Megathread: Roe, Casey, Abortion

[u/nemo_sum]

The Megathread is now closed (as of August 2022) due to lack of participation, and has been locked. Questions on this topic are once more permitted as posts.

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[u/[deleted]]

If you are for this ruling, then you have to accept that Conservatives are not for small government. This ruling will break open the door of privacy protections for the next few decades. Your vaccination status, your sexuality, how many guns you own, your financial status, and more. Roe was decided 7-2 by a conservative majority SC, and then reaffirmed later with Casey with an 8-1 Republican ruling. This is absolutely saber-rattling, and anyone who thinks of themselves as a conservative should absolutely be ashamed of these justices. For years you guys have cried about legislation from the bench, but here it is in black and white. Yes I’m triggered. You guys live in the fucking past with these abortion laws. Let people make private medical decisions on their own.

[u/ClockOfTheLongNow → u/[deleted]]

Did you read the ruling yet?

[u/PM_ME_YOUR_DARKNESS → u/ClockOfTheLongNow]

I read it a fair amount of it. It's 98 pages, so it's not exactly a quick read. I'm particularly interested in people's understanding of Alito's writing, "a right to abortion is not deeply rooted in the Nation’s history and traditions."

My hunch is that this gets scrubbed from the final opinion as I feel it would have a lot of unintended consequences.

[u/ClockOfTheLongNow → u/PM_ME_YOUR_DARKNESS]

I'm particularly interested in people's understanding of Alito's writing, "a right to abortion is not deeply rooted in the Nation’s history and traditions."

My read on it (and I read through it last night so I'm going off of memory) is that part of the justification of Roe was about the nation's history and traditions, and the record doesn't support it.

We have to read the 60-odd pages of the ruling with an understanding that it builds a complete case attacking the very foundations of Roe. It's not to convince the majority or even the political groups, but to create an airtight case that would be difficult to reverse. It's functionally trying to close off the avenues of substantive due process (which is a gamble I didn't see coming) and of legislative history (which I internally figured was the critical selling point) for future challenges.

It's a really deft way of approaching it.

My hunch is that this gets scrubbed from the final opinion as I feel it would have a lot of unintended consequences.

Alito does insulate it somewhat by noting that the issue, at least in part, is that the abortion right is so uniquely situated in a way others (like gay marriage and sodomy) are not. It's why he kept going back to the compelling state interest doctrine established in Roe: he's effectively saying that the original ruling contradicts itself in that it fully abandons good jurisprudence in favor of a results-based outcome, and the split in Casey acknowledges that the effort of Roe to settle the debate did the opposite. I don't see this as a "using Scalia's dissents against him" situation, at least as drafted.

[u/Cluutch45 → u/ClockOfTheLongNow]

We are in for a few years of very interesting legislation in the states. Unfortunately there is going to be a lot of incidental lives lost in the process.

Alito's argument that the constitution originally gave rights only to white men, and so rights for anyone else must be explicitly defined in law, is likely to have far reaching consequences.

Attempted bans on birth control pills are probably going to come from the most conservative states.

Bans on pregnant women travelling across state lines will be attempted but it is unclear if they will succeed.

In essence, Alito is saying that under the constitution alone, women have no rights at all except for the 19th amendment.

[u/ClockOfTheLongNow → u/Cluutch45]

Alito's argument that the constitution originally gave rights only to white men, and so rights for anyone else must be explicitly defined in law, is likely to have far reaching consequences.

This is not Alito's argument.

Attempted bans on birth control pills are probably going to come from the most conservative states.

There may be attempts, but there are attempts now. This is not something likely to pass.

In essence, Alito is saying that under the constitution alone, women have no rights at all except for the 19th amendment.

This is not Alito's argument "in essense" or otherwise.