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

[Anonymous]

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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

I think Pp. 62 of the draft Dobbs v. Jackson Women's Health Decision is pretty clear: "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." I also highlight doubt the poster clerked for a federal judge.

If you think Alito's views on changes in society are limited to abortion, you are not listening to him. Yes, I read that sentence. It means nothing. Alito and Thomas in their arrogance have no respect for precedent and both assume that their views are correct.

lol, love all the fake lawyers who clerked for fake judges opinion on legal facts

Read the draft opinion. Abortion isn't a right according to him because it's not deeply rooted in our history. The draft opinion lists a long line of cases--including the cases establishing the right to marry someone of a different race, right to birth control, right to not undergo forced sterilization, right to same sex marriage-- and ends the paragraph with "None of these rights has any claim to being deeply rooted in history."

What the hell is he talking about, not rooted in our history? Abortions were commonplace and legal in the US with no laws banning it until the 1880s. Drugs to induce abortion were widely sold over the counter. No American church condemned the practice of abortion until 1869. It was really just the period of 1880-1973 where abortion was infringed on by laws, less than a quarter of modern American history.

Because Alito is picking and choosing history that reflects his opinion.

I believe Ben was in the room, while Matthew Hale was not. Other than George, Ben was the indispensable founder.

https://slate.com/news-and-politics/2022/05/ben-franklin-american-instructor-textbook-abortion-recipe.html

[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.

What is bizarre is how these right wing Justices who claim to be strict constructionist treat the Bible which they claim to respect, even though the Bible has multiple references in support of slavery, etc. The end result is that these strict constructionist are similar, except in degree, to the fundamentalist Muslims who have backward views of the world.

[Anonymous]

You guys know that liberal justices who wanted to support abortion upheld Roe but on a completely different theory in Casey, right? Because no law professor outside New Haven even pretends to support Roe anymore.

Oh, wait, you don’t know what you’re talking about? I’m stunned.

[Anonymous]

Anonymous wrote:

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.

What is bizarre is how these right wing Justices who claim to be strict constructionist treat the Bible which they claim to respect, even though the Bible has multiple references in support of slavery, etc. The end result is that these strict constructionist are similar, except in degree, to the fundamentalist Muslims who have backward views of the world.

+1 They are all religious fascists

[Anonymous]

Anonymous wrote:You guys know that liberal justices who wanted to support abortion upheld Roe but on a completely different theory in Casey, right? Because no law professor outside New Haven even pretends to support Roe anymore.

Oh, wait, you don’t know what you’re talking about? I’m stunned.

+1

[Anonymous]

Anonymous wrote:

Anonymous wrote:You guys know that liberal justices who wanted to support abortion upheld Roe but on a completely different theory in Casey, right? Because no law professor outside New Haven even pretends to support Roe anymore.

Oh, wait, you don’t know what you’re talking about? I’m stunned.

+1

Do any of them support eliminating unenumerated rights? Do any of them think that rights don't exist and that liberties are given by the government to the people? No, they don't. That's all Alito, Thomas, Gorsuch, Barrett and probably Kavanaugh.

[Anonymous]

Anonymous wrote:You guys know that liberal justices who wanted to support abortion upheld Roe but on a completely different theory in Casey, right? Because no law professor outside New Haven even pretends to support Roe anymore.

Oh, wait, you don’t know what you’re talking about? I’m stunned.

The Alito draft says "We hold that Roe and Casey must be overruled."

Roe's trimester framework was thrown out by Casey, but the substantive due process right of a woman to make her own reproductive choices is still intact.

That is the heart of Roe.