Author Topic: Dobbs v. Jackson Women's Health Organization  (Read 5178 times)

David Garner

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Dobbs v. Jackson Women's Health Organization
« on: December 01, 2021, 10:23:23 AM »
Supreme Court oral argument ongoing now.

https://www.supremecourt.gov/oral_arguments/live.aspx

Justice Sotomayor is really climbing out on the limb to try to demonstrate in her questioning that fetal pain is, essentially, a myth.  She even talked about "dead brain people" reacting to stimuli.  I wonder if Justice Sotomayor would then argue that "dead brain people" (I assume she means "brain dead") may be killed -- by anyone -- at that point?  In other words, not that they might be removed from artificial life support, but in fact that anyone can kill them because they lack personhood.

I'd like to think not, but then I have to wonder if she realize that's precisely where her reasoning leads?
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #1 on: December 01, 2021, 10:30:14 AM »
Justice Sotomayor also just asked "how is your view anything other than a religious view."

Disappointing honestly, since you would think a Supreme Court justice would be more imaginative than to assume the only justification for proscribing abortion is religion.  That is self-evidently false (see, for example, https://secularprolife.org).  But she can't think of a non-religious reason to proscribe it.
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #2 on: December 01, 2021, 10:44:24 AM »
Justices Kagan and Barrett are asking some really good questions on the limits of stare decisis.
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MaddogLutheran

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #3 on: December 01, 2021, 10:45:17 AM »
Justice Sotomayor also just asked "how is your view anything other than a religious view."

Disappointing honestly, since you would think a Supreme Court justice would be more imaginative than to assume the only justification for proscribing abortion is religion.  That is self-evidently false (see, for example, https://secularprolife.org).  But she can't think of a non-religious reason to proscribe it.
I'm listening too, and heard that.  Eventually Justice Alito jumped him to point out that secular philosophers can and have reached similar conclusions.

Her concern trolling about the legitimacy of the Court if is perceived as being political (by modifying/overturning Roe/Casey) is quite comical, all things considered.  Arlen Specter's Super Duper PrecedentTM.  This is exactly our contemporary societal problem:  my opponents are being political/hypocritical/acting in bad faith, I'm the principled one here.

There are legitimate stare decisis issues and the standing of the Supreme Court at stake here, but I think the Mississippi solicitor general was wise (considering his perspective) to be asking for a lower level of judicial scrutiny to abortion laws, which as I understand it requires some level of overruling Roe/Casey.  He's right that these decisions distort the law in ways we would not tolerate in other areas.  So far an interesting round of arguments, especially the discussion around viability.  A constitutional right should not be bolstered because of the socioeconomic category of those who may desire it, as Justice Sotomayor suggested.

For the pro-abortion crowd, anything short of abortion being readily available in every state is an oppressive theocracy.  At least no talk of "birthing people" so far.
« Last Edit: December 01, 2021, 10:48:18 AM by MaddogLutheran »
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #4 on: December 01, 2021, 10:48:44 AM »
Justice Sotomayor also just asked "how is your view anything other than a religious view."

Disappointing honestly, since you would think a Supreme Court justice would be more imaginative than to assume the only justification for proscribing abortion is religion.  That is self-evidently false (see, for example, https://secularprolife.org).  But she can't think of a non-religious reason to proscribe it.
I'm listening too, and heard that.  Eventually Justice Alito jumped him to point out that secular philosophers can and have reached similar conclusions.

Her concern trolling about the legitimacy of the Court if is perceived as being political (by modifying/overturning Roe/Casey) is quite comical, all things considered.  Arlen Specter's Super Duper PrecedentTM.  This is exactly our contemporary societal problem:  my opponents are being political/hypocritical/acting in bad faith, I'm the principled one here.

There are legitimate stare decisis issues and the standing of the Supreme Court at stake here, but I think the Mississippi solicitor general was wise (considering his perspective) to be asking for a lower level of judicial scrutiny to abortion laws, which as I understand it requires some level of overruling Roe/Casey.  He's right that these decisions distort the law in ways we would not tolerate in other areas.  So far an interesting round of arguments.

For the pro-abortion crowd, anything short of abortion being readily available in every state is an oppressive theocracy.

I noticed that as well.  The Court renders a nakedly political decision in 1973 and now those who like the outcome are concerned about the Court politicizing an issue. 

It was a political question then, it's a political question now.  If anything, it OUGHT TO BE politicized, because, as Justice Scalia said in his dissent in Casey, "(the Court) should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #5 on: December 01, 2021, 10:51:04 AM »
"Of course (a Supreme Court justice's on-point hypothetical is not) implicated in this case" is a bad, bad argument.

You don't want to essentially sidestep a justice's question simply because you don't like the implications of your own logic.
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MaddogLutheran

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #6 on: December 01, 2021, 10:54:39 AM »
I spoke to soon.  The advocate arguing against the Mississippi law starting out by going out of her way to say "people" not "women", though she did just reference the history of women relying on the right over the last 50 years, data in an Economist magazine amicus brief.
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MaddogLutheran

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #7 on: December 01, 2021, 10:57:11 AM »
"Of course (a Supreme Court justice's on-point hypothetical is not) implicated in this case" is a bad, bad argument.

You don't want to essentially sidestep a justice's question simply because you don't like the implications of your own logic.

Maybe the first time Justice Thomas has ever asked such a question to an abortion advocate in oral arguments, considering he's only ever engaged a couple of times from the bench before Covid changed the format of these arguments.  Now he regularly participates.
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #8 on: December 01, 2021, 10:57:35 AM »
Justice Barrett, with her 7 children in mind no doubt, is hitting on the government's argument that access to abortion is necessary to avoid "forced parenting." 
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #9 on: December 01, 2021, 10:58:23 AM »
"Of course (a Supreme Court justice's on-point hypothetical is not) implicated in this case" is a bad, bad argument.

You don't want to essentially sidestep a justice's question simply because you don't like the implications of your own logic.

Maybe the first time Justice Thomas has ever asked such a question to an abortion advocate in oral arguments, considering he's only ever engaged a couple of times from the bench before Covid changed the format of these arguments.  Now he regularly participates.

Well, that and Scalia usually dominated his side of the bench (which at that time was populated only by the two of them).
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Re: Dobbs v. Jackson Women's Health Organization
« Reply #10 on: December 01, 2021, 11:03:11 AM »
Roe v. Wade was political but not necessarily partisan. Pro-life/pro-choice did not fall along Republican/Democrat lines. Today people have sorted their political allegiance (if not registration) in ways that match the pro-life/pro-choice divide, such that Republican politicians are almost entirely pro-life and Democrat politicians are uniformly pro-choice. I think when they worry about the SCOTUS becoming political they really mean partisan.

David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #11 on: December 01, 2021, 11:04:16 AM »
Most folks are going to read this as Justice Roberts pitching for a way to split the baby (no pun intended).  However, I think the merits of the question are really solid -- if it's truly about "choice," why have a viability line at all?

Roberts asks:  "If you think that the issue is one of choice ... viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?"
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #12 on: December 01, 2021, 11:05:20 AM »
Roe v. Wade was political but not necessarily partisan. Pro-life/pro-choice did not fall along Republican/Democrat lines. Today people have sorted their political allegiance (if not registration) in ways that match the pro-life/pro-choice divide, such that Republican politicians are almost entirely pro-life and Democrat politicians are uniformly pro-choice. I think when they worry about the SCOTUS becoming political they really mean partisan.

Correct.  A "political question" in this sense does not mean Republican versus Democrat, but rather that it is a decision not covered by the Constitution and therefore one best left to the political (or elected) branches of government to sort out.
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MaddogLutheran

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #13 on: December 01, 2021, 11:10:33 AM »
Most folks are going to read this as Justice Roberts pitching for a way to split the baby (no pun intended).  However, I think the merits of the question are really solid -- if it's truly about "choice," why have a viability line at all?

Roberts asks:  "If you think that the issue is one of choice ... viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?"

The earlier discussion about viability (during the MS solicitor generals' time) was equally illuminating.  It led to a question about what the "science" says (about that, and fetal pain, sound familiar?) and the SG made the point in reply that it best belongs to a legislature to discern that, because it is not really a bright line.

Looking again at the Big Picture perspective, it's interesting how the pro-science people pretty consistently try and draw a bright line conclusion from science to shut down debate, when the actual particulars often argue against that.

No one should make the mistake of trying to guess the chief justice's eventual vote by his oral arguments questions here.
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David Garner

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Re: Dobbs v. Jackson Women's Health Organization
« Reply #14 on: December 01, 2021, 11:15:19 AM »
I couldn't tell who the justice was who basically lectured (I did not hear a question there) about superprecedent and the institution of the Court.  Did anyone catch who that was?
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