to become more red, purple states are going to become red and the blue states are going to get a lot bluer,” Hawley said. “And I would look for Republicans as a result of this to extend their strength in the Electoral College. And that’s very good news.”

      Read more at:

    4. drumlin woodchuckles

      We should encourage as much internal migration as we possibly can. One way that people can do this without going through the Enemy Occupied Political System is for Modernians to refuse to move to Shariastani states for jobs. If enough Modernians refuse to take jobs in Sharia states, then corporations may be forced to close certain operations in Sharia states.

      And if Modernians from behind Sharia state lines could get work at companies or whatever within Modernian states, that would also encourage migration from Sharia states to Modernian states.

      If the population of any Modernian states could become so overwhelmingly Modernian that the sheer press of daily activity and living by the Modernian Ultramajority within those states would make life unbearable for the Shariastanis behind Modernian lines. The Shariastanis would be encourage to move to Shariastan. ” This is a Modernian neighborhood. God help you Shariastani if the sun sets on you here.”

      Over the decades, the Sharia states could become a vast huge sump into which all the very worst people from the Modernian states drain into. And stay.

      1. JBird4049

        Just because a state is Blue does not make it much better for many, maybe most, people.

        California’s state government is corrupt and local governments are a patchwork of honest ones and corrupt ones with the police departments being the same. There is a very wealthy “liberal” coastline centered on the Bay and then LA in the south and a thick Red zone like a bowl surrounding it inland. Everything costs too much especially housing and education. It is certainly not Alabama, but it’s not like the Golden State of decades ago. Just where should one move to in the state?

        But most of the country is becoming like this, yes?

  18. fairleft

    Two issues/questions for lawyers:

    I keep hearing about ‘codifying Roe’ at federal level but didn’t Dobbs put abortion law in states’ hands?

    Now that an abortion right based on 14th Amendment is blown up, could a limited right be based on Establishment Clause, in the sense that the restriction needs to be rational rather than based on the religious belief that fully protected human life begins at conception?

    1. Fraibert

      fairleft: To answer your questions as best as I am able in a short space and with some personal judgment involved:

      1. “I keep hearing about ‘codifying Roe’ at federal level but didn’t Dobbs put abortion law in states’ hands?”

      Formally speaking, _Dobbs_ threw abortion issues back to the legislatures (at any level with sufficient authority). The case found that the federal Constitution does not contain a “right to abortion.”

      Because there’s no federal constitutional right, state and even local legislatures are free to pass laws, consistent with other legal restrictions such as state constitutions and municipality home rule statutes, regulating abortion or banning it as those bodies see fit.

      Congress itself probably can pass an abortion law under its power to regulate interstate commerce (i.e., the Commerce Clause power), either enabling abortion or prohibiting it. Such a law may preempt state laws on abortion if it’s written in a manner to do so. In my view, the Supreme Court probably would uphold a reasonable abortion law.

      However, I could see some kind of Constitutional theory being created that would prohibit extremely permissive legislation (e.g., abortion on demand in the 9th month of pregnancy or something like that). That’s just a gut feeling, not something doctrinal.

      2. “Now that an abortion right based on 14th Amendment is blown up, could a limited right be based on Establishment Clause, in the sense that the restriction needs to be rational rather than based on the religious belief that fully protected human life begins at conception?”

      In my view, this is an untenable argument. The Establishment Clause, as the cases have developed (they’re a mess), is concerned with the undue intertwining of religion with government. Even assuming that a pro-life position is solely religious (I think that a committed atheist who believes in human rights could reason into holding pro-life views), the fact that legislators have religious beliefs that motivate legislation does not seem to me to unduly intertwine religion with government. On the contrary, legislators are elected presumably /because/ they have certain beliefs that are consistent with the people they represent. In fact, it’s the legislator’s job to draw difficult lines, and moral judgment, which may include religious beliefs, will always play a role in such circumstances.

      Additionally, just as a thought, I’m not sure you really want to go in this direction–the anti-slavery movement was religiously driven, so does that make it “irrational” and therefore illegitimate?

      1. Pat

        Will you explain to me how the legislators religious belief trumps that of either the woman or the doctor that life begins at birth and abortion is not against their religionn or moral beliefs? IOW If abortion is legal based on not prohibiting the free exercise of religion, The legislator and their voters are not being forced to have or perform an abortion, they merely are enjoined from forcing their beliefs on others which clearly prohibit the woman and her doctor from the free exercise of acting according to theirs. Shouldn’t our Christian, and atheists citizens be told to live their own lives according to their doctrines and let others do the same.

        Because everything about this says the only people whose doctrines don’t matter are women who believe life begins at birth.

        1. Fraibert

          The Free Exercise Clause is concerned with the right to act in accordance with religious beliefs. If the doctor and woman believe that abortion is not against their religion, it seems to me this is not claiming an affirmative belief that leads to a particular religious practice. On the other hand, if you had a situation where the doctor and woman believe that abortion is required by their religion in some cases, the Clause would be triggered. (I don’t know that I could predict the results of such a case.)

          In other words, I don’t think the argument you are making fits into a Free Exercise Clause framework. Generally stated, I think the argument you are making is that abortion bans constitute the enforcement of one morality on the citizenry. But, is that unique to this one area? Plenty of laws compel behavior that at least in part is based on a particular vision of morality (this is a large portion of criminal law).

          It seems to me the idea of representative democracy (I know, versus the reality) is that legislation should be made after taking into consideration the views of differing populaces. Legislators (possibly a new slate of them after the old ones get voted out) can amend legislation to fix errors or replace rules that are just straight out unpopular. This battlefield of legislative politics is where I think the Constitution intended the stakeholders to fight in furtherance of their beliefs.

    2. marym

      They didn’t throw reproductive autonomy back to the states. They ended legal protection of women’s reproductive choice knowing what many states were likely to do or were already doing to prevent the exercise of that choice. They know their other decisions on voting and representation will constrain those who want to do something different.

      I’m not qualified to say whether there’s a theoretical legal argument that can stop any facet of the far right political and social, and economic movement of which this decision and these justices are a part.

  19. Ignacio

    This was quite a good read for me thought it made me realise I wouldn’t be half the person your father is with his careful and measured reaction about his nephew’s insolence. I would surely have exploded.

  20. Bill Carson

    I think some of the Christian “pro-lifers'” minds are going to change once they realize the implication of the fact that their daughters’ and sons’ girlfriends can’t obtain abortions when then inevitable unintended pregnancy occurs.

    1. drumlin woodchuckles

      That will only work if their daughters and sons’ girlfriends are banned from receiving an abortion in the Legal Abortion states.

      Unless that “pressure release” valve is welded down shut, the Sharia Christian pro-lifers won’t have any incentive to repeal the Sharia laws in their own Sharia states.

  21. rosemerry

    I live in France where the decision is personal not political.
    Not being American, I always find the pretense that anti-abortion is “pro-life” when most of the population seems to accept the use of guns for “self-defense” very hypocritical .
    Perhaps the present or future unborn babies from now on can wait until they reach the age of a year or two and grab the parents’ guns and shoot them. Little is done to reduce the endemic violence, inside the USA or to their designated enemies.

    1. drumlin woodchuckles

      They have an answer for you there. ” Pre-born life” is innocent. Anyone shot by a good citizen must have been guilty of something.

      The rising Christianazi Satanofascist majority is going to be an “offshore presence” in your future. You might as well start studying up about things like Seven Mountains Domininionism, Biblical Inerrancy Literalism, the Rapture, the Time of Tribulations, etc.\

      You may not be interested in Christian Sharia Law Fascism, but Christian Sharia Law Fascism is very interested in you.

  22. DJG, Reality Czar

    Jerri-Lynn: Thanks for your overview and insights.

    I think that this sentence is the central observation: “I’m sick of good intentions in the service of tactically stupid manoeuvres.”

    Commenters will occasionally say that other commenters here at Naked Capitalism are too hard on the Democrats, who really just want to live in peace and means-test everything. Yet the current difference in politics and in effectiveness is that the Republicans are in search of power, which they then wield, and even when Republicans are acting stupid, they are obviously attempting to accrue power. Meanwhile, the Democrats are dressing up in kente cloth or reciting poems by Israeli writers (Pelosi couldn’t find a U.S. writer to quote?).

    The Democratic Party is led by people with no understanding of tactics–witness the “we’ll destroy Russia Russia Russia” sanctions regime now destroying Germany and Italy. The Democrats’ lousy tactics (the Parliamentarian!) are a symptom of their horror of wielding power. So it’s all about fund raising and manipulation of symbols, with occasional recourse to the “human-resources” department = the Parliamentarian. Even the current tactic of referring to access to abortion as “women’s rights” is inadequate, when a more unifying tactic would be to call it an attack on privacy, on medical decisions made privately, disparate treatment not permitted by the Constitution, and an establishment of religion.

    Meanwhile, on FBk, some “friendses” of mine are engaged in witch hunts for Bernie Bros and Greens, even as they are relitigating the 2016 election–which led directly to the war in Ukraine. The irony is that the Republican tit for tat–the January 2020 cop-assisted riot–has led to the Republicans once again being in a position of consolidating their base.

    Tactics. Like Jerri-Lynn, if I may speak for her, I’m no longer interested in marketing, public relations, burbling by lawyers, and smart mouthing by the obviously senile Pelosi and Schumer.

    Time for political realignment?

    1. Rolf

      Tactics. Like Jerri-Lynn, if I may speak for her, I’m no longer interested in marketing, public relations, burbling by lawyers, and smart mouthing by the obviously senile Pelosi and Schumer.

      Time for political realignment?

      Long overdue. The D seniority exist solely to raise funds, maintain a moneyed condition where nothing, and I do mean nothing, ever changes. They are the true conservatives, as the GOP clearly want to change the status quo quite a bit. And Pelosi, Schumer, et al. rejoice at the erosion of basic rights and humane treatment of women, of people of any color save that of money — I am certain they think this will be a fundraising boon. Why wouldn’t they? — it’s certainly worked so far.

      It will require a near revolt, a realignment unlike anything we’ve witnessed thus far to push them out.

  23. PlutoniumKun

    Based on the Irish experience, my guess is that the crazies on the anti-abortion side will overplay their hand.

    Just to give a very quick, potted history of the Irish abortion debate and how Ireland ended up with a relatively well crafted abortion law, despite the best efforts of Irish politicians to avoid the subject (I’m writing this quickly from memory, so feel free to correct any details I may get wrong).

    In the early 1980’s abortion was illegal under a 19th Century British law, which suited most people. 95% of the population were catholic, at least 80% of those regular churchgoers. From the 1960’s, abortion was available in Britain. A pregnant girl in Dublin could get a cheap ferry ticket from Dublin to Liverpool, do what was needed, and return telling everyone she had a fun party weekend away. It was a hypocrisy which kept most people happy. But the hard core conservative catholic activist movement (always a minority within Catholicism, but powerful) took advantage of a particularly tight election to corner the future PM into calling for a specific constitutional amendment banning abortion. After a very nasty campaign, it was adopted (interestingly, post election polls indicated that it was a primarily female vote that provided the majority). The wording of the amendment was crude – essentially guaranteeing ‘the equal right to life of the woman and the unborn child’.

    This seemed to settle it. The previous hypocrisy continued, made even easier by dirt cheap flights to Europe. Well connected women with the right gyno could have a ‘procedure’ which was not called abortion but was. Most other women and girls could go to England. There was at least one reasonably well fitted out clinic that provided a service in Dublin to immigrant women who could not travel (it was advertised in mandarin only).

    But the conservatives then grossly overplayed their hand. They tried hard to bring in a travel ban on teenaged girls travelling if they may be pregnant. This was never going to happen, but they pushed a number of court cases, and then it blew up in their faces. I am simplifying the decision, but the Irish Supreme court essentially declared that if the rights of a woman and her unborn child were equal, then in a situation where a womans life was at grave danger by a pregnancy, and it was highly unlikely the fetus would survive, therefore the woman had a legal right to an abortion. Therefore, any law that banned abortion entirely was unconstitutional. It then struck down the old 19th Century statute.

    So Irish politicians did what Irish politicians always do in such circumstances. They ran for the hills. Unlike in the US where there were political calculations that being pro life or pro choice would be electorally useful, most main Irish parties were split internally. The three main parties all had to try to balance up their liberal urban middle class voters with their often socially conservative working class or rural voters. So they did absolutely nothing except make it easier to travel to England for an abortion.

    So this limped on for more than a decade. Abortion was technically legal, but there were no laws or guidelines permitting it, so virtually all hospitals and doctors refused to perform them. They simply referred women to the Ryanair booking site and gave them a number. Some hospitals performed ‘procedures’ in emergency situations, but many Irish hospitals are run by nuns and so resolutely refused to do this. Some private gyno’s would also do it discreetly.

    This situation could have gone on for years until a major scandal when an Indian immigrant died during childbirth. She was told she needed an urgent termination, but the hospital could not give it. She apparently died in agony. Now it should be said that the pro-choice campaign probably made a bigger meal of this than was justified (I’ve been told by a doctor friend that her condition was very rare and its likely she would have died even if a termination was available). But, it proved the turning point.

    At this stage, Irish politicians did something uncharacteristically wise. They turned the question over to a citizens jury known as the constitutional assembly. Essentially a hundred or so randomly chosen people who could call any witnesses they wanted and come to any conclusion they wanted. And they recommended a new constitutional change guaranteeing the right to termination in most circumstances. To most peoples surprise (including myself), it was then passed with a clear majority. The conservative pro-life movement was uncharacteristically quiet. I think they knew they were going to lose, and that they had overplayed their hand previously and so decided there were no gains in putting up any more than a token opposition. If rumors are correct, the pro-choice movement did all it could to shut up its most strident activists as they knew that every time one of them went on TV or radio, it pushed people the other way (something US prochoice activists should pay close attention to). So it was all settled in a very low key and sensible manner.

    The situation is still not ideal – the catholic church (for historic reasons) still has a tight grip on many hospitals, and there are sufficient legal and practical issues which means many women still prefer to fly abroad, not least because Ireland is a very small place and its always more discreet to do certain things outside the country. But, after several decades of strife, the situation is reasonably acceptable for the vast majority of women. Although notably, abortion is still not available in Northern Ireland.

  24. Hayek's Heelbiter

    An observation for the long-term.
    When I was in the Mystery Writers of America, there was a frequent speaker who had grown up inside, from juvie through jail through hard prison time for armed robbery.
    I wish I could remember his name, but he made a passing remark that has stuck for me forever:
    “I have never met a wanted in child in prison.”
    Cf. Economic research resurfaces debate about the link between legalized abortion and crime reduction

    Legalized abortion is estimated to have reduced violent crime by 47% and property crime by 33% over this period, and thus can explain most of the observed crime decline,” Donohue and Levitt write.

    Start preparing yourself for a the new crime wave that will be unleashed c. 2040.
    Ps. Not one mention of the fact that all the money squandered on this idiotic exercise could have just as easily been spent on birth control and maternal and infant care, funding for all of which has been decimated by the virtuality class. But that’s a topic for another post.

  25. LAS

    There is a federal law called HIPAA which protects individuals’ medical records and personal health info. Some state anti-abortion laws are actually violating the reproductive health rights of ALL women b/c they violate the right to privacy in order to police reproductive health. State laws ought to be challenged on that basis.

    Second, pregnancy does not affect one-eighth of a woman’s body; the whole body is affected. Pregnancy draws on all the major organs, connective tissues, blood/hormones, and just everything. It is a serious and personal health condition. There are inequities in outcome from pregnancy associated with person health and economic circumstances, and identity class that have not been considered.

    Anti-abortion laws introduced by states implicitly assume that women are chattel and that’s what is most wrong with the laws and the SCOTUS seeming to concur with them. The laws rob all women of their citizenship rights to health, autonomy and privacy. Further it stigmatizes women according to false perceptions about pregnancy. Regardless how a woman feels about ever needing or wanting pregnancy or abortion, she has lost citizenship rights.

    1. Goingnowhereslowly

      Yes. I am fortunate in being post menopausal, but the Alito and Thomas opinions imply that the Court thinks the constitutional rights of women are essentially what they were in 1789, except we do get to vote, for what little that is worth these days. The rights of sexual minorities are similarly nonexistent. Combine this with the modern surveillance state and, well, I’m having a hard time processing my horror.

      As we have watched the unfolding of climate change, my husband and I have comforted ourselves with the facts that we have no children and only have two or three decades left to live. We’ve speculated that we would miss the worst of civilizational collapse, but things are clearly unraveling very fast now.

      We grieve for the young.

  26. orlbucfan

    “If only that we’re true!”–Lawrence Tribe. For a guy who is supposed to be a legal giant, Tribe needs to brush up on basic grammar. That should be were, not we’re.

    Thanks, Jerri-Lynn and commentariat for a very good discussion.

    1. Jerri-Lynn Scofield Post author

      I almost included a (sic) after Larry’s tweet. That, however, would have been cruel.

      1. DJG, Reality Czar

        J-L S: It would have been arch, not cruel.

        It would have been cruel of you to have pointed out that, in his second tweet, Tribe has listed Alito twice. Is this a signal from the distraught Tribe that Alito is twice born? A double whopper of sleaze?

        In his haste, Tribe missed ReligioZombie ACB.

      2. ex-PFC Chuck

        We all screw up grammar, leave out a word, etc. in the flurry of making a comment. Tribe deserves a break.

  27. DD

    Overturning Roe v Wade by SCOTUS is, potentially, only the tip of the iceberg. It’s the long-term outcomes that matter, and Josh Hawley showed what these are: make at least 26 states deep red. Then the Republicans can permanently control the Senate and have an Electoral College advantage. This means any Democrat elected president will simply not be able to govern, because the Senate can shutdown the Executive branch. Not having a functioning federal government is a reasonable alternative for Republicans. When a Republican is president, the Senate can move quickly to approve judges. This allows Republicans to: 1) control one branch of government (the judiciary), 2) make the Executive branch inconsequential when held by a Democrat, 3) make the House irrelevant by blocking all their actions and shielding the President from impeachment, and 4) allow any Republican president to run the federal government executive orders, bypassing the Legislative branch.

  28. drfrank

    I have been trying to understand the link Thomas makes between yanking the right to abortion and Dred Scott. What does the former have to do with a pro-slavery pre Civil War decision, seemimgly originalist, that said the Founders never contemplated liberty for black skinned people. Thomas sites Dred as the ultimated bad example of the substantive due process doctrine. To fight the drift of this ultra conservatice Court, I think a critical review of Thomas’ jurisprudence would be helpful, especially in light of the personal life experiences that seem to have left the proverbial chip on his shoulder. Likewise, we need to understand Alito’s activism better, and monitor his proactive hints about what to bring to the court. Resistance needs to be fòrewarned. (“Forewared is five armed!”

    1. redleg

      There is a13th Amendment argument regarding forced pregnancy.
      I’m not sure how that would stand up in court, but the argument exists.

  29. Grayce

    My favorite unintended consequence: That the Supreme Court will hear a case that tackles “bankruptcy at will.” That is, using bankruptcy as an ordinary business strategy when it has actual “victims.” Those victims are too small to avoid failure. They need an ACLU or bigger pocketed entity to bring a case, as a public service, that bankruptcy and surviving “stronger and better than ever” is un-American. It takes advantage of the financial minorities who cannot speak, in court, for themselves. It is likely simply a practice of power. It is likely unconstitutional.
    Let this bench of “strong Constitutionalists” find the cracks in the American homage to a golden calf.

    1. ex-PFC Chuck

      Homage to the golden calf is the primary criterion on which they were chosen, by whichever party. Witness the corporate friendliness of Breyer and Ginsburg, appointed by Clinton. Only the issues that have the potential to distract the two parties’ bases from thinking about their parties establishments are screwing them over, e.g. no-choice reproductive rights and gunz, for example are partisan.

  30. Grayce

    For the Supreme Court to rethink getting into bedrooms and pockets: Commencing in 1800, Congress repeatedly exercised its bankruptcy power during periods of depression or financial unrest, but all early bankruptcy laws were repealed whenever unrest subsided. Since 1898, however, the United States continuously has had a comprehensive bankruptcy law, one completely revised by the bankruptcy reform act of 1978. (Wiki)
    If SCOTUS can undo any legislative act regarding the personal/public interest, isn’t it right to look into the simply convenient bankruptcy and tell the perpetrator to accept life as it comes and not look for a public handout. Isn’t it a part of freedom to accept the freedom to fail? Isn’t it an investor’s responsibility to balance his own books without a social handout? Isn’t the small creditor entitled to protections under the law from frivolous bankruptcy. The law is supposed to only protect the one filing while he reorganizes how to pay off his debts, not to automatically provide a car wash where the unpaid vendors are washed off the mudflaps.

    1. redleg

      I want to see someone being a case that revisits Santa Clara v. Southern Pacific using the same logic as Alito uses- corporate personhood isn’t in the constitution.
      This court is extremely unlikely IMO to overturn that one, but I’d love to see the hypocrisy get into the record for future use on either use. And who knows- it might actually work.

  31. JR

    At the considerable risk of potentially overstating things, let’s fast forward a bit to the situation where anti-abortion states post police officers at their borders to conduct checks to see whether any of a car’s occupants are pregnant (officers could be posted at bus terminals, railway stations, and airports, too). Of course, how such checks are to be conducted is quite up in the air (via information on their phones, via pregnancy test kits, etc?). But let’s assume that anti-abortion states will come up with something.

    I think we can then assume that there will be women who will not be allowed to leave an anti-abortion state, and that there will be women who will now not be able to return to their anti-abortion states. In the case of women not allowed to leave their state, will they be held against their wishes and forced to come to term? What about women who are pregnant, but are are allowed to cross their state’s border and then return? Will they have to prove that they are still pregnant when they return to the anti-abortion state? What about women who did cross the border for an abortion, what will they do?

    For the women who have to run this gauntlet (and people who help them), the anti-abortion states will resemble the former East Berlin, and for many of the women who do make it across the border, they will become political refugees.

    One quick rejoinder is that many state’s laws don’t target the women who are pregnant, but do target people who help the women who are pregnant. My response to that is that it won’t take long for laws to change and target women who are pregnant.

    Wow is it easy to get to a dark place! I hope I am wrong about this and of course hope this doesn’t happen, but it is unfortunately kinda easy to foresee, and I think this issue will be litigated sooner rather than later.

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