Protests are ongoing outside the homes of Brett Kavanaugh and the conservative Supreme Court Justices.
them mfs just described democracy like it’s unfair
“We won’t be bullied into following the will of the people we’re supposed to serve” -conservatives
So here’s the thing: the Supreme Court really *ISN’T* supposed to be a political entity in the same way that the legislative and executive branches are. The whole point was to have a system of checks and balances to ensure that there wasn’t a “tyranny of the majority” situation in government where a persecuted minority could be oppressed by the voting masses. A Supreme Court that is untouchable by electoralism means, in theory, that they will be able to interpret the law in peace, apart from the politics de jour.
The problem is, this only works if the appointment procedure works and if the justices are honest. Neither is currently true.
Republicans have managed to not only game the system for appointing justices, these justices directly LIED about their stances during their confirmation hearings, saying Roe was settled law even if they disliked it.
So yeah. Hopefully we can bully them or find a way to unseat them, but this is what he’s referencing here. In theory, he’s correct, but he is directly part of the group responsible for breaking down this particular framework in reality, and so it’s real rich that he’s crying crocodile tears about it now.
oh my GOD thank you so much for saying this i have been internally screaming for weeks but didn’t know how to say anything
Okay so 100% to everything you’ve said PLUS some good news and bad news;
good news: there isa way to remove justices from power, despite what you may think - checks and balances means that they can be impeached too.
bad news: congress has to do it.
good news: with enough effort (a lot of effort), you can absolutely bully congress into doing what you want
bad news: they only listen to their constituents
conclusion = CALL YOUR REPS ESPECIALLY IF YOU LIVE IN A RED STATE tell them the supreme court is not representing the best interests of the people and are attempting to undermine decades of legal precedent out of bigotry, and will cause the deaths of hundreds of women due to a disrespect for the concept of privacy that is found implicitly within the constitution on the basis of several of the bill of rights, including the right to free speech, the right to religion, the right to freedom from quarter, and due process laws, which was determined prior to the Roe opinion - someone out there in the activism sphere definitely has scripts ready to go on what to say about this but that person is not me, so that’s all i can advise.
AND IF YOU LIVE IN WEST VIRGINIA, MAKE JOE MANCHIN’S LIFE HELL
all that being said please totally do not *wink wink* continue to harass supreme court justices, the last thing we want is to remind them that they are not above public shaming. its not like they’re political figures and civil servants and thus subject to the criticisms of the people or anything.
anyway FUCK kavanaugh gorsuch barrett and thomas specifically (i have mixed feelings about roberts but he also sucks), its about time court justices get reminded that they aren’t gods among men, especially when changing public opinion about the sanctity of the court is literally their own goddamn fault
Yeah, I was aware that you could impeach justices via Congress, but that would likely require all hell breaking loose and Congress feeling threatened enough to take action.
Which is to say, I’m not holding my breath, but, well… Gee, wouldn’t it be a shame if all hell broke loose?
Note, I am finding these threads on the twitter feeds of ICU nurses who are now dreading the horrors that Roe falling will bring to their hospitals. This, on top of the horrors that they’ve seen and continue to see because of the pandemic. They were already exhausted and hanging by a thread.
Worth pointing out, the kind of scenario described in these tweets is what happens–what is meantto happen–when an abortion ban has an exception for the life or health of the mother.
There will be an administrative process for determining whether that exception applies, and it will be safer (in terms of legal and job-related consequences) for a doctor to obey that procedure, even if it isn’t moving as quickly as the urgency of the situation demands–in other words, even if the patient is bleeding out, even if the decision might not come back quickly enough to save her.
Even if that process always works exactly as it should–the committee always approves the procedure, and does so in time to save the patient’s life–scenarios like the one described here are going to play out all over the country. Patients and their families waiting while a committee deliberates over whether they’re allowed to have life-saving medical care.
That’s the best case scenario, and since this isn’t fairyland, the committees aren’t always going to get it right. There will be cases where they rule that the patient can survive without the procedure and they’re wrong, or where the pregnant person dies before the procedure is approved.
That’s what’s going to happen with the one category of abortion-seekers that just about everyone in the entire world agrees should be able to have it done.
the truth is that “pro-lifers” don’t care about life, and I don’t even think they actually care about decreasing the number of abortions, when you really get down to it. if they did, they would channel their time, money, and resources into programs that are proven to decrease abortion rates—things like comprehensive sex ed, free contraception, paid parental leave, childcare subsidies, accessible family planning services, etc.
the truth is that they don’t care about that, because that doesn’t make them feel like a hero. rehauling sex ed and subsidizing contraception and passing child tax credits is hard work, and it’s boring, and it takes a long time. so-called pro-lifers like the simplicity of passing a law banning abortions and saying, “we did it! we ended abortion! we saved the babies!” and they’ll ignore the pain and death that comes in the wake of those laws, because it doesn’t matter to them, because they saved all those babies, didn’t they? they want to be crusaders of the unborn, and that’s where their engagement ends. anything that requires more effort and empathy than that is too much work for them.
do you really care about children and their parents, or do you just want to feel like a hero? if they had the ability to introspect, I think they would find it’s the latter.
1) Supreme Court draft opinions do not leak. Ever. It is unknown and unprecedented. It just does not happen.
2) Supreme Court clerks are generally right-out-of-law-school graduates and if whoever did this gets caught they will never be allowed to practice law. No state bar is ever going to take them. Their legal career is done for. This person risked their entire future.
I hope the court can’t prove anything. May we never know their name.
2. Is there a protest happening near you soon? Keep and eye out and go. Be loud.
3. Do you Live in a state that is either pretty 50/50 or solidly blue? SCREAM at your politicians to begin drafting legislation to protect abortion in your state now. You can’t rely on the federal government anymore, so make sure your state has it on the books.
4. Gear up for an ugly midterm election this Fall. Build momentum, build anger. Make sure all your friends are registered to vote. Whether or not this actually goes through, we need to get as many pro-choice people into state governments as possible ASAP.
5. Just cause an unholy amount of noise online. The majority of the country supports Roe v Wade. Don’t let the justices forget that.
6. Take care of yourself. You can not change the world alone, and if you feel that hopeless sick creeping in, please step back for an hour, a day, a week. The fight will be here when you return.
the best thing that we can do right now to fight for abortion rights is donating to your local abortion fund, especially in states with “trigger laws” or laws that will immediately take harsh measures to shut down abortion rights as soon as roe is overturned. If you don’t know your local abortion fund or states with trigger laws, here’s one in Texas,one in Louisiana,one in Georgia,one in West Virginiaandone in Mississippi (all states with such “trigger laws”). There’s so many more beyond the handful i just listed here but times like these are the time to donate and support the incredible work that these organizations do for their communities.
Agree with this 100%, Wisconsin also has one of these”trigger laws”. I just donated to my local Planned Parenthood, and urge any of you all to donate to your local as well. They’re gonna need it.
it’s not just abortion these theocratic fascists are going to come for all forms of birth control next. IUDs, condoms, plan b, ALL OF IT. this is the first step in a huge game of enshrining fetal personhood into law.
I’m going to a roe v wade solidarity protest today (I live in Australia) and it’s just exhausting. why do we have to fight for this, still?
over here, federal elections are two weeks away and the current prime minister has just promised to try to pass the religious discrimination bill without amendments if re-elected.
the religious discrimination bill, apparently, theoretically aims to strengthen protections for religious individuals and right to freedom of religion in australia. in practice, if passed, it removes anti-discrimination protections for minority groups (especially lgbt and women)
some examples of the bill’s potential effects:
-> the bill protects the people who make discriminatory statements (e.g. ‘homosexuality is a sin’ or 'menstruating women are unclean’) in the name of religion
-> it could make it easier to fire someone for being gay
-> it prioritises personal religious views over the needs of patients, so healthcare professionals could refuse to treat a gay person, for instance
dot point version of what’s happening for international followers:
back in february 2022, the bill passed in the house of representatives (the lower house of australian politics)
five liberal members of parliament (members of the party trying to pass the bill) crossed the floor to side with labor (the other major australian political party) and crossbenchers in support of independent MP Rebekah Sharkie’s amendment to abolish the right of religious schools to discriminate against gay and transgender students
prime minister scott morison then attempted to compromise by seeking a narrower amendment that prohibited schools from expelling gay students
this version wouldn’t stop schools from discriminating against gay students in other ways though, and doesn’t protect trans students at all
the bill was shelved and it hasn’t gone through the senate yet (where we’d see what would happen with the amendments and the bill overall)
given the upcoming election, christian lobby groups are pressing our two major parties (labor and liberal) to recommit to passing the bill, without the amendments that would protect lgbt students
anyway it’s just fucking miserable that we’re still protesting for basic human decency. even in some of the richest and most privileged countries in the world we’re still dealing with this shit. I am so exhausted at religion interfering the rights of women and gay people.
I don’t think what’s going on is known outside of australia (honestly most australians don’t even know what’s happening with it) so I wanted to write it out. I’ll let you guys know what happens after the elections.
good luck to anyone going to protests, especially americans.
So, with the new info coming out from SCOTUS…..I’m just gonna drop this great resource for other women in the US…
Did you know you can get the abortion pills without the need of being pregnant? Did you also know you can get them for about $150 dollars…..and the site I’m about to share has a sliding scale, and helps you afford it if it comes to that.
I understand 150 is still a lot of money, but prenatal care is way more. And every uterus owner deserves the right and access to a SAFE abortion. Since, ya know, the whole reason Roe v Wade passed was because legality didn’t affect abortion numbers, it just affected the number of safe abortions.
This site is a great resource!!! And keep in mind, a lot of states that have already passed anti-abortion legislature are charging it as a felony….ya know what that means ….felons lose the right to vote.
So people who are pro-life, you’re allowed to have your own views and beliefs, but now that they are being forced on everyone, you need to think about what you care about more. A woman’s right to vote? A woman’s right to life? A woman’s right to mourn the loss of her child without a criminal case to “make sure” it was a miscarriage and not caused on purpose? Pro-choice is exactly what it says, giving women the power to make choices based off their own beliefs and values.
A lot of people are REALLY WORRIED about the leaked Alito draft, and for good reason. If Roe vs. Wade is overturned, many states will enact trigger laws that revoke the right to safe abortion access. But that doesn’t mean that safe abortions won’t be possible. They’ll just be harder to access.
Fortunately, we aren’t powerless. There are things we can do to help preserve the right to abortion and, if Roe falls, help people get the abortions they need.
Here are some actionable things you can do to help!
Donate to your local abortion fund.
This is a financial commitment, obviously, but these funds are vital to helping people access abortions. There are different types of funds. Practical funds help with transportation, housing, and other practical needs. Clinical funds help with paying for the procedure. Both types of funds are necessary and helpful!
If you’re in a state with protected abortion access, see if there’s a practical fund in your state that you can donate to. These funds make it possible for people for other states to afford travel and lodging in your state. You might also want to consider donating to funds in states or regions that have trigger laws, like the Yellowhammer Abortion Fund, which helps people in Mississippi, Alabama, and the Deep South.
There’s also https://abortionfunds.org/, but as of right now (2 May 2022, right after the SCOTUS leak happened), their website is down. Too much traffic!
Volunteer with a hotline.
As of writing this, a lot of abortion fund websites are completely overwhelmed. Lots of people are rightfully upset and looking for some way to help. Many of these funds have hotlines that you can help out directly from your own phone! Google “abortion fund + your state (or your region) + hotline” and see what comes up. These hotlines are going to be SWAMPED soon and many orgs are going to be onboarding volunteers very quickly to help deal with the onslaught.
Donate to grassroots causes.
I love Planned Parenthood as much as the next gal, but donating to them isn’t actually going to help as much right now as donating to an abortion fund. Smaller, grassroots networks are going to be more effective at allocating resources to the people who need it most. Independent clinics are also going to need substantial help. Independent clinics provide the majority of abortion care in the US, and many are the only clinics operating in hostile states. Check out https://keepourclinics.org/ if you’re interested in donating.
Make a list of resources.
There are a lot of people out there who aren’t going to have the time or energy or emotional bandwidth to deal with this dumpster fire. If you have the capacity to do so, then maintain a file somewhere with the following information:
- any abortion funds that serve your area with their contact info- email and phone and links
- any abortion hotlines in your area
- national care hotlines, ESPECIALLY RAINN because this is going to be really, really hard on survivors
-a list of crisis pregnancy centers in your area, clearly marked with their names, contact info, and primary links. Make sure that these are highlighted in a way that separates them from the actual abortion providers because these centers are highly predatory and manipulate people who are distressed and confused. If somebody has access to that list and know who’s operating in an area, it might help them avoid these places!
Have this file ready to go so that you can share it with people who are overwhelmed!
Help the safe havens.
Losing Roe feels inevitable at this point. It might not be, but the world is terrifying. However, some states are safe havens and will maintain abortion access, regardless of what SCOTUS eventually decides. Practical access funds in these states will need help because they will help people traveling from unsafe states to safe states. Refer to this map: https://reproductiverights.org/maps/what-if-roe-fell/
Look for funds in states that are blue or yellow. This means they have expanded access or protection if Roe falls. But be sure to hover over and look at the summary of the protection– for example, Florida has abortion protection, but they just passed a 15-week ban. That’s basically protection in name only!
If you’re not sure which practical fund you’d like to support, I highly suggest the Midwest Access Coalition. MAC is based in Chicago and helps people from all over the Midwest come to the city for reproductive healthcare. A lot of the Midwest is really hostile to abortion, so MAC can help a lot of people. But there are many, many others!
In the coming days and weeks, there will be more to do. There will be marches, protests, and other organized action. But right now, tonight, these are things you can look into doing.
I would absolutely love to hear how “pro-life” Republicans/conservatives plan to account for all of the new, unwanted, unprepared for babies who are going to be born. Surely they must also be in favor of bolstering foster care, giving out money to single mothers, and strengthening social safety nets on top of things like preventing unwanted pregnancy through sex education and contraception, right? Right???
Except we all know that’s not gonna happen, because “pro-life” people are fucking hypocrites who just want to keep women from having premarital sex. I used to be pro-life and I genuinely didwant to help women who needed assistance with their children and help prevent unwanted pregnancies, but then I finally realized my efforts were better spent in the pro-choice camp (where people actually give a shit about solutions that aren’t just punishment).
This is why voting matters. Thanks to Trump we got 3 fucking insane hardcore conservative judges. Like yeah, Democrats suck too, but Hillary wouldn’t have elected people who would overturn Roe v Wade.
That’s the thing. They don’t. These people are doing this in tandem with limiting sex ed in numerous states and shrinking social programs.
Oh, and they’re still supporting immigration limits too.
And you’re missing how all of this is about keeping the white racial majority as it is in this country. Look at who the politicians supporting this anti-abortion legislation are and where they live.
I would absolutely love to hear how “pro-life” Republicans/conservatives plan to account for all of the new, unwanted, unprepared for babies who are going to be born. Surely they must also be in favor of bolstering foster care, giving out money to single mothers, and strengthening social safety nets on top of things like preventing unwanted pregnancy through sex education and contraception, right? Right???
Except we all know that’s not gonna happen, because “pro-life” people are fucking hypocrites who just want to keep women from having premarital sex. I used to be pro-life and I genuinely didwant to help women who needed assistance with their children and help prevent unwanted pregnancies, but then I finally realized my efforts were better spent in the pro-choice camp (where people actually give a shit about solutions that aren’t just punishment).
This is why voting matters. Thanks to Trump we got 3 fucking insane hardcore conservative judges. Like yeah, Democrats suck too, but Hillary wouldn’t have elected people who would overturn Roe v Wade.
That’s the thing. They don’t. These people are doing this in tandem with limiting sex ed in numerous states and shrinking social programs.
Oh, and they’re still supporting immigration limits too.
And you’re missing how all of this is about keeping the white racial majority as it is in this country. Look at who the politicians supporting this anti-abortion legislation are and where they live.
“About a third of our population is African American; African Americans have a higher incidence of maternal mortality. So, if you correct our population for race, we’re not as much of an outlier as it’d otherwise appear. Now, I say that not to minimize the issue but to focus the issue as to where it would be. For whatever reason, people of color have a higher incidence of maternal mortality.”
There is no clearer way to say they they believe Black Lives Don’t Matter. Bill Cassidy wants you to know he only cares about the white population.
And then there’s the “for whatever reason” people of color die more in childbirth. Just sweep that right under the rug. - The reason is they don’t have access to the care they need because you defund things like planned parenthood and make access impossible.
Hey, I’ve seen a lot of people saying that you should support smaller-scale abortion facilities instead of spending on Planned Parenthood because, according to them, PP already has plenty of money.
While I totally support donating to local abortion care facilities, I think it’s really dangerous to be spreading around misinformation about Planned Parenthood, so here are a list of reasons that Planned Parenthood is a really worthwhile resource right about now:
Planned Parenthood has a large legal fund and they know how to use it. Not only will they work on-the-ground to provide reproductive health services, they will work on the legislative level in every state to fight the legal battles that are about to become very fucking necessary. Donate directly to abortion services, yes - but if you want to protect the legality of abortion and the right to privacy in the doctor’s office, Planned Parenthood’s legal team will fight in the places where you, as an individual, cannot.
I’ve heard some people saying that Planned Parenthood actually does damage to the reproductive justice community because they “take up all the talking space” and then they’ll say “well, abortion is only a small amount of what Planned Parenthood does” thus stigmatizing abortion. While I can’t speak for every PP facility, in my experience during my volunteer trainings, THIS IS MISINFORMATION. Outside supporters of PP will say this ABOUT Planned Parenthood, but at my volunteer trainings the workers actually had us do spoken activities to de-stigmatize abortion for anyone who needed it. We were given multiple “abortion is good, actually” talks.
On that note, the things PP does aside from abortion are actually very important. One thing they do is distribute INFORMATION on a widespread scale. This information will often focus on important things to know about pregnancy health, when abortion might be needed, and communicative campaigns to spread abortion stories with specific participants’ consent in order to de-stigmatize abortion and spread awareness.
A number of smaller “Pregnancy Crisis Centers” disguise themselves as abortion providers, but are really fundamentalist Christian centers in disguise. These centers will abuse and psychologically torture people who were planning on coming in for abortions. However, a Planned Parenthood is always what it says it will be. I support Planned Parenthood because I know exactly what my money is going to when I make donations.
If you do know of a smaller abortion facility that needs funding, by all means, donate! (Also if you go on PP’s website you can choose a PP facility to fund directly, if you don’t want your donation to go into their large legal fund.) But if you’re supporting a smaller center, do make sure that they really are a legitimate abortion provider before you donate.
Let’s not spread misinformation or be divisive, people! That will only hurt reproductive justice, in the end. If you want to support small-scale abortion care centers, absolutely do that. It will be very much needed in the coming months. But you can do that without dunking on Planned Parenthood and all that they do for reproductive rights, justice, and healthcare. It is entirely possible to be supportive of both.
I find it very telling that Alito directly says not to consider the public reaction to their decision when it comes to overturning Roe v. Wade because it’s clear there will be much public unrest at the loss of a major reproductive right which lays the groundwork for a lot of other cases after.
The Court’s conservatives do not care about public unrest or popular opinion. They never have. They don’t see it as their job to respond to the will of the people because they’re not elected (and they’re not supposed to be! You don’t want judges to be elected!). The issue is that they don’t take modernity or 20th century trends into account.
Judges like Alito think their only role is to interpret the text of the Constitution and its amendments as they would have been interpreted when written, forever frozen in time, regardless of what the writer(s) intended. That’s what “originalism” or “textualism” or “Judges are like umpires” means. It’s all legal fundamentalism. In their minds, how dare a judge consider modern life or recent history when interpreting a word in a 200 year old document?? How dare a judge give wide (but rational) interpretations to a word or phrase in order to give people new freedoms??? They decry it as “judicial activism” and claim that new freedoms can only be decided by the elected legislature. (Remember, the legislative branch makes the laws; the executive makes regulation to enforce the existing laws but cannot make new laws.)
To the conservatives, if we want change then we need to add new words to the Constitution via the amendment process. And to do that, we need new executives and legislators — so we have to vote for the Democrats/liberals at every level. That’s how the conservatives got to this point! They held their nose and voted for every candidate with the ® next to their name for every election for 50 years.
In the meantime, get loud with your existinglegislators and executives, not judges. Protest, write letters, make phone calls. Donate time or money to organizations that are fighting back. Or run for office yourself! When the time comes, vote for President, Senate, House of Representatives, and your state Governor, Lt. Governor, Attorney General, and state legislators. Popular opinion may not sway the Supreme Court, but you might be able to oust some shitty state legislators. Or elect a state Attorney General who won’t prosecute women who miscarry. Ideally the Democrats will even keep the Senate and fend off Mitch McConnell for a few more years. And that could make the difference in protecting rights in your state, or even nationwide, while we fix this at the Constitutional level.
I find it very telling that Alito directly says not to consider the public reaction to their decision when it comes to overturning Roe v. Wade because it’s clear there will be much public unrest at the loss of a major reproductive right which lays the groundwork for a lot of other cases after.
The Court’s conservatives do not care about public unrest or popular opinion. They never have. They don’t see it as their job to respond to the will of the people because they’re not elected (and they’re not supposed to be! You don’t want judges to be elected!). The issue is that they don’t take modernity or 20th century trends into account.
Judges like Alito think their only role is to interpret the text of the Constitution and its amendments as they would have been interpreted when written, forever frozen in time, regardless of what the writer(s) intended. That’s what “originalism” or “textualism” or “Judges are like umpires” means. It’s all legal fundamentalism. In their minds, how dare a judge consider modern life or recent history when interpreting a word in a 200 year old document?? How dare a judge give wide (but rational) interpretations to a word or phrase in order to give people new freedoms??? They decry it as “judicial activism” and claim that new freedoms can only be decided by the elected legislature. (Remember, the legislative branch makes the laws; the executive makes regulation to enforce the existing laws but cannot make new laws.)
To the conservatives, if we want change then we need to add new words to the Constitution via the amendment process. And to do that, we need new executives and legislators — so we have to vote for the Democrats/liberals at every level. That’s how the conservatives got to this point! They held their nose and voted for every candidate with the ® next to their name for every election for 50 years.
In the meantime, get loud with your existinglegislators and executives, not judges. Protest, write letters, make phone calls. Donate time or money to organizations that are fighting back. Or run for office yourself! When the time comes, vote for President, Senate, House of Representatives, and your state Governor, Lt. Governor, Attorney General, and state legislators. Popular opinion may not sway the Supreme Court, but you might be able to oust some shitty state legislators. Or elect a state Attorney General who won’t prosecute women who miscarry. Ideally the Democrats will even keep the Senate and fend off Mitch McConnell for a few more years. And that could make the difference in protecting rights in your state, or even nationwide, while we fix this at the Constitutional level.
I have a First Amendment right to criticize the Supreme Court. Fuck you, Clarence Thomas, for saying, “We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like,“ when you’ve been addicted to overturning fundamental rights precedent for your entire Court tenure.
I have a First Amendment right to criticize the Supreme Court. Fuck you, Clarence Thomas, for saying, “We are becoming addicted to wanting particular outcomes, not living with the outcomes we don’t like,“ when you’ve been addicted to overturning fundamental rights precedent for your entire Court tenure.
Not so friendly reminder that abortion bans violate Jewish women and Jewish families’ religious freedom.
Jewish law does not reconize a fetus as a fully autonomous person nor does it legally consider the fetus to be a full person deserving of protections equal those accorded to human beings by G-d.
The Talmud states that the fetus as part of its mother throughout the pregnancy, dependent fully on her for its life — merely an extension of the mother.
I’ll be back to my usual BS about anime men and 90s music soon, but right now, I’ve got Constitutional law on my mind. Instead of ranting about unelected judges or old white men, fight back by learning their tricks! Understand how and why this leaked opinion’s bombshell isn’t about abortion. It’s about restricting rights that aren’t explicit in the Constitution. The leaked draft in the Dobbscase would absolutely endanger, to varying degrees, the right to:
Marry (same sex and/or interracial marriage)
Have children (adoption and sterilization)
Have certain kinds of consensual sex (sodomy)
Custody of children
Keep a family together
Purchase and/or use contraceptives (even if married)
Control the upbringing of your child (sending kids to parochial schools and/or homeschooling)
Refuse medical treatment
Maybe even some parts of the Bill of Rights like free speech if we go down the darkest timeline’s hardcore fundamentalist path.
Why? Because these rights all share an underlying analytical framework with the right to have an abortion pre-viability without an undue burden. These are all “fundamental rights” (that’s the legal term, not philosophical opinion) under the:
Fourteenth Amendment - aka the post-Civil War one that applies to state governments and has an explicit Equal Protection Clause AND Due Process Clause. Which fundamental rights are protected by which clause? The difference is mostly semantic, although choosing one clause over the other can put a spin on the case making a certain outcome more likely. The Supreme Court has also found previously that the 14th Amendment “incorporates” most of the Bill of Rights and applies those limits to state governments. The first 10 amendments otherwise apply only to the federal government. Without this Court-made interpretation of the 14th Amendment, your state government could absolutely stop your free speech, for example. It’s meant to limit racist states, basically.
Due Process Clause of the Fifth Amendment - Yep, double due process, because this one only applies to the federal government! But, fun fact, the Supreme Court has decided this due process clause should be read to “include” equal protection so the federal government is limited by equal protection too. Another Court-made protection that matters.
Ninth Amendment (it says the naming of certain rights in the Constitution should not be read as disparaging/prohibiting other rights retained by the people). There aren’t any Ninth Amendment rights, technically, but it’s validation that the Constitution CAN protect rights that aren’t explicitly written into the document.
So, how do we decide what is, legally, a fundamental right protected from federal AND state government interference? And which Amendment and clause do we use to give life to that right?
It turns out there’s no strict test. Really! Each fundamental right is established slowly over time, based on a variety of factors. It was kept flexible by design, so rights can be added and expanded. That’s what drives conservatives mad, because they want hard & fast rules. And that’s what this Dobbs draft opinion attacks. The “holding” in the draft — meaning the most important, binding legal part — says “The Constitution makes no reference to abortion, and no such right is implicitly protected by ANY constitutional provision, including…the Due Process Clause of the Fourteenth Amendment.” The draft opinion then follows a three-part structure explaining:
“the standard our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.” This is a specific reference to the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law”
“Whether [abortion] is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’” This distinction between “liberty” and “ordered liberty” is invented by the Supreme Court, as the 14th Amendment just says “liberty.” But it’s been used for a long time and isn’t controversial.
“Whether a right to obtain an abortion is supported by other precedents.”
Do you see the judicial sleight of hand?
There wasn’t a unified test for finding a “fundamental right” implicit in the Constitution. But this opinion immediately dismisses the equal protection clause (calling it inapplicable to abortion), and the 5th and 9th Amendments (saying Roe didn’t consider them so the Court must ignore them now), leaving only the Due Process Clause of the 14th Amendment as the basis for finding a fundamental right. Having isolated this clause, the opinion then goes straight for the heart of it, saying fundamental rights can be found only if the right is objectively, deeply rooted in history, because that subset of “ordered liberty” is the ONLY kind of “liberty” the Due Process Clause is capable of protecting. This slashes the scope of the clause and establishes a high bar that hasn’t been required in other cases.
The draft isn’t subtle about it either.
“In interpreting what is meant by the Fourteenth Amendment’s reference to liberty, we must guard against the natural human tendency to confuse what that amendment protects with our own ardent view about the liberty that Americans should enjoy.” Then the draft says it seeks to “set the record straight” on Roe’s “faulty historical analysis,” even though that wasn’t the test used by the Roe court and the subsequent cases supporting Roe. (And, FWIW, the 66-page Roe opinion contains literally dozens of pages of historical analysis, including notes on how abortion and infanticide was practiced by ancient Greeks and Romans. Dobbs dismisses it all as “irrelevant”.)
Instead of any strict test, Roe recognized that the pre-existing Constitutional right of privacy was “implicit in the concept of ordered liberty.” (There’s our “ordered liberty” again! See, RoeandDobbs look at the same precedent and come out with completely different conclusions, which is not supposed to happen! But I digress.) Pre-Roe, the existing privacy right guaranteed a “zone of privacy” encompassing marriage (though only hetero at the time), procreation, contraception, child rearing & education, and more. Roe reasoned if all other rights in that zone could not be infringed by the federal or state government in any way, then the Constitution should extend a right protecting abortions from almost all government interference “pre-viability,” meaning before a fetus could survive outside a pregnant person.
Why viability? Because the government interest in the fetus needs to be BALANCED with the “separate and distinct” interest in “preserving and protecting the health of the pregnant [person].” Both fetus and pregnant person must be considered.
Simply put, “the pregnant [person] cannot be isolated in her pregnancy. She carries an embryo, and later a fetus…” Abortion is different from other fundamental rights in that we inherently have a clash of competing rights, and that’s why abortion is not, and never has been, a complete, unfettered right throughout the whole pregnancy. It’s also why there must be exceptions for the life or health of the pregnant person. In achieving this balance, Roe said it
“need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
On the flip side, Roe said federal and state governments could regulate abortion once they had “-“a rational basis” for the regulation AND a “compelling government interest” in the health, safety, and welfare of the fetus; aka after the fetus is viable apart from the pregnant person. The “rational basis” part just indicates the level of justification needed to uphold a law from a constitutional challenge. “Rational basis” is the bottom level of justification, and it means the government law/regulation almost always wins — in which case, the only check on government overreach is elections. (If you don’t like a law that is constitutional, vote the bastards who wrote it out of office.)
TheDobbs draft finds that, of course, abortion is NOT a right “deeply rooted in the Nation’s history and traditions” because “tradition” criminalized abortion. The fact that abortion was criminalized at all stages of pregnancy in the majority of states in 1868, when the 14th Amendment was ratified, means we don’t have a protected Constitutional right to abortion today. Because history. The Court ignores the minority of states that didn’t criminalize early abortions or didn’t actively prosecute abortion. The Court ignores that these anti-abortion laws were written at a time when women couldn’t vote or serve in public office. It doesn’t matter that medical science has advanced. Because history. It doesn’t matter if atheists or some religions, like Reform Judaism, don’t believe life begins at conception. It doesn’t matter that attitudes and laws about abortion changed in the 20th century. Because history.
In short, Dobbs stands for the proposition that “fundamental rights” have gone too far. “These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” ……Well, why can’t there be a fundamental right for an adult to engage in whatever type of work they want, including sex work? The government could still impose regulations on sex workers as long as such regulations are necessary to achieve a compelling government interest, and are narrowly tailored to that interest. A very high level of justification, yes, but not impossible. Oh, but our Nation’s Puritan history….. /s
As if that’s not enough, there’s one more “gotcha” lurking in the draft. Remember where I said “rational basis” means the government almost always wins? Well, the Dobbs opinion would move the standard from “government almost always loses” to “government almost always wins.” Going forward,
“rational basis review is the appropriate standard for … challenges [to abortion laws]. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. … It follows that… [a] law regulating abortion, like other health and welfare laws [that do not touch fundamental rights], is entitled to a ‘strong presumption of validity.’”
This section does do a good job of specifying “abortion laws” rather than “Fourteenth Amendment” generally. BUT note the logic flow: abortion is not a protected fundamental right—> because history!!—> government can regulate abortion pretty much unchecked except for elections.
This is unequivocally a framework that could be used to roll back rights.
It’s true the new rule might not actually be used this way. Dobbs says, “[W]e emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” These kinds of limiting statements appear with some frequency in Supreme Court decisions, and they can stop a case from being used as precedent. But they’re not always binding, especially where the limiting language isn’t baked expressly into the legal “holding” of the case. In Dobbs, the “holding” is that no fundamental right to abortion exists under any part of the Constitution, including the Due Process Clause of the Fourteenth Amendment, because history. That holding is too broad for my comfort level.
The Wall Street Journal’s editorial board argued that there is no risk to other fundamental rights because rights like gay marriage and contraception are so integral to our lives and so non-controversial as to withstand any challenge. …. Hmmm, I’mma let YOU decide if you believe that’s true. This Atlantic article argues that abortion is different from other fundamental rights because abortion causes harm to a “non-consenting” fetus…but Roe expressly recognized this fact as part of its viability analysis and attempt to balance rights of fetus AND pregnant person, yet Dobbs proposes to eviscerate Roe anyway. I suppose it’s not a shock that conservatives aren’t interested in any balance for the pregnant person; they’re the same people who disregard the rights of shooting victims in the face of the right to bear arms. Then again:
“To look at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people is like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body.” — conservative Justice Scalia’s Casey abortion dissent quoting Justice White (who was nominated by JFK but frequently ruled with the Court’s conservative bloc)
Yeah, my head hurts too, so let’s wrap up with one last paragraph before the conclusion: Fundamental rights don’t require two consenting parties; for example, using contraception, refusing medical treatment, or choosing to homeschool your child. The same Atlantic article also mentions “reliance,” meaning the Supreme Court is more hesitant to overrule precedent if it would upend advance planning of great precision. For marriage, that’s true — a sudden invalidation of millions of marriages would be catastrophic. But just as Dobbs says that’s not true for abortion (“getting an abortion is generally unplanned activity”), it’s not true of other fundamental rights either (eg, for consensual sex/sodomy laws, I can imagine someone saying, “well just stop having that kind of sex”). The point stands that the proposed Dobbsframeworkcould make other fundamental rights vulnerable.
The “could” IS the problem. Because someone in some red state will almost certainly use this new framework to probe the limits of rights we thought we had. Perhaps the rights will stand; perhaps not. That uncertainty IS the damage. Re-litigating and re-assessing what has already been decided. Constantly worrying if rights we took for granted for decades will be taken away. Even if we do ultimately keep our fundamental rights, this Supreme Court is inviting them to be challenged, and is going to make us fight HARD for every last scrap.
I’ll be back to my usual BS about anime men and 90s music soon, but right now, I’ve got Constitutional law on my mind. Instead of ranting about unelected judges or old white men, fight back by learning their tricks! Understand how and why this leaked opinion’s bombshell isn’t about abortion. It’s about restricting rights that aren’t explicit in the Constitution. The leaked draft in the Dobbscase would absolutely endanger, to varying degrees, the right to:
Marry (same sex and/or interracial marriage)
Have children (adoption and sterilization)
Have certain kinds of consensual sex (sodomy)
Custody of children
Keep a family together
Purchase and/or use contraceptives (even if married)
Control the upbringing of your child (sending kids to parochial schools and/or homeschooling)
Refuse medical treatment
Maybe even some parts of the Bill of Rights like free speech if we go down the darkest timeline’s hardcore fundamentalist path.
Why? Because these rights all share an underlying analytical framework with the right to have an abortion pre-viability without an undue burden. These are all “fundamental rights” (that’s the legal term, not philosophical opinion) under the:
Fourteenth Amendment - aka the post-Civil War one that applies to state governments and has an explicit Equal Protection Clause AND Due Process Clause. Which fundamental rights are protected by which clause? The difference is mostly semantic, although choosing one clause over the other can put a spin on the case making a certain outcome more likely. The Supreme Court has also found previously that the 14th Amendment “incorporates” most of the Bill of Rights and applies those limits to state governments. The first 10 amendments otherwise apply only to the federal government. Without this Court-made interpretation of the 14th Amendment, your state government could absolutely stop your free speech, for example. It’s meant to limit racist states, basically.
Due Process Clause of the Fifth Amendment - Yep, double due process, because this one only applies to the federal government! But, fun fact, the Supreme Court has decided this due process clause should be read to “include” equal protection so the federal government is limited by equal protection too. Another Court-made protection that matters.
Ninth Amendment (it says the naming of certain rights in the Constitution should not be read as disparaging/prohibiting other rights retained by the people). There aren’t any Ninth Amendment rights, technically, but it’s validation that the Constitution CAN protect rights that aren’t explicitly written into the document.
So, how do we decide what is, legally, a fundamental right protected from federal AND state government interference? And which Amendment and clause do we use to give life to that right?
It turns out there’s no strict test. Really! Each fundamental right is established slowly over time, based on a variety of factors. It was kept flexible by design, so rights can be added and expanded. That’s what drives conservatives mad, because they want hard & fast rules. And that’s what this Dobbs draft opinion attacks. The “holding” in the draft — meaning the most important, binding legal part — says “The Constitution makes no reference to abortion, and no such right is implicitly protected by ANY constitutional provision, including…the Due Process Clause of the Fourteenth Amendment.” The draft opinion then follows a three-part structure explaining:
“the standard our cases have used in determining whether the Fourteenth Amendment’s reference to ‘liberty’ protects a particular right.” This is a specific reference to the Due Process Clause of the 14th Amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law”
“Whether [abortion] is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty.’” This distinction between “liberty” and “ordered liberty” is invented by the Supreme Court, as the 14th Amendment just says “liberty.” But it’s been used for a long time and isn’t controversial.
“Whether a right to obtain an abortion is supported by other precedents.”
Do you see the judicial sleight of hand?
There wasn’t a unified test for finding a “fundamental right” implicit in the Constitution. But this opinion immediately dismisses the equal protection clause (calling it inapplicable to abortion), and the 5th and 9th Amendments (saying Roe didn’t consider them so the Court must ignore them now), leaving only the Due Process Clause of the 14th Amendment as the basis for finding a fundamental right. Having isolated this clause, the opinion then goes straight for the heart of it, saying fundamental rights can be found only if the right is objectively, deeply rooted in history, because that subset of “ordered liberty” is the ONLY kind of “liberty” the Due Process Clause is capable of protecting. This slashes the scope of the clause and establishes a high bar that hasn’t been required in other cases.
The draft isn’t subtle about it either.
“In interpreting what is meant by the Fourteenth Amendment’s reference to liberty, we must guard against the natural human tendency to confuse what that amendment protects with our own ardent view about the liberty that Americans should enjoy.” Then the draft says it seeks to “set the record straight” on Roe’s “faulty historical analysis,” even though that wasn’t the test used by the Roe court and the subsequent cases supporting Roe. (And, FWIW, the 66-page Roe opinion contains literally dozens of pages of historical analysis, including notes on how abortion and infanticide was practiced by ancient Greeks and Romans. Dobbs dismisses it all as “irrelevant”.)
Instead of any strict test, Roe recognized that the pre-existing Constitutional right of privacy was “implicit in the concept of ordered liberty.” (There’s our “ordered liberty” again! See, RoeandDobbs look at the same precedent and come out with completely different conclusions, which is not supposed to happen! But I digress.) Pre-Roe, the existing privacy right guaranteed a “zone of privacy” encompassing marriage (though only hetero at the time), procreation, contraception, child rearing & education, and more. Roe reasoned if all other rights in that zone could not be infringed by the federal or state government in any way, then the Constitution should extend a right protecting abortions from almost all government interference “pre-viability,” meaning before a fetus could survive outside a pregnant person.
Why viability? Because the government interest in the fetus needs to be BALANCED with the “separate and distinct” interest in “preserving and protecting the health of the pregnant [person].” Both fetus and pregnant person must be considered.
Simply put, “the pregnant [person] cannot be isolated in her pregnancy. She carries an embryo, and later a fetus…” Abortion is different from other fundamental rights in that we inherently have a clash of competing rights, and that’s why abortion is not, and never has been, a complete, unfettered right throughout the whole pregnancy. It’s also why there must be exceptions for the life or health of the pregnant person. In achieving this balance, Roe said it
“need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”
On the flip side, Roe said federal and state governments could regulate abortion once they had “-“a rational basis” for the regulation AND a “compelling government interest” in the health, safety, and welfare of the fetus; aka after the fetus is viable apart from the pregnant person. The “rational basis” part just indicates the level of justification needed to uphold a law from a constitutional challenge. “Rational basis” is the bottom level of justification, and it means the government law/regulation almost always wins — in which case, the only check on government overreach is elections. (If you don’t like a law that is constitutional, vote the bastards who wrote it out of office.)
TheDobbs draft finds that, of course, abortion is NOT a right “deeply rooted in the Nation’s history and traditions” because “tradition” criminalized abortion. The fact that abortion was criminalized at all stages of pregnancy in the majority of states in 1868, when the 14th Amendment was ratified, means we don’t have a protected Constitutional right to abortion today. Because history. The Court ignores the minority of states that didn’t criminalize early abortions or didn’t actively prosecute abortion. The Court ignores that these anti-abortion laws were written at a time when women couldn’t vote or serve in public office. It doesn’t matter that medical science has advanced. Because history. It doesn’t matter if atheists or some religions, like Reform Judaism, don’t believe life begins at conception. It doesn’t matter that attitudes and laws about abortion changed in the 20th century. Because history.
In short, Dobbs stands for the proposition that “fundamental rights” have gone too far. “These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.” ……Well, why can’t there be a fundamental right for an adult to engage in whatever type of work they want, including sex work? The government could still impose regulations on sex workers as long as such regulations are necessary to achieve a compelling government interest, and are narrowly tailored to that interest. A very high level of justification, yes, but not impossible. Oh, but our Nation’s Puritan history….. /s
As if that’s not enough, there’s one more “gotcha” lurking in the draft. Remember where I said “rational basis” means the government almost always wins? Well, the Dobbs opinion would move the standard from “government almost always loses” to “government almost always wins.” Going forward,
“rational basis review is the appropriate standard for … challenges [to abortion laws]. As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history. … It follows that… [a] law regulating abortion, like other health and welfare laws [that do not touch fundamental rights], is entitled to a ‘strong presumption of validity.’”
This section does do a good job of specifying “abortion laws” rather than “Fourteenth Amendment” generally. BUT note the logic flow: abortion is not a protected fundamental right—> because history!!—> government can regulate abortion pretty much unchecked except for elections.
This is unequivocally a framework that could be used to roll back rights.
It’s true the new rule might not actually be used this way. Dobbs says, “[W]e emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” These kinds of limiting statements appear with some frequency in Supreme Court decisions, and they can stop a case from being used as precedent. But they’re not always binding, especially where the limiting language isn’t baked expressly into the legal “holding” of the case. In Dobbs, the “holding” is that no fundamental right to abortion exists under any part of the Constitution, including the Due Process Clause of the Fourteenth Amendment, because history. That holding is too broad for my comfort level.
The Wall Street Journal’s editorial board argued that there is no risk to other fundamental rights because rights like gay marriage and contraception are so integral to our lives and so non-controversial as to withstand any challenge. …. Hmmm, I’mma let YOU decide if you believe that’s true. This Atlantic article argues that abortion is different from other fundamental rights because abortion causes harm to a “non-consenting” fetus…but Roe expressly recognized this fact as part of its viability analysis and attempt to balance rights of fetus AND pregnant person, yet Dobbs proposes to eviscerate Roe anyway. I suppose it’s not a shock that conservatives aren’t interested in any balance for the pregnant person; they’re the same people who disregard the rights of shooting victims in the face of the right to bear arms. Then again:
“To look at the act which is assertedly the subject of a liberty interest in isolation from its effect upon other people is like inquiring whether there is a liberty interest in firing a gun where the case at hand happens to involve its discharge into another person’s body.” — conservative Justice Scalia’s Casey abortion dissent quoting Justice White (who was nominated by JFK but frequently ruled with the Court’s conservative bloc)
Yeah, my head hurts too, so let’s wrap up with one last paragraph before the conclusion: Fundamental rights don’t require two consenting parties; for example, using contraception, refusing medical treatment, or choosing to homeschool your child. The same Atlantic article also mentions “reliance,” meaning the Supreme Court is more hesitant to overrule precedent if it would upend advance planning of great precision. For marriage, that’s true — a sudden invalidation of millions of marriages would be catastrophic. But just as Dobbs says that’s not true for abortion (“getting an abortion is generally unplanned activity”), it’s not true of other fundamental rights either (eg, for consensual sex/sodomy laws, I can imagine someone saying, “well just stop having that kind of sex”). The point stands that the proposed Dobbsframeworkcould make other fundamental rights vulnerable.
The “could” IS the problem. Because someone in some red state will almost certainly use this new framework to probe the limits of rights we thought we had. Perhaps the rights will stand; perhaps not. That uncertainty IS the damage. Re-litigating and re-assessing what has already been decided. Constantly worrying if rights we took for granted for decades will be taken away. Even if we do ultimately keep our fundamental rights, this Supreme Court is inviting them to be challenged, and is going to make us fight HARD for every last scrap.
the supreme court decision to overturn Roe v. Wade is not official yet. someone leaked a draft of the opinion that the members of the court have been circulating and revising (the draft was created by justice samuel alito).
which is insane by the way. it’s the first time that a draft of a supreme court decision has ever been leaked in the entire history of this country.
it makes perfect sense to feel grief or panic or dread or sadness or anger or whatever you’re feeling right now. this is fucking terrible and scary. just for the sake of avoiding misinformation, i wanted to clarify this because i think a lot of the headlines have been misleading, and the info gets even more misconstrued when it’s rephrased on social media and stuff
It is a draft, yes. But to downplay it as that is still dangerous. As OP mentions, this leak is unprecedented, meaning someone inside the Court is sufficiently alarmed, and that’s NEVER happened before. The terrible and scary part isn’t just that Roe may be overturned — that’s been done since 2016 — but in HOW the Court is considering doing it. If the leak is real, then the rationale the Court is using would also wipe away 100+ years of civil rights protections across a variety of subject areas, not just abortion. It would dramatically reduce the power of the federal government and put significantly more power in the hands of states. The leaked draft shows the Court using the same logic as was used to uphold slavery (and later overturned, but they’re possibly reviving it). That the highest court in the United States is even considering such a sweeping ruling is an affront to our freedom and cause for alarm, because it would bring much of our existing Constitutional law framework into question. It means this Court is unbound by anything that’s come before. THAT is why someone got scared and leaked the draft. So no, it’s not a final or official decision, but it’s incredibly important because you need to know the kinds of things this Court is thinking. Don’t fall for their press statements or the non-binding parts of the final opinion where they promise this is only about abortion. It’s not.
As much as I understand the sentiment, I really think that “No uterus, no opinion” isn’t sufficient as a pro-choice rally and if anything just reduces the scope of the pro-life movement. In our attempts to keep cis men from policing women’s and afab people’s bodies we absolutely can’t forget the hundreds of thousands of conservative pro-life women who help to fund and put these men in office, as well as the pro-life women in politics themselves. The problem isn’t just that uterus-less men are interfering with uterus-having bodies. The problem is that a very large, very powerful group of people believe that a fetus’s rights supercede those of the living individual - to such an extent that the individual deserves to be punished for it. Moreover, that people of color and people in poverty will be punished exponentially more is a normal, digestible feature of the landscape rather than a symptom of the white supremacy, late-stage capitalism, and Christian nationalism that have this country in a chokehold.
all the right-wing judges besides clarence thomas were picked by bush and trump, meaning the decision to overturn roe v wade was made by two presidents who never won the popular vote
Source. It’s like so bad I can’t even think straight. Don’t let anyone pretend the US is a democracy.
ALT
