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.

Source the Federal one?
https://www.scstatehouse.gov/billsearch.php

SC managed to get one through the state senate but it seems stuck in the state house. But yeah even if it was overturned , it wouldn't matter.

So they are interested.

[Person Man]

No because no state will ban birth control to challenge it.

I will say you are right if Dobbs complicates the midterms. Even Obergefell paved the ways into various forms of advocacy that many people are uncomfortable with and it has cost Democrats many races up and down the ballot. If this indeed happen with Dobbs, I definitely think that in 2022, Republicans will win only narrow majorities followed by Biden's reelection in 2024 with perhaps one chamber flipping back.

Overturning Roe will be a slippery slope and its more likely that it will create backlash than momentum though I wouldn't count out the possibility that it produces momentum to at least
 push forward "parody marriage" laws (when gay people can get married but it not be called "marriage"), age restrictions on condoms, or banning Medicaid from covering birth control. 

[Person Man]

Yes in the sense that a conservative state is going to try this and that if there are five to votes to overturn Roe, there are almost certainly five votes to overturn Griswold.

Interestingly, overturning Obergefell is probably going to be harder for Republicans, because the conservative justices (with the exception of Thomas, Alito and maybe Kavanaugh) know that overturning same-sex marriage isn't the political winner for Republicans that overturning legalized abortion or legalized birth control would be with the base (large percentages of the base either don't care about same-sex marriage, or don't emphasize it compared to abortion or other reproductive issues), so I think while they might want to overturn Obergefell political calculations will keep them from doing so.

If Breyer gets replaced by a conservative, it doesn't matter what two conservatives think. All they will need then is either Kavanaugh or Gorsuch to go along with it. At that point, Roberts might just throw in the towel, too.

Then again, if the backlash against Jackson is strong enough, it may or may not happen. Like I said, Obergefell encouraged activism that has created a backlash against Transgender rights.

[Person Man]

Roe itself is based Griswold and the fact that SCOTUS didn't accept that a fetus has a right to not be aborted.

The way it gets overturned-

* The justices just say that the only way to interpret the law is to create the law, so they don't have jurisdiction (which is ironic because then they would basically be admitting to be a super-legislature)

* They cite Bowers v. Hardwick saying that abortion, like sodomy or prostitution, is too socially unacceptable to be considered a thing people should automatically be left alone in doing or at least that public opinion has turned dramatically against abortion in the last 50 years to the point it was a reasonable thing that people should left alone with to something abnormal and the job of the government to save people from if the "people" so choose.

* They find that a fetus has a right to not be aborted

* They overturn the other basis of the Roe decision itself. They might use some New Dealer-Style logic to show that the Right to Privacy doesn't really exist because of some sort of social-economic aggregation that wasn't considered in 1967 with Griswold.

This is a point I've made once before on Constitution and Law board, and it bears repeating now.

Sure, no state, or county, or city/town/village is realistically going to pass a law to simply ban contraceptives, the way Connecticut had passed such a law way back in 1879. But in order to persuade the Supreme Court to overturn Griswold, no state or local government has to resort to that drastic of a measure. Griswold was father to two children: Eisenstadt v. Baird and Carey v. Population Services Int'l. In the latter case, the Court struck down a state law that prohibited the distribution of contraceptives to minors. Mimicking THAT law is a more realistic possibility these days, and it wouldn't even have to be a statewide law in an Atlas blue state. All that needs to happen is some conservative school district somewhere prohibits the faculty members of the schools from distributing contraceptives to students. A school district policy like that will quickly be challenged, and the plaintiffs will invoke Carey for why they deserve to win, and that the school district is acting unconstitutionally. The attorney for the school district will argue in rebuttal that Carey, Eisenstadt, and Griswold were all wrongly decided. The attorney for the school district will say that there is not truly any constitutional right to use contraceptives, not in penumbras that emanate from the Bill of Rights (Griswold), or in the Equal Protection Clause (Eisenstadt), or in the Due Process Clause (Carey). The Supreme Court Justices who overturn Roe will likely agree to that argument by the school district, and so out the window goes Griswold.

And if Roe and Griswold both go out the window, then eventually Lawrence v. Texas goes bye-bye too.

That's my guess, too. Something along the lines of age restrictions to contraceptives.

And Obergefell. Though now I am a little interested in how they would relitigate Lawrence v. Texas. My guess is that there could be a town that becomes "concerned" about certain forms of same-sex PDA around kids or something and decides to write a law that if you kiss your gay lover in public, you can get a $50 fine or something?

[Person Man]

I would hope not.

If abortion is overturned, it will be for recognizing a certain early start time for legal personhood, not for saying privacy isn't a right.

The latter would basically be a judicial universal ban on abortion. Of course, there’s no such thing as judge made criminal law but that might open up WoM lawsuits and Federal Civil Rights lawsuits. I don’t think Gorsuch, Kavanaugh, or Roberts want that anyway. They’d probably decide to overturn privacy in general. That could be the middle ground between fetal personhood and an abortion carve out against privacy.

[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.

[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.

[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.