Legal, Laws, and Regs

A post-Roe world…15 years ago

There has been a lot of conjecture about what it means to have a post-Roe world. Can states make it illegal for women to travel to other states for an abortion? Can we talk about abortion services on the internet? Can abortion counselors work in anti-choice states?

Alito pretends that the issue of abortion is over and done; SCOTUS has figuratively wiped its hands and walked away. However, as he must have known, rather than settling law, Dobbs triggered chaos.

I went searching for writings on a post-Roe world and discovered an excellent paper by Harvard Law’s Richard Fallon Jr. The paper is titled “If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World“. It’s freely available (no paywall). And it was published in 2007, 15 years before today’s turmoil.

The professor touches on all of the topics I opened with, and more. He asked the same questions we’re asking, and then provides enough explanation of the law for us to come away knowing there are no simple answers to any of them.

For instance, Kavanaugh seeks to reassure us that women will still have freedom to travel to other states to get the abortions they seek.

May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in a concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.

However, as Professor Fallon carefully details, the pregnant individual may be able to travel to another state, but abortion providers in that state may not be able to provide the healthcare they need. And that’s the kicker: can a state forbid an abortion provider in another state from providing a service to the anti-choice state’s citizen?

In substance and effect, the Court would need to weigh one state’s interests in protecting fetal life against another state’s interests in making abortion within its territory a matter of individual conscience, and it would need to do so while, at the same time, taking account of the implications of national citizenship. So much for the idea that the overruling of Roe v. Wade would remove hard decisions about abortion regulation from the judicial province.

Not just interstate travel: could states punish a citizen for getting an abortion in another country? Could the people who assisted the person be criminally charged? Civilly sued? That trip to California or Canada may not be as straightforward as you think.

Frankly, Kavanaugh’s assurances on the freedom of interstate travel are just as duplicitous as his assurances about support for precedents.

I don’t think I understood until this week how much our freedoms, our rights, the very existence of our country and government, now seem to exist solely on the sufferance of the Supreme Court.

We only need to turn to the last page and the last paragraph of Professor Fallon’s work to see a summary of the post-Roe world we now live in (I added the emphasis):

As I have emphasized repeatedly, my aim is not to judge whether Roe v. Wade should be overruled. But when contemplating the possible eradication of that jurisprudential landmark, we ought to have a clear-eyed view of the constitutional consequences. If Roe were to go, it would not go gently. Instead, its departure would roil the waters of constitutional law and surrounding politics and churn up a host of new controversies. No matter how much the Supreme Court might wish to extricate itself from abortion debates, it could not imaginably do so.


Biden and the McConnell ‘deal’

Update and edited 

Slate has more on the Devil’s deal. Evidently Biden will be ‘allowed’ to appoint two people to US Attorney positions in Kentucky, and McConnell will not block him.

That’s it. That’s the ‘big’ deal. Two positions tied solely to the President’s tenure for a judgeship that’s for life.

It’s a fool’s deal.


Yesterday, a story quickly spread on social media that President Biden was going to appoint a McConnell-backed anti-abortion Federalist lawyer to a permanent position on the bench in Kentucky. This, even after SCOTUS completely killed Roe v Wade the week before, and people in the country were still reeling from the impact.

Those of us alarmed at the news were told—in less than polite terms—that we were traitors to Biden, harmful to the Democratic party, and our concerns were unfounded because there were no judicial openings in Kentucky, anyway.

Well, that was true yesterday, but not today.

Today, Judge Karen Caldwell announced her intent to retire and take senior status, leaving an opening for Biden to make a nomination.

The McConnell Setup

The possibility that Biden would appoint someone like Chad Meredith in a supposed ‘deal’ with McConnell positively reeks of the latter’s connivance.

McConnell gets a judge that even Trump couldn’t stomach. In exchange, McConnell doesn’t use the ‘blue slip’ to hold up two US Attorney positions in Kentucky.

What’s a blue slip? It’s a courtesy extended to the Senators of the state where the appointment is made. The senator can either approve or disapprove of the appointment. It has no real power, and Trump and the Republicans routinely ignored them during his tenure.

That’s it. That’s the deal.

It’s a win/win for McConnell. By making this deal, he undercuts Democratic efforts not only for the 2024 Presidential bid, but also for the mid-term election this fall. Why? Because it confuses the message about  Biden’s, and hence, Democratic commitment for abortion rights.

Biden’s appointment says to the world (likely parroted by gleeful Republicans) that the Democratic party ‘talks’ about abortion rights…but that’s all it is. Talk. When it comes to politics, well, people’s basic right to control our own bodies has to take a back seat.

All of the candidates that have pro-choice strongly embedded in their campaigns for the fall now have to fight an unconscionable, undermining, ill-conceived ‘deal with the devil’.

We’re put on the defensive. Again.

Having faith in our candidates

If Biden follows through on this deal, he also sends a message that he has no faith in our candidates this fall, or the Democratic voters.

It says to all of us that he assumes we’ll lose the Senate and the House, and that if he wants to pull any kind of legacy out of the last two years in office, he’ll have to have all sorts of deals with McConnell in order to do so.

This is a pretty horrid message to send to the party and the people, especially when we’re freshly galvanized by an awful, terrible, no-good SCOTUS.

As party leader, he should have faith in the candidates. They’re a great group of people. And he should have faith in us.

Telling us we don’t matter

Worst of all, if Biden follows through on this appointment, he’s telling women and members of the LGBTQ+ community that we just don’t matter.

We just lost a fundamental right. We just got forced into a second-class citizenship. Where Biden was Presidential by encouraging the Senate to carve out a filibuster exemption to pass abortion support in the Senate, he would be anything but by making this extraordinarily bad appointment.

One and Done

I’m older and I’ve been through so many must-win political campaigns. I consider myself a ‘centrist’ and also pragmatic about how politics works.

But there are lines I won’t cross. Support for abortion is one of those lines. If President Biden crosses this line with this appointment, then he’s One and Done to me.


Legal, Laws, and Regs

We dissent

I woke up June 24 feeling little different than when waking up the day after Trump was elected President. I woke up knowing everything has changed, and not for the better.

Alito’s Dobbs decision gutting abortion rights in this country has triggered a massive upheaval in the rights of over half the population, and all because of five justices determined to impose their viewpoints and their beliefs on society. Five justices, of whom three were hastily selected by a President who didn’t even win the popular vote.

But it wasn’t just Roe v. Wade that was tossed out. No, this same group of people have enshrined gun rights as the second most important freedom, following that for religion…if you follow a specific type of religion. And they haven’t even begun their determined march into overthrowing everything that makes this country good. I suspect before the end of the week is out, we’ll see an attack on the very fabric of our government, as this small group of elites continues its unthinking drive to wreck havoc on our society. They’ve already hinted they’re coming after rights for the LGBTQ+ community and birth control.

Justices Breyer, Sotomayor, and Kagan penned a very rare joint dissent against Alito’s pretense of a decision. In it, instead of using the usual “We respectfully dissent” they just wrote

“We dissent.”

Just Shelley Weblogging

Weblogging and 9/11: Something kind of broken

We look at today’s social media world post-Trump Presidency and we see a highly disconnected and fragmented world. The media proclaims it’s never seen society so polarized, but we’ve always been polarized. The only difference now is who controls the visibility of the fragments.

Unlike earlier years, what was fit to print, or fit for all of us to know, was controlled by the media. First the newspapers, then radio, and finally TV.

Now, we’re all publishers, even if all we publish is 280 character blurbs to a handful of people. And as publishers, every single one of us proclaims as loudly and emphatically as we can our interests and our beliefs, and all too frequently, our disagreements. It’s a wonder we can still think with all this chaotic noise.

It never used to be this way I think to myself, as I spend time recovering old weblog pages from the Wayback Machine. Before there was Twitter, and before there was Facebook or TikTok or Instagram, we had weblogging: a tightly integrated community of early practitioners who linked each other in a continuing dialog that was equally special and mundane, profound and silly.

Yet at the very beginning, we were broken.

9/11 and the rise of social media

Weblogging wasn’t the first example of social media. I’d say that honor goes to Usenet, which was fairly popular before the invention of the web. But weblogging made social media accessible to everyone, not just enthusiasts and geeks.

This page is as good a history of weblogging as I can find online. As you can see, weblogging started not long after the web, itself, though the number of webloggers began small. But this all changed with 9/11.

I remember watching the horrific events of 9/11 unfold in real time on TV that day. We watched as the planes hit and the towers fell. In the days after 9/11,  many of us wanted to reach out to people, to connect, and to talk about the events and try to make sense of what happened.

At the same time, our country was in a virtual lockdown. We’ve forgotten with the recent COVID-related restrictions that this isn’t the first time the country has been locked down. It isn’t even the first in recent history. The photo at the beginning of this writing is one I took from my apartment in San Francisco. Two days after 9/11 the military showed up with barbed wire and concrete barricades, blocking off a major street in order to protect the machinery of the Bay Bridge.

A combination of wanting to connect while physically distanced combined with new tools and inexpensive hosting led to an explosion of weblogs. And thanks to blogrolls and linking, we formed communities of seemingly like-minded people who became close even though we might be on the other side of the world from each other.

However, if 9/11 brought us together, the events following 9/11 soon started tearing us apart.

9/11 and the fracturing of social media

What brought on this writing was spotting a graphic from a Wayback Machine archived page of my friend Jeneane Sessum’s Allied weblog. I had recently discovered my old Radio weblog pages in the Wayback Machine, and shared the discovery with my Facebook friends. Many of these friends are people I’ve known for decades now because of our earlier weblogging connections. So, I posted links to some of their pages, too.

In a page from 2002, Jeneane had posted a sidebar graphic that read “1st off Mike Sanders’ Blog”.

Graphic reads 1st off Mike Sanders' BlogI hadn’t thought about this event, or Mike Sanders, in years. The graphic brought back the memories, albeit a bit fuzzy from time.

I searched throughout my Wayback Machine archives for the same time frame, and found the post that explained what this was about. I’ve recovered it to Burningbird, but you also have to look at the page in context.  It links a March 1, 2002 weblog posting that read:

I was out of town but had to return early.

This morning I received an email from Mike Sanders asking me to remove his weblog link from my blogroll and he has removed my weblog from his. The reason is because of my “moral equivalency” arguments last week, and because I linked to Daniel Ord’s piece Stereopticon in Friday’s post.

According to Mike:

    • Unfortunately some of my fellow bloggers understand and/or support both the Palestinian terrorist reign against Israel and terrorism against the US. I can longer in good conscious include those people on my blogroll list and I respectfully request anybody who understands or supports Palestinian terrorism or Islamic terrorism to please remove my name from your blogroll list as well.

I wrote the following in an email to a friend, regarding my posting on Friday:

    • No one noticed in my posting, my use of “viewpoint”, not opinion. Though sometimes treated as synonyms, they aren’t the same thing. A viewpoint is a point of view, the culmination of all our life’s experiences. How we see things. From this issues both action and opinion. Without understanding and respecting each other’s viewpoints, we can’t hope to understand where each of us is coming from when we speak or act.
    • I started my list with Ord because he is doing just that — he’s showing two viewpoints of the same incident. Without understanding the Palestinian viewpoint of the WTC tragedy, we can’t hope to stop these incidents from happening again, because we’ll never understand why they happened in the first place. The title of his piece tells us this — stereopticon.
    • stereopticon — viewpoint
    • I deliberately listed absolutely conflicting opinions, and invited the audience to understand the different viewpoints.

My first time being accused of supporting terrorism

Two things made Sanders’ email stand out. The first was that it was the only time when someone had asked me to remove a weblog link, not just remove a link to my page from their weblog. Today, this would be equivalent to someone on Twitter blocking you, but having to ask your permission, first.

The second was being accused of supporting terrorism because we weren’t willing to condemn Palestinian actions post 9/11. Mike Sanders was a strong supporter of Israel. In the process, he not only stepped over the line into Islamophobia, he raced across it. To the point where he would label us terrorists solely because we were willing to listen to other viewpoints.

Being labeled a terrorist by some extreme conservative isn’t all that unusual on Twitter or Facebook today, but it was a shock back in the early days of weblogging. Especially when the person leveling the accusation was a friend, or at least, you thought he was a friend.

And the fragments would only grow as our group broke into pieces over the Bush invasion of Iraq.

Killing the Blogroll

My response to the Sanders’ request was to eliminate my blogroll in its entirety. I had been considering doing so anyway, because I thought it was better to introduce folks through my writing and referencing them, rather than a static list of links in the side of the page.

If you random sample my old weblog URL on the Wayback Machine in later years, you won’t see a blogroll. Hell, you won’t even see more than one page column to my site now, in deference to mobile devices.

Mike Sanders’ request was the tipping point to the decision. I didn’t want to list or be listed or be beholden or not to someone because of links or not. I didn’t want to endorse or be endorsed. If I liked what someone wrote, I wanted to point it out to folks. If I wrote something interesting, I hoped for the same.

barbed wire

Thankfully, I never had anyone email me and tell me not to link to their writing. Perhaps this will change as I become more active in this space again.

End of Story

So much writing about something that happened so long ago. And probably much ado about nothing.

Mike Sanders quit his weblog that December, but he was back weblogging the following spring. And yes, he had a blogroll, and yes, I was on it.

It wasn’t as easy for me to push it all aside, though. It wasn’t just being accused of supporting terrorists. It was the idea that someone felt that they could tell me what I could or could not do on in my own web space.

Yet here I am, on Facebook and Twitter, letting them tell me what I can or cannot do in my own space.

There’s something kind of broken about that.







Comments cont.

I just published the second part of the essay on comments at Many-to-Many:

When I chastised the other person, when I suggested how they should change their interaction and behavior, we were no longer peers discussing a volatile subject – I had assumed a parental role, trying to force a child role on the other person. And, in some ways, Sam assumed a parental role when he chastised me.

I hope you also take a moment to read what others have written on this subject by following the trackbacks attached to my earlier posting, and those who have trackbacked to Sam’s postings. There are many eloquent and thoughtful arguments on what is not an easy issue.