How many SCOTUS votes are there for declaring fetal personhood?

[I’m not Stu]

How many SCOTUS votes are there to go beyond overturning Roe v. Wade and declare fetal personhood?

[100% pro-life no matter what]

Probably somewhere between 1 and 3 for using the 14th Amendment to abolish abortion.  Thomas would go for it, and maybe Alito and/or Barrett would.  I think there are probably 5 votes for overturning Roe v. Wade, though.

[Person Man]

Probably somewhere between 1 and 3 for using the 14th Amendment to abolish abortion.  Thomas would go for it, and maybe Alito and/or Barrett would.  I think there are probably 5 votes for overturning Roe v. Wade, though.

[Unbeatable Titan Susan Collins]

Thomas has been on the SC for years. If he was going to write an opinion arguing for fetal personhood, he would have done so already, either during Casey or any of the other times abortion cases have come before the Court. He does not shy away from solo dissents.   

None of the others have indicated any support. Kavanaugh today seemed to argue the Court should be neutral on the issue and return it to the states so he is not a supporter of fetal personhood.

Gorsuch is in the Scalia mold and Scalia dismissed personhood.  Alito has been on the Court for several abortion cases at this point and has never indicated support for it.

Barrett is a possibility.   I voted zero but could see it being one.

[Donerail]

Thomas has been on the SC for years. If he was going to write an opinion arguing for fetal personhood, he would have done so already, either during Casey or any of the other times abortion cases have come before the Court. He does not shy away from solo dissents.   

I wouldn't write off Thomas. His concurrence in Box v. Planned Parenthood certainly walks right up to the line.

[I’m not Stu]

Both Thomas and Alito are definite votes for fetal personhood.

[NewYorkExpress]

I think there are four to five votes for fetal personhood (every conservative justice except for Roberts). The question is whether any of them would be willing to actually write an opinion stating such, and sign their names to it.

[Person Man]

Both Thomas and Alito are definite votes for fetal personhood.

Barrett is a hard-core papist. There is nothing to suspect she wouldn't go along with it. Gorsuch and Kavanaugh might be typical people who don't think the Constitution has anything of substance to deal with individual rights except for property rights.

[I’m not Stu]

Gorsuch learned from John Finnis. There are at least four votes.

[Ferguson97]

Alito, Thomas, and Barrett are definite yeses.

I don't think Roberts would. Liberals are obvious no's.

Kavanaugh and Gorsuch are wild cards. Lean yes on Kavanaugh and lean no on Gorsuch.

[David Hume]

Thomas has been on the SC for years. If he was going to write an opinion arguing for fetal personhood, he would have done so already, either during Casey or any of the other times abortion cases have come before the Court. He does not shy away from solo dissents.   

None of the others have indicated any support. Kavanaugh today seemed to argue the Court should be neutral on the issue and return it to the states so he is not a supporter of fetal personhood.

Gorsuch is in the Scalia mold and Scalia dismissed personhood.  Alito has been on the Court for several abortion cases at this point and has never indicated support for it.

Barrett is a possibility.   I voted zero but could see it being one.

this

[I’m not Stu]

Definitely four votes. I believe Kavanaugh is also a good bet to be the fifth.

[Unbeatable Titan Susan Collins]

Definitely four votes. I believe Kavanaugh is also a good bet to be the fifth.

Kavanaugh indicated at oral arguments that the Constitution is neutral on it. You haven't produced any evidence for any Justice being for it. Much less 4.

[TJ in Oregon]

I think there are four to five votes for fetal personhood (every conservative justice except for Roberts). The question is whether any of them would be willing to actually write an opinion stating such, and sign their names to it.

Kavanaugh explicitly rejected that position in the oral arguments.

[World politics is up Schmitt creek]

ITT: tons of social liberal dooming (with a soupcon of cope and/or seethe), a surprising amount of social conservative expectations management and nuance, lots of terrible takes.

There's absolutely no serious argument that the US Constitution contains any affirmative protection of unborn life (or any life other than that of US citizens, for that matter), and at most one or two justices even on the current very right-wing Court are shameless enough to pretend otherwise for long enough to write a legal opinion.

[Donerail]

There's absolutely no serious argument that the US Constitution contains any affirmative protection of unborn life

The argument isn’t that the Constitution affirmatively protects “unborn life,” the argument is that fetuses are constitutional persons entitled to equal protection. Given the dominant modes of Constitutional interpretation on the Court today, that doesn’t require finding some affirmative protection in the document itself — it just requires a showing that, at the time of the adoption of the Fourteenth Amendment, the public understood the word “persons” in the Equal Protection & Due Process Clauses to include fetuses.

I don’t agree with Finnis’s piece in First Things, but he musters some treatises, state law and and early case law in support of that argument. I also don't think it's a meaningfully weaker originalist argument than the ones the Court has relied on in cases like Heller, either. Maybe that’s not a “serious” argument, but it has become a relatively common one. The Federalist Society chapter at my alma mater recently hosted a panel discussion on this very question, there’s a handful of respectable scholars who have advanced the argument, and I’d be remiss if I failed to note (as ERM64MAN did) that the Court now includes one of Finnis’s doctoral students. I think it’s a mistake to write it off as totally outside the scope of reasonable argument.

(or any life other than that of US citizens, for that matter)

That’s not accurate. It’s well-settled law that the Fourteenth Amendment is “not confined to the protection of citizens.” Yick Wo v. Hopkins (1886). The question here is solely whether fetuses are “persons” within the meaning of the Fourteenth Amendment — if they are, they cannot be deprived of a life interest without due process of law.

and at most one or two justices even on the current very right-wing Court are shameless enough to pretend otherwise for long enough to write a legal opinion.

I can't count to a majority as well, but I don’t think that’s necessarily the point. There has been a concerted effort over the past few decades to elevate this argument and make it one that is taken seriously, with all the usual Overton window consequences. During argument yesterday, Kavanaugh raised this argument in order to dismiss it — he’s not a maximalist on this issue, but he was able to present “the Constitution is silent on abortion” as the middle ground, which is a win for his side.

At any rate, I count two fairly easily. Thomas is, of course, the one most interested in the personhood argument, and asked several questions about child neglect laws applied to fetuses. But Alito also brought up the idea that “the fetus has an interest in having a life,” and asked the Mississippi SG whether there are any secular philosophers or bioethicists who believe “the rights of personhood begin at conception.” Gorsuch and Barrett are more difficult to read, but I would not be surprised by a fetal personhood concurrence authored by Alito and Thomas.

[politicallefty]

I can't count any higher than three for this question. It could be as low as zero. Thomas and Alito would be the most likely. As I've mentioned before, Justice Barrett is a mystery right now. I don't think Gorsuch would ever go that far.

I don't even understand how this works in practice versus simply overturning abortion rights and sending the issue back to the states (and potentially Congress). The courts do not determine what constitutes a crime. Due process rights concern what the government can and cannot do. The state does not perform abortions. On top of that, Congress has barred federal funding for abortions. The Supreme Court has no authority to force either the federal government or the states to enact or enforce criminal statutes against individuals. As it stands now, states do not have to prosecute murder charges, even if the crime is obvious. That was prevalent for a very long time in the South. That's untenable now, with society having changed significantly. However, that's ultimately where federal civil rights violations came into play. Theoretically, I don't see anything that requires a state to have a statutory crime of murder. Obviously, that's an absurd notion that society would not tolerate, but it would be permissible. The only major change with fetal personhood is that it would empower Congress to act within its enforcement powers under the 14th Amendment.

The real problem with the strict originalist arguments for fetal personhood is that even under the years mentioned abortion was not punished in the same manner as murder (if there are examples, they must be exceedingly rare). When criminalized, abortion was virtually always a lesser offense than the most egregious, such as murder or manslaughter. I think that's the primary weakness in the originalist argument for fetal personhood. If the argument is that a pre-viability fetus or embryo being terminated is equivalent to terminating a child, I do not see how the alleged "crime" can be treated any differently.

The originalist argument for declaring abortion itself to be unconstitutional (whatever that means) is just another more extreme screed attacking the Warren Court and the early Burger Court (I think the two are basically one and the same until about 1975-1976).

[David Hume]

I can't count any higher than three for this question. It could be as low as zero. Thomas and Alito would be the most likely. As I've mentioned before, Justice Barrett is a mystery right now. I don't think Gorsuch would ever go that far.

I don't even understand how this works in practice versus simply overturning abortion rights and sending the issue back to the states (and potentially Congress). The courts do not determine what constitutes a crime. Due process rights concern what the government can and cannot do. The state does not perform abortions. On top of that, Congress has barred federal funding for abortions. The Supreme Court has no authority to force either the federal government or the states to enact or enforce criminal statutes against individuals. As it stands now, states do not have to prosecute murder charges, even if the crime is obvious. That was prevalent for a very long time in the South. That's untenable now, with society having changed significantly. However, that's ultimately where federal civil rights violations came into play. Theoretically, I don't see anything that requires a state to have a statutory crime of murder. Obviously, that's an absurd notion that society would not tolerate, but it would be permissible. The only major change with fetal personhood is that it would empower Congress to act within its enforcement powers under the 14th Amendment.

The real problem with the strict originalist arguments for fetal personhood is that even under the years mentioned abortion was not punished in the same manner as murder (if there are examples, they must be exceedingly rare). When criminalized, abortion was virtually always a lesser offense than the most egregious, such as murder or manslaughter. I think that's the primary weakness in the originalist argument for fetal personhood. If the argument is that a pre-viability fetus or embryo being terminated is equivalent to terminating a child, I do not see how the alleged "crime" can be treated any differently.

The originalist argument for declaring abortion itself to be unconstitutional (whatever that means) is just another more extreme screed attacking the Warren Court and the early Burger Court (I think the two are basically one and the same until about 1975-1976).

Why? Nixon already name four justices in 1971. The only chance in 1975 is William Douglas been replaced by Stevens, which only shifted the the court to the right by a little, since Stevens started as a moderate. But then Blackmun started evolving left.

If you want to draw a line, I think O'Connor replacing Steward would be a better one, since she started as a reliable conservative. And the court became 3 right, 2 center-right (White and Powell), 2 center-left (Blackmun and Stevens), and 2 left, with a slight conservative  advantage.

[politicallefty]

Why? Nixon already name four justices in 1971. The only chance in 1975 is William Douglas been replaced by Stevens, which only shifted the the court to the right by a little, since Stevens started as a moderate. But then Blackmun started evolving left.

If you want to draw a line, I think O'Connor replacing Steward would be a better one, since she started as a reliable conservative. And the court became 3 right, 2 center-right (White and Powell), 2 center-left (Blackmun and Stevens), and 2 left, with a slight conservative  advantage.

Nixon did indeed get four Justices on the Court in short order and yet, 3/4 were in the majority in Roe itself. (I actually forgot that Chief Justice Burger himself was in the majority until now.) The line itself bleeds a bit, but I draw the line at Gregg v. Georgia. Reinstating the death penalty after nearly a decade without executions speaks for itself. Douglas to Stevens was a massive shift on the Court when you consider how far left Douglas was. Stevens didn't become a liberal icon until rather late in his tenure. Most on the left, myself include, would strongly disagree with his dissent in Texas v. Johnson.

[David Hume]

Why? Nixon already name four justices in 1971. The only chance in 1975 is William Douglas been replaced by Stevens, which only shifted the the court to the right by a little, since Stevens started as a moderate. But then Blackmun started evolving left.

If you want to draw a line, I think O'Connor replacing Steward would be a better one, since she started as a reliable conservative. And the court became 3 right, 2 center-right (White and Powell), 2 center-left (Blackmun and Stevens), and 2 left, with a slight conservative  advantage.

Nixon did indeed get four Justices on the Court in short order and yet, 3/4 were in the majority in Roe itself. (I actually forgot that Chief Justice Burger himself was in the majority until now.) The line itself bleeds a bit, but I draw the line at Gregg v. Georgia. Reinstating the death penalty after nearly a decade without executions speaks for itself. Douglas to Stevens was a massive shift on the Court when you consider how far left Douglas was. Stevens didn't become a liberal icon until rather late in his tenure. Most on the left, myself include, would strongly disagree with his dissent in Texas v. Johnson.

I agree, that's why I rated him as center left. No matter how extreme Douglas was, he only had one vote. Was there any important case that Stevens became the deciding fifth vote for the right?

[politicallefty]

Why? Nixon already name four justices in 1971. The only chance in 1975 is William Douglas been replaced by Stevens, which only shifted the the court to the right by a little, since Stevens started as a moderate. But then Blackmun started evolving left.

If you want to draw a line, I think O'Connor replacing Steward would be a better one, since she started as a reliable conservative. And the court became 3 right, 2 center-right (White and Powell), 2 center-left (Blackmun and Stevens), and 2 left, with a slight conservative  advantage.

Nixon did indeed get four Justices on the Court in short order and yet, 3/4 were in the majority in Roe itself. (I actually forgot that Chief Justice Burger himself was in the majority until now.) The line itself bleeds a bit, but I draw the line at Gregg v. Georgia. Reinstating the death penalty after nearly a decade without executions speaks for itself. Douglas to Stevens was a massive shift on the Court when you consider how far left Douglas was. Stevens didn't become a liberal icon until rather late in his tenure. Most on the left, myself include, would strongly disagree with his dissent in Texas v. Johnson.

I agree, that's why I rated him as center left. No matter how extreme Douglas was, he only had one vote. Was there any important case that Stevens became the deciding fifth vote for the right?

I know what your point is. I don't think Stewart to O'Connor was a major transformation. I would argue that Gregg v. Georgia may be have come out differently if it had been Douglas instead of Stevens. Ultimately, I think it was the overall composition that changed the Court. In that sense, I think Roe was one of the final decisions of the Warren Court in all-but-name.

[David Hume]

Why? Nixon already name four justices in 1971. The only chance in 1975 is William Douglas been replaced by Stevens, which only shifted the the court to the right by a little, since Stevens started as a moderate. But then Blackmun started evolving left.

If you want to draw a line, I think O'Connor replacing Steward would be a better one, since she started as a reliable conservative. And the court became 3 right, 2 center-right (White and Powell), 2 center-left (Blackmun and Stevens), and 2 left, with a slight conservative  advantage.

Nixon did indeed get four Justices on the Court in short order and yet, 3/4 were in the majority in Roe itself. (I actually forgot that Chief Justice Burger himself was in the majority until now.) The line itself bleeds a bit, but I draw the line at Gregg v. Georgia. Reinstating the death penalty after nearly a decade without executions speaks for itself. Douglas to Stevens was a massive shift on the Court when you consider how far left Douglas was. Stevens didn't become a liberal icon until rather late in his tenure. Most on the left, myself include, would strongly disagree with his dissent in Texas v. Johnson.

I agree, that's why I rated him as center left. No matter how extreme Douglas was, he only had one vote. Was there any important case that Stevens became the deciding fifth vote for the right?

I know what your point is. I don't think Stewart to O'Connor was a major transformation. I would argue that Gregg v. Georgia may be have come out differently if it had been Douglas instead of Stevens. Ultimately, I think it was the overall composition that changed the Court. In that sense, I think Roe was one of the final decisions of the Warren Court in all-but-name.

Gregg v. Georgia was 7-2. Even if Douglas was still there, nothing would have changed.

Unfortunately CJ Burger papers will not be released until 10 years after everyone on Burger Court pass away. (The only remaining on being O'Connor.) I suspect Burger joined the majority just to assign the opinion to his childhood friend Blackmun, at that time still a conservative.

[Skill and Chance]

I'm just not seeing this.  The 14th Amendment literally begins with "All persons born..."

The 14th Amendment is silent on what happens before birth. 

[politicallefty]

Gregg v. Georgia was 7-2. Even if Douglas was still there, nothing would have changed.

Unfortunately CJ Burger papers will not be released until 10 years after everyone on Burger Court pass away. (The only remaining on being O'Connor.) I suspect Burger joined the majority just to assign the opinion to his childhood friend Blackmun, at that time still a conservative.

For some reason, I thought Gregg was 5-4. (It was still an odd plurality decision that the Court clearly had trouble with. The Court did go the other way in Coker v. Georgia the following year.) Even so, a new Justice changes the Court, and that was probably especially true back then when the ideological blocs were more fluid. But that's not my main point. My point was about the transformation and demise of the liberal Warren Court, which I believe lasted a few years into the Burger Court. The appointment of Stevens to replace Douglas also finally reduced the once-Warren Court members to a minority of the Court (with Nixon/Ford appointees thereupon holding a majority).

[All Along The Watchtower]

Six if they think they can get away with it,