U.S. Supreme Court: Post-Ginsburg Edition

I wonder if you could do it by passing some kind of far-reaching federal abortion regulation scheme under the interstate commerce clause and then arguing that federal preemption applied so states couldn't regulate abortion anymore, or at least certain aspects of abortion.

Interstate commerce tie-in could be that tons of people travel out of state to get abortions.

xp it also says "and provide for the common defense and general welfare of the United States"

i don't know what to tell you, bud

Dan S do you understand what the word "to" means?

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, [in order] to pay the debts and provide for the common defense and general welfare of the United States."

Does that help make it clearer?

honestly, when it comes down to words like "to", "the", "by", and "for", the meaning of words gets incredibly confusing imo

it would be cool, we'd have a way better country if they could just pass laws to promote things that are good. it doesn't matter though, they are not gonna use the spending clause to make states allow abortion. just read this and go to sleep. https://supreme.justia.com/cases/federal/us/483/203/#tab-opinion-1957222

There's another question on my mind too - which is if we accept that congress has the power to enshrine the right to abortion, doesn't that mean a conservative congress (which, guess what, we're about to have!) has the right to ban it federally?

xxp I'm not sure that clears it up for me but I respect you guys, I guess it's about paying debts. I'm not a lawyer but I believe that you know what you're talking about, just don't really understand

In other words "Congress has the power to collect taxes so that it is able to pay debts and provide for defense and general welfare."

I get it now

This is all a weird argument to me because the house literally passed the Women's Health Protection Act last year, and it very clearly prohibits states from restricting abortion.

https://www.congress.gov/bill/117th-congress/house-bill/3755

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

Everyone should agree that from now on backstreet abortions will be known as AlitoCare. As in, "You say your Trumpy uncle raped you and got you pregnant? That's a shame. Looks like you'll have to carry that fetus to term, unless you want to resort to AlitoCare."

I think it has a nice ring to it.

do you now, because i think it sounds horribly lighthearted and callous about a very grim and existent scenario

agreed

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

― Muad'Doob (Moodles), Wednesday, May 4, 2022 1:23 AM (six hours ago) bookmarkflaglink

i didn't read back to the beginning of this discussion but i think ppl were questioning whether such a law could withstand the awful supreme court because congress doesn't have the authority to make states just do anything. it's always possible to pass laws that are "unconstitutional." anyway if you ctrl+f "commerce" in here they are obv relying on the commerce clause not the general welfare clause: https://www.congress.gov/bill/117th-congress/house-bill/3755/text

btw i absolutely hate constitutional law

thinking about Argentinian feminists today, may we learn from their movements and follow their lead pic.twitter.com/hXyJsQZP4P

— eva lucía (@_soutomaior) May 3, 2022

If the question is "how does congress write a bill that stops individual states from restricting access to abortion, is it even possible?" then the answer is that the bill has already been written and passed in the House.

― Muad'Doob (Moodles), Wednesday, May 4, 2022 1:23 AM (six hours ago) bookmarkflaglink

i didn't read back to the beginning of this discussion but i think ppl were questioning whether such a law could withstand the awful supreme court because congress doesn't have the authority to make states just do anything. it's always possible to pass laws that are "unconstitutional." anyway if you ctrl+f "commerce" in here they are obv relying on the commerce clause not the general welfare clause: https://www.congress.gov/bill/117th-congress/house-bill/3755/text

― towards fungal computer (harbl), Wednesday, May 4, 2022 6:51 AM (seventeen minutes ago) bookmarkflaglink

btw i absolutely hate constitutional law

― towards fungal computer (harbl), Wednesday, May 4, 2022 6:51 AM (sixteen minutes ago) bookmarkflaglink

Both of these posts OTM

I also hate federalism. The idea of a country made up of a bunch of little quasi-countries was stupid as fuck and the founding fathers should feel stupid

^^^^^^^

does not get said enough

i can't stand it. it's such a frustrating field of study and topic of discussion. i just want to scream "SO WHAT????" at the arguments.

the legalism of it all, i mean. federalism obv included.

Con Law was by far the most disillusioning and aggravating class I took in law school. "Oh, you're doing INTERMEDIATE scrutiny now Mr. Yale Law Man" *wanking motion*

if you take something like mask mandates or vax mandates (and put aside your personal thoughts on those two things). . . it really doesn't make sense to have a country made up of all these other little countries that have different ideas about what's right and wrong with those things, or most things! it's absolutely crazy!

Maybe it made some sense when travel was by horse and many people never left their town, idk.

this is going to show my ignorance at this stuff. . . but was reading an article last night and this fact blew my mind:

When Roe was decided, women had to get their husband's permissions to get a credit card

Yes! Abuela told me that a few years ago.

I was in Chicago in March, and we went to the Museum of Contemporary Art. There was an exhibition of the work of Andrea Bowers on the top floor, which has now ended, but one of the pieces of work struck me and moved me to tears.

It was walls of letters from desperate women in the 60s, writing in search of information for safe abortions. Although some of the letters were nearly as old as my own mother, the names, identifying details and places were redacted, and the voices came through as clearly as if they’d been written yesterday. The exhibition has now ended, but it was a shocking piece of work for the reminder that this fight has never ended, and of the real human consequences behind these decisions. You can read a piece about the exhibition and some of the letters here, I knew a lot of the American context but not this piece of the story. No matter how politely worded the letters are, they are all pleas. I took a couple of pictures.

I have thought about abortion as a matter of importance since I was maybe 13 or 14, it was illegal in Ireland for almost my whole life. I think people are very lucky if they’ve never had to think about this, frankly, because it was the single issue that got me into politics as a child, and it remains hugely contested as we see today. Don’t take it for granted, things can always get worse.

A sharp article on the history of SCOTUS leaks:

No member of the court that decided The Prize Cases thought informing counsel of their voting plans or advising counsel on their argument was injudicious. Rather, this appears to be commonplace in the first two-thirds of the nineteenth century. Courts were staffed with persons who were politically active, the judges remained politically active while on the court, and part of that political activity was informing political friends of what was happening inside the Court. Their behavior on the bench might be shocking by contemporary standards, although contemporary Supreme Court leaks are more common than publicly acknowledged, but Grier, Catron and others acted within the judicial norm during the mid-nineteenth century. Some discretion was advisable, but only some.

The Republic did not fall, teeter, or even flinch when justices leaked information. The impact of leaking was considerably to the right of the decimal point. Leak or no leak, Democrats were thrilled that the Supreme Court was willing to take the lead resolving whether Congress could ban slavery in the territories. Abraham Lincoln did not need evidence of the correspondence between Buchanan, Catron and Grier to claim a conspiracy to nationalize slavery between Democratic elected officials and Democrats on the Supreme Court during his debates with Stephen Douglas. The judicial leaks in the Prize Cases confirmed what many of the justices had been saying about the blockade in their capacity as federal circuit judges and in their private correspondence (which was often public). The leaks in Milligan gave some members of Congress a little more time to think about how to operate Reconstruction with a Supreme Court not fond of martial rule.

do you now, because i think it sounds horribly lighthearted and callous about a very grim and existent scenario

I was being sarcastic after reading the Alito draft being angered by *his* callousness. Not at all lighthearted. Sorry.

I hope Gorsuch and Kavanaugh's houses are filled w/ picketers

The idea of a country made up of a bunch of little quasi-countries was stupid as fuck and the founding fathers should feel stupid

Absolutely! But to give them a little benefit of the doubt, what precedents did they have to look to? No one had really tried a nation-state on this this scale before.

Historically, empires and nations were quasi-federal (with subordinate governments given a decent amount of autonomy of style). What we now refer to as "Germany" was once hundreds of principalities - ditto "Italy" and "France" or for that matter "England."

In fact I dimly recall that there was more than one Germany, not that long ago. Also I am given to understand that there are some bits of Great Britain that are not quite aligned, in terms of how to be governed and by whom. It was in the news and everything.

All it took for the Holy Roman Empire to finally collapse like old dust was a swift kick from Napoleon.

To take this deeply annoying topic a little further, is the European Union an example of "a country made up of a bunch of little quasi-countries"?

Was the USSR? Was the British Empire? What about the current United Kingdom of Great Britain and Northern Ireland?

I know it doesn't actually help anything about the current very dire situation, but I do think that the conversation about what kind of entity "the United States of America" is should include some analogies to other historic polities.

Does it matter?

in line with my professed hatred of legalism, women not being allowed to make basic financial decisions is not only a fun fact but also the historical context in which that crap decision was negotiated. it could have been a different decision but wouldn't have gotten enough votes so it's like sorry, this is the best we could do for you. another reason i dislike the fetishization of watershed supreme court decisions (cf. "save roe" as a slogan). a lot of people felt like as long as roe v. wade is not overturned it's fine, but the trimester framework balancing of "interests" should never have been enough, and has led to more restrictions being enacted while politicians continue to do nothing, like your clinic hallways must be at least this wide, you need to have an ultrasound so you can see there is a baby in there, you have to have "counseling"/a waiting period, etc. (i mean is any of this better than saying you are not responsible enough to have a credit card? you're presumed not to understand what is happening in your own body!) if there is a "right" to something then the government shouldn't be able to come up with ridiculous restrictions on it but it's too late now.

“To take this deeply annoying topic a little further, is the European Union an example of "a country made up of a bunch of little quasi-countries"?

Was the USSR? Was the British Empire? What about the current United Kingdom of Great Britain and Northern Ireland?”

no. No. No. And no.

Also, even if Roe v Wade somehow survived, provision is already near non existent in much of the US as I understand it? It’s de facto unavailable even if the law currently says otherwise. The Guttmacher Institute had this paragraph in their most recent report on availability:

In 2017, 89% of U.S. counties did not have a clinic facility that provided abortion care, and 38% of women aged 15–44 lived in these counties (Table 4); these figures are comparable to those found in 2014—90% and 39%, respectively.1 In five states, fewer than 10% of women lived in a county without a clinic facility: California, Connecticut, Hawaii, Nevada and New York. In Mississippi and Wyoming, more than 90% of women lived in a county without such a clinic.

Xp

Well, it matters if you think that Texas is like Scotland, more like Oxfordshire, or more like Bermuda (as it relates to the government based in London.)

There's a fair number of people who think Texas is more analogous to Scotland than to Oxfordshire. I am not one of them, but they are actively involved in US politics. That viewpoint is part of why we are where we are now. It's why we every American life ends up getting controlled by dickheads like Alito and Manchin and McConnell.

I guess it matters if you have nothing to say on the topic at hand. Better not talk about real issues that affect real people when you feel like diverting the thread into an abstract debate about federalism.

Yeah, the access thing has been an issue for a long time. But I always remind myself that you can’t let your guard down in the face of incrementalism (“oh well, it was already pretty bad anyway”) - incrementalism is their whole strategy.

In any case from a practical perspective it seems like the fight has to be at the state level for now. I don’t really know how involved orgs like planned parenthood get in state level elections (state legislature, Governor) but I hope they’re going to if they don’t.

xp I'm not sure how "abstract" the discussion is. We here in the U.S. have seen the real (and devastating) consequences of our fractured government in this pandemic. And now we are looking at a wholesale deprivation of the rights of half the population, and what might be done about it.

i believe abstract was referring to the debate about whether other forms of government are like federalism rather than any of those things

^

A hell of a thread. Share with your anti-abortion relatives:

I taught a class on reproductive bodies at Princeton this semester, a course that explored ideas about conception and attempts to regulate who could provide care during labor from antiquity to the Enlightenment.

A thread on historical precedents and legal opinions: 1/16

— Melissa Reynolds (@melkatrey) May 4, 2022

Feticide is a minor offense in the Old Testament compared with murder.