People in blue states may be assuming incorrectly that it’s clear that they don’t have to worry about abortion being banned in their states.
If the Alito opinion is adopted as is, it opens the door for the United States Congress to pass a national ban on abortion, which it would certainly do if Republicans take control of both houses and either have a Republican president, or have a 2/3 majority even with a Democratic president.
This may be accompanied by a so-called ‘Personhood’ law, which would indicate with the force of federal law that a fetus is legally recognized as a human being.
Whether a ‘Personhood’ law would apply nationally is actually not at all clear. In other words, it is actually possible that it might. That issue would be a question for… guess who? The U.S. Supreme Court (i.e., whether state constitutions that carve out ‘more rights’ for the individual can actually do that in the context of a national ‘Personhood’ law).
That’s why the only solution to this that will really protect the more progressive states, is for a more robust Democratic and pro-choice Congress (more robust than the one we have now, in which ‘Manchins’ will not be holding the key) to utilize Article One powers to pressure the Supreme Court to stand down, just like FDR did in the 1930s.
The only way to do that is with a laser focus on Democrats winning swing House and Senate districts this Fall of 2022.
In other words, the outfall from the pending Alito ruling may be much worse than people here think, even locally, regardless of any legislation passed by the General Court. Disturbingly, the final arbiters of that question may very well be those same five justices.
fredrichlariccia says
“Ooh,you wanted your ruling to be a big surprise and now someone ruined it? I’m really sorry this decision to colonize every vagina in America wasn’t given the respect and dignity it deserved.” Trevor Noah
johntmay says
And stop losing ground in blue districts.
The question is how. What are voters in swing districts and evaporating blue districts looking for? Is the abortion issue enough? I don’t think so. My hunch is that minds are made up on that, along with minority rights, gay rights, and the rest of the social issues.
Climate Change? Nope….too far away. Free college or forgiving college debt? Nope…not an issue with most voters.
I’d suggest some economic policy and includes fairness. The details? I’m not sure but I’d tie in legislation that forbids members of congress and their spouses from trading stocks.
SomervilleTom says
An important first step is to reject this overly-narrow characterization of the ruling.
We MUST understand that the legal principle that forms the foundation of this opinion is that THERE IS NO RIGHT TO PRIVACY. This was Robert Bork’s argument decades ago, for those who remember him.
As bad as the abortion ruling is, the premise that Americans have no right to privacy (like the right to travel, it is not enumerated in the Constitution — it was taken for granted) is the real threat.
The Putinist GOP strives to enshrine American Apartheid into the law of the land.
In my view, that is a FAR more immediate threat to every American than whether or not members of Congress and their spouses trade stocks.
We MUST amend the Constitution to explicitly provide for the right to privacy. That is the most effective (though still imperfect) way to protect the majority of Americans from the superstitious passions of the extreme right.
SomervilleTom says
While I agree that Climate Change is not a winning issue, that isn’t because it is “too far away”. It is in fact the opposite — the damage is already done in terms of what any government policy can do.
The American political system utterly failed to address climate change. We had twenty years, and we squandered that opportunity.
Are you paying attention to what’s happening to Lake Mead and Lake Powell? Do you understand what that means? We’re talking about no water and no power for a HUGE portion of the Southwest. That’s RIGHT NOW. Not tomorrow, and “far away” only if you don’t care about Arizona, Nevada, New Mexico, and Southern California. What happens when Las Vegas, Reno, San Diego, and even LA have no water and no power?
I’m not sure what, if anything, anybody can now do about climate change. The American electorate has been made incredibly STUPID about climate change by decades of explicit and intentional misinformation.
So I agree that a focus on climate change is not going to help Democrats win seats in 2022 or 2024. That is not, however, because it is too far away. It is, instead, because it is too late.
fredrichlariccia says
“Morality is doing what is right, no matter what you are told. Religion is doing what you are told, no matter what is right.” H.L.Mencken, American satirist,cultural critic
Christopher says
I think his point was to many voters that issue is too far away, too abstract, not immediate enough.
Christopher says
You might be pleasantly surprised about what will happen federally. Neither party has or is likely to get anytime soon a filibuster-proof majority for having their way on this. Even Alito’s draft says this issue belongs to state legislatures.
johntmay says
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President”
Question for Justice Alito: Why did the founders not say a person conceived in the United states?
Christopher says
I usually use the 14th amendment for this argument – “All persons BORN (not conceived) or naturalized in the United States…shall be citizens of the United States and of the state wherein they reside.”
jconway says
Terry is correct. McConnell is already talking about a national abortion ban, and he could get it as soon as Jan 2025 if his party takes back control of Congress and the White House. He was willing to nuke the filibuster, delay hearings on Garland for nearly two years, and avoid impeaching Trump twice all for the right to stack the court with anti-choice judges. What makes us think he will stop at states rights on this issue?
Time for the voters of Alaska and Maine to get their allegedly pro-choice Senators to nuke the filibuster to save Roe in the here and now. Just this once, and it can bypass Manchin. Have Emily’s List and NARAL hold Sinema over a barrel to get her to vote for a brief emergency filibuster exemption on the abortion question.
End this charade once and for all.
https://thehill.com/news/senate/3480725-mcconnell-says-national-abortion-ban-possible/amp/
SomervilleTom says
I fear your approach will at best yield only a short-term gain — and at great expense of political capital. Legislation by Congress to protect abortion can be readily reversed by Congress to prohibit the same.
We saw a similar principle in the early years of the anti-immigration movement when the fascist nationalists strove to pass legislation declaring English as the national language. The legal argument that stopped that movement — whether or not the proponents admitted it — was that sheer demographics made it clear that within a few decades (right about now, in fact) the Spanish-speaking majority of the electorate could and would likely use that precedent to make Spanish the national language.
The rights that we’re talking about belong in the Constitution. They should not be subject to the whims of particular states or of particular political movements.
The only way to actually protect the rights that the extreme right strives to remove is to amend the Constitution. My thought is a single amendment that:
There are a host of other privacy-related matters that surely require their own thread.
We should, of course, also do whatever it takes to make the Equal Rights Amendment part of the Constitution.
Christopher says
Where exactly are you going to come up with the votes for that kind of amendment? I’d prefer to keep the Constitution free of specific policy preferences anyway in either direction. Your #6 is an invitation to all sorts of shenanigans and unintended consequences.
SomervilleTom says
My item 6 is a paraphrase of the “Rational Basis Review” that clarifies the “substantive due process clause”.
Government must show that a rational basis exists for restricting any behavior.
My item 6 has been part of constitutional review by the Supreme Court for decades. Until now, it has been implicit. I surely hope that you support it — in the absence of such a restriction, the government can do whatever the Congress chooses.
Christopher says
I am a loose constructionist. I believe in a democracy Congress and state legislatures should be allowed to act in all cases whatever that we decide about the society in which we want to live, provided it does not violate certain specific and sacrosanct rights. I also believe that laws carry the presumption of constitutionality and it would be easy to imagine things we might want to do that the other side takes to court on the basis you propose. Sometimes you legislate just because you think it’s a good idea. At least the way you worded it sounds like the 10th amendment on steroids and seems to invite legislating from the bench.
SomervilleTom says
Are you seriously arguing against the principle that government shall have a rational basis for restricting specific behavior or utterances?
Indeed. This was the basis for the laws against sodomy and miscegenation.
You are rephrasing the basis of the draft opinion.
Christopher says
I believe the two examples you offer fail constitutionality on equal protection grounds. Plus in most cases sodomy could only be discovered by an unreasonable search so fails there as well.
Christopher says
For the record, I believe that Loving v. Virginia and Lawrence v. Texas were rightly decided and of course favor the results thereof on the merits as well.
SomervilleTom says
The “rational basis” argument was a key part of both decisions.
Christopher says
I’m still not sure he has the votes when push comes to shove, plus I’m not ready to assume a Republican trifecta in 2025. I don’t think Dems have the votes to codify our preference either.
terrymcginty says
As I wrote on May 4, 2022:
https://www.washingtonpost.com/opinions/2022/06/22/abortion-roe-state-supreme-courts/
johntmay says
Pay Wall, so I did not get a chance to read it, just the headline
Think state supreme courts will save abortion rights? Think again.
My fear is this to Democrats in 2022 and 2024 : Think abortion rights will be a key voting issue in 2022 and 2024? Think again.
SomervilleTom says
Every woman has an opportunity to keep her legs and mouth firmly closed at all times in the presence of any man in her life who wants to block her ability to make these choices.
I strongly suspect that if even a few of the partners of the men pushing these draconian laws made this choice, the effort would stop.