I would point out that both sides of the Dobbs case testified that Roe should be upheld or slapped down in toto. I don’t know how much (if any) weight SCOTUS is supposed give that, but it should at least be mentioned.
The case for backlash against the decision is considerably overstated. The fight will move to state capitals, where it belongs, not on the federal level.
There isn’t much here to electrify the voters federally. You will still be able to get an abortion during the fifth trimester in California, New York, etc., where the radicals live. This isn’t going to move the needle in Alabama, SC, or Kentucky where anti-abortion sentiment is high. In purple states, they are likely to have something similar to the Mississippi law, 15 weeks or so, blunting any potential impact.
This is where weakness of polling comes into play. Although a majority wanted to keep Roe, many have no idea what the Dobbs decision did. They believe it “outlawed abortion,” which we know is not accurate. I would further mention that 7 in 10 people polled want abortion restricted to about the first 15 weeks. That is consistent with what most states will provide, far to the right of the coastal “abortion on demand” extremists.
Finally, I point to Texas which has essentially had an abortion ban for some time. No blowback there. Abbott is poised to cruise to victory.
I don't think support for the Court's decision overruling Roe is emotive. Ordinarily Chief Justice Roberts' position that the Court should have stopped with upholding Mississippi's after-15 week ban would be correct, but not here. If the Court had upheld a 15 week ban, it would have soon been confronted with a 10 week ban, and so on. A decision on Roe would have to come, and better now than constantly revisiting a deeply-flawed precedent. And contrary to what the quoted piece contends, the case presented a frontal attack on Roe. The question to be decided was "Whether all pre-viability prohibitions on elective abortions are unconstitutional," which doesn't limit consideration to the 15 week law, and the parties briefed and argued whether Roe should be overruled.
Plus, because for political reasons Alito had to fudge on same sex marriage and the old Connecticut contraception decision, each at least as poorly reasoned as Roe, he doesn't get full marks in philosophy either.
Roe was an awful decision. But I find Dennis's position appealing not only legally (because of limiting a decision to the minimum required to resolve a case) but politically. And now that abortion is once again a matter for democratic debate, "politically" is what matters.
Roe by pulling abortion out of the political arena, stuck us in philosophy class. Suddenly relevant were discussions of whether a child conceived by rape should be as protected as a child conceived consensually, or whether life begins at fertilization or implantation or whether a mother truly doomed to die if she gave birth had the same obligations as a healthy mom.
All these questions would be in order in a philosophy class but marginal to a political debate. Iin politics you get the best you can. When pro-choice person asks "would you forbid abortion in the case of rape and incest," I have always believe the right response would be "are you offering to make a deal? Are you willing to limit abortion to cases of rape or incest? If not your question is irrelevant. Tell me what you would accept."
We've been stuck at philosophy for 50 years. Now it's time for law and politics.
I would point out that both sides of the Dobbs case testified that Roe should be upheld or slapped down in toto. I don’t know how much (if any) weight SCOTUS is supposed give that, but it should at least be mentioned.
The case for backlash against the decision is considerably overstated. The fight will move to state capitals, where it belongs, not on the federal level.
There isn’t much here to electrify the voters federally. You will still be able to get an abortion during the fifth trimester in California, New York, etc., where the radicals live. This isn’t going to move the needle in Alabama, SC, or Kentucky where anti-abortion sentiment is high. In purple states, they are likely to have something similar to the Mississippi law, 15 weeks or so, blunting any potential impact.
This is where weakness of polling comes into play. Although a majority wanted to keep Roe, many have no idea what the Dobbs decision did. They believe it “outlawed abortion,” which we know is not accurate. I would further mention that 7 in 10 people polled want abortion restricted to about the first 15 weeks. That is consistent with what most states will provide, far to the right of the coastal “abortion on demand” extremists.
Finally, I point to Texas which has essentially had an abortion ban for some time. No blowback there. Abbott is poised to cruise to victory.
I don't think support for the Court's decision overruling Roe is emotive. Ordinarily Chief Justice Roberts' position that the Court should have stopped with upholding Mississippi's after-15 week ban would be correct, but not here. If the Court had upheld a 15 week ban, it would have soon been confronted with a 10 week ban, and so on. A decision on Roe would have to come, and better now than constantly revisiting a deeply-flawed precedent. And contrary to what the quoted piece contends, the case presented a frontal attack on Roe. The question to be decided was "Whether all pre-viability prohibitions on elective abortions are unconstitutional," which doesn't limit consideration to the 15 week law, and the parties briefed and argued whether Roe should be overruled.
Plus, because for political reasons Alito had to fudge on same sex marriage and the old Connecticut contraception decision, each at least as poorly reasoned as Roe, he doesn't get full marks in philosophy either.
Roe was an awful decision. But I find Dennis's position appealing not only legally (because of limiting a decision to the minimum required to resolve a case) but politically. And now that abortion is once again a matter for democratic debate, "politically" is what matters.
Roe by pulling abortion out of the political arena, stuck us in philosophy class. Suddenly relevant were discussions of whether a child conceived by rape should be as protected as a child conceived consensually, or whether life begins at fertilization or implantation or whether a mother truly doomed to die if she gave birth had the same obligations as a healthy mom.
All these questions would be in order in a philosophy class but marginal to a political debate. Iin politics you get the best you can. When pro-choice person asks "would you forbid abortion in the case of rape and incest," I have always believe the right response would be "are you offering to make a deal? Are you willing to limit abortion to cases of rape or incest? If not your question is irrelevant. Tell me what you would accept."
We've been stuck at philosophy for 50 years. Now it's time for law and politics.