Why does Alito claim that Roe was "egregiously wrong from the start?"

[Anonymous]

I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

[Anonymous]

There aren’t any. He’s a religious whack job who is incapable of his job. He’s there to mete out religious fundamentalist decisions.

If you want the “legal” underpinnings, get ready for some Catholic dogma because that’s all it is.

[Anonymous]

Anonymous wrote:There aren’t any. He’s a religious whack job who is incapable of his job. He’s there to mete out religious fundamentalist decisions.

If you want the “legal” underpinnings, get ready for some Catholic dogma because that’s all it is.

Yes, this is religious organizations campaigning for decades to force their religious beliefs on others.

[Anonymous]

https://www.latimes.com/politics/story/2022-05-03/how-roe-vs-wade-went-wrong-broad-new-right-to-abortion-rested-on-a-shaky-legal-foundation

[Anonymous]

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

[Anonymous]

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

[Anonymous]

IMo, Alito says that Roe is a “bad decision” because he is parroting the criticism of tbe decision since Day 1, which in turn was made because saying Roe is bad law (as in intellectually poor argument) is more permissible than being perceived as a misogynist because you think women shouldn’t have this right.

The bottom line for me (as someone who is a lawyer). Roe is perfectly fine law. It builds on earlier case law (Griswold, Loving and other) and subsequent cases are built on the same principles as Roe (Obergefall, etc.). It’s consistent with a post-Civil War concept that the lack of control over reproduction and family life was a fundamental aspect of slavery, the correction of which was part of the purpose of the 14th amendment.

What people criticize as Roe being “legislative” is nothing more than a concept of protecting the basic rights of women against the state interest in legislating to protect health. Balancing is not unusual in case law, and the court did not set out specifics - which we know is true because of all of the legislating that has been done since.

I personally think it is inappropriate to allow women’s fundamental civil rights to be controlled by the vote in each state - SCOTUS and the Constitution has always been the place to seek basic rights enjoyable nationwide.

The problem for an oppressed minority (and women are still oppressed in many ways and even if the majority in number are still the minority in power) is that the oppressors make it difficult to vote one’s way out of oppression and into accession to fundamental rights.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

Fundamentally incorrect reading of the decision. And lets get real. That is not his intent. And that is not who he is. He personally is reactionary and right wing fanatic who is out of touch with reality. Former federal clerk here.

[Anonymous]

Term 2 W wasn't gonna appoint anyone who wasn't a religious zealot.

Let's be serious here.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

Fundamentally incorrect reading of the decision. And lets get real. That is not his intent. And that is not who he is. He personally is reactionary and right wing fanatic who is out of touch with reality. Former federal clerk here.

highly doubt you clerked for a federal judge, dp

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

Can you provide some more detail/citation about Roe’s historical analysis being incorrect?

Also, FWIW, I think Alito (and his majority) is being very disingenuous when saying Dobbs overturning Roe would be limited because it is factually distinguished by life. In fact, pro-life people believe that “life” begins at fertilization, which can be a couple of days before implantation in the uterus. This conception of the beginning of life could result in outlawing all hormonal and IUD forms of birth control because the pro-life people describe them as causing the abortion of a fertilized egg (hormonal are the most effective forms) and all post-intercourse forms of birth control (Plan B and Ella). The “life” concept means that states could completely ban abortion without any exceptions not even for the life of the mother. It means that states could regulate and criminalize pregnant women’s behavior in all kinds of ways in order to protect the “life” she carries. Practically speaking, because early pregnancy is not easily distinguishable such regulation would probs affect non-pregnant women as well.

Also, it is very clear that Alito is laying groundwork for a future Lochner-style realignment in SCOTUS case law in order to invalidate the whole line of cases stemming from the 14th amendment or claiming “implicit rights” (the marriage and contraception cases). It has long been the Republican/strict constructionist view that the Constitution only protects what it explicitly mentions and any rights not explicitly mentioned need to be legislated by the state or Congress or need to have a constitutional amendment. In this view construction of the meaning of the Constitution is only possible within the context of what the Founders believed at the time of drafting. This is why Alito is using history to justify his decision (distorted and inaccurate as that history is).

If you believed “Roe is precedent” meant Roe would not be overruled, then OK - yeah - you can choose to believe Dobbs is only about “life” and won’t affect these other cases.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

It’s a one sentence disclaimer that is tacked on. Not clear at all. And- as a follow up- Abbott wants plyer v. doe to be revisited based on this court brief. If we are going back to the 1860s in one aspect of the law, thrn that applies to other areas as well. things like the right to an education for migrant children is up for debate because that’s not in the historical record or “deeply rooted”. Wong Kim Ark (natural born citizenship) is as well. Republicans would like to get rid of both of those as well.

[Anonymous]

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:

Anonymous wrote:I'm not sure if this should be merged into one of the other threads, but I am, as a non-lawyer, looking for an explanation of the legal underpinnings of the objections to Roe. I have heard over the last few days that even some liberal law professors admit, while favoring the outcome, that the legal reasoning behind Roe was shaky and the law was always therefore in jeopardy. Can someone explain the actual legal objections to Roe v. Wade?

I’m not a lawyer, but I read the brief. My takeaways- abortion rights are based on the Ninth and Fourteenth Amendments. Alito doesn’t touch the Ninth at all. He deals with the Fourteenth by arguing that in 1860s, states did not allow abortion (most after quickening, some prior) so the Fourteenth cannot be used to argue that reproductive rights have any basis under the Equal protection clause. He quotes frequently from an English jurist who oversaw English witch trials in the 1700s and was known to be deeply misogynistic.

In addition to reproductive freedom, he goes on to cite other rights that he argues are not historically relevant to the 14th: freedom to marry someone of your choosing, freedom to choose contraception, freedom from involuntary surgery or sterilization, contraception. Basically arguing that if you are a woman or gay or disabled, the rights we ascribe to the 14th don’t really apply to you because it didn’t occur in 1860. Which is why this is such a radical decision.

What I think a lot of people don’t understand is that a 5-4 decision will change just the one aspect of the law, but the language of the brief is what gets used as citation and support for future cases. SCOTUS relies on briefs of one case to build the argument for the next case. Alito questions why the constitutional rights of the fetus should depend on geography (part of the viability argument). It’s the basis of a future SCOTUS ruling over the constitutionality of a nationwide ban.

I am a lawyer who clerked for a federal appellate judge. This is not entirely correct. Roe's historical analysis was incorrect and the difference between Roe and the cases dealing with marriage (e.g. anti-miscegenation cases like Loving v. Virginia) is that Roe dealt with the "potential of life." Alito's opinion is quite clear these marriage cases have nothing to do with potential life.

Can you provide some more detail/citation about Roe’s historical analysis being incorrect?

Also, FWIW, I think Alito (and his majority) is being very disingenuous when saying Dobbs overturning Roe would be limited because it is factually distinguished by life. In fact, pro-life people believe that “life” begins at fertilization, which can be a couple of days before implantation in the uterus. This conception of the beginning of life could result in outlawing all hormonal and IUD forms of birth control because the pro-life people describe them as causing the abortion of a fertilized egg (hormonal are the most effective forms) and all post-intercourse forms of birth control (Plan B and Ella). The “life” concept means that states could completely ban abortion without any exceptions not even for the life of the mother. It means that states could regulate and criminalize pregnant women’s behavior in all kinds of ways in order to protect the “life” she carries. Practically speaking, because early pregnancy is not easily distinguishable such regulation would probs affect non-pregnant women as well.

Also, it is very clear that Alito is laying groundwork for a future Lochner-style realignment in SCOTUS case law in order to invalidate the whole line of cases stemming from the 14th amendment or claiming “implicit rights” (the marriage and contraception cases). It has long been the Republican/strict constructionist view that the Constitution only protects what it explicitly mentions and any rights not explicitly mentioned need to be legislated by the state or Congress or need to have a constitutional amendment. In this view construction of the meaning of the Constitution is only possible within the context of what the Founders believed at the time of drafting. This is why Alito is using history to justify his decision (distorted and inaccurate as that history is).

If you believed “Roe is precedent” meant Roe would not be overruled, then OK - yeah - you can choose to believe Dobbs is only about “life” and won’t affect these other cases.

I get it, but what’s so wrong in legislating abortion rights? Oh, yeah, you won’t get is through congress or most state legislatures.

[Anonymous]

Regarding Roe’s historical analysis bring incorrect-

Alito pulls almost exclusively from state law at the time, ministers, and a 17th century jurist known for trying witches. States may have had laws on the books, but these were often for pregnancies after quickening. Abortion was quite commonplace and tacitly accepted. It was referred to however as bringing on a woman’s cycle if obstructed.” All women (including ACB) know there’s a long historical record of folk wisdom, midwifery, prevention strategies, and tinctures for ending a pregnancy even if it was not state sanctioned in 1868.

[Anonymous]

Anonymous wrote:IMo, Alito says that Roe is a “bad decision” because he is parroting the criticism of tbe decision since Day 1, which in turn was made because saying Roe is bad law (as in intellectually poor argument) is more permissible than being perceived as a misogynist because you think women shouldn’t have this right.

The bottom line for me (as someone who is a lawyer). Roe is perfectly fine law. It builds on earlier case law (Griswold, Loving and other) and subsequent cases are built on the same principles as Roe (Obergefall, etc.). It’s consistent with a post-Civil War concept that the lack of control over reproduction and family life was a fundamental aspect of slavery, the correction of which was part of the purpose of the 14th amendment.

What people criticize as Roe being “legislative” is nothing more than a concept of protecting the basic rights of women against the state interest in legislating to protect health. Balancing is not unusual in case law, and the court did not set out specifics - which we know is true because of all of the legislating that has been done since.

I personally think it is inappropriate to allow women’s fundamental civil rights to be controlled by the vote in each state - SCOTUS and the Constitution has always been the place to seek basic rights enjoyable nationwide.

The problem for an oppressed minority (and women are still oppressed in many ways and even if the majority in number are still the minority in power) is that the oppressors make it difficult to vote one’s way out of oppression and into accession to fundamental rights.

Shout this from the rooftops!!!