Supreme Court has voted to overturn abortion rights per draft opinion (Update: Dobbs opinion official) (1 Viewer)

[Brennan77]

Forgive me for posting this given that I'm not a regular participant.

Exclusive: Supreme Court has voted to overturn abortion rights, draft opinion shows

“We hold that Roe and Casey must be overruled,” Justice Alito writes in an initial majority draft circulated inside the court.

www.politico.com

Read Justice Alito's initial draft abortion opinion which would overturn Roe v. Wade

Read the full 98-page initial draft majority opinion.

www.politico.com

 

[superchuck500]

Nonsense again. No one is saying that religion can't play a part in a voter's mind or a law makers mind. What's being said by those of us who can think is that religion can't be THE reason behind a law or position. Right now when it comes to abortion we have religion as THE reason the Supreme Court, and states, are pushing pro-life.

Again, motivation is a difficult concept to regulate - it can be that one lawmaker votes for a program to build new homeless shelters because the Bible says to shelter the poor and another lawmaker votes for the program because they think its good for the economy to increase infrastructure spending and hopefully give some homeless a base for a new start. The question is whether the government action itself is an official endorsement of a religion or effectively compels the public to an exercise of religion.

The Dobbs decision is based on conservative constitutional doctrine that the courts should not create rights or processes that aren't in the Constitution. It holds that there is no right to privacy in the Constitution and substantive due process was not intended to be a tool to create constitutional rights. As unfortunate as the result is, anyone who has studied constitutional law honestly over the past 50 years has recognized that Roe was on somewhat suspect constitutional grounds.

You want to attribute it purely to religion, but there's nothing in the decision about religion or the morality of abortion, nor the sanctity of life. Ruling that the constitutional basis for Roe was wrongly decided isn't an exercise in religion. So you want to presume that the intent of the decision is 100% religious - and even more so, a specific religion? Roberts and Gorsuch joined it and they're hardly known for religious zealotry. Above all else, they're constitutional conservatives.

But I agree that is a separate issue from whether state laws limiting abortion violate the Establishment Clause. The Supreme Court has said that the Establishment Clause applies to invalidate a statute when it is either (1) impermissibly religious on its face or (2) impermissibly religious in its application. It is true that a law "wholly motivated" by a religious purpose can be invalid on its face - but in such a case, it should be clear that the purpose was an endorsement of religion. Similarly, a law that is impermissibly religious in its application or effect is one that has a "primary effect of advancing religion." (This language comes from a line of cases, look at Bowen v. Kendrick, 487 U.S. 589 (1988); Lynch v. Donnelly, 465 U.S. 668 (1984).

The problem in this application to laws that restrict abortion is that western civilization has long had laws on abortion, just as there are laws prohibiting murder. Even in the post-Roe United States, many states had abortion laws and the right protected in Roe was limited - the courts agreed that states were free to restrict abortion after a certain time in the pregnancy. There can be a fine line between moralistic views about life driven by religious perspective or secular perspective. Indeed there are pro-life advocates who are entirely secular . . . just google "the secular case against abortion" and you will see writings in mainstream publications. I just don't see how a federal court applying the Establishment Clause could invalidate a state law restriction abortion after week 10 when before Dobbs, state laws restricting abortion after week 24 were entirely constitutional.

In the United States, the establishment clause goes hand-in-hand with the "free exercise" clause, which means that state action cannot establish or endorse religion in the state, nor can it prohibit the free exercises of religion among the citizenry, including the lawmakers. These are not easy balances to draw but there are decades of caselaw about them and there are refined concepts to apply. It is okay for some lawmakers and officials to have religion in their lives and have it motivate their actions - that does not violate the Establishment Clause. The true question is whether the action is patently religious on its face, wholly motivated by a religious purpose, or has a primary effect of advancing religion.

You're simply not going to see the establishment clause applied to invalidate abortion laws and I think that result is no different under a less conservative court (the Bowen court in 1988 refused to invalidate the Adolescent Family Life Act despite its clear connection with and even use of federal funds to Christian sexual-abstinence groups).

(For the record, I would have liked to have seen the Court refuse to invalidate Roe/Casey. I am strongly against punitive, regressive state laws that criminalize abortion. I refuse to vote for any lawmaker in my state that supports enhanced anti-abortion laws. And I think the establishment clause is very real and important and fully support its application where it should be applied based on its history, its purpose, and how it balances with other important constitutional concepts).

 

[BullSheetBuddha]

Again, motivation is a difficult concept to regulate - it can be that one lawmaker votes for a program to build new homeless shelters because the Bible says to shelter the poor and another lawmaker votes for the program because they think its good for the economy to increase infrastructure spending and hopefully give some homeless a base for a new start. The question is whether the government action itself is an official endorsement of a religion or effectively compels the public to an exercise of religion.

The Dobbs decision is based on conservative constitutional doctrine that the courts should not create rights or processes that aren't in the Constitution. It holds that there is no right to privacy in the Constitution and substantive due process was not intended to be a tool to create constitutional rights. As unfortunate as the result is, anyone who has studied constitutional law honestly over the past 50 years has recognized that Roe was on somewhat suspect constitutional grounds.

You want to attribute it purely to religion, but there's nothing in the decision about religion or the morality of abortion, nor the sanctity of life. Ruling that the constitutional basis for Roe was wrongly decided isn't an exercise in religion. So you want to presume that the intent of the decision is 100% religious - and even more so, a specific religion? Roberts and Gorsuch joined it and they're hardly known for religious zealotry. Above all else, they're constitutional conservatives.

But I agree that is a separate issue from whether state laws limiting abortion violate the Establishment Clause. The Supreme Court has said that the Establishment Clause applies to invalidate a statute when it is either (1) impermissibly religious on its face or (2) impermissibly religious in its application. It is true that a law "wholly motivated" by a religious purpose can be invalid on its face - but in such a case, it should be clear that the purpose was an endorsement of religion. Similarly, a law that is impermissibly religious in its application or effect is one that has a "primary effect of advancing religion." (This language comes from a line of cases, look at Bowen v. Kendrick, 487 U.S. 589 (1988); Lynch v. Donnelly, 465 U.S. 668 (1984).

The problem in this application to laws that restrict abortion is that western civilization has long had laws on abortion, just as there are laws prohibiting murder. Even in the post-Roe United States, many states had abortion laws and the right protected in Roe was limited - the courts agreed that states were free to restrict abortion after a certain time in the pregnancy. There can be a fine line between moralistic views about life driven by religious perspective or secular perspective. Indeed there are pro-life advocates who are entirely secular . . . just google "the secular case against abortion" and you will see writings in mainstream publications. I just don't see how a federal court applying the Establishment Clause could invalidate a state law restriction abortion after week 10 when before Dobbs, state laws restricting abortion after week 24 were entirely constitutional.

In the United States, the establishment clause goes hand-in-hand with the "free exercise" clause, which means that state action cannot establish or endorse religion in the state, nor can it prohibit the free exercises of religion among the citizenry, including the lawmakers. These are not easy balances to draw but there are decades of caselaw about them and there are refined concepts to apply. It is okay for some lawmakers and officials to have religion in their lives and have it motivate their actions - that does not violate the Establishment Clause. The true question is whether the action is patently religious on its face, wholly motivated by a religious purpose, or has a primary effect of advancing religion.

You're simply not going to see the establishment clause applied to invalidate abortion laws and I think that result is no different under a less conservative court (the Bowen court in 1988 refused to invalidate the Adolescent Family Life Act despite its clear connection with and even use of federal funds to Christian sexual-abstinence groups).

(For the record, I would have liked to have seen the Court refuse to invalidate Roe/Casey. I am strongly against punitive, regressive state laws that criminalize abortion. I refuse to vote for any lawmaker in my state that supports enhanced anti-abortion laws. And I think the establishment clause is very real and important and fully support its application where it should be applied based on its history, its purpose, and how it balances with other important constitutional concepts).

"It is okay for some lawmakers and officials to have religion in their lives and have it motivate their actions - that does not violate the Establishment Clause. "

Never said it did.

"The true question is whether the action is patently religious on its face, wholly motivated by a religious purpose, or has a primary effect of advancing religion."

Which IMO this does. This is what the religious/far-right wants. They want a Christian nation and what better place for them to start than with the abortion question?


"You're simply not going to see the establishment clause applied to invalidate abortion laws........"

No, I don't believe we will. That doesn't mean that the purposeful gap between church and state isn't being compromised.

 

[superchuck500]

"It is okay for some lawmakers and officials to have religion in their lives and have it motivate their actions - that does not violate the Establishment Clause. "

Never said it did.

"The true question is whether the action is patently religious on its face, wholly motivated by a religious purpose, or has a primary effect of advancing religion."

Which IMO this does. This is what the religious/far-right wants. They want a Christian nation.

This gets right to the heart of the dispute we're having: you take broad concepts and interpret them for yourself to come to a conclusion and think you have a strong position. That may work in some applications but it doesn't work in this context where those concepts have already been interpreted as to how they apply in application . . . and they don't support your conclusions.

The phrases "wholly motivated by a religious purpose" and "primary effect of advancing religion" are defined concepts - they have been applied in case law. You can insist that a state law limiting abortion is "wholly motivated by religion" or has a "primary effect of advancing religion" but that doesn't make it true. That's pretty much what I said to you about four hours ago when you posted the blurb you lifted from the County of Allegheny case.

So with that, I'll say goodnight.

 

[BullSheetBuddha]

You can insist that a state law limiting abortion is "wholly motivated by religion" or has a "primary effect of advancing religion" but that doesn't make it true.

Of course it doesn't make it true.

Unless it's already true.

How the Christian right took over the judiciary and changed America

Leaders of the movement understood very well that if you can capture the courts, you can change society

www.theguardian.com

The supreme court decision in Dobbs v Jackson Women’s Health Organization, which reverses the constitutional abortion rights that American women have enjoyed over the past 50 years, has come as a surprise to many voters. A majority, after all, support reproductive rights and regard their abolition as regressive and barbaric.

Understood in the context of the movement that created the supreme court in its current incarnation, however, there is nothing surprising about it. In fact, it marks the beginning rather than the endpoint of the agenda this movement has in mind.


At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

How did this conviction come to have such influence in the courts, given America’s longstanding principle of church-state separation? To understand why this is happening now, it’s important to know something about the Christian nationalist movement’s history, how its leaders chose the issue of abortion as a means of creating single-issue voters, and how they united conservatives across denominational barriers by, in effect, inventing a new form of intensely political religion.

 

[superchuck500]

Of course it doesn't make it true.

Unless it's already true.



The supreme court decision in Dobbs v Jackson Women’s Health Organization, which reverses the constitutional abortion rights that American women have enjoyed over the past 50 years, has come as a surprise to many voters. A majority, after all, support reproductive rights and regard their abolition as regressive and barbaric.

Understood in the context of the movement that created the supreme court in its current incarnation, however, there is nothing surprising about it. In fact, it marks the beginning rather than the endpoint of the agenda this movement has in mind.


At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large.

How did this conviction come to have such influence in the courts, given America’s longstanding principle of church-state separation? To understand why this is happening now, it’s important to know something about the Christian nationalist movement’s history, how its leaders chose the issue of abortion as a means of creating single-issue voters, and how they united conservatives across denominational barriers by, in effect, inventing a new form of intensely political religion.

Do you ever write your own analysis or just paste from articles you find?

I have to say I find the central theme of this piece curious: "At the core of the Dobbs decision lies the conviction that the power of government can and should be used to impose a certain moral and religious vision – a supposedly biblical and regressive understanding of the Christian religion – on the population at large."

At the core of the Dobbs decision? Where? I missed that part in the opinion, I'd like to read that part.

It's an odd observation given that the result of Dobbs is simply that regulating abortion is not a federal matter (because the limited federal government provided by the Constitution doesn't cover abortion rights). And as states are then free to regulate abortion as they wish, about half of them protect the woman's right to abortion and abortions are available in those states. Given the support for reproductive rights in the general public, it's fair to anticipate that the democratic process could result in other states adding protections.

To be clear, I'm not dense and fully understand that groups like Federalist Society and Heritage Foundation made overturning Roe an objective for decades and have seeded the GOP to appoint judges opposed to Roe, many (most) of whom carry with that position a strong religious belief about it. But anyone who argues that Roe/Casey were solidly entrenched in the Constitution is being dishonest. And it is central to constitutional conservatism that the federal judiciary should not create rights that aren't express in the Constitution, or logically flow directly from express rights.

This same bloc of constitutional conservatives has also basically gutted the citizen's right of direct legal action against federal law enforcement officers - the "Bivens action" created by the Supreme Court in 1971 with the same composition that ruled in Roe - because it stood on very suspect constitutional grounds. I don't see anyone arguing that as driven by the conviction that government "should be used to impose a certain moral and religious vision."

 

[SystemShock]

Be my guest.

I don't want to stay with you.

 

[BullSheetBuddha]

And it is central to constitutional conservatism that the federal judiciary should not create rights that aren't express in the Constitution, or logically flow directly from express rights.

Oh sure, that would stop the religious right from trying to make America Christian. Lol.

It couldn't be more clear what's going on but you think whatever you want.

Do you ever write your own analysis or just paste from articles you find?

Yeah, I'm the only one who cuts and pastes.

 

[Optimus Prime]

I know, when someone talks faith, morals and values, it is sometimes hard for the left to process.
Same sex marriage in law=fine. Same sex marriage in my church/faith= not fine. Hope this helps.

I've never bought the 'I have no problem with gay civil unions but I am against gay marriages in church' argument

How do you distinguish between the two? When you meet a gay couple do you ask them where they were married?

If you don't, how can you tell if you are for or against them being together?

and I LOVE the passive aggressive “when someone talks faith, morals, values, decency and goodness it's hard for the left to understand"

 

[SystemShock]

I know, when someone talks faith, morals and values, it is sometimes hard for the left to process.

As compared to the right, which doesn't process them at all.

Faith, morals, values, they aren't hard to process, yet one being able to process something doesn't mean one has to accept the claims/propositions.

I can understand that people their base faith, morals, and values on an ancient mythology book.
I can also understand the many reasons why they do it.
But that doesn't mean I have to accept said faith, values, or morals, or accept (or even respect) the many reasons why they base faith, values, or morals on an ancient mythology book.

And the fact is, many values or morals that you could draw from that ancient mythology book are very much illegal today, because the values and morals of secular humanism have evolved past those values and morals of centuries ago.

Even you: you say you are OK with gay civil marriage. If you went by the morals and values of the Bible, you'd want to stone them to death just for being the aberrations the Bible tells you they are, much less letting them get married.

 

[SystemShock]

yet. Once the Fed declares something a civil right, how long until a gay couple wants to have their ceremony in a church because of the beauty? Like I said, this will wind up before the SC.

... or churches can give up tax exemptions and overall special treatment from the government, and go private.

 

[superchuck500]

yet. Once the Fed declares something a civil right, how long until a gay couple wants to have their ceremony in a church because of the beauty? Like I said, this will wind up before the SC.

Sexual orientation still isn’t recognized in the federal civil rights laws on equal protection. So unless it is in the state equivalent (some do) there is no cause of action against a venue for discriminating against gays.


But more generally Churches aren’t public accommodations unless they make themselves public accommodations. For example, if the church effectively operates as a wedding venue business, then it may be making itself a public accommodation in that it can’t arbitrarily discriminate against which members of the public it is open to and which it isn’t. But if it remains a church that isn’t operating venue business but hosts weddings for members or certain guests, than it isn’t a public accommodation.

For the record, my church welcomes gay marriage nationwide.

 

[SFIDC3]

I think religion had an indirect influence on the Roe issue, but I don't think it's the sole reason. It was as much political as it was religious.



Maybe, but SCOTUS doesn't make law. They're supposed to interpret it. Regardless, I don't think a national abortion for or against will ever come to fruition. Roe was considered "settled law" for 50 years, yet it was never codified. I don't think anything gets codified either way anytime soon. And certainly not with a narrowly divided Congress

Indirect influence? So it’s just a real coincidence that the whack holes that voted to invalidate Roe are not just all Christians but also Catholic? Dave, c’mon man, you are reasonable guy and I know perhaps you think you are defending your religion but if you can’t see that connection then you have blinders on….

SCOTUS interpreting law is in effect…..making law …..how that law is to be applied is the essence of the law, the rest is semantics….

I agree that it should have been codified but I think for years the feeling was that Roe was not in any danger of being thrown out….The icing on the cake on this whole thing to me is how Kavanaugh and Barrett basically lied saying they believed Roe was settled law….Chuck would say they didn’t technically lie….Ok, I really don’t see a big difference, they were deliberately disingenuous….not folks I want as judges on any court….

 

[superchuck500]

Indirect influence? So it’s just a real coincidence that the whack holes that voted to invalidate Roe are not just all Christians but also Catholic? Dave, c’mon man, you are reasonable guy and I know perhaps you think you are defending your religion but if you can’t see that connection then you have blinders on….

SCOTUS interpreting law is in effect…..making law …..how that law is to be applied is the essence of the law, the rest is semantics….

I agree that it should have been codified but I think for years the feeling was that Roe was not in any danger of being thrown out….The icing on the cake on this whole thing to me is how Kavanaugh and Barrett basically lied saying they believed Roe was settled law….Chuck would say they didn’t technically lie….Ok, I really don’t see a big difference, they were deliberately disingenuous….not folks I want as judges on any court….

Agree SCOTUS rulings are law. Agree they didn’t technically lie. Agree they were deliberately opaque. Though I’m not sure it mattered that much, they were going to be confirmed.

As a matter of practice, neither Gorsuch nor ACB should even be on the court. Pure Republican game/power-play. Shameful.

 

[BullSheetBuddha]

I don't want to stay with you.

Ah no, that's not what I meant. You said, "You have to go back way further than that." I meant, go ahead and elucidate if you'd like.

 

[coldseat]

This is one of the best opinions on the BS "Originalist" legal interpretation that I've read. I've been saying this, as this has been obvious, for years. Well worth the read.

========
Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap.

Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts Jr. and perhaps Samuel A. Alito Jr., who describes himself as a “practical originalist.” But they have all written or joined originalist rulings.

Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.

But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.
============

https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/

 

[Taurus]

This is one of the best opinions on the BS "Originalist" legal interpretation that I've read. I've been saying this, as this has been obvious, for years. Well worth the read.

========
Liberal lawyers — and liberal justices, for that matter — risk being caught in an originalism trap.

Originalism, the belief that the meaning of the Constitution was fixed at the time it was adopted, is the legal theory that dominates the thinking of this conservative Supreme Court. Not all of the conservative justices are committed originalists. I count four of the six — all but Chief Justice John G. Roberts Jr. and perhaps Samuel A. Alito Jr., who describes himself as a “practical originalist.” But they have all written or joined originalist rulings.

Given that reality, liberals can’t lightly dismiss conservatives’ insistence that the Constitution should be interpreted based strictly on the original meaning of its text. In the current circumstances, liberal advocates appearing before the court would be remiss not to make an originalist case.

But there’s also little evidence, at least in the highest-profile cases, that it will do them much good. When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.
============

https://www.washingtonpost.com/opinions/2022/12/01/originalism-liberal-lawyers-supreme-court-trap/

Of course it isn't. That's the point. The conservative lawyer could show up and just say "Moo" a few times and win, because 6 of 9 Justices want him to. Which means the liberal lawyer may as well save himself some time and just say "Moo" too.

 

[Booker]

Of course it isn't. That's the point. The conservative lawyer could show up and just say "Moo" a few times and win, because 6 of 9 Justices want him to. Which means the liberal lawyer may as well save himself some time and just say "Moo" too.

 

[Farb]

I don't recommend banning people from voting. How about you? Would you like to ban some people from voting?

So you have no problem with a priest motivating his congregation to vote for the pro-life/anti-abortion candidate?

I would love to see some banned from voting. See, I can be honest. How about you? Do you think religious people should be banned from voting?