TX SB8 architect files amicus brief asking SCOTUS to overturn Roe, Casey, Lawrence, and Obergefell

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Let it happen.

Neither Roenor Obergefell had popular support at the time those decisions went down.  Perhaps that's not true today.  Perhaps state legislatures will pass into law what these decisions have wrought to date.  Both of those decisions have one thing in common; they created "rights" out of Constitutional Whole Cloth.  They are examples of why Americans on both sides of the Spectrum view the SCOTUS as no less "political" than Congress, and certainly not "the least dangerous Branch".

Roe was correctly decided as a matter of law. The only quirk is that it was based on the Due Process clause, which isn't really quite right. It should have been based on the Privileges or Immunities clause, but the Supreme Court didn't do that because of old Jim Crow era precedent that got the Privileges or Immunities clause wrong.

However, I agree that Roe should be overturned. Not because it is wrong, but because despite the fact that it is right, it is better that this be decided democratically, so that the country can finally deal with this issue properly and come up with some resolution that not everyone will necessarily like, but at least can accept as being democratically legitimate (that is, at least by those Americans who support the principles of democracy). So hopefully SCOTUS goes judicial activism and ignores the law/constitution and overturns it.

"Roe was correctly decided as a matter of law but should be overturned for policy reasons" is the exact opposite of what most of the forum, and probably a plurality of the legal profession, considers a "reasonable" position on the subject, so congratulations for holding an idiosyncratic view.

Lumping in Lawrence and Obergefell with the abortion precedents in this amicus brief is a massive red flag. The term "saying the quiet part out loud" is thrown around way too much these days, but this is definitely not someone who's invested in the legal and moral issues surrounding abortion for their own sake, rather than as a way of furthering a far broader and deeper reactionary vision of society.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Roe was correctly decided as a matter of law. The only quirk is that it was based on the Due Process clause, which isn't really quite right. It should have been based on the Privileges or Immunities clause, but the Supreme Court didn't do that because of old Jim Crow era precedent that got the Privileges or Immunities clause wrong.

However, I agree that Roe should be overturned. Not because it is wrong, but because despite the fact that it is right, it is better that this be decided democratically, so that the country can finally deal with this issue properly and come up with some resolution that not everyone will necessarily like, but at least can accept as being democratically legitimate (that is, at least by those Americans who support the principles of democracy). So hopefully SCOTUS goes judicial activism and ignores the law/constitution and overturns it.

"Roe was correctly decided as a matter of law but should be overturned for policy reasons" is the exact opposite of what most of the forum, and probably a plurality of the legal profession, considers a "reasonable" position on the subject, so congratulations for holding an idiosyncratic view.

Lumping in Lawrence and Obergefell with the abortion precedents in this amicus brief is a massive red flag. The term "saying the quiet part out loud" is thrown around way too much these days, but this is definitely not someone who's invested in the legal and moral issues surrounding abortion for their own sake, rather than as a way of furthering a far broader and deeper reactionary vision of society.

I agree regarding lumping Lawrence and Obergefell in, I was just talking about Roe personally.

As for your restatement of my position as "Roe was correctly decided as a matter of law but should be overturned for policy reasons," I support the pro-choice policy embedded in Roe, the issue is really just a matter of politics, not policy. For many years, Republican politicians have gotten away with saying that they oppose the right to choose without having to actually stand up and vote directly for banning abortion, with the actual effect of it actually being banned, because the courts stood in the way. As a result, they have gotten a free pass without accountability. Politically, it is better for them to be held accountable. Accountability is a cornerstone of democracy; without accountability of elected officials, democracy cannot exist.


On the merits of the law, in the 60s/70s, SCOTUS Justice Hugo Black in particular was reading up a lot on the civil war amendments (especially the 14th) and the radical Republicans (very different from the current "Republican" party) who pushed through the amendments. They had intended for the Bill of Rights (plus some unclear/unspecified enumerated rights) to apply against the states via the 14th amendment. This is what the 2nd sentence of the 14th Amendment refers to:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, this was gutted soon after the civil war by traitorous segregationists and Jim Crow sympathizers on the Supreme Court (primarily in the slaughterhouse cases) and was dead and buried and never heard from for nearly a century. So subsequently, when the Supreme Court started reversing course, and finally enforcing the bill of rights against state governments, and also started moving to finally rule against Jim Crow, they were looking at this. They had a choice; either overrule the earlier segregationist precedent, or ignore it. They went with the John Roberts style solution of overruling it de facto, without actually saying that they overruled it, and simply read it into the clause right after (the due process clause) instead, so that they didn't have to overrule previous (by that point very old) SCOTUS interpretation of the P or I clause. The thing is, the Bill of Rights (in the 9th amendment particularly, though also effectively in some other places) explicitly says that there are unenumerated rights, which therefore also apply via the 14th amendment against the states. This then led to Griswold v Connecticut, which held that "The Connecticut statute forbidding use of contraceptives violates the right of marital privacy which is within the penumbra of specific guarantees of the Bill of Rights" and then that led to Roe v. Wade.

That looks like just judicial activism/fabrication by the Supreme Court if you are actually just looking at the Due Process clause (which at first glance seems fair enough, since that is what they do refer to). But if you recognize that the P or I clause was intended to do this in the first place, and that really they were just applying the intent for the P or I clause to the Due Process clause, then you recognize that Roe v. Wade was not judicial activism at all. Rather, the judicial activism was conducted 100 years beforehand by the segregationists who gutted the 14th amendment in the first place and stripped it of its intended application. It would probably have been a better call for the sake of clarity for SCOTUS in the 1960s/70s to do this via the P or I clause, but SCOTUS (even the Warren Court) is a small c conservative institution that doesn't like to overrule very old precedent, so they avoided doing that, with the result that they distorted popular understanding of their decision and made it seem illegitimate, when in reality it was not.

John Roberts will now almost certainly try to do a similar sort of thing regarding Roe as SCOTUS earlier did regarding much segregationist precedent; overturning it in reality while not saying that he has overturned it. The only question is if the other 5 partisan Republicans on SCOTUS let him get away with his deceptive trickery, or if they want to say the words "Roe v. Wade is overturned."

I'm familiar with the difference between due process and P&I clauses and I agree with you that the Slaughterhouse interpretation of P&I is unconscionable and is itself judicial activism. Where we part company is on whether P&I should be used to assert a constitutional right to abortion; obviously it can, since unenumerated rights can by definition be whatever a SCOTUS majority says they are, but of the various heuristics that exist for identifying unenumerated rights, only the most subjective and impressionistic ones (out of a set of possibilities that are subjective and impressionistic by their very nature!) strike me as amenable to encompassing abortion.