If Roe vs. Wade is Overturned, is that the end for Griswold vs. Connecticut as well?

[Person Man]

In terms of legal reasoning, perhaps, but get back to me when a state legislature is actually interested in banning birth control.  Note congressional Republicans recently backed a bill to make it available OTC nationwide.

...as you were saying?

Mississippi Governor Won't Rule Out a Possible Ban on Birth Control If Roe Is Overturned

Conservative support for BC is a tactical retreat on abortion, not a legitimate stance. It sometimes even works.

What will be interesting is how the Democrats could do the same thing if universal natalism develops out of the inertia of Dobbs. That is, support a socon policy in order to Trojan in the eventual reverse of Dobbs.

[Frodo]

From another thread:

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.)

If you have fully read the recent Supreme Court decision striking down Roe vs. Wade (and Planned Parenthood vs. Casey), do you think they provided the proper justification (in your opinion) for their decision?

[Amenhotep Bakari-Sellers]

No, it's not, Gay marriage probably will be overturned but that's why we are having an Election coming Nov to check SCOTUS if Rs take over the Crt will move to right of D's take over the Crt will move to the center, Planned Parenthood was already affirmed 6/3 and Thomas was on the minority , but if it does get overturned Crt packing which is off table will be on the table, just remember all the Justices are married to menapausal women they don't want condemns banned because men or women can catch HIV if they don't use protection if the female is in menapause

Thomas very clear when Kennedy affirmed Civil Unions he wasn't happy with that decision

[MarkD]

From another thread:

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.)

If you have fully read the recent Supreme Court decision striking down Roe vs. Wade (and Planned Parenthood vs. Casey), do you think they provided the proper justification (in your opinion) for their decision?

Absolutely not!
In Roe, the Court cited the Due Process Clause of the 14th Amendment and took for granted that any and all "fundamental rights" are protected by that clause. Then the Court also added the 9th Amendment as a sort of back-up justification -- I call it lagniappe -- for supporting a claim that "fundamental rights" cannot be violated by a state. Nineteen years later, in Casey, the Court backpedaled from calling abortion a "fundamental right," and instead called the choice to get an abortion a "liberty interest" that cannot be "unduly burdened," but still claimed that this liberty interest is protected by the DPC of the 14th. The Casey plurality opinion went on at great length to justify why they interpret the DPC as if it protects some substantive rights, and it never mentioned the 9th at all.

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.) What Alito DID say was to effectively concede that the DPC protects substantive rights, but gave the scope of those rights a very narrow and constrained interpretation. He cherry-picked his quotes from only certain precedents to justify that interpretation. But it is altogether appropriate for Court observers who read the opinion to perceive Alito's version of the DPC to simply be a conservatively-biased rendition of the DPC. And, very unfortunately, Alito never elaborated on the 9th at all.

So yes, I stand by my previous post in that other thread, and Bork was right to say what he did 32 years ago - "A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required." That is still, as of now, completely correct.

[Jeerleader]

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.)

Yeah, Alitio again in a decision that doesn't do what everyone knows needs to be done . . .

Consider for a moment where we would be today if Thomas's concurrence was the majority opinion in McDonald v Chicago.  Slaughterhouse would be in the dumpster and the privileges or immunities clause would have been reinvigorated. .  .

The 2ndA would be better enforced; hundreds of bad laws would be gone today, dozens of bad lower court decisions sustaining bad laws would never have happened (circuit court two-step) and all unenumerated rights would be constitutionally recognized and secured and the rickety 'substantive due process' / penumbral rights theory would've been jettisoned over a decade ago.

[Frodo]

As the Republican vote in the House (and probably the Senate, shortly...) on contraception indicates, Griswold vs. Connecticut is definitely next on the chopping block.

[Person Man]

The last month has again reenforced my idea that the answer is "maybe". They are already looking to start working on overturning Obergefell or at least creating carve outs for it on "religious liberty". Maybe "religious liberty" is enough of an argument to overturn Obergefell because by forcing the Government to recognize Homosexual Marriage and Queer rights in general, it forces tax payers to aid in abet in things that make it impossible for them to practice their religion. This is the same argument that was used by Hobby Lobby to get out from having to buy insurance for their employees that covered birth control.

[World politics is up Schmitt creek]

The last month has again reenforced my idea that the answer is "maybe". They are already looking to start working on overturning Obergefell or at least creating carve outs for it on "religious liberty". Maybe "religious liberty" is enough of an argument to overturn Obergefell because by forcing the Government to recognize Homosexual Marriage and Queer rights in general, it forces tax payers to aid in abet in things that make it impossible for them to practice their religion. This is the same argument that was used by Hobby Lobby to get out from having to buy insurance for their employees that covered birth control.

The Hobby Lobby argument had to do with whether a for-profit corporation can have a religious character. You really can't make the same set of claims about whether someone's 1040 form can, although someone will probably try to anyway.

[MarkD]

~~~~

Absolutely not!
In Roe, the Court cited the Due Process Clause of the 14th Amendment and took for granted that any and all "fundamental rights" are protected by that clause. Then the Court also added the 9th Amendment as a sort of back-up justification -- I call it lagniappe -- for supporting a claim that "fundamental rights" cannot be violated by a state. Nineteen years later, in Casey, the Court backpedaled from calling abortion a "fundamental right," and instead called the choice to get an abortion a "liberty interest" that cannot be "unduly burdened," but still claimed that this liberty interest is protected by the DPC of the 14th. The Casey plurality opinion went on at great length to justify why they interpret the DPC as if it protects some substantive rights, and it never mentioned the 9th at all.

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.) What Alito DID say was to effectively concede that the DPC protects substantive rights, but gave the scope of those rights a very narrow and constrained interpretation. He cherry-picked his quotes from only certain precedents to justify that interpretation. But it is altogether appropriate for Court observers who read the opinion to perceive Alito's version of the DPC to simply be a conservatively-biased rendition of the DPC. And, very unfortunately, Alito never elaborated on the 9th at all.

So yes, I stand by my previous post in that other thread, and Bork was right to say what he did 32 years ago - "A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required." That is still, as of now, completely correct.

Recently I've been thinking about whether Dobbs will lead to the overturning of Griswold, and I've decided that Griswold will not necessarily be overturned. Assuming, for the sake of this discussion, that some state or local government is going to try to ban all contraceptives, like Connecticut had done around 143 years ago, or something similar, then there will be a case brought up to the SCOTUS, and the attorney who defends the new law will argue that Griswold was wrongly decided and should be overturned. But according to what Justice Alito wrote in Dobbs and what was written in Griswold by Justice Douglas and concurring Justice Goldberg, it is pretty well probable that Alito and one, two, or three of the other Justices in the Dobbs majority will NOT overturn Griswold.

Alito's argument in Dobbs, as I said above, was not that the due process clause does not protect any unenumerated rights (which I'm certain is what he should have said). He effectively conceded that the clause does protect some unenumerated rights, but he said that the rights protected are "deeply rooted in this Nation's history and tradition." The opinions Douglas and Goldberg wrote in Griswold does make that very assertion. Douglas said, "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system." (He meant the right of privacy of married couples to their sexual intimacy.) Goldberg said, "In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' " Furthermore, Goldberg also said,

Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation  of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman, ... "Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, ..."

It seems to me that Alito and may be some others might find Goldberg's arguments persuasive that the sexual intimacy of a married man and woman ought to be considered as protected by the due process clause, and that they can simultaneously exclude the concept that other kinds of sexual intimacies are NOT constitutionally protected. So maybe they will uphold Griswold, but still overturn Eisenstadt v. Baird, Carey v. Population Services Int'l, and Lawrence v. Texas.

[Person Man]

~~~~

Absolutely not!
In Roe, the Court cited the Due Process Clause of the 14th Amendment and took for granted that any and all "fundamental rights" are protected by that clause. Then the Court also added the 9th Amendment as a sort of back-up justification -- I call it lagniappe -- for supporting a claim that "fundamental rights" cannot be violated by a state. Nineteen years later, in Casey, the Court backpedaled from calling abortion a "fundamental right," and instead called the choice to get an abortion a "liberty interest" that cannot be "unduly burdened," but still claimed that this liberty interest is protected by the DPC of the 14th. The Casey plurality opinion went on at great length to justify why they interpret the DPC as if it protects some substantive rights, and it never mentioned the 9th at all.

Justice Alito should have thoroughly refuted both the DPC argument and the 9th argument. He should have refuted the DPC argument by insisting that the clause does not mean, it was never intended to mean, anything more than the literal words themselves, which only ensure that fair procedures are used before imposing a punishment on anyone. Alito has not, in Dobbs, explained it that way at all. (I can tell, from his concurring opinion, that Thomas believes in saying that very thing - fair procedures, that's all - but Thomas probably couldn't get all five in the Dobbs majority to agree to say it that way.) What Alito DID say was to effectively concede that the DPC protects substantive rights, but gave the scope of those rights a very narrow and constrained interpretation. He cherry-picked his quotes from only certain precedents to justify that interpretation. But it is altogether appropriate for Court observers who read the opinion to perceive Alito's version of the DPC to simply be a conservatively-biased rendition of the DPC. And, very unfortunately, Alito never elaborated on the 9th at all.

So yes, I stand by my previous post in that other thread, and Bork was right to say what he did 32 years ago - "A more fundamental rethinking of legitimate judicial power than the mere demise of Roe would signify is required." That is still, as of now, completely correct.

Recently I've been thinking about whether Dobbs will lead to the overturning of Griswold, and I've decided that Griswold will not necessarily be overturned. Assuming, for the sake of this discussion, that some state or local government is going to try to ban all contraceptives, like Connecticut had done around 143 years ago, or something similar, then there will be a case brought up to the SCOTUS, and the attorney who defends the new law will argue that Griswold was wrongly decided and should be overturned. But according to what Justice Alito wrote in Dobbs and what was written in Griswold by Justice Douglas and concurring Justice Goldberg, it is pretty well probable that Alito and one, two, or three of the other Justices in the Dobbs majority will NOT overturn Griswold.

Alito's argument in Dobbs, as I said above, was not that the due process clause does not protect any unenumerated rights (which I'm certain is what he should have said). He effectively conceded that the clause does protect some unenumerated rights, but he said that the rights protected are "deeply rooted in this Nation's history and tradition." The opinions Douglas and Goldberg wrote in Griswold does make that very assertion. Douglas said, "We deal with a right of privacy older than the Bill of Rights -- older than our political parties, older than our school system." (He meant the right of privacy of married couples to their sexual intimacy.) Goldberg said, "In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' " Furthermore, Goldberg also said,

Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation  of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman, ... "Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . , but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, ..."

It seems to me that Alito and may be some others might find Goldberg's arguments persuasive that the sexual intimacy of a married man and woman ought to be considered as protected by the due process clause, and that they can simultaneously exclude the concept that other kinds of sexual intimacies are NOT constitutionally protected. So maybe they will uphold Griswold, but still overturn Eisenstadt v. Baird, Carey v. Population Services Int'l, and Lawrence v. Texas.

Basically Altio applied Bowers v. Hardwick to the case of abortion. That is why buggery was permitted to be banned by communities as late as 2003 and there was never a right to prostitution established. Is that right? I'm pretty sure he didn't reinvent the wheel here.  He could still overturn Griswold without saying there is no right to privacy per se.