Mississippi Abortion Ban Case to be Heard December 1 by Supreme Court

[Person Man]

I think SCOTUS will weaken Roe but not outright overturn it.

They'll probably save the gunpowder for when the Arkansas ban on gender-affirming treatment for kids comes there.

Why would they do that? You think its a better case to overturn Griswold or something?

[Person Man]

End roe v wade NOW

BAN abortion

Ending - overturning - Roe v. Wade will not result in banning abortion nationwide. Overturning it will result in returning control of the issue to the states. Most, if not all, (Atlas) red states will still allow abortion to be legal, and many (Atlas) blue states will ban abortion. Women who are in the latter states who need to get an abortion will be able to travel to the former states to get one.

I worry about what else the Supreme Court majority will say if they do overturn Roe. Roe was a misinterpretation of the Due Process Clause of the Fourteenth Amendment. If the Court does overturn Roe, will they also provide the country with a correct explanation of what the Due Process Clause means? If the Court explains the DP Clause in a manner similar to the way the plurality opinion in Webster v. Reproductive Health Services (1989) explained it, then that will mean the Court will continue to give this country an erroneous interpretation of the Clause and that the only reason the Court is upholding state laws that ban abortion is because the Justices politically agree with anti-abortion laws. It will mean that the Court's ruling will still be politically motivated, and the Court will then come under political pressure to reinstate Roe.

Attempts to overturn Roe will continue as long as the Court adheres to it. And, so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that. But even if the case is relegated to the dustbin of history where Dred Scott and Lochner lie, the right of privacy and the judicial techniques and attitudes it represents are likely to remain. A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required. (Robert Bork, "The Tempting of America," (1990), page 116.)

The Supreme Court is going to go for a full overturn (as in Fetal Personhood, as in, states can't legalize abortion either) if they do overturn Roe v. Wade.

The Court may decide to overturn Roe, but it won't have any basis for requiring States to criminalize all abortions. Even under an extreme pro-life interpretation of originalism, they could only go as far as banning post-quickening abortions (i.e., second and third trimester abortions) as that was the standard under common law at the time of the adoption of the Constitution. There was no statutory law in 1788 in either the UK or the US that banned abortion, only common law which used the quickening standard.

Other than John Roberts, I'm willing to bet none of the conservatives on the court will care about any legal basis for making such a decision.

Even if that were so, there's no justiciable point in this case for them to make such a ruling. It literally would require someone suing to prevent an abortion in a State where it was legal for them to even have a basis for such a ruling.

While the Court does lack the power to issue a ruling that conclusively bans abortion nationwide until the circumstance that you describe, there is still the possibility that a 5 or 6 person majority on the Court, if they really want to, could include a non-binding statement -- in any abortion-related ruling, such as the upcoming Dobbs case -- that hints at the prospect that it is unconstitutional to allow abortion to be legal. Surely you've heard of obiter dictum. I can foresee a ruling by the Court, in Dobbs, upholding the Mississippi law banning abortion after 15 weeks in which the opinion states the law should be upheld because it serves a legitimate governmental purpose, and it might even be constitutionally necessary to ban abortion after 15 weeks. It's just obiter dictum, so it isn't binding on future court decisions, but it can be cited in a future case that does challenge the constitutionality of laws that allow abortion to be legal -- and obiter dictum has certainly made its way into majority decisions before.

None of this would be a very good plan for the conservative justices though. It’s easy for a court to strike down a law. It’s easy for a court to uphold a law. It would be very difficult for the U.S. Supreme Court to create a new crime. I suppose under this “fetal personhood” doctrine the Court could enjoin the government from supporting abortions. But how would such a ruling ban doctors (i.e. private citizens) from a particular practice? They can’t order the state legislatures to pass legislation criminalizing abortion or impose a sentence for said crime. They cannot order state officials to prosecute said crime. So how would this “fetal personhood” thing work, exactly?

If they couldn't sue prosecutors to prosecute abortionists for murder, they could just sue the abortionist or the state legislatures that tolerate it for a Federal Violation of Civil Rights. My guess is that would be how a Constitutional Right to Be Born would be "implemented" by the courts. Basically a national S.B. 8 by estoppel.

[Person Man]

End roe v wade NOW

BAN abortion

Ending - overturning - Roe v. Wade will not result in banning abortion nationwide. Overturning it will result in returning control of the issue to the states. Most, if not all, (Atlas) red states will still allow abortion to be legal, and many (Atlas) blue states will ban abortion. Women who are in the latter states who need to get an abortion will be able to travel to the former states to get one.

I worry about what else the Supreme Court majority will say if they do overturn Roe. Roe was a misinterpretation of the Due Process Clause of the Fourteenth Amendment. If the Court does overturn Roe, will they also provide the country with a correct explanation of what the Due Process Clause means? If the Court explains the DP Clause in a manner similar to the way the plurality opinion in Webster v. Reproductive Health Services (1989) explained it, then that will mean the Court will continue to give this country an erroneous interpretation of the Clause and that the only reason the Court is upholding state laws that ban abortion is because the Justices politically agree with anti-abortion laws. It will mean that the Court's ruling will still be politically motivated, and the Court will then come under political pressure to reinstate Roe.

Attempts to overturn Roe will continue as long as the Court adheres to it. And, so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of judicial usurpation of democratic prerogatives in this century, should be overturned. The Court's integrity requires that. But even if the case is relegated to the dustbin of history where Dred Scott and Lochner lie, the right of privacy and the judicial techniques and attitudes it represents are likely to remain. A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required. (Robert Bork, "The Tempting of America," (1990), page 116.)

The Supreme Court is going to go for a full overturn (as in Fetal Personhood, as in, states can't legalize abortion either) if they do overturn Roe v. Wade.

The Court may decide to overturn Roe, but it won't have any basis for requiring States to criminalize all abortions. Even under an extreme pro-life interpretation of originalism, they could only go as far as banning post-quickening abortions (i.e., second and third trimester abortions) as that was the standard under common law at the time of the adoption of the Constitution. There was no statutory law in 1788 in either the UK or the US that banned abortion, only common law which used the quickening standard.

Other than John Roberts, I'm willing to bet none of the conservatives on the court will care about any legal basis for making such a decision.

Even if that were so, there's no justiciable point in this case for them to make such a ruling. It literally would require someone suing to prevent an abortion in a State where it was legal for them to even have a basis for such a ruling.

While the Court does lack the power to issue a ruling that conclusively bans abortion nationwide until the circumstance that you describe, there is still the possibility that a 5 or 6 person majority on the Court, if they really want to, could include a non-binding statement -- in any abortion-related ruling, such as the upcoming Dobbs case -- that hints at the prospect that it is unconstitutional to allow abortion to be legal. Surely you've heard of obiter dictum. I can foresee a ruling by the Court, in Dobbs, upholding the Mississippi law banning abortion after 15 weeks in which the opinion states the law should be upheld because it serves a legitimate governmental purpose, and it might even be constitutionally necessary to ban abortion after 15 weeks. It's just obiter dictum, so it isn't binding on future court decisions, but it can be cited in a future case that does challenge the constitutionality of laws that allow abortion to be legal -- and obiter dictum has certainly made its way into majority decisions before.

None of this would be a very good plan for the conservative justices though. It’s easy for a court to strike down a law. It’s easy for a court to uphold a law. It would be very difficult for the U.S. Supreme Court to create a new crime. I suppose under this “fetal personhood” doctrine the Court could enjoin the government from supporting abortions. But how would such a ruling ban doctors (i.e. private citizens) from a particular practice? They can’t order the state legislatures to pass legislation criminalizing abortion or impose a sentence for said crime. They cannot order state officials to prosecute said crime. So how would this “fetal personhood” thing work, exactly?

If they couldn't sue prosecutors to prosecute abortionists for murder, they could just sue the abortionist or the state legislatures that tolerate it for a Federal Violation of Civil Rights. My guess is that would be how a Constitutional Right to Be Born would be "implemented" by the courts. Basically a national S.B. 8 by estoppel.

You can’t sue a private doctor for a violation of constitutional rights. And you can’t sue the state legislature to make them pass a law.

I’m not talking about forcing states to make laws but there’s ton of civil rights laws that they could use to sue providers based on interpreting fetuses as a suspect class. So, they couldn’t just say that a fetus  has a right to not be aborted, but also that because they have a right to not be aborted that is systematically violated in society that fetuses are covered under various Civil Rights Laws.

[Person Man]

I'm honestly starting to almost hope for the overturn. I just want judges to stop being the obsession in every election. I want the issue to go away. I'm so tired.

You want it to be overturned because the discussion annoys you?

That sort of apathy is honest to god worse than any conservative who opposes it on moral grounds.

God forbid we consider the implications of one of the biggest political issues in the country because the discussion personally irritates you.

Overturning it doesn't "settle" the issue any more than Roe "settled" the issue or for that matter any more than Dred Scott "settled" the issue.

They could just come back and say "we can allow 2nd trimester abortions to be banned so long as there are reasonably accessible safe guards", say "we're totally ignoring Roe and looking at this solely as just another local public health or order program", or even say "were upholding this law because we don't think it violates Roe".

If the justices are smart, they'll be able to get their law passed without actually having to repeal the laws already in place. This way, they can just rubber stamp every law that separately comes in. This way, abortion jurisprudence gets moved to the circuits. I say this because they haven't taken any cases where the circuit court upholds it. That should be a sign that this is what they want. This approach would be good and bad for various reasons, but would possible avoid they legal and cultural anarchy that would result from SCOTUS taking, perhaps for the first time,  a right from the people and making it a power of the states.

Even just going that far would open up how states would settle how abortion would then work. I think 15 states now have legalized it, 13 intend to make it illegal (will what SCOTUS do actually do this?) and there's probably a handful of states that are either trying to avoid talking about abortion or have it legalized by their own courts and don't want it to be. What will happen in those states?

Also. Name one thing that is completely or mostly tolerated in one place but is considered a heinous crime in another. How will we deal with that? Will people get scared and try to move? Who will move? What about the people who don't move?

If you are looking to "punt" on abortion, you are pretty much inviting a situation where we are all going to be talking about it for the rest of the decade whether we end up just agreeing to disagree like with unions, banning it but then having no respect for the law like we have done with drugs, or going full fledged War on Abortion remains to be seen.

[Person Man]

You know the politicians are pleading with the court behind the scenes to not overturn it because it would instantly kill any type of lead the Republicans would have in 2022.

I'm not so sure about that. If anything it would benefit the GOP to be able to say that they delivered what their base wanted.

When has that worked, though? It used to be a common occurrence where some weird town legalized marijuana only for the voters to become complacent and the law to be simply reinstated at the next opportunity.

[Person Man]

You know the politicians are pleading with the court behind the scenes to not overturn it because it would instantly kill any type of lead the Republicans would have in 2022.

Possibly. I think those who court pro-life voters are more concerned with state legislators making hay with the most punitive laws they can.

If Roe goes, expect at least one state to draft laws so restrictive it effectively criminalises miscarriage and places murder charges on someone's head.

So for the GOP you mobilise the leopards eating people's faces of and the Democratic opposition.

It would be naïve to think that this would compel only a few, if any, people to migrate. I foresee a potential future where the sex ratio in Illinois is like 120:100 and 85:100 in Indiana.

[Person Man]

You know the politicians are pleading with the court behind the scenes to not overturn it because it would instantly kill any type of lead the Republicans would have in 2022.

Possibly. I think those who court pro-life voters are more concerned with state legislators making hay with the most punitive laws they can.

If Roe goes, expect at least one state to draft laws so restrictive it effectively criminalises miscarriage and places murder charges on someone's head.

So for the GOP you mobilise the leopards eating people's faces of and the Democratic opposition.

Yes, I’m sure the south would institute their own fugitive abortion law where they would try and force other states to extradite women back to their masters.

I can see them creating some sort of Interstate Child Protection Compact.... or the ICP. I mean, they are clowns, right?

[Person Man]

The pro-life side clearly has 5 votes. It's just a question of how far they want to go.

The pro life side would be mandating abortion bans through the 14th .

You actually think they would do that?

[Person Man]

What are the chances that Altio, Thomas, and the Trump Trio get together and find that fetuses have a right to not be aborted?

[Person Man]

The pro-life side clearly has 5 votes. It's just a question of how far they want to go.

The pro life side would be mandating abortion bans through the 14th .

You actually think they would do that?

No, was just saying it. Anyway interestingly I actually wonder if the 14th argument if it somehow came to be would merely mean that murder laws apply to fetus's. Would Democratic states repeal their murder laws? Would Democratic governors just promise unconditional pardons for abortions?

You mean amnesty?

The other interesting thing you brought up is that in most places abortion would be illegal, it would be a felony. If it's a felony, especially a heinous one (Decades in Prison/Life/Death), you would have to have a jury trial. How would you even have a fair trial? Especially in a place like Georgia, Arizona, or even Texas. The chances of getting a jury willing to convict (at least in a place like Tuscon, Austin, or Atlanta) is very low and chances of juries ignoring the instructions and voting to acquit or not reach a verdict is high. Of course prosecutors and senior police from liberal areas will simply refuse to go after safe illegal abortion practices. That conservative state Governments would probably be forced to rely on the highway patrol, national guard, and special lawyers to prosecute abortion but then we would still be back to jurors claiming to do their jobs but then nullifying the case.

One interesting they could do is make abortion a misdemeanor so long as no one gets hurt or its not too late in gestation. For example, they could say that mailing or possessing less than a certain doses of abortion pills is a misdemeanor and then they wouldn't have to deal with juries. Even though the charges would be misdemeanors, they are certain misdemeanors that are considered felonies for certain social credit check situations, like licensure, firearm procurement, a getting a job or lease.

[Person Man]

Listing to the arguments it sounded like a 6-3 in favor of Mississippi. Roberts seemed to want to find a more narrow ruling than the other Justices. I see him assigning the opinion to himself or to a justice he has convinced to write a narrower opinion. He might fail to keep a majority behind his opinion and I could see him writing a sole concurrence in a 5-1-3 case or this case turning into a messy plurality opinion. Hard to see a majority invalidating Mississippi's law

The swing vote on Roe is probably Gorsuch.

[Person Man]

Listing to the arguments it sounded like a 6-3 in favor of Mississippi. Roberts seemed to want to find a more narrow ruling than the other Justices. I see him assigning the opinion to himself or to a justice he has convinced to write a narrower opinion. He might fail to keep a majority behind his opinion and I could see him writing a sole concurrence in a 5-1-3 case or this case turning into a messy plurality opinion. Hard to see a majority invalidating Mississippi's law

The swing vote on Roe is probably Gorsuch.

What makes you say that? He might not have as "personally pro-life" a reputation as most of the other conservative justices, but nothing about his jurisprudence suggests he'd be at all open to reaffirming a decision that (from a textualist perspective) goes out on as many limbs as Roe just because it's longstanding precedent. He might be the most "procedurally extremist" current justice despite the relatively nuanced substance of his views.

Has ever overruled precedent like this when he didn't have a strong interest in the subject matter of the case but I will say that this is the only reason why he might not be a rubberstamp on the opinion that overturns Roe.