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The issue is that the decision was not final; Chief Justice Roberts was still trying to persuade other justices to adopt a split-the-difference decision (uphold

by not2b 4y ago

The issue is that the decision was not final; Chief Justice Roberts was still trying to persuade other justices to adopt a split-the-difference decision (uphold the 15-week law but don't kill Roe v Wade). Justices have switched sides before. Leaking it could kill any quiet negotiations. There was a second leak after the first one about this (about Roberts' position). So someone on the hard-line anti-abortion side had a motivation to do the leak.

hooande 4y ago
They would have to be very convinced that someone was going to flip. And even then there's a good chance that the wavering Justice would see this as a ploy the same as you do, and take offense.
- JumpCrisscross 4y ago
  > would have to be very convinced that someone was going to flip The only element making me question the amateurishness of this leak is its timing, on the eve of bellwether primaries.
masklinn 4y ago
> The issue is that the decision was not final Wasn't it? From the descriptions I've seen of the process, the decision draft starts circulating once the decision has been taken. The language can be softened or hardened, but from what I understand here Roe would be dead regardless. I'd think the possible changes would have been with respect to the "blast radius" aka the references to (and explicit targeting of) Obergefell, Lawrence, Eisenstadt.
- aw1621107 4y ago
  As far as I know the decision isn't necessarily final after the initial vote following arguments. A prominent example of this is National Federation of Independent Business v. Sebelius, where Chief Justice Roberts was reported to have initially voted to strike down individual mandate of the Affordable Care Act (a.k.a. Obamacare), but later changed his mind.
  - not2b 4y ago
    Yes, this is exactly what I meant when I said that justices have switched sides before. I understand that there was a draft opinion overturning the ACA when Roberts switched sides, though I'm not certain how complete it was.
  - cudgy 4y ago
    In fact, knowing how and why these opinions change during this phase could be quite illustrative and interesting. Would also be interesting to see if Roberts received a windfall during his deliberations. Insurance companies surely appreciate the individual mandates … it’s the closest thing to printing money they could achieve. Earlier today I heard someone state that historically the Supreme Court rules in favor of the large corporate interests. My thought at the time was it did not make sense, since technically supreme court justices are beholden to Noone. What explains this bias on the part of the Supreme Court, if it truly exist?
    - cortesoft 4y ago
      They are beholden to no one AFTER they are appointed. They are only appointed, however, if their views match the people who are doing the appointing, who are beholden to many.
      - cudgy 4y ago
        Yet there are numerous examples of justices not rendering opinions meeting their appointee’s expectations. Many of these justices serve for decades which is plenty of time for any human to change their viewpoints.
      - rascul 4y ago
        > They are beholden to no one AFTER they are appointed. Article V of the US constitution makes them ultimately beholden to the states. It describes how the constitution can be amended. Such an amendment can possibly threaten the supreme court. Seems very unlikely to happen, though.
- rayiner 4y ago
  Overruling a case isn’t an all-or-nothing thing. Upholding Mississippi’s 15-week ban would simply require the Court to acknowledge that Roe’s protection of elective second trimester abortions turned out to be an error that continues to defy international norms and attract public opposition. Overruling that part of Roe doesn’t require a meandering rant about abortion rights writ large.
  - ss108 4y ago
    International norms?
    - deleted 4y ago
      [deleted]
    - Buge 4y ago
      According to [1], in 1973, Roe v. Wade said abortion is legal US-wide at 27/28 weeks and earlier, then in 1992, Planned Parenthood v. Casey said abortion is legal US-wide at 22/23/24 weeks and earlier. I'm not exactly sure whether the ages are inclusive or exclusive or how rounding/truncating works with the ages, which is why I made them fuzzy with the slashes. According to [2], there are 203 countries listed. I'll look at "on request" abortions. * North Korea is marked "unclear". * 6 allow abortion at 23 weeks (24 weeks is also an identical list): China, Colombia, Netherlands, Singapore, South Korea, South Ossetia * 2 additional allow abortion at 22 weeks: Iceland, Vietnam * 191 ban abortion at 22 weeks. * Australia ranges from completely prohibited to no limit, depending on region. * Canada ranges from 12 weeks and 6 days to 24 weeks and 6 days depending on region. * United states ranges from (ignoring the recent laws that prompted the ongoing cases) 20 weeks to no limit depending on region. [1] https://en.wikipedia.org/wiki/Roe_v._Wade#Planned_Parenthood_v._Casey https://en.wikipedia.org/wiki/Roe_v._Wade#Planned_Parenthood... [2] https://en.wikipedia.org/wiki/Abortion_law#Independent_countries https://en.wikipedia.org/wiki/Abortion_law#Independent_count...
      - ss108 4y ago
        Interesting, thanks. I feel like nobody brings up other countries when it comes to abortion, but the context seems pretty helpful (as it is for most issues, I suppose). Esp since, looking at Australia and Canada, people get on and tolerate internal divergences, and maybe we should too. I suppose is it's because they accept that their federalism is much less centralized than ours.
- dillondoyle 4y ago
  100% I think this is blind wishful thinking. Roe was dead the second Republicans got their justices. How could one know about the history and beliefs of these justices, hear their questioning, see who has pushed them onto the bench, read their speeches, hell seen that their significant other believes in q crazy, and yet somehow think they'll change their mind or find some reasonable compromise. You are correct in the danger of this blast radius. This is TERRIFYING to me. I'm skeptical here that this leak any differences though in that: How can they make this ruling otherwise? What changes could they make that don't set a scary and dangerous precedent? without just flat out telling their truth that this is a religious decision and giving fetus' rights greater than actual living humans. Their argument rests on their narrow view of "deeply rooted in the Nation’s history and traditions." If that is the logic, as you say, what is left to protect states from outlawing gay marriage, contraception, anal sex, and SOOOO much more. What moderation could be added to this draft on this fundamental issue? It's disgusting to me that they argue they are making some ethical stand to overturn 'egregious' decision equating this to Plessy, using this historical traditions argument. We all know what the constitution actually did say and even worse the practices of the time. What does history and traditions even mean too. It's obvious to me and not even slightly veiled. Hint it probably doesn't include indigenous history or the history of any non-white, wealthy, christian males in power, nor any traditions created or changed within the last 50 years. Because if the standard is the status quo of 200 years ago, they will either let a few extreme states say no to basically every right we have lived for the last 100+ years OR they will just be hypocritically veiling their true reasoning.
  - Buge 4y ago
    >this is a religious decision and giving fetus' rights greater than actual living humans. How is that? There still would be no federal law against killing fetuses, whereas there is a federal law against killing born people.
    - Brybry 4y ago
      It doesn't really have to do with a law (which is a large part of the issue, the dysfunction of congress forces these controversies). It's about unenumerated rights and interpretation of liberty under the 14th Amendment. > nor shall any State deprive any person of life, liberty, or property, without due process of law So in the past the court said liberty includes a right to privacy, which also includes things like having a right to buy and use contraceptives (Griswold v. Connecticut). This was extended to include women having a right to an abortion, with some qualifiers (the right was not unlimited, it said states did have some interest in protecting both the mother's health and fetus health). The current court decision says that, while those other unenumerated rights have been found, they're different because they don't involve an "unborn human being".[1] Thus they imply that a few cells (under some state laws this would be from the moment of fertilization) have rights that supersede (or at least conflict) with an actual person's right to have their liberty protected from the State. The Louisiana state legislature has a bill introduced right now that seems to make abortion homicide, both for the mother who receives the abortion and anyone who administers it. [2][3] [1] https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf https://s3.documentcloud.org/documents/21835435/scotus-initi... [2] https://www.legis.la.gov/legis/ViewDocument.aspx?d=1276214 https://www.legis.la.gov/legis/ViewDocument.aspx?d=1276214 [3] https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_da97f936-cbf8-11ec-b752-c346925ba701.html https://www.theadvocate.com/baton_rouge/news/politics/legisl...
zerocrates 4y ago
The opinion piece from about a week ago in the Wall Street Journal reporting this wavering on the margins of the conservative bloc points to a more normal, less unprecedented type of leak. So then, one view is that the leak of the draft is just a continuation of that effort to hold the line on the full overturning, and that view seems pretty sensible. On the other hand, what to make of the fact that the leak goes to Politico and not somewhere like the Journal? Do you instead see it as a disgruntled partisan opponent trying to counter the likely leaks that led to the WSJ piece? Or simply a minor smokescreen? I don't think there's any reasonable basis to be particularly sure either way. My gut leans toward the leak having come from the "overturn Roe" camp, but I think most peoples' "gut" on this is pretty highly correlated with their personal views on the topic.
- datavirtue 4y ago
  The court's top priority, shared by everyone there, is to remain credible. I entertain the possibility that it was leaked to test the public response. So they could make a decision that would be popular (bolster their credibility and appear authoritative). My opinion is that this issue is too contentious and should have been ignored by the court and the entire problem deferred to Congress...but then that expels the court's credibility capital. They can't resist the occasion for authority and pomp. My biased opinion out of the way, I think a growing population of the body politic feels the Supreme Court takes on too much (way out of its lane), and Congress likes to be able to dodge contencious issues (happy to have the court insulate them) and then soapbox after the fact. Waffling on long standing pivotal precident after 50 years smacks of a brewing revolution--in any society. In the words of my sweet little apolitical wife (and mother) after expressing surprise at seeing her participate in discussions about this on facebook: "They are fucking with the wrong people."
  - zerocrates 4y ago
    Well one main issue for the court is that, having weighed in with Roe and its successors, they can't help being still involved one way or the other now. More broadly, the ongoing total dysfunction of Congress (and/or the entire political system) has meant both parties have increasingly turned to the relatively-functional court to get their wins. The fact, at least historically, that Supreme Court precedents are seen as quite durable is another factor weighing in favor of the court's involvement. The insulating effect on the politicians is a good point, too. There's also I think the factor that both parties have found it convenient for the Supreme Court to be very powerful and involved in lots of issues just as a motivational factor for their bases: the dialogue around presidential and senatorial races now routinely revolve around Supreme Court appointments as maybe the only important issue.
alsetmusic 4y ago
There's an excellent podcast (What Roman Mars Can Learn About Con[stitutional] Law) with Roman Mars (of 99% Invisible) and Elizabeth Joh (of UC Davis) that discussed many aspects of this leak and potential ruling here.[0] They discussed the potential value in an anti-Roe-side leak. It may hold justices to an early decision. I'll let Ms Joh make the case better than I could. [0]: https://learnconlaw.com/63-the-leaked-draft https://learnconlaw.com/63-the-leaked-draft
- usrn 4y ago
  The domain name "jewishrallyforabortionjustice.org" was registered two weeks before the leak and points at a page protesting the ruling. The leak was coordinated and intentional by an anti-states-rights group.
  - olsonjeffery 4y ago
    States rights, that old chestnut we only ever hear about when someone wants to maintain control of other peoples bodies (slavery and abortion, included). Also, why are you mentioning “ jewishrallyforabortionjustice” completely unprompted?
    - usrn 4y ago
      It's the only protest I know of that seems to have been planned two weeks before the leak was public, which strongly indicates these people are involved. That they're jewish is incidental and they seem to be inclusive. And no, states rights isn't about giving people control over other's bodies: it's about maintaining consensus and self determination. Last year people were talking about states rights to prevent from being forced to take a medical treatment they didn't want.
      - olsonjeffery 4y ago
        > It's the only protest I know of that seems to have been planned two weeks before Who are you trying to convince with this weak argument? Is the fact that it was anticipated in advance somehow invalidating? Nothing you assert follows from what you’ve proffered (separate from the fact that what you assert is wrong). > Last year people were talking about state's rights to prevent from being forced to take a medical treatment they didn't want. Oh, so you mean another thing that most people agree with (compulsory vaccination to participate in society) being made into an issue so an rejectionist core can throw a tantrum and get lots of people killed along the way?

by not2b 4y ago

hooande 4y ago

They would have to be very convinced that someone was going to flip. And even then there's a good chance that the wavering Justice would see this as a ploy the same as you do, and take offense.

JumpCrisscross 4y ago
> would have to be very convinced that someone was going to flip The only element making me question the amateurishness of this leak is its timing, on the eve of bellwether primaries.

masklinn 4y ago

> The issue is that the decision was not final Wasn't it? From the descriptions I've seen of the process, the decision draft starts circulating once the decision has been taken. The language can be softened or hardened, but from what I understand here Roe would be dead regardless. I'd think the possible changes would have been with respect to the "blast radius" aka the references to (and explicit targeting of) Obergefell, Lawrence, Eisenstadt.

aw1621107 4y ago
As far as I know the decision isn't necessarily final after the initial vote following arguments. A prominent example of this is National Federation of Independent Business v. Sebelius, where Chief Justice Roberts was reported to have initially voted to strike down individual mandate of the Affordable Care Act (a.k.a. Obamacare), but later changed his mind.
- not2b 4y ago
  Yes, this is exactly what I meant when I said that justices have switched sides before. I understand that there was a draft opinion overturning the ACA when Roberts switched sides, though I'm not certain how complete it was.
- cudgy 4y ago
  In fact, knowing how and why these opinions change during this phase could be quite illustrative and interesting. Would also be interesting to see if Roberts received a windfall during his deliberations. Insurance companies surely appreciate the individual mandates … it’s the closest thing to printing money they could achieve. Earlier today I heard someone state that historically the Supreme Court rules in favor of the large corporate interests. My thought at the time was it did not make sense, since technically supreme court justices are beholden to Noone. What explains this bias on the part of the Supreme Court, if it truly exist?
  - cortesoft 4y ago
    They are beholden to no one AFTER they are appointed. They are only appointed, however, if their views match the people who are doing the appointing, who are beholden to many.
    - cudgy 4y ago
      Yet there are numerous examples of justices not rendering opinions meeting their appointee’s expectations. Many of these justices serve for decades which is plenty of time for any human to change their viewpoints.
    - rascul 4y ago
      > They are beholden to no one AFTER they are appointed. Article V of the US constitution makes them ultimately beholden to the states. It describes how the constitution can be amended. Such an amendment can possibly threaten the supreme court. Seems very unlikely to happen, though.
rayiner 4y ago
Overruling a case isn’t an all-or-nothing thing. Upholding Mississippi’s 15-week ban would simply require the Court to acknowledge that Roe’s protection of elective second trimester abortions turned out to be an error that continues to defy international norms and attract public opposition. Overruling that part of Roe doesn’t require a meandering rant about abortion rights writ large.
- ss108 4y ago
  International norms?
  - deleted 4y ago
    [deleted]
  - Buge 4y ago
    According to [1], in 1973, Roe v. Wade said abortion is legal US-wide at 27/28 weeks and earlier, then in 1992, Planned Parenthood v. Casey said abortion is legal US-wide at 22/23/24 weeks and earlier. I'm not exactly sure whether the ages are inclusive or exclusive or how rounding/truncating works with the ages, which is why I made them fuzzy with the slashes. According to [2], there are 203 countries listed. I'll look at "on request" abortions. * North Korea is marked "unclear". * 6 allow abortion at 23 weeks (24 weeks is also an identical list): China, Colombia, Netherlands, Singapore, South Korea, South Ossetia * 2 additional allow abortion at 22 weeks: Iceland, Vietnam * 191 ban abortion at 22 weeks. * Australia ranges from completely prohibited to no limit, depending on region. * Canada ranges from 12 weeks and 6 days to 24 weeks and 6 days depending on region. * United states ranges from (ignoring the recent laws that prompted the ongoing cases) 20 weeks to no limit depending on region. [1] https://en.wikipedia.org/wiki/Roe_v._Wade#Planned_Parenthood_v._Casey https://en.wikipedia.org/wiki/Roe_v._Wade#Planned_Parenthood... [2] https://en.wikipedia.org/wiki/Abortion_law#Independent_countries https://en.wikipedia.org/wiki/Abortion_law#Independent_count...
    - ss108 4y ago
      Interesting, thanks. I feel like nobody brings up other countries when it comes to abortion, but the context seems pretty helpful (as it is for most issues, I suppose). Esp since, looking at Australia and Canada, people get on and tolerate internal divergences, and maybe we should too. I suppose is it's because they accept that their federalism is much less centralized than ours.
dillondoyle 4y ago
100% I think this is blind wishful thinking. Roe was dead the second Republicans got their justices. How could one know about the history and beliefs of these justices, hear their questioning, see who has pushed them onto the bench, read their speeches, hell seen that their significant other believes in q crazy, and yet somehow think they'll change their mind or find some reasonable compromise. You are correct in the danger of this blast radius. This is TERRIFYING to me. I'm skeptical here that this leak any differences though in that: How can they make this ruling otherwise? What changes could they make that don't set a scary and dangerous precedent? without just flat out telling their truth that this is a religious decision and giving fetus' rights greater than actual living humans. Their argument rests on their narrow view of "deeply rooted in the Nation’s history and traditions." If that is the logic, as you say, what is left to protect states from outlawing gay marriage, contraception, anal sex, and SOOOO much more. What moderation could be added to this draft on this fundamental issue? It's disgusting to me that they argue they are making some ethical stand to overturn 'egregious' decision equating this to Plessy, using this historical traditions argument. We all know what the constitution actually did say and even worse the practices of the time. What does history and traditions even mean too. It's obvious to me and not even slightly veiled. Hint it probably doesn't include indigenous history or the history of any non-white, wealthy, christian males in power, nor any traditions created or changed within the last 50 years. Because if the standard is the status quo of 200 years ago, they will either let a few extreme states say no to basically every right we have lived for the last 100+ years OR they will just be hypocritically veiling their true reasoning.
- Buge 4y ago
  >this is a religious decision and giving fetus' rights greater than actual living humans. How is that? There still would be no federal law against killing fetuses, whereas there is a federal law against killing born people.
  - Brybry 4y ago
    It doesn't really have to do with a law (which is a large part of the issue, the dysfunction of congress forces these controversies). It's about unenumerated rights and interpretation of liberty under the 14th Amendment. > nor shall any State deprive any person of life, liberty, or property, without due process of law So in the past the court said liberty includes a right to privacy, which also includes things like having a right to buy and use contraceptives (Griswold v. Connecticut). This was extended to include women having a right to an abortion, with some qualifiers (the right was not unlimited, it said states did have some interest in protecting both the mother's health and fetus health). The current court decision says that, while those other unenumerated rights have been found, they're different because they don't involve an "unborn human being".[1] Thus they imply that a few cells (under some state laws this would be from the moment of fertilization) have rights that supersede (or at least conflict) with an actual person's right to have their liberty protected from the State. The Louisiana state legislature has a bill introduced right now that seems to make abortion homicide, both for the mother who receives the abortion and anyone who administers it. [2][3] [1] https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf https://s3.documentcloud.org/documents/21835435/scotus-initi... [2] https://www.legis.la.gov/legis/ViewDocument.aspx?d=1276214 https://www.legis.la.gov/legis/ViewDocument.aspx?d=1276214 [3] https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_da97f936-cbf8-11ec-b752-c346925ba701.html https://www.theadvocate.com/baton_rouge/news/politics/legisl...

zerocrates 4y ago

The opinion piece from about a week ago in the Wall Street Journal reporting this wavering on the margins of the conservative bloc points to a more normal, less unprecedented type of leak. So then, one view is that the leak of the draft is just a continuation of that effort to hold the line on the full overturning, and that view seems pretty sensible. On the other hand, what to make of the fact that the leak goes to Politico and not somewhere like the Journal? Do you instead see it as a disgruntled partisan opponent trying to counter the likely leaks that led to the WSJ piece? Or simply a minor smokescreen? I don't think there's any reasonable basis to be particularly sure either way. My gut leans toward the leak having come from the "overturn Roe" camp, but I think most peoples' "gut" on this is pretty highly correlated with their personal views on the topic.

datavirtue 4y ago
The court's top priority, shared by everyone there, is to remain credible. I entertain the possibility that it was leaked to test the public response. So they could make a decision that would be popular (bolster their credibility and appear authoritative). My opinion is that this issue is too contentious and should have been ignored by the court and the entire problem deferred to Congress...but then that expels the court's credibility capital. They can't resist the occasion for authority and pomp. My biased opinion out of the way, I think a growing population of the body politic feels the Supreme Court takes on too much (way out of its lane), and Congress likes to be able to dodge contencious issues (happy to have the court insulate them) and then soapbox after the fact. Waffling on long standing pivotal precident after 50 years smacks of a brewing revolution--in any society. In the words of my sweet little apolitical wife (and mother) after expressing surprise at seeing her participate in discussions about this on facebook: "They are fucking with the wrong people."
- zerocrates 4y ago
  Well one main issue for the court is that, having weighed in with Roe and its successors, they can't help being still involved one way or the other now. More broadly, the ongoing total dysfunction of Congress (and/or the entire political system) has meant both parties have increasingly turned to the relatively-functional court to get their wins. The fact, at least historically, that Supreme Court precedents are seen as quite durable is another factor weighing in favor of the court's involvement. The insulating effect on the politicians is a good point, too. There's also I think the factor that both parties have found it convenient for the Supreme Court to be very powerful and involved in lots of issues just as a motivational factor for their bases: the dialogue around presidential and senatorial races now routinely revolve around Supreme Court appointments as maybe the only important issue.

alsetmusic 4y ago

There's an excellent podcast (What Roman Mars Can Learn About Con[stitutional] Law) with Roman Mars (of 99% Invisible) and Elizabeth Joh (of UC Davis) that discussed many aspects of this leak and potential ruling here.[0] They discussed the potential value in an anti-Roe-side leak. It may hold justices to an early decision. I'll let Ms Joh make the case better than I could. [0]: https://learnconlaw.com/63-the-leaked-draft https://learnconlaw.com/63-the-leaked-draft

usrn 4y ago
The domain name "jewishrallyforabortionjustice.org" was registered two weeks before the leak and points at a page protesting the ruling. The leak was coordinated and intentional by an anti-states-rights group.
- olsonjeffery 4y ago
  States rights, that old chestnut we only ever hear about when someone wants to maintain control of other peoples bodies (slavery and abortion, included). Also, why are you mentioning “ jewishrallyforabortionjustice” completely unprompted?
  - usrn 4y ago
    It's the only protest I know of that seems to have been planned two weeks before the leak was public, which strongly indicates these people are involved. That they're jewish is incidental and they seem to be inclusive. And no, states rights isn't about giving people control over other's bodies: it's about maintaining consensus and self determination. Last year people were talking about states rights to prevent from being forced to take a medical treatment they didn't want.
    - olsonjeffery 4y ago
      > It's the only protest I know of that seems to have been planned two weeks before Who are you trying to convince with this weak argument? Is the fact that it was anticipated in advance somehow invalidating? Nothing you assert follows from what you’ve proffered (separate from the fact that what you assert is wrong). > Last year people were talking about state's rights to prevent from being forced to take a medical treatment they didn't want. Oh, so you mean another thing that most people agree with (compulsory vaccination to participate in society) being made into an issue so an rejectionist core can throw a tantrum and get lots of people killed along the way?