With the likelihood that the U.S. Supreme Court will overturn Roe v. Wade, a number of states are taking steps to make the punishments for abortion stricter and to eliminate any exceptions, such as rape, incest or the life of the mother. some states will treat abortion as homicide, with criminal penalties for those who perform them.
The Washington Post reported a recent incident where medical staff at a Cleveland medical facility worked feverishly to save the lives of a pregnant woman and the child she very much wanted.
The pregnant woman was bleeding heavily by the time she arrived at the hospital.
Maria Phillis, an obstetrician/gynecologist, and other doctors on duty at the Cleveland medical facility transfused her with bags of blood, but her condition deteriorated rapidly. It wasn’t long before the mother faced an awful choice: Her placenta, a part of the womb, had attached in the wrong place, wreaking havoc in her body. But the baby was far too young to survive on its own.
The pregnancy was terminated to save the woman’s life — an outcome painful for all involved. “This was a very desired pregnancy,” Phillis said.
Now Phillis replays the recent medical crisis in her head, wondering about the implications in a world where Roe v. Wade is overturned and abortion becomes illegal in her home state of Ohio. State lawmakers are weighing a bill to make performing the procedure a fourth-degree felony. Might she be charged with a crime for providing care she believes is moral and necessary?…
Anti-abortion laws frequently make exceptions for women whose lives are in danger.
Emboldened conservatives in some states are pushing to narrow and in some cases eliminate such exceptions, arguing that they create loopholes that are easily exploited. Doctors say such restrictions will complicate medical decisions for pregnant women, increasing the risk of death in a country that already has the highest rates of maternal mortality in the industrialized world.
Idaho Lt. Gov. Janice McGeachin on Monday called for a special legislative session to remove most exceptions from that state’s “trigger law” banning abortion. In Georgia, Pennsylvania and Wisconsin, leading Republican gubernatorial candidates have teamed up with antiabortion groups to push bans that would not allow the procedure even if the mother’s health is endangered. In some states, exceptions for the “life of the mother,” rather than the “health of the mother” have been written into trigger laws or proposed measures, significantly limiting the scope of when they can be used.
“What we are calling for is a total ban, no exceptions,” Matt Sande, legislative director of Pro-Life Wisconsin, said in an interview. “We don’t think abortion is ever necessary to save the life of the mother.”
If a woman dies because of such anti-abortion zealots, they should be held criminally responsible for her death.
Diane Ravitch's blog 
The overall hypocrisy is sickening…
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I see no way to protect the life of a mother without granting her a private relationship with her doctor. That said, I am horrified that some in the world think nothing of infanticide. Horrified as I am, when I read the story of Olan in Pearl S. Buck’s The Good Earth, it becomes obvious that people make decisions based on their intuition regarding the future. We should be concentrating our efforts on the idea that the future must look bright for all people.
I am a guy who considers all life something to hold in high esteem. If I had been Sioux, I would have been the guy who ate the Buffalo heart out of respect. When I weed eat the roadside in front of my house, I leave the plants i know will bloom later or whose leaves are appealing to me. So abortion is abhorrent to me. But all life cannot live forever, my own included, and sometimes we are forced to choose between evils. A woman must have the right to be the one who decides. Anything short of that is tyranny. The duty of society is to make all women feel supported in their decision and to provide information that will lead to the best decision.
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“Sometimes we are forced to choose between evils?” The medical emergency described in the WaPo article is one in which a woman’s placenta was attached in the wrong place and was causing her to bleed to death. I don’t see the abortion that saved her life as “an evil.” In fact, I see it as a blessing.
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Agreed, Anne. In most states, this woman and her baby would die.
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I agree. My point was that people who are forced into agonizing situations often have to choose between two evils. Death and suffering is often a medical reality. I was not commenting on the story above.
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I see your point.
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SDP: would the killing of that elephant and its subsequent investigation be a Who-done-it?
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Some of us also find elephanticide horrifying.
But these views are all subjective when it comes right down to it — as are all religious views, not coincidentally.
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And in the case of Horton, elephanticide would be absolutely ab-Who-rent.
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These anti abortionists want to normalize / legalize being demented, lunatics, crazed, maniacal. foolish, irrational.
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There will be many women that will die from ectopic pregnancies like the dentist in Ireland, Savita Halappanavar.
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Good morning Diane and everyone,
So what is a doctor supposed to do in this situation? Leave the room and wait for baby and mother die on their own? Will there be police outside the hospital room doors waiting to oversee any possible pregnancy problem? The absurdities of this whole situation compound by the minute.
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It IS absurd. This was NOT an abortion. This was a medically necessary, emergency procedure as the placenta had detached from the lining of the uterus at a stage when life for the fetus was not viable outside of the womb AND the woman was bleeding to death. The body didn’t “abort” the fetus and the doctor didn’t perform an “abortion”. The placenta was the problem. There were no other “options” or “choices” for this medical scenario.
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It won’t be police outside the hospital room doors, it will be their brothers in the militias.
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I like how, in The Atlantic, Margaret Atwood offers the argument that striking down Roe and allowing abortion bans violates the Establishment Clause of the Constitution, the idea that “ensoulment” is a fundamentally religious belief and, insomuch, not everyone believes that.
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I agree
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Actually, one need not resort to any legal interpretation of the establishment clause, since the Constitution specifically bans acceptance of ensouluments.
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Eliminate exceptions for the life of the mother?
Why don’t they just eliminate the life of the mother before she gets pregnant?
Wouldn’t that solve the problem?
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The direction this country is taking when it comes to abortion does not leave any options for women and the control of their own bodies and lives. This country is stepping back into the dark ages where women were nothing more than chattel — personal property of the father or husband.
If I were a woman living in the United States I would think very, very hard and long about having any children. To anti-abortion imbeciles women are nothing but baby factories whose lives have little or no meaning. If a woman dies because of her pregnancy then, I guess, according to the anti-abortion movement , it is “The Will of God.” and so be it.
The United States has one of the highest, if not the highest, maternal death rates among the industrialized countries. This country is supposed to have one of the best medical systems in the world but we still have very high maternal death rate and infancy death rate. Now the narrow minded anti-abortion fools want to add to that depressing number.
it is totally insane the direction this country is going when it comes the abortion issue. This insanity is going to cost thousands of lives of women for not other reason then they are women and get pregnant — whether it be a loving relationship, or incest, or rape.
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The direction the country is headed is dissolution, since half the states are ARsons and a house on fire can not stand.
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High maternal death rates and infancy death rates because this country does not have universal health care as do all the other industrialized democracies. The only reason we have Medicare and Medicaid is because of the Democrats, no thanks to the GOP or Reagan who campaigned against Medicare/Medicaid.
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Joe Jersey– The WaPo article leads to an informative article on this subject at para 5 “highest rates of maternal morality in the industrialized world.” That article actually compares us to 9 other similar wealthy economies (not all industrialized world). We have double the rate of maternal mortality of the next 2 countries (France and Canada), and 10x the rate of lowest (NZ).
Health insurance is a factor, but down the list a ways these days, as both ACA and any employer of 15 or more has to cover medical costs of pregnancy. The key items we don’t cover seem to be key, per their statistical analysis: (1)post-partum home visits. 52% of our maternal mortality occurs post-partum [40% in the first 5-6 wks]. The other 9 countries guarantee them, from Australia’s 3 visits in 1st week to NZ’s 5 visits in 6 wks to Sweden’s 5 – 8 visits in 8 wks. And (2) Weeks of paid maternity leave [without which, women are forced back to work right away]. We’re the only one with none. Other countries start at 14 weeks. A possible 3rd factor is shortage of maternity care providers relative to the number of births. This is true relative to 8 of 9 other countries– but Canada has an even lower number than we do, yet have half the maternal mortality, so I don’t know.
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This is the first time in history that the Supreme Court has nullified a right
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And with the current individuals currently occupying the Supreme Court it will not be last human right to be nullified.
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What about Plessy v Ferguson, which nullified the equal protection right granted by the fourteenth amendment?
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While one might argue that the Plessy decision did not “technically” nullify equal protection (that’s what the Supremes argued with their separate but equal opinion), but effectively , it did.
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Not technically true, but pretty close.
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People should keep their religious views out of politics. Between 60 and 70% percent of Americans support Roe v. Wade. Choice already includes the right to keep any fetus. Religious belief should not make it legal to allow women to die. That’s not pro-life; it’s pro-fetus. It is pro-death for women.
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One can also make a pretty good argument that the Supreme Court nullified the rights of Japanese American citizens when they OKed their internment during WWII
As in the Plessy case, the dissenting opinion explicated this argument and interestingly, he stated that the Supreme Court was violating he equal protection clause.
https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-korematsu-v-us
“Justice Robert Jackson contended: “Korematsu … has been convicted of an act not commonly thought a crime,” he wrote. “It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.” The nation’s wartime security concerns, he contended, were not adequate to strip Korematsu and the other internees of their constitutionally protected civil rights.
He called the exclusion order “the legalization of racism” that violated the Equal Protection Clause of the Fourteenth Amendment. He compared the exclusion order to the “abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. He concluded that the exclusion order violated the Fourteenth Amendment by “fall[ing] into the ugly abyss of racism.”
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Incidentally, it’s worth pointing out that the dissenting Justices in both the Plessy case (John Marshall Harlan who said the Constitution is colorblind and that all citizens have equal rights) and the Korematsu case (Robert Jackson) were not only correct but truly heroic.
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Diane, yes– this is what makes the Alito draft so chilling to me.
“Constitutional rights not “rooted in the Nation’s history and tradition,” such as the right to an abortion, are not legitimate rights at all.”
And more from Slate article “We Read Alito’s 98-Page Leaked Opinion. Here Are the Most Shocking Lines (5/5/22): “these statements implicate all of the ‘liberty-based’ rights listed above. For good measure, Alito lets us know which other rights were not ‘mentioned in the Constitution’ or allegedly grounded in our nation’s history: interracial marriage, contraception, the right not to be nonconsensually sterilized, the right to reside with relatives, the right to make decisions about your children’s education, the ‘right to engage in consensual’ and private ‘same-sex intimacy,’ and the right to same sex marriage, just to name a few.”
Slate likes others first, but I found this one more striking: “Alito compares Roe and Casey to some of the most abhorrent precedents in Supreme Court history, including the ruling that upheld segregation.”
And first on my list was, Alito calls the Roe v Wade decision “egregiously wrong.” Many legal commenters on article threads diss this line as the sort of error a 1st-yr law student wouldn’t make. But to my mind it says it all: this SCOTUS justice holds himself above formidably-qualified predecessors and contemptuously declares their decision “egregiously wrong.” What other decisions will Alito & his 4 running dogs decide are “egregiously wrong”? Stare decisis? Chopped liver.
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Great comment, Ginny.
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Alito is egregiously unjudicial.
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Bethree—the view that Roe is “wrong” is not an extreme outlier view. It’s been criticized by scholars of all political stripes (the great Akil Amar and Ruth Ginsburg among them) for decades. I would have let it stand regardless, because of how much the country has come to rely on it as precedent, although I’m not sure that’s the correct way to analyze it.
Akil Amar had an op-ed in the WSJ recently that may give some hope about where other precedents stand. I’ll see if I can paste a link that doesn’t require a subscription.
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FLERP, most people think that when a ruling has been in place for 49 years, it is a secure precedent. According to polls I have seen, only 20% of the American people think that abortion is wrong in all cases. Most believe in limits like exceptions for rape, incest, or the life of the mother, as well as the timing of the pregnancy (like, when the fetus can be viable outside the womb or end of first trimester).
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Posting the Amar op-ed at the bottom of this page.
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I understand that view, Diane. To some extent I share it myself. (Surely no one would go so far as to say that all precedent must always be upheld, regardless of one’s views about how incorrect the decision or how reprehensible the result.)
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Not all precedents should be upheld. Certainly not Plessey v Ferguson. Surely many others from an unenlightened past.
A woman’s right to make a timely decision about her life and her body should be made by her and her doctor, not by politicians.
Don’t you agree? Since you are not a woman, I don’t think you can understand what it means to be treated like men’s chattel.
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I’m strongly pro-choice, Diane. Partly because I find anti-abortion laws to be insane encroachments of state power over private decisions. And partly because I defer to women on this matter.
But that doesn’t conclusively answer questions like whether Roe was rightly decided or whether the Constitution guarantees the right to an abortion.
If I were a Justice, I probably would find a way to uphold Roe, even if I thought it was wrongly decided, just because it’s the political result I want.
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bethree5,
Akhil Reed Amar ENDORSED BRETT KAVANAUGH.
Enough said about whether he should be considered a “great” legal mind, and whether he is actually “liberal” or just “liberal when he wants to be”.
Here is a quote from him:
“I actually think Brett Kavanaugh is good. I think he’s the best sitting federal Republican judge under age 60. I’m an opponent of the Trump administration. This is the one most sane, most sober, most classy thing that the administration has done. So I’m participating in the game because that’s actually our constitutional system. Once the Republicans won both the presidency and the Senate, they get the court.”
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Even in Idaho, voters are very split on abortion rights. I hold out hope that enough voters will make their opposition to draconian abortion bans heard.
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https://archive.ph/bGlv2
The End of Roe v. Wade
For a constitutional scholar and pro-choice Democrat, there are reasons to endorse the leaked draft opinion overturning the 1973 abortion decision—and to see it as vindication for a range of liberal priorities.
By Akhil Reed Amar
May 14, 2022
The recent leak of a draft Supreme Court opinion overruling Roe v. Wade has prompted many commentators to charge that a hyper-politicized, conservative Court is on the verge of losing its legitimacy and plunging America into a constitutional abyss. Should the draft become the Court’s ruling, they argue, it would threaten a wide range of basic rights and perhaps the rule of law itself.
These are dire assessments, reflecting the country’s intense, long-standing divide over the issue of abortion. But they don’t stand up to scrutiny.
Consider first the fact of the leak itself in the Mississippi abortion case now under review, Dobbs v. Jackson Women’s Health Organization. It is a huge leak. Never before has a full draft, footnotes and all, of a would-be majority opinion seeped out to the world while a Supreme Court case of major moment was still under consideration. But based on what we now know, the leak of Justice Samuel Alito’s draft is less troubling than several previous episodes in Court history, in which various justices themselves blabbed either in the moment or soon after a decision. At present, there is no evidence that any justice was directly involved in delivering the draft to Politico.
Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.
Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.
In 1954, in Brown v. Board of Education, the justices rightly buried their predecessors’ 1896 ruling in Plessy v. Ferguson, which had proclaimed the dubious doctrine of “separate but equal.” The best argument for this burial was that the Constitution really does promise racial equality, and racial segregation—American apartheid—was not equal. Likewise, the New Deal Court properly repudiated dozens of earlier Gilded Age cases that read property and contract rights far too broadly and in the process invalidated minimum-wage, maximum-hour, worker-safety and consumer-protection laws of various sorts—laws that are now seen, quite rightly, as perfectly proper.
The liberal Warren Court also overruled a staggering number of precedents, introducing now familiar terms to our constitutional lexicon. Mapp v. Ohio (1961) dramatically expanded the “exclusionary rule,” Reynolds v. Sims (1964) sweepingly mandated “one person, one vote,” and Miranda v. Arizona (1966) required the now iconic “Miranda warning.” These cases and dozens like them jettisoned earlier settled precedents that, in the minds of the justices, mangled the Constitution. As law professor Philip Kurland once wryly observed, “the list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional casebook.”
Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.
In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.
Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality.
Does Justice Alito’s draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court’s precedents on contraception and interracial marriage?
It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were “deeply rooted in the Nation’s history and tradition.” These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.
As a constitutional scholar at Yale and later as an unsuccessful nominee to the Supreme Court, Bork denounced a landmark contraception case, Griswold v. Connecticut (1965), in which the Court declared unconstitutional a Connecticut law criminalizing the use of contraception, even inside the marital bedroom. Bork considered the law “nutty” but argued that there was no broad constitutional “right to privacy,” as the Court had declared in its ruling.
But there were other, more conservative grounds for the Griswold decision. In an earlier case involving the same Connecticut law, Poe v. Ullman (1961), Justice John Marshall Harlan explained why the issue was simple for a traditionalist such as himself: “The utter novelty” of the Connecticut law was “conclusive.” No other state had ever “made the use of contraceptives a crime.”
In the 1972 case of Eisenstadt v. Baird, the Court extended Griswold to invalidate a Massachusetts statute that banned the distribution of contraceptives to unmarried individuals. By then, such laws were fast becoming outliers in America, rarely enforced even if on the books. Today, no state or political party is seriously trying to undo this precedent. In his 2006 Senate confirmation hearings, Justice Alito, a traditionalist self-consciously in the Harlan mold, minced no words on the issue: “I do agree with the result in Eisenstadt.” His leaked draft opinion in Dobbs says much the same thing.
Justice Alito has never said anything remotely similar about Roe. For traditionalists, there is an essential difference between the contraception and abortion cases. Whereas the Court in Griswold sided with 49 states against the outlier Connecticut, the Court in Roe invalidated the laws of at least 49—perhaps all 50—states. The Dobbs draft takes pains to cite this stunning fact.
In keeping with a long line of cases and the spirit of the written Constitution, Justice Alito notes that rights which are neither explicit nor implicit in the Constitution’s text and history generally need strong roots in the mores and practices of the American people. One way to measure these mores and practices is to count state laws: How many states recognize a putative right and how many try to abridge it? How often and how strictly are laws on the books in fact enforced?
Consider another landmark Warren Court case that the Dobbs draft cites with implicit approval, Loving v. Virginia, which struck down laws against interracial marriage. The Court’s opinion expressly noted that by 1967—the year the case came down—more than two thirds of the states allowed interracial marriage. Many of the rest allowed interracial couples to marry elsewhere and then return home as lawful spouses. Today, interracial marriage is even more firmly established as a bedrock feature of American life.
The ruling in Roe v. Wade, by contrast, has been under fierce and relentless attack for decades in most states. It has been unremittingly condemned in the quadrennial party platforms of one of America’s two major parties, a party that has won half of the presidential elections since Roe. Roe is also decisively different from various contraception and marriage cases because, as Justice Alito’s draft opinion stresses, abortion uniquely involves destroying unborn human life, typically long after conception and implantation.
Perhaps surprisingly, the draft’s logic also buttresses certain important LGBT rights. As the Court emphasized in its landmark ruling in Lawrence v. Texas (2003), which invalidated anti-sodomy laws, such laws were almost never enforced in America against private consensual conduct, but rather only in cases of rape or public indecency. Justice Anthony Kennedy’s majority opinion reported that only 13 states at the time still had laws prohibiting consensual adult sodomy and only four states singled out same-sex sodomy. Even in these outlier states, there was “a pattern of nonenforcement with respect to adults acting in private.”
Justice Kennedy’s later landmark opinion for the Court, Obergefell v. Hodges (2015), which required all states to recognize same-sex marriage, raises rather different issues. The Dobbs draft does not directly challenge Obergefell and purports to limit its own thrust to abortion cases. But the draft’s logic could be seen to undermine the Obergefell decision, which was issued over the dissents of Justices Alito and other conservative justices, who argued that same-sex marriage was not deeply rooted in American tradition.
Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted.
The status of same-sex marriage is obviously changing, however, and such unions are fast becoming a pillar of modern American life. Every year, same-sex marriage, unlike abortion, becomes more widespread and accepted—more deeply rooted and less controversial. And crucially, Obergefell is at heart a gender equality case. Traditional marriage laws discriminated on the basis of sexual orientation—allowing straight people but not gay people to pursue marital happiness. These laws also discriminated on the basis of sex: Patrick was allowed to marry Mary, but Patricia was not.
Tradition and state-counting are sound ways of thinking about unenumerated American liberties, but rights explicitly mentioned in the Constitution—such as the rights of racial and gender equality—warrant stricter judicial protection, even when such rights contradict dominant customs. The Dobbs draft says little—too little—about sex and gender equality. Advocates for reproductive rights also slighted issues of equality in their oral argument in Dobbs, recapitulating one of the biggest flaws of the Roe opinion itself. Later drafts of Justice Alito’s opinion will likely need to take equality issues more seriously as the dissents of the Court’s liberals begin to circulate, no doubt highlighting and criticizing this major lapse.
In the end, Dobbs will probably be decided by a 6-3 vote, with Justice Alito joined by the four other justices who reportedly endorse his draft (Thomas, Gorsuch, Kavanaugh and Barrett). Chief Justice John Roberts, who reportedly is less keen on the draft, will likely uphold the Mississippi law on the narrow grounds that it gives a wavering pregnant woman enough time—15 weeks—to decide. In recent decades, less than 5% of all abortions have occurred after 15 weeks.
So long as abortion remains legal in many blue states—and nothing in the Dobbs draft dictates otherwise—most women who miss deadlines in their red home states should be able to travel to get the treatment they desire. Indigent women will doubtless experience special burdens, which makes it imperative for charities to ramp up assistance for women in distress.
A very different issue, however, would arise were Republicans to sweep national elections in 2024 and then pass a national abortion ban. This is the scenario that should set off the loudest alarm bells for Americans who support abortion rights.
As for concerns about judicial partisanship more generally, we must remember that in recent years conservative justices have repeatedly crossed the aisle to give liberals victories in high-profile cases. This is not an everyday event, but nowhere else in America do conservatives cross over nearly so much when it matters. Thus, Chief Justice Roberts joined liberals to uphold Obamacare in three different cases over the course of eight years and also crossed the aisle to invalidate the Trump administration’s improper treatment of noncitizens in the 2020 census. He also joined liberals to affirm sweeping rights of gay employees in the private sector, in an opinion authored by a Trump appointee, Justice Gorsuch. The chief justice and another Trump appointee, Justice Kavanaugh, also sided with the liberals in little noticed but hugely consequential cases involving the presidential election of 2020.
Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh’s nomination to the Court, remains true: “Americans generally and with good reason view today’s Court more favorably than today’s Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today’s President and Congress say the same?”
In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.
—Mr. Amar is a professor of constitutional law at Yale and the author, most recently, of “The Words That Made Us: America’s Constitutional Conversation, 1760-1840.”
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FLERP,
This article made me very angry. He cares nothing at all for the indigent women who will not be able to travel to get an abortion. He cares not at all that many states have promised to outlaw any exceptions, including rape, incest or the life of the mother. Women will die because of such laws. There are real life situations where women are in a hospital and the doctors must perform an abortion or the woman will die. He doesn’t care. Some states will classify abortion as homicide and doctors will be sent to prison for trying to save the life of the mother.
Are you as heartless as this writer?
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I think his position would be that these are political questions and that states should decide them. He is pro-choice, so presumably he would like to see states decide the issue in ways that guarantee abortion rights in some reasonable form.
I don’t know that Akil Amar is heartless, and I don’t think I am, either. I don’t want to upset you or anyone else—I just thought your readers would benefit from seeing the point of view of the country’s most respected constitutional scholars, who is left-wing and pro-choice, and who does not believe Dobbs will lead to reversals of decisions guaranteeing marriage equality, contraceptive access, or interracial marriage. If the article is too upsetting, I apologize and of course you may remove the comment.
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I don’t think he is pro-choice. He supports states that criminalize a woman’s right to control her medical care. He supports states that will allow women to die rather than get an abortion. That’s not pro-choice.
Do you think states should decide whether slavery is legal?
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The basic right of women to decide their own medical decisions in consultation with their doctor is not a political decision. Only four reactionary men and a woman who belongs to a cult would reach that decision.
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States may not decide whether slavery is illegal. They lack the authority because the Constitution forbids it.
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“Only four reactionary men and a woman who belongs to a cult would reach that decision.”
This can’t just be pinned on men. Abortion could be legalized in every state if only a clear majority of women in those states would vote for legislators who would pass such laws. Men and women have very similar views on abortion.
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FLERP,
Do you question the fact that the majority of Americans support abortion?
Frankly, I don’t think men should have anything to say about whether women should make their own medical decisions.
Do you think the country will accept this decision without protest?
It’s time for men to accept women as equals, not as their property.
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Of course there will be protest. I’ve seen the polls on abortion. The national polls show strong majorities of both sexes in favor of abortion rights with some restrictions. The state polls vary. The most “red” states are more closely divided, but I still think there is enough support for abortion rights (again, with restrictions) in most red states to force legislatures to pull back from the most draconian bans.
Again, Diane, men do not favor abortion restrictions by much stronger margins (if at all) than women. This is not a battle of the sexes. If something as low as 60% of women in Alabama were to demand abortion rights at the polls, Alabama would have abortion rights enshrined in law. It is not just men who are standing in the way of reproductive rights. It is men and women. And frankly the most fervent opponents of abortion I have ever met in my life have all been women.
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I don’t think that the opinions of women like Barrett or likeminded women should define the rights of other women.
There are undoubtedly states that would strip Jews of all rights because they hate Jews. I assume you would support that too, given your line of reasoning.
There are states that would remove the right of blacks to vote. The Supreme Court diluted the Voting Rights Act but they haven’t yet allowed states to decide whether blacks should be barred from voting.
Following your reasoning, no one’s rights are safe unless they are popular.
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Why on earth would you think that I would support state laws stripping all rights from Jews?
This is getting quite odd, Diane.
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Your reasoning in favor of states’ rights for abortion (a right singularly crucial for women) suggests your preference for states’ rights in controversial issues. Should gay rights be subject to state control? Gay marriage? There are certainly states that would ban them in the blink of an eye. There are states that would enact anti-Semitic laws of states’ rights prevailed, which you said you favor.
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Frankly I’m not sure where I come out on the constitutional arguments for all these issues. As a matter of my sense of what’s right and just, I don’t think any government entity should be permitted to bar gays from marrying. Whether states should, as a matter of constitutional law, have the legal authority to do so is a different question. And importantly, it’s a question that has already been answered in the negative by the Supreme Court. To the extent you and other are concerned that precedent will be overturned, that’s the reason why I posted the Akil Amar article—to present a reasoned view that that precedents will NOT fall.
Ruth Ginsburg’s critique of Roe was essentially this: Roe v. Wade came at a time when the women’s movement was approaching full force, and a national conversation about abortion rights had not yet occurred. The Court in Roe could have done what it normally does—strike down the extreme Texas law and limit it’s holding to the facts of that case. Other states then would have been forced to adjust their laws, and engage in policy debates, and the law would have evolved organically amid a new and continuing conversation about women’s rights and reproductive rights. Instead, what Roe did was, in one big swoop, invalidate the abortion laws of most if not all of the states, and essentially freeze a conversation that was just beginning. It also arguably single-handedly created the pro-life movement by giving conservatives a huge target to shoot at in all state and national elections. That was RBG’s view, and I think it makes some sense.
Remarkably, although public opinion on abortion has not moved that much over the last five decades, public support of racial intermarriage has continued to rise over the decades and is almost unanimously approving today. And public opinion of gay marriage has skyrocketed in a very short time, such that I think there is very little risk of states backtracking on those rights in the unlikely event the Supreme Court reversed its precedents on those cases.
states should
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FLERP,
I assume your life is not at risk from this extremist Supreme Court. Mine is. That’s why I am outraged. As outraged as I would be if they reversed Brown v. Board, but it’s more personal with me. My marriage would be nullified and possibly criminalized. As an American, I am beyond outraged. At you for being neutral because it doesn’t affect you. At this fool Yale Law School professor, would is pro-choice but supports an opinion that takes away choice.
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That was RBG’s view when she died. She became a strong supporter of abortion rights. She changed and you are disingenuous not to say so.
Are you implying that she would have voted for the Alito opinion?
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RBG would never have signed on to the far right radical Alito opinion, nor the totally flawed political hack argument in that opinion.
And she would have been able to easily point out the lazy intellectual reasoning in this law professor who ENDORSED BRETT KAVANAUGH because he “trusted” the guy because he went to Yale instead of actually looking at his long history of deception and misleading people.
If you want to read self-serving tripe from the guy who ENDORSED Brett Kavanaugh – this is definitely for you! But don’t insult RBG by connecting her nuanced view to this self-serving excuse written by the toadying law professor who endorsed Kavanaugh.
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Please do not accept the false narrative that Mr. Amar is some brilliant legal mind.
He famously endorsed a right wing Supreme Court Justice that Trump supported and the reasons he gave were about as idiotic as I have ever heard.
I posted more information, but because I mentioned that Justices’ name it didn’t post. So maybe this will.
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Ginsburg of course would not have signed on to Alito’s draft opinion. I mentioned her critique of Roe in response to the suggestion that anyone who thinks Roe was “wrong” must be some kind of fringe wingnut or idiot. Ginsburg herself was high critical of the Roe opinion, and many, many reputable scholars have been highly critical of it, too. These are facts. Nobody has to accept them if they’re upset by them. And even if Roe was wrong, that alone is not sufficient reason to reverse it.
Notwithstanding his views on Justice K (which I believe he moderated after learning of the accusations against him), Akil Amar is one of the most-cited constitutional scholars alive, and indeed ever. I recommend his books, which are entertaining and accessible.
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I interviewed Justice RBG before her appointment. I was aware of her critique of Roe. But half a century has passed and most women believed they had a secure right. Now many of them identify with the women of Afghanistan, whose ability to make decisions for themselves has been canceled.
As for Professor Amat, his essay in the WSJ was facile, sexist, retrograde and should have embarrassed him. In short, he’s a jerk. Let the states decide whether or not women have rights. Nowhere in the Constitution does it mention contraception or public schools or gay rights or interrracial marriage (Judge Thomas would bail on that).
This extremist Court of Originalists may decide to roll back society to the late 18th century. Professor Amat will write a fatuous book saying that he doesn’t entirely agree with rolling back so many precedents, but he understands the logic.
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His name is Amar. Law is not everyone’s cup of tea.
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There are many awful lawyers. Amar may be a good lawyer but he is clearly willing to sell out the rights of women. I have zero respect for a “lawyer” who says “I endorsed Kavanaugh,” but I’m a Democrat. “I support abortion rights” but I think it’s okay to overturn Roe v Wade.
No respect for him at all.
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FLERP!,
I bet people linked to that very same book when Akhil Amar wrote his NYT op ed that endorsed Justice K’s nomination and lavished strong praise on him.
I bet people linked to Amar’s book when he testified UNDER OATH at the hearings about how Justice K is “a studious and open-minded conservative who likes listening to and engaging with moderates and liberals” and he was under oath when he swore that K would be “a pro-intellectual and anti-polarizing force.”
And for the record, it is completely disingenuous again for anyone to use innuendo to get all of us to believe that Professor Amar ever retracted his glowing endorsing of Justice K.
AMAR DID NOT RETRACT HIS ENDORSEMENT OF JUSTICE K.
Akhil Amar did not admit to being wrong. He wanted a quick investigation into the new sexual assault evidence, and this professor was absolutely satisfied with the sham investigation that cleared Justice K.
If FLERP! can find any place where Amar actually says the words “I was wrong about K”, I would like to see it. I looked for it and nothing.
On the contrary, this “scholar” CONFIRMED his endorsement! “My endorsement of K***** is not rooted in cronyism.” he wrote on Oct. 10, 2018, after K was confirmed.
I get that when reading the writing of disingenuous people who endorse K and Alito’s Roe decision, one has to be careful not fall for their misdirection.
Amar had absolutely no criticisms of the sham FBI investigation which satisfied him completely. But in that October 10, 2018 follow-up restatement of his of his strong endorsement for K, Amar did write that “critics have argued that the scope of the FBI’s post-hearing investigation was unduly narrow.”
However Amar does not count himself among those critics. His endorsement of K was never retracted. He got the “speedy” FBI investigation he wanted and his endorsement stood.
Notwithstanding linking to his books and awards, Amar is a guy who endorsed K and then endorsed Alito’s Roe overturn. Who cares what books he wrote? He is a hack. And so are those who disingenuously try to cover up the reasons why anyone who is a real supporter of Roe would know this guy has no credibility whatsoever.
Except with folks who agree with him about K.
Why try to mislead readers AGAIN when this guy endorsed Justice K continued to endorse K even after the confirmation?
If you aren’t disingenous, you will do what Diane Ravitch does, and what I do, and simply admit you were wrong when you said that Amar retracted his K endorsement.
If you attack me instead, it speaks for itself.
And if Amar finally retracted long after it was too late to do anything, well, no doubt that will happen again when Amar retracts what he wrote in the op ed. When it is too late to do anything.
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“Notwithstanding his views on Justice K ….Akil Amar is one of the most-cited constitutional scholars alive.”
“Other than that, how was the play, Mrs. Lincoln?”
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Diane,
I just want to point out ANOTHER disingenuous right wing talking point that was posted in this discussion:
Saying that a Justice “critiqued” a Supreme Court decision is entirely different than saying that the Justice “disagreed” with that decision.
RBG gave “a detailed analysis and assessment” of the Roe decision. Which means the positive and negatives.
RBG never once suggested it had been wrongly decided and needed to be overturned.
All the right wingers (and those who help them by frequently posting right wing talking points on here) are using weasel words to INTENTIONALLY mislead the public and imply the opposite.
Lots of people – and I include myself among them – “critique” democracy. But only a lying Republican and their “helpers” that post their right wing propaganda on here would ever have the chutzpah to cite my “critique” of democracy in their far right manifesto justifying why they are overthrowing democracy.
People “critique” Supreme Court decisions all the time, and it has nothing to do with them saying there is a legal justification to overturn them.
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50 years ago, RBG worried that it was decided too soon and the nation wasn’t ready for a nationwide tolerance of abortion. As a member of SCOTUS, she always supported Roe.
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“Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”
Anyone who cites RBG to support an ANTI-woman-centered overturning of Roe is basically lying.
RBG would have prefer a woman-centered opinion in Roe, which was written by a man when there were no women on the Court. To cite her to justify a shoddily written overturning of Roe to justify a decision that is specifically ANTI-women is despicable, in my opinion.
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Slavery was legal and popular in many states. Schools are racially segregated in many states. Gun violence is completely out of control throughout this nation. It is troubling to follow this line of argument.
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Notice what is left out of this:
Mr. Amar ENDORSED BRETT KAVANAUGH for Supreme Court Justice. ENDORSED the guy who had so many red flags about his integrity — from when he worked for Ken Starr and that office leaked like crazy and worked with the little “elves” to corrupt the investigation, to his provable lies about his work in the Bush Administration during earlier confirmation hearings to his lies during the confirmation hearing.
Amar sucks up to power, just like Amy Chua does. I find the “I voted for a Democrat” about as relevant as when Eva Moskowitz said it before she made it her personal mission to make sure Betsy DeVos was confirmed.
So hearing him lecture folks to endorse a draft opinion that is the basis of overturning not just Roe, but birth control, gay marriage and a slew of other demons the Christian far right hates is really rich.
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Here is what else Mr. Amar said when he ENDORSED BRETT KAVANAUGH:
“I actually think Brett Kavanaugh is good. I think he’s the best sitting federal Republican judge under age 60. I’m an opponent of the Trump administration. This is the one most sane, most sober, most classy thing that the administration has done. So I’m participating in the game because that’s actually our constitutional system. Once the Republicans won both the presidency and the Senate, they get the court.”
Anyone think it would be useful to know that this guy is a hack? As usual, the WSJ includes only the information that gives this guy credibility and conveniently leaves out the major information that would tell readers about his very poor judgement.
Sorry, but RBG would be appalled by this so-called “scholar”.
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Diane,
Your outrage is completely understandable. This scholar’s vapid reasoning when he endorsed a certain right wing beer-drinking Justice has been called out in the past. And there was an excellent article in Slate:
“And yet, left-leaning Yale Law professor Akhil Reed Amar thinks that Democrats ought to support him. In a New York Times op-ed published just after Trump announced Kavanaugh’s nomination in prime time, Amar—who assures readers he “strongly supported Hillary Clinton” during the 2016 election—argues that his former student is an impeccably credentialed scholar of legal history and “a superb nominee” who deserves “ninetysomething votes.”
” a piece like Amar’s at worst reeks of the amoral Ivy League clubbiness that still defines the upper reaches of the legal world and at best is simply naive.
“The most cynical reading of a piece like Amar’s is that it’s just another example of how top lawyers and law professors tend to look out for their own out of professional self-interest. There’s lots of back scratching and careerism in the legal world, and perpetuating the idea that going to Harvard or Yale and and doing a stint at a prestigious law firm or White House post qualifies you for the bench regardless of your beliefs is good for Harvard and Yale graduates. Amar might not be consciously thinking in those terms, but that’s the culture of elite law.”
“A long time ago, there might have been a tenuous bipartisan agreement against overly politicizing the Supreme Court. But it’s been rotting away for years now, and whatever was left of it died the moment Mitch McConnell decided he would not even give Barack Obama’s last nominee a hearing. At this point, voting for the other party’s pick without a really good reason that serves the interests of your own voters is not just a stamp of approval for that individual, but amounts to endorsing the entire game Republicans have decided to play. The fact that Kavanaugh likes to read constitutional history and “has sent more of his law clerks to clerk for the justices of the Supreme Court” than anyone but Garland is not a really good reason. That an esteemed law professor like Amar doesn’t understand that suggests that he’s living in the past.”
Amar is STILL living in his clubby little world in the past.
And I need to make a correction. Buried in the 27th or 28th paragraph – in the 2nd to last paragraph – is a very short acknowledgement that Amar endorsed the right wing Justice.
But of course that very pertinent information is buried and what is amplified by Amar and the person who posted it is his supposedly sterling liberal credentials. RBG herself would agree! NOT.
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https://slate.com/news-and-politics/2018/07/the-liberal-case-for-brett-kavanaugh-is-complete-garbage.html
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For Diane, and anyone else who wants to read an excellent critique of the very flawed Yale professor’s essay, I recommend this:
“‘Trust Me, I’m A Liberal Man, Which Is Why I’m Writing In The Wall Street Journal That Women Don’t Have Reproductive Rights’
From Above the Law, 5/16/22
“Yale Law School’s Akhil Reed Amar took to the pages of the Wall Street Journal to gently explain why Samuel Alito’s leaked Dobbs draft is entirely reasonable and legal. And you can believe him too because, as the Wall Street Journal editors gleefully note in the article’s sub-heading, Professor Amar is a “pro-choice Democrat.”
WELL THEN!
As the professor concludes that the Constitution never protected reproductive rights to begin with and that “there is nothing radical, illegitimate or improperly political in what Justice Alito has written.” It’s a bizarre take on its merits, because as many have noted, there were innumerable paths Alito’s draft could walk to gut Roe without disrupting the whole concept of settled precedent by claiming the case was wrong when decided off the strength of a 17th century opinion letter from the guy who invented the spousal rape exception. Alito’s draft opinion didn’t cast Roe as an overreach as opposed to other constitutionally protected rights, but instead built out the intellectual infrastructure for future assaults on everything from marriage equality to contraceptives.”
…..
“Amar’s claim that contraception and interracial marriage are safe “because the freedoms recognized in these cases were ‘deeply rooted in the Nation’s history and tradition’” is certainly news to historians. That his defense of LGBTQ rights is that it’s fundamentally a gender equality issue (which reproductive rights… aren’t?) and that — I’m not making this up — “Later drafts of Justice Alito’s opinion will likely need to take equality issues more seriously” borders on the horrific.
In the context of this op-ed, it’s akin to saying, “I’m an aeronautics expert and I wholeheartedly endorse the safety of this plane… though later models will likely need to include wings.”
……
“It might be that these law professors aren’t really liberal to begin with. Or it might be that their liberalism only extends to the issues they’ve decided matter to them.
I guess we’ll find out if the Court ever goes far enough that we see one of these op-eds titled “Whoops, I Did NOT See That One Coming.”
Subtitle, of course, “But here’s why I still think we should give this Court the benefit of the doubt.”
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^^^
https://abovethelaw.com/2022/05/trust-me-im-a-liberal-man-which-is-why-im-writing-in-the-wall-street-journal-that-women-dont-have-reproductive-rights/
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Thanks, NYCPSP.
The essay by Yale Professor Amil was revolting.
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I know. And in my opinion, it is equally revolting for someone to present this article as coming from “a constitutional scholar and pro-choice Democrat” while leaving out the writer’s EXTREMELY suspect history.
How much credibility would any of us given this article if it had been posted here with the introduction:
“The same scholar who said he was a Democrat when he wrote a huge NYT op ed endorsement of Brett Kavanaugh’s nomination to the Supreme Court is still saying he is a Democrat when he wrote this huge WSJ op ed endorsement of Alito’s SC decision overturning Roe!”
Not only would you have very likely not wasted your valuable time reading the essay, but we would have all understood that this writer has NO CREDIBILITY whatsoever when it comes to the Supreme Court. This guy has bad judgement, period, and while one can get away with that in the Ivory Tower, the guy clearly has no credibility when he writes his right wing approved Op Eds.
It is not surprising that the same guy whose reasoning was so flawed about Kavanaugh would be just as flawed about Alito.
But the person who posted has a lot of chutpzah suggesting that RBG would not have made mincemeat out of this scholar’s history of hack op eds in which he starts with his desire to embrace a right wing Justice and then writes a lot of poorly reasoned pablum to make that right wing Justice seem reasonable.
Did we really need to know that the guy who endorsed Kavanaugh also endorses Alito’s opinion?
In my opinion, it was disingenuous to present this essay as one written by a respected pro-choice Democrat and not mention that the writer is THE VERY SAME pro-choice Democrat who wrote the NYT op ed strongly endorsing Kavanaugh.
Which means the writer is NOT credible at all when it comes to the Supreme Court. But the fact that would allow us to know he wasn’t credible was convenient buried at the very, very end of a long essay.
People who regularly endorse right wingers who turn out to be even worse than real Democrats feared have zero credibility.
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For those who believe that women’s voting rights are established legal precedent and are not under review, they should read Akhil Reed Amar’s article, “We, the men? On the founding fathers’ exclusions of wives, sisters, daughters and mothers” (NY Daily News, 7-4-2021)
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If you want to see the outcome of Alito’s tyranny, just google Savita Halapanavar or Attorney General v X (Ireland). Until a scant few years ago these were the results of Irish anti-abortion law.
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