The authors (or one of them) leaked it themselves.
Trial balloons, but after the trial.
a con man and game show host who has probably paid for more abortions than there are Supreme Court justices
To be fair, he probably only promised to pay for them.
3 is undoubtedly right.
Sanders is only right is there are 50 votes to get rid of the filibuster to codify Roe. If he knows that there are, he should be helping the bill get passed. If he knows that there are not, he's not doing any good at all. If he doesn't know, he should be doing his fucking job, which, in this aspect, does not include sending tweets.
All roads lead to Joe Manchin, including this one. Whoever that guy listens to should be getting leaned on, hard. By people they listen to.
From the opinion:
And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
So Alito is going to propose a radical method for interpreting the Constitution, but one that has no implications for precedents other than Roe.
I think what he means is, "Nothing in this opinion should be understood to cast doubt on a precedent that we approve of."
5: Huh. I don't understand your thinking there at all. Certainly it has to be reasonable and appropriate for Sanders to use this occasion to advocate for a national abortion rights law, and for the elimination of the filibuster to facilitate that -- regardless of whether he is confident that can be accomplished.
7 Do you think tweets of this kind move Manchin? I don't. This isn't some blog commenter rando, for whom expressing their view on Twitter is one of very few ways to advocate. He's a fucking senator, and should be in a room with a dozen or more senators talking sensibly about how they're going to get Manchin to move.
6 I share your concerns about this, and think Alito is very much a bad faith actor. On the other hand, he goes out of his way to distinguish Obergefell and Lawrence, and even praise them as corrections of grave injustices. I'm guessing that he felt the need to do that to get Kavanaugh, and/or Gorsuch. My current thought is that we'll see a concurrence from Thomas, probably alone (although maybe Barrett agrees with him) that all that stuff in the majority opinion about Obergefell and Lawrence is bullshit, and the Due Process clause is irrelevant to all of it.
I haven't the slightest clue about the tactics of it.
I honestly wonder if the hypocrisy of Trump helped them along to this point. Before him, GOP felt the need to play for the cameras as moralistic prigs. Now, it's more obvious to more male voters that the religious right's agenda lets men abusively cavort just like he do blatantly does.
I don't give a hoot about the propriety of the leak but the fact that it leaked is remarkable and I'd really love to know the story of how and why it leaked. Naively you'd guess it's from, like, an outraged Sotomayor clerk but surely Alito's office is practicing some basic OpSec on this? Did Alito's people leak it so they can prove Kavanagh is a squish when they release the watered down draft that got his vote?
The author leaked it to gauge public opinion and see how far he could go.
A lot of real Fuck You moments in the text, such as the claim that many things have changed since Roe, including the fact that "the costs of medical care associated with pregnancy are covered by insurance or government assistance."
14: Even in MA, the largest health system doesn't provide routine, elective abortion care. BIDMC and BMC do, but not MGB.
Re: twitter. My Congresswoman just advocated for the Women's Health Act. I just moved into this district, so I didn't actually know that and appreciate her articulating her position.
I gthink the leak does matter. I don't criticize the person who did it, but Indo think the person who did it believe that the Court had already lost its legitimacy and was behaving in a lawless way.
Moby - any chance we can get a Democratic PA Senator in the fall?
8: This hadn't occurred to me until I saw someone tweeting about it, but we don't need Manchin to get to 50. We need Collins or Murkowski. All their 'moderation' has never been much use before, but this might be the issue where they're a more productive focus of pressure than Manchin.
Now the Democratic coalition proves its worth or, more likely, collapses in a puddle of "my primary," "something about Bob Casey for the millionth damned time" and "my salt of the earth constituents just hate young women."
I'm in a district with an open House seat and that's the primary that keeps the phone ringing.
20: It looks like they don't support the Women's Health Act but have introduced legislation to codify Roe v. Wade.
And why wouldn't the same five justices overrule that legislation under the Constitutional principle of "because we can", uh, I mean, because women's health care isn't interstate commerce?
I don't think Manchin would vote for it. I think the only path forward is to focus on the november election and elect a senate that would.
Also even though all the signs were on the wall, I'm so completely overwhelmed by this.
25: you've gotta try.
Merrill Garland should be on there, and then maybe you could swing Roberts, and RBG should have retired too when Obama was in office. We should have a 5-4 majority now.
26: No. so we need to keep the house and get another Democratic Senator. Maybe, As LB said, Susan Collins can be pressured.
the Constitutional principle of "because we can"
The Texas shadow docket case was an announcement that there was a five-member majority for lawlessness.
Like Alito, I don't claim to have any idea how the politics of this works, but I wish that the Democrats, in one voice and led by the president, had condemned the nuttiness of the Texas non-decision -- "vigilante justice!" -- to lay the groundwork for the discussion of this decision.
I don't think the question is one of whether the good guys win or lose -- that battle was lost long ago, probably with Garland's failure to get on the court and certainly with Trump's election -- but I'd like to at least lose defending Constitutional rights and the rule of law. I wonder how the wise heads of the Democratic Party will evaluate this as a matter of messaging, and I'm glad that Bernie, at least, is on the case.
Told. You. So.
This moment has been on track to happen for a long time. I tried to warn people how serious things were getting, but the vast majority of people had their heads in the sand. So I say to you now: it's not going to stop here. I'm not joking about them loading us onto cattle cars. Maybe it will be trucks, nowadays, but either way: THEY ARE COMING FOR YOU!
Prepare accordingly.
It's weird that O'Connor and Kennedy are both still alive.
O'Connor did not like Alito even before she retired. She retired to care for her husband, but he was in a nursing home and died soon after. I think she regretted the choice. I kind of wish Harriet Miers had been confirmed instead of Alito.
30: CONCENTRATION CAMPS AND EXTERMINATION CAMPS ARE NOT THE SAME.
30: CONCENTRATION CAMPS AND EXTERMINATION CAMPS ARE NOT THE SAME.
Webster's defines concentration as "the action or power of focusing one's attention or mental effort" and since neither is happening at these camps they are not concentration camps; furthermore this describes actions happening in progressive-coded locations such as universities and libraries, so liberals are the real Nazis.
Apparently they've got a saying down in Mexico: When the waters rise, many people go out to fish.
It's going to kick off at some point, and I plan to be ready.
30: Yes. We. Know.
You're talking here like you were some sort of lone truth-talker on this blog, and you weren't.
I'm contesting the post title, though. I'd assign this to McConnell more than anyone.
I feel like a bunch of the catastrophizing tweets (which is an appropriate reaction, it is a catastrophe) I read about where things are going next are out of touch with Christian Right Culture. Yes Alito is clearly gunning for Obergefell (though maybe he'll lose a vote or two) and Lawrence (he'll almost certainly lose a vote or two), but no Loving isn't ever getting overturned. There's literally zero votes for it. It's just not part of the religious right's goals, it's just not a topic of debate in christian circles and hasn't been for decades. The old "biblical" arguments against interacial marriage were sketchy as hell and don't convince anyone. The Catholic Church has *never* opposed interracial marriage. This just isn't a goal of a bunch of educated far right catholics.
Maybe, As LB said, Susan Collins can be pressured.
I have less than zero faith in Susan Collins to do a goddamned thing.
I can maybe believe Murkowski could be pressured on abortion, but not abortion plus filibuster.
Murkowski won't let Collins do her.
Not killing the filibuster generally, but for a one-off maybe?
Yeah, I feel like the only path forward in the senate is if Murkowski is on board and you somehow come up with some one-time Calvinball carveout to the filibuster. I dunno, like you can't filibuster legislation that's in direct response to Supreme Court overturning longtime precedents.
45 not to 44 strangely enough.
Seems almost plausible since you can't filibuster justices.
And it's not like reconciliation ever made any sense. The Senate is Calvinball all the way down.
Yes Alito is clearly gunning for Obergefell (though maybe he'll lose a vote or two) and Lawrence (he'll almost certainly lose a vote or two), but no Loving isn't ever getting overturned.
With the current Court, yes. With the theocratic cultural ratchet, I wouldn't make bets about 30 years from now.
Somewhat related, a longer-gone kind of law that I could see energy existing to reinstitute is "crossdressing" bans. (I don't actually know if there are federal precedents striking down such laws, but if not that's implicit in jurisprudence.)
Last night, when I saw the news, my initial response was (more or less) impatience -- "this doesn't change anything; we already knew this was likely, and I'm worried the leak will turn out to be a head fake in some way."
But I woke up in the middle of the night feeling angry, scared, and embarrassed for the country. It is a big deal to watch Roe crumble. Even though it's been apparent for a while it still feels like an important _moment_.
The theocratic ratchet just isn't headed in the direction of Loving. They'd be more likely to start holding oral arguments in Latin than overturn Loving. It's just not what theocrats even want.
Elie Mystal: "As I log off, I will remind you all that the order of operations for conservative SCOTUS was important. They had to take away voting rights by eviscerating the Voting Rights Act BEFORE they could take away abortion. They're counting on voter suppression to blunt the backlash."
37: yes, indeed I was. In the past I've gotten all kinds of pushback here for my doom and gloom predictions. Remember when Michael Brown was murdered? I called it that even in such an egregious case, nothing would ever happen to the cops. And in the past, when I have spoken about the machinations of the far right, I've been met with all kinds of skepticism. Maybe not so much for the last few years, but before that, certainly. Even today, there's a lot of both-sidesism just below the surface.
37: yes, indeed I was. In the past I've gotten all kinds of pushback here for my doom and gloom predictions. Remember when Michael Brown was murdered? I called it that even in such an egregious case, nothing would ever happen to the cops. And in the past, when I have spoken about the machinations of the far right, I've been met with all kinds of skepticism. Maybe not so much for the last few years, but before that, certainly. Even today, there's a lot of both-sidesism just below the surface.
51: it depends on which theocrats are running the show. The educated rightwing Catholics, or the evangelicals?
That matters for some things, but not really for this. It's been 20 years since Bob Jones dropped their interracial dating ban, and there's been no moves by anywhere to bring that back. That really was the last gasp of that kind of de jure segregation anywhere near the mainstream of even southern evangelicalism. You're just not going to see the supreme court pushing nationally for policies that aren't even adopted at Patrick Henry College (which is where you'd expect a truly theocratic evangelical future SC justice to have gone). It's like a thousand times less plausible than the SC banning masturbation in your own home.
I saw 52. True dat.
People who know more about races - are there any Senate seats we might be able to pick up? Is there a way to keep a majority in the House?
Is there a way to keep a majority in the House?
The only way to keep a majority in the House is for Roe to be a significant motivation for voters. I don't know how likely that is.
30: Guess what! "I told you so" is a COMPLETE ASSHOLE THING TO SAY today. And if you seriously think that you are the only person who saw this coming, you are deeply delusional as well. Congratulations.
are there any Senate seats we might be able to pick up?
Ohio, Pennsylvania, and Wisconsin are all plausible pickups. (Alaska is not, but as others have noted Murkowski is at least nominally on our side on this one.)
Missouri, North Carolina, and Florida are also possible pickups but less likely.
The Senate map is actually pretty good for Dems this year. It's the overall political environment that's bad, but Roe being overturned would likely have major but unpredictable effects on that.
Question for lawyers: if legislation codifying Roe were somehow to make it through our impacted bowel of a Senate, how well would it stand up against the current court? Are there reasons that the federal law would not get summarily overturned on Tenth(?) Amendment grounds?
NC?
Given the state of the economy the expectation had been that we would be likely to lose more than we gained (defending in GA, AZ, NV), but we'll see if this changes things up.
The rules now are that any insane Trump-appointed judge in any district court can enjoin laws and admistrative actions nationwide and an anonymous majority of the SC will say hmm, this is very difficult to decide, nothing we can do for a few years about this decision.
It's hard to say. One reading of the leak is that one of the five (most likely Kavanaugh) was on the fence on this decision. I think it's very much an open question what Roberts and Kavanaugh would do with the scenario in 63. Especially because they probably want to leave the door open for congress to pass national *restrictions* on abortion down the road.
Thread about why it's more likely the leak was from a conservative clerk:
If you work inside the Court, you know that the most concrete impact of the leak is to lock in this opinion essentially as is. Any edits at this point reveal jockeying between Justices, undermine the majority, and Court itself. Embarassing to the majority.
Other speculation that the leak is specifically about keeping Kavanaugh in line as Upetgi says.
I was just coming here to provide the link in 69.
I hope this idea percolates through quickly enough to defuse the "those darn liberals!" angle. Obviously Rs will harp on that, but if journalists and op-ed types absorb this (much more interesting) theory, then it takes away the easy "both sides" framing of "Rs outlaw abortion, but Ds broke a norm!"
63: Yeah, as 68 suggests, how it would stand up would depend on the appetite of any wobbly median-ish justices. If they wanted to, they could certainly come up with an opinion striking it down. Doubt the 10th Amendment would be an issue. The bill that's been out there (the Women's Health Protection Act) relies on Congress's powers under the commerce clause, section 5 of the 14th Amendment (the clause that lets Congress legislate to enforce the substantive provisions of the amendment), and the necessary and proper clause. The latter two would be easy for the Court to reject under current (though wrong) precedent (the necessary and proper clause was brushed aside in the ACA case and would be brushed aside here the same way; and section 5 powers have been limited for a while to implementing only what the Supreme Court thinks the amendment protects, so that'll be no help post-Dobbs). A law like WHPA is certainly within the commerce power, but then again so was the ACA--they'd have to contort themselves a little to write an opinion holding that it's not, but no question they'd be up to it if they wanted to. Possible, per 68, that they wouldn't (though I think they could strike WHPA without closing the door to a federal abortion ban, again would take a little contortion but that's not going to stop them).
Question for the lawyers: Some people are saying that states that still have abortion criminalization laws on the books could come after doctors who performed or women who had abortions once they are allowed to enforce those existing laws. As long as the abortion was within the statute of limitations it's not ex post facto because the law was on the books just not enforced. Is there any truth to that concern?
67 is quite obviously true, and Alito tries hard in his opinion to say only the states can say anything about abortion, but in the face of a backlash*, I'm not sure there's a majority for flat-out nullifying Congress.
59 is appreciated.
*meaning some combination of scenarios that would allow a national abortion law to pass: electoral backlash such that Ds hold the House and gain 5 Senate seats, Murkowski crossing the aisle to end the filibuster, maybe some sense of Congress resolution hinting at Court expansion
maybe some sense of Congress resolution hinting at Court expansion
Yeah, I think the idea of expanding the Court definitely needs to be on the table at this point, even if it's just as an implicit threat. It's unambiguously constitutional and Congress has done it many times before, and it's the only thing that can potentially put a check on a Court this outlandishly rogue and nakedly political.
I'm not sure there's a majority for flat-out nullifying Congress.
Depends, see Shelby County.
A lot of real Fuck You moments in the text, such as the claim that many things have changed since Roe, including the fact that "the costs of medical care associated with pregnancy are covered by insurance or government assistance."
I screamed so loud at this one. "Covered" by insurance = $3-8K out of pocket.
71 Commerce Clause seems the most likely, as there is obviously an interstate market for abortion services, which is why anti-abortion states want to punish travel for abortion.
72 I don't work in this space, but I think a prosecution for conduct that was unambiguously legal at the time it was done isn't going to fly. But I think there are definitely prosecutors who are going to try it, and some of them may even get plea deals before that gets shut down.
Here, fwiw, is an I'm-telling-you-so about the coming attack on Obergefell.
Even in MA, the largest health system doesn't provide routine, elective abortion care. BIDMC and BMC do, but not MGB.
The quote in 14 was saying, not that abortions are provided, but that pregnancy care is provided - which is pretty fractally wrong. (Basic prenatal and delivery is provided without cost-sharing under Medicaid nationwide, but that has a pretty low income cutoff, and the quality...)
79: All that I was trying to say is that access in blue states isn't amazing, and we might have ahead time absorbing patients from out of state. So many assumptions wrong all around.
I believe prenatal care is covered without cost sharing under the ACA but not birth.
69: It makes very little sense for this to have been leaked by a rightwinger.
This draft was circulated in Feb. If a liberal was mad about it, why wait until April to send it to Politico? The op will be out in June. What are the benefits of releasing it early? And a BIG downside - the focus on the leak itself instead of the opinion.
Certainly it's going to take some time to work yourself up to risking your legal career on something like this. (And make no mistake. This is a career-ender for a liberal.) Also: the draft was written in February, but you don't know right away how much buy-in it's going to get. Maybe that was clearer now.
The idea that this leak locks in Alito's language is asserted, but not supported. It would be politically untenable to substantively change the language? That seems ridiculous. They're going to overturn Roe v. Wade but balk at moderating the language a bit? Seems more likely that this introduces a window for Roberts -- or Kavanaugh or whoever -- to influence the outcome.
In a moment of supreme triumph, no rightwinger is going risk upsetting the applecart. I happen to think that the liberal who probably leaked this is right: The court is lawless and doesn't deserve the respect it has been historically accorded. I also think that this will help establish momentum for the left by turning this into distinct news events: A chance to be outraged before the opinion, then another chance when the final decision comes out -- and in the meantime, endless attention to the question of how the opinion was formed. Certainly any abortion law passed in the next couple of months is going to get a lot more scrutiny than it would have otherwise. It's preposterous to think that attention is going to be focused on the leaker -- unless the leaker gets caught, in which case the question will be answered.
Admittedly, this is all speculation, and I could be wrong about any of it. But why roll the dice when you've got a sure thing: An end to Roe?
For a few years there, I had a sign-making station all set up. Could be ready for a protest in an hour. I moved late 2020 and didn't re-stock it.
Guess I'll need that again.
I believe prenatal care is covered without cost sharing under the ACA but not birth.
The last time I was pregnant, this part of the law was in effect, and so what the doctor's office did was say that they won't see anyone who is more than 5 months pregnant unless you've pre-paid your entire bill for the birth itself. Something like 3K if memory serves. And then you could have your insurance reimburse you.
I was insanely furious.
Some idiot claimed that the fact there were protestors outside SCOTUS within a couple hours with "I stand with Planned Parenthood" signs meant it was a liberal who leaked it, and they told all the protestors it was coming so they had time to print up their signs.
Even if they had instead said "Alito is a piece of shit" I think that's a pretty longstanding opinion.
My first two kids cost nothing out of pocket, but the last two cost $500 each. Inflation!
84: I think you were sanely furious.
I wonder the degree to which it's possible to channel liberal anger. Can Joe Biden lead the response? Or does Biden have to be steered by the grassroots?
Apparently there was a leak a while ago where nobody was blamed but a typist was reassigned. What If it wasn't a law clerk or justice, just some kind of over-educated administrative assistant?
About adoption.
From roughly 1945 to 1972 -- the year before the Supreme Court's original Roe v. Wade decision -- somewhere between 1.5 million and 6 million women relinquished infants for adoption, often after being "sent away" to homes for unwed mothers, where many women faced brutal coercion, were prohibited from contact with outsiders, went through labor and gave birth in segregated sections of hospitals, and were urged to relinquish their newborns while recovering from anesthesia. Close to 80 percent of residents ended up being separated from the babies they delivered. But the fact that estimates of how many women were affected vary so widely testifies to how secretive these places were: liminal spaces where women were often forbidden from using their real names, in order to facilitate their return to society as though nothing had ever happened.
Many of the women were told they would forget about the babies and go on to live fuller lives, says Ann Fessler, author of the groundbreaking oral history, "The Girls Who Went Away." Instead, many experienced lifelong guilt, worry, trauma and the sort of unresolved grief that family members of missing persons endure. One 1999 medical review found that women who had relinquished children for adoption had "more grief symptoms than women who have lost a child to death."
[. . .]
In response, in the mid-2000s, some anti-abortion crisis pregnancy centers began trying to deploy market research to determine what "subconscious emotional motivators" might make adoption more appealing. Two reports that emerged from that research -- one bluntly titled "Birthmother, Good Mother: Her Story of Heroic Redemption" -- counseled CPCs to use a common message: that single women who opted to parent their children were being selfish and immature, while choosing adoption was more mature and loving and even, in some cases, a chance for a woman to "prove her character by relinquishing her child."
That sort of rhetoric had real effects. One mother I met was sent to a modern maternity home in Washington state when she got pregnant at 19. There she was told that choosing adoption would both please God and prove that she loved her child more than if she kept him. Isolated from her friends, family and boyfriend, she was instead encouraged to spend time with the couple who wanted to adopt her child. She came to feel like a surrogate rather than a "real" mother, and when she expressed doubts about going through with the plan, she was chastised severely. When she fell into a deep depression after relinquishing her child, the family closed what was originally intended to be an open adoption, and she wasn't allowed to see her son again.
Anyone else in NYC heading for Foley Square?
A friend of mine discovered when her first kid was a toddler that she herself wasn't her mother's first child. Her mom had been a teen mom sent away, and had never told anyone besides her husband years later. My friend was dumbfounded - all I can remember is her saying "everytime she told me about her first pregnancy so we could compare notes, I thought she meant me." Her mom told her at the advice of her therapist. This was a good outcome, I guess, as far as these things go, but just so much pain.
89: That sounds like a pretty horrible and coercive adoption process. Would be interesting to know if women feel the same now.
88: You have to have an advanced degree to have convictions?
93: Exactly my points. Everyone has said that this is career suicide if it's a liberal, but maybe it's somebody who is a liberal who doesn't feel the need to work in the legal field.
95:. The ideal person for that job wouldn't read the opinions.
Good lord, JD Vance won.
Hey Moby, what do you think of Ohio?
I don't like to kick states when they are down.
His investment in the Trump endorsement paid off.
For what shall it profit a man, if he shall gain the whole world, and lose his own soul?
And Ohio is probably like less than 1% of the world.
101: but it's high in the middle
The highest point is sort of middlish.
However, Ohio is high in the middle like Iowa hurts in the middle.
106:. Just remembered that old joke. Oy!
100: Liked this insight on Twitter (problematic letterboxd account @MenshevikM)
makes sense that JD Vance won. He's annoying the way Senators are annoying (elitist, worm, soulless, psuedo-intellectual) whereas Mandel was annoying the way members of the House are annoying (insane, talks like a divorced middle schooler)
I think Dolan was the real chance for an R to overcome the Vance/Trump/Thiel trilogy of soulless evil*, and might have gotten there if Mandel was not involved in his lifetime of losing elections vanity project.
*Not that Dolan is not evil in his own more standard legacy Republican way...
110:. I don't buy that explanation. Vance wasn't getting anywhere in the polls until Trump endorsed him. I think there is a plurality of Ohio Republican voters that are true Trump believers.
There's probably a huge Chillicothe chapter of Americans for Dictatorship in Ukraine.
113: How big can anything be in Chillicothe?
I couldn't decide who was the lesser evil among these guys. But Josh Mandel is the most personally repulsive to me, so I guess I can be happy that he lost.
They attract totalitarian enthusiasts from the surrounding communities.
11: Oh Yeah, Trump was the secret sauce for sure.
I went to a Planned Parenthood rally after work yesterday, and it was encouraging. There were lots of people there, especially considering how last-minute the planning and publicizing necessarily was. The local paper reported 175 people (and got some great pictures). We covered all four corners of a busy intersection during rush hour, and got lots of supportive honks and surprisingly little opposition. There were occasional middle fingers and jeers from drivers, but no counterprotesters. This was in a pretty liberal part of town, but it's an intersection that lies on a major commuting corridor between downtown and a lot of more conservative areas. I was surprised by the level of support. The whole vibe felt a lot like the 2017 Women's March with its mix of worry, exasperation, and solidarity.
We had maybe 30 people come out to our hastily organized protest to wave signs at traffic. Mostly the usual suspects, although more of the youth than usual. Almost all supporting honks and surprisingly few assholes.