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Roe Was Flawed. Dobbs Is Worse.
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Rudy Canoza
Jun 28, 2022, 5:28:13 PM6/28/22
to
Yes, Roe was the product of an activist Court. But so was overturning it.
By Tom Nichols
I’m a conservative (or what used to be called a conservative) who always thought
Roe v. Wade was the product of judicial activism. But overturning it is even worse.
As of last Friday, American women lost the constitutional right to choose an
abortion, ending a protection that’s nearly 50 years old.
Like most Americans, I think abortion must remain legal—but with restrictions. I
am conflicted about abortion because of things that happened in my own family,
but when it comes to the law, let’s stipulate that over the half century that
Roe kept abortion legal, even some of its defenders thought it might be a shaky
decision—the product of judicial activism. They were right: Roe was the product
of an activist Court. But then, so was Dobbs v. Jackson Women’s Health Organization.
How, conservatives fume, can anyone argue that dumping Roe and “throwing it back
to the states” is “activism”?
Here’s the answer: Years of political change matter. Decades ago, abortion
became accepted as a right by a broad majority of the country. Justice Samuel
Alito and the other five conservatives on the Supreme Court were not handing
back abortion to the states as if it were some open question for a debate; they
knew exactly what was going to happen in states with “trigger” laws the minute
they ruled. Despite their legal rationale, these justices were taking sides in a
culture war on behalf of a minority of Americans with whom at least some of them
happen to agree.
Alito, in particular, had been strategizing for years about this single issue:
As The New York Times reported, in 1985, before he was on the Court, Alito took
“umbrage” at a judge’s comments that “forcing women to listen to details about
fetal development before their abortions” would cause them emotional distress.
“Good, [Alito] wrote: Such results ‘are part of the responsibility of moral
choice.’” (As my Atlantic colleague Adam Serwer has written, “The cruelty is the
point.”) [Mr. Serwer is *right*.]
But somehow, in 2022, we’re supposed to believe that now-Justice Alito
approached Dobbs with a dispassionate constitutional eye.
Anti-abortion conservatives huff that the Court has regularly overturned hideous
decisions, such as Dred Scott, Plessy, or Korematsu (which wasn’t really
overruled but finally disavowed in a 2018 ruling). Roe, they argue, is just
another bad case that was due for reversal.
This is reasoning in a vacuum, as if nothing happened over the course of 50
years. Chief Justice John Roberts himself once said that Korematsu was wrong
when decided, and “has been overruled in the court of history.” True indeed. And
Roe, even if poorly decided, has been affirmed in that same court; again, a
majority of Americans believe in a right to abortion in all or some cases, and
have for a half century. Even now, if the goal was to remedy a Roe overreach,
the majority could have found a way to do so while leaving abortion rights
intact. This was apparently Roberts’s position, but he was brushed aside by the
five other conservative justices.
It’s true that abortion is not in the Constitution. A lot of things aren’t in
the Constitution, including the “right to be left alone,” but that hasn’t
stopped Americans from recognizing that such rights exist. More to the point,
the historical incoherence of Alito’s opinion—and Clarence Thomas’s ominous
warning that the Court should review and potentially unravel other
rights—suggests that no one in the majority really cares all that much about
whether Roe was rightly decided. They care about abortion and other liberal
changes in American life (such as gay marriage, apparently), and they may well
intend to roll them all back.
https://www.theatlantic.com/newsletters/archive/2022/06/dobbs-conservative-justices-activist-court-roe-overturned/661410/
Spot-on 100% correct. None of the justices who voted to overturn Roe gave a
flying fuck about the constitutional quality of Roe. They were just bound and
determined to fight against abortion. That was their only reason.
And no matter what Alito said, they're going after other rights, too.
By Tom Nichols
I’m a conservative (or what used to be called a conservative) who always thought
Roe v. Wade was the product of judicial activism. But overturning it is even worse.
As of last Friday, American women lost the constitutional right to choose an
abortion, ending a protection that’s nearly 50 years old.
Like most Americans, I think abortion must remain legal—but with restrictions. I
am conflicted about abortion because of things that happened in my own family,
but when it comes to the law, let’s stipulate that over the half century that
Roe kept abortion legal, even some of its defenders thought it might be a shaky
decision—the product of judicial activism. They were right: Roe was the product
of an activist Court. But then, so was Dobbs v. Jackson Women’s Health Organization.
How, conservatives fume, can anyone argue that dumping Roe and “throwing it back
to the states” is “activism”?
Here’s the answer: Years of political change matter. Decades ago, abortion
became accepted as a right by a broad majority of the country. Justice Samuel
Alito and the other five conservatives on the Supreme Court were not handing
back abortion to the states as if it were some open question for a debate; they
knew exactly what was going to happen in states with “trigger” laws the minute
they ruled. Despite their legal rationale, these justices were taking sides in a
culture war on behalf of a minority of Americans with whom at least some of them
happen to agree.
Alito, in particular, had been strategizing for years about this single issue:
As The New York Times reported, in 1985, before he was on the Court, Alito took
“umbrage” at a judge’s comments that “forcing women to listen to details about
fetal development before their abortions” would cause them emotional distress.
“Good, [Alito] wrote: Such results ‘are part of the responsibility of moral
choice.’” (As my Atlantic colleague Adam Serwer has written, “The cruelty is the
point.”) [Mr. Serwer is *right*.]
But somehow, in 2022, we’re supposed to believe that now-Justice Alito
approached Dobbs with a dispassionate constitutional eye.
Anti-abortion conservatives huff that the Court has regularly overturned hideous
decisions, such as Dred Scott, Plessy, or Korematsu (which wasn’t really
overruled but finally disavowed in a 2018 ruling). Roe, they argue, is just
another bad case that was due for reversal.
This is reasoning in a vacuum, as if nothing happened over the course of 50
years. Chief Justice John Roberts himself once said that Korematsu was wrong
when decided, and “has been overruled in the court of history.” True indeed. And
Roe, even if poorly decided, has been affirmed in that same court; again, a
majority of Americans believe in a right to abortion in all or some cases, and
have for a half century. Even now, if the goal was to remedy a Roe overreach,
the majority could have found a way to do so while leaving abortion rights
intact. This was apparently Roberts’s position, but he was brushed aside by the
five other conservative justices.
It’s true that abortion is not in the Constitution. A lot of things aren’t in
the Constitution, including the “right to be left alone,” but that hasn’t
stopped Americans from recognizing that such rights exist. More to the point,
the historical incoherence of Alito’s opinion—and Clarence Thomas’s ominous
warning that the Court should review and potentially unravel other
rights—suggests that no one in the majority really cares all that much about
whether Roe was rightly decided. They care about abortion and other liberal
changes in American life (such as gay marriage, apparently), and they may well
intend to roll them all back.
https://www.theatlantic.com/newsletters/archive/2022/06/dobbs-conservative-justices-activist-court-roe-overturned/661410/
Spot-on 100% correct. None of the justices who voted to overturn Roe gave a
flying fuck about the constitutional quality of Roe. They were just bound and
determined to fight against abortion. That was their only reason.
And no matter what Alito said, they're going after other rights, too.
Klaus Schadenfreude
Jun 28, 2022, 5:39:58 PM6/28/22
to
On Tue, 28 Jun 2022 14:28:02 -0700, Rudy Canoza <notg...@gmail.com>
wrote:
>Here’s the answer: Years of political change matter.
No, it doesn't. The Constitution remains.
wrote:
>Here’s the answer: Years of political change matter.
Yak
Jun 28, 2022, 6:48:17 PM6/28/22
to
accountability.
Rudy Canoza
Jun 28, 2022, 6:57:19 PM6/28/22
to
> This belongs at the state level where
This decision was not in any way about putting it "at the state level." This
was about five reactionary Catlicks attacking abortion because they don't like
it. That's all it was. This decision is *less* constitutionally grounded than Roe.
Klaus Schadenfreude
Jun 28, 2022, 7:04:44 PM6/28/22
to
On Tue, 28 Jun 2022 15:57:15 -0700, Rudy Canoza <notg...@gmail.com>
wrote:
>> SCOTUS got it right.
>
>No, they got it wrong.
LOL
Dwarf with ZERO legal expertise claims Supreme Court "got it wrong."
Laughable.
wrote:
>> SCOTUS got it right.
>
>No, they got it wrong.
Dwarf with ZERO legal expertise claims Supreme Court "got it wrong."
Laughable.
Yak
Jun 29, 2022, 7:50:21 AM6/29/22
to
>> This belongs at the state level where
>
> States do not have a constitutional power to infringe rights.
states.
> This decision was not in any way about putting it "at the state level."
> This was about five reactionary Catlicks attacking abortion because they
> don't like it. That's all it was. This decision is *less*
> constitutionally grounded than Roe.
governo...@gmail.com
Jun 29, 2022, 7:18:16 PM6/29/22
to
right to abortion, but a right to privacy with one's physician. Iow,
what happens at the doctor's office stays at the doctor's office. In
practice, if you do something with your doctor, it's legal because
it's private.
I don't think abortion should be used as birth control which it too
often is, but do think abortion should be easily obtained in instances
of rape, incest, health risk to the mother or extreme defects in the
child which would lead to a lifetime of suffering for the parent and
the child.
All that said, I have no problem with the states making their own
determinations.
Swill
--
Lock 'im up!
Blue Lives Matter
Jun 29, 2022, 7:37:11 PM6/29/22
to
Rudy Canoza
Jun 29, 2022, 7:39:31 PM6/29/22
to
>
>>> This belongs at the state level where
>>
>> States do not have a constitutional power to infringe rights.
>
> No constitutional right was infringed.
infringe on human rights.
>
>> This decision was not in any way about putting it "at the state level."
>
> That's exactly what it was about.
>> This was about five reactionary Catlicks attacking abortion because they don't
>> like it. That's all it was. This decision is *less* constitutionally
>> grounded than Roe.
>
> Even Ruth Ginsberg acknowledged Roe was bad law.
It was bad law, and Dobbs is worse law. Dobbs guts the ninth amendment.
This decision was about five justices saying and doing anything to get their
religious beliefs enacted into law.
Scout
Jun 30, 2022, 8:10:51 AM6/30/22
to
<governo...@gmail.com> wrote in message
news:t3npbhlglaupkb6q0...@4ax.com...
> On Tue, 28 Jun 2022 18:48:15 -0400, Yak <y...@inbox.com> wrote:
>
>>On 6/28/22 5:28 PM, Rudy Canoza wrote:
>>> Yes, Roe was the product of an activist Court. But so was overturning
>>> it.
>>>
>>> By Tom Nichols
>>>
>>> I'm a conservative (or what used to be called a conservative) who always
>>> thought Roe v. Wade was the product of judicial activism. But
>>> overturning it is even worse.
>>>
>>> As of last Friday, American women lost the constitutional right to
>>> choose an abortion, ending a protection that's nearly 50 years old.
>>>
>>> Like most Americans, I think abortion must remain legal-but with
>
>>On 6/28/22 5:28 PM, Rudy Canoza wrote:
>>> Yes, Roe was the product of an activist Court. But so was overturning
>>> it.
>>>
>>> By Tom Nichols
>>>
>>> I'm a conservative (or what used to be called a conservative) who always
>>> thought Roe v. Wade was the product of judicial activism. But
>>> overturning it is even worse.
>>>
>>> As of last Friday, American women lost the constitutional right to
>>> choose an abortion, ending a protection that's nearly 50 years old.
>>>
>>> restrictions. I am conflicted about abortion because of things that
>>> happened in my own family, but when it comes to the law, let's stipulate
>>> that over the half century that Roe kept abortion legal, even some of
>>> its defenders thought it might be a shaky decision-the product of
>>> happened in my own family, but when it comes to the law, let's stipulate
>>> that over the half century that Roe kept abortion legal, even some of
>>> Clarence Thomas's ominous warning that the Court should review and
>>> potentially unravel other rights-suggests that no one in the majority
>>> really cares all that much about whether Roe was rightly decided. They
>>> care about abortion and other liberal changes in American life (such as
>>> gay marriage, apparently), and they may well intend to roll them all
>>> back.
>>>
>>> https://www.theatlantic.com/newsletters/archive/2022/06/dobbs-conservative-justices-activist-court-roe-overturned/661410/
>>>
>>>
>>> Spot-on 100% correct. None of the justices who voted to overturn Roe
>>> gave a flying fuck about the constitutional quality of Roe. They were
>>> just bound and determined to fight against abortion. That was their
>>> only reason.
>>>
>>> And no matter what Alito said, they're going after other rights, too.
>>
>>SCOTUS got it right. This belongs at the state level where there is more
>>accountability.
>
> The flaw in the article is that Roe was not a ruling in favor of a
> right to abortion, but a right to privacy with one's physician. Iow,
> what happens at the doctor's office stays at the doctor's office. In
> practice, if you do something with your doctor, it's legal because
> it's private.
So.. as long as it's done in private.. no crime can be committed...
>>> care about abortion and other liberal changes in American life (such as
>>> gay marriage, apparently), and they may well intend to roll them all
>>> back.
>>>
>>> https://www.theatlantic.com/newsletters/archive/2022/06/dobbs-conservative-justices-activist-court-roe-overturned/661410/
>>>
>>>
>>> Spot-on 100% correct. None of the justices who voted to overturn Roe
>>> gave a flying fuck about the constitutional quality of Roe. They were
>>> just bound and determined to fight against abortion. That was their
>>> only reason.
>>>
>>> And no matter what Alito said, they're going after other rights, too.
>>
>>SCOTUS got it right. This belongs at the state level where there is more
>>accountability.
>
> The flaw in the article is that Roe was not a ruling in favor of a
> right to abortion, but a right to privacy with one's physician. Iow,
> what happens at the doctor's office stays at the doctor's office. In
> practice, if you do something with your doctor, it's legal because
> it's private.
Sorry, but there are a LOT of crimes that were done in private, and those
involved were prosecuted for their crimes. The fact that one of the people
is a doctor does not mean they aren't subject to the law....... even in
private.
governo...@gmail.com
Jun 30, 2022, 7:25:12 PM6/30/22
to
On Wed, 29 Jun 2022 19:37:08 -0400, Blue Lives Matter
<Iron_White@Systemic_Patriotism.KMA> wrote:
>>The flaw in the article is that Roe was not a ruling in favor of a
>>right to abortion, but a right to privacy with one's physician. Iow,
>>what happens at the doctor's office stays at the doctor's office. In
>>practice, if you do something with your doctor, it's legal because
>>it's private.
>
>Sorry, no.. assisted suicide is illegal.
Thus the flaw in Roe.
<Iron_White@Systemic_Patriotism.KMA> wrote:
>>The flaw in the article is that Roe was not a ruling in favor of a
>>right to abortion, but a right to privacy with one's physician. Iow,
>>what happens at the doctor's office stays at the doctor's office. In
>>practice, if you do something with your doctor, it's legal because
>>it's private.
>
>Sorry, no.. assisted suicide is illegal.
governo...@gmail.com
Jun 30, 2022, 7:25:44 PM6/30/22
to
On Thu, 30 Jun 2022 08:08:05 -0400, "Scout"
<me4...@verizon.removeme.this2.nospam.net> wrote:
>> The flaw in the article is that Roe was not a ruling in favor of a
>> right to abortion, but a right to privacy with one's physician. Iow,
>> what happens at the doctor's office stays at the doctor's office. In
>> practice, if you do something with your doctor, it's legal because
>> it's private.
>
>So.. as long as it's done in private.. no crime can be committed...
<me4...@verizon.removeme.this2.nospam.net> wrote:
>> The flaw in the article is that Roe was not a ruling in favor of a
>> right to abortion, but a right to privacy with one's physician. Iow,
>> what happens at the doctor's office stays at the doctor's office. In
>> practice, if you do something with your doctor, it's legal because
>> it's private.
>
>So.. as long as it's done in private.. no crime can be committed...
Thus the flaw in Roe.
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