Categories
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.

Categories
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.”

Categories
Government Legal, Laws, and Regs

What’s at risk with Kavanaugh’s Appointment

I would like to claim prescience for correctly guessing that Brett Kavanaugh would be the Supreme Court pick, but his choice was fairly obvious. And has been noted in various press publications, Justice Kennedy likely retired now  because he knew of Kavanaugh’s pick.

Kavanaugh’s rulings and writings are now being scrutinized, particularly when it comes to decisions that can impact on Roe v. Wade. Unfortunately, we’re so fixated on this one specific case that we’re ignoring the real threat that Kavanaugh’s appointment will be in the court.

Categories
Government Legal, Laws, and Regs

SCOTUS Pick: Kavanaugh’s Advantage

According to media reports, Trump has narrowed his SCOTUS pick to *three people: Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge.

I suspect that Trump had narrowed his choice even before Kennedy retired. And I also suspect Trump’s short list was communicated to Kennedy, leading Kennedy to feel he could safely retire. After all, two members of the short list clerked with Kennedy; his legacy could continue if either is picked.

Each candidate has attributes that would appeal to Trump, as well as drawbacks. However, I believe that Kavanaugh will end up the pick, because he represents a way to attack Obama’s legacy not just once, but twice.

Categories
Legal, Laws, and Regs

Those poor Exxon executives

I don’t hide the fact that I hold today’s sitting Supreme Court justices in disdain. There’s no reason to look further for my reasons than what was reported by Dana Milbank in the Washington Post; about the Exxon Valdez, and the Supreme Court’s concerns about the poor Exxon executives, and what is becoming known as the Supreme Court Corporate Two-Step.

The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska’s coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy– or, as Scalia put it, the ” Amiable Whatever It Is.”

As the justices probed the intricacies of the laws of the sea, Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned — at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about “a new trial” and the “next time around.”

A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O’Neill, one of the Alaska victims’ lawyers, conceded that, whatever the Supreme Court’s ruling, Exxon had already won. “I guess the lesson you learn,” he said, “is that if you’re big and powerful enough, you can bring the system to a halt.”

Thank you Tortdeform.