The Post-Roe World: A Reality Check on the Implications of the Leaked Supreme Court Opinion

The Map of Hell painting by Botticelli

Below is my column in the Hill on claims being made about the post-Roe world and the sweeping away of such rights as interracial marriage and the use of contraceptives. The “parade of horribles” seems to get longer by the day but it may actually be undermining the good-faith arguments made by pro-abortion advocates.

Here is the column:

The New Yorker magazine ran a cover in 1976 showing the view of the country from 9th Avenue. The map by Saul Steinberg showed civilization largely ending at the New Jersey border with a vast wasteland between New York and the Pacific Ocean.

It appears that, for some people, not much has changed with that view of America.

Recently the editors of the New York Times seriously warned that some states likely would outlaw interracial marriage if Roe v. Wade is overturned: “Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t.”

It is hard to imagine because it is utterly untrue. Nothing in the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization supports such a dire prediction. To the contrary, the draft expressly states that “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Indeed, such a motive might come as something of a surprise to Justice Clarence Thomas, given his own interracial marriage, or to Justice Amy Coney Barrett, given her own interracial family.

The purpose of the Times’ commentary seems to be to inflame rather than inform readers. And that is consistent with the position of politicians and pundits who raised alarms, even before the leak, over the need to reignite anger among voters to avoid a disaster in the midterm election. On MSNBC, for example, Rep. Madeleine Dean (D-Pa.) agreed with John Heilemann that Democrats must “scare the crap out of [voters] and get them to come out.”

The Times editorial is part of a “parade of horribles” that is becoming increasingly grotesque in its exaggerated claims. MSNBC’s Andrea Mitchell and former Clinton Attorney General Eric Holder had a preposterous discussion of how if Roe goes down, Brown v. Board of Education could be next. MSNBC’s “The ReidOut” host Joy Reid falsely told her audience that the decision “could apply to almost anything” in not just prohibiting interracial marriage but overturning the Brown decision.

An apocalyptic post-Roe hellscape can be a motivating image, but only to the extent that it is credible. The problem is that the claims are detached from both legal and political realities. Consider three of these claims on interracial marriage, contraception and same-sex marriage:

Interracial marriage

With polls showing that 94 percent of Americans support interracial marriage, the Times editors do not bother to name the states that are largely composed of the remaining 6 percent.

The claim is even less credible legally than it is politically. The leading case on interracial marriage, Loving v. Virginia, was based on different constitutional grounds and would not be negated by this opinion. While the court did discuss the due process right to marriage, it was primarily handed down on equal protection grounds due to the inherent racial classification. Then-Chief Justice Earl Warren wrote: “The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States … There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

None of that, however, deters some pundits from keeping alive the fear that interracial marriages soon could be criminalized. As ABC’s late-night host Jimmy Kimmel declared, “They’ll come for same-sex marriage, they’ll come for interracial marriage, they’ll outlaw that peanut butter that comes with the jelly in the same jar.”

It might be a good comedic line — but this and similar claims make no constitutional sense. There is no reason to believe that interracial marriages would be banned in a post-Roe world.

Contraception

The cries of alarm include other areas expressly addressed in the draft opinion as not impacted by its analysis. For example, many critics claim that contraception could soon be outlawed even though the court’s draft specifically dismisses such claims: “Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged.”

It is true that some activists have sought to outlaw IUDs and Plan B prescriptions as “abortion-inducing.” However, putting aside that the draft opinion expressly distinguishes the contraception cases, there is no basis for suggesting that the court would eradicate any semblance of personal privacy and intimacy protections under the Constitution. Such sweeping transformation of the private lives of Americans would involve curtailing a host of other rights, including equal protection. Moreover, there would be considerable practical barriers to such bans in preventing interstate availability of contraceptives.

The polling on this issue is even more lopsided. While the public remains supportive of limits on abortion, some 83 percent support to the availability of contraceptives. Only 6 percent favor making contraception illegal.

Same-sex marriage

In 2015, the court voted 5-4 to strike down bans on same-sex marriage. The court’s specific foundation for this right has continued to be mired in controversy. Even some of us who had long supported same-sex marriage raised concerns at the time over the reliance of Justice Anthony Kennedy in his decision on a “right to dignity.”

Once again, however, the court in this draft opinion distinguishes abortion from other areas as involving claims of an “unborn human life.” Nothing in this opinion endorses a ban on same-sex unions.

However, even before this draft opinion was leaked, there were calls for a better-articulated foundation than the one laid out in Obergefell v. Hodges. As with interracial marriage, many of us have argued for an equal-protection foundation for the right.

Putting this aside, the politics on this issue has changed dramatically in the last decade. Polls show that 70 percent of Americans support same-sex marriage.

Roe is not the basis for all of these rights, and its basis has long been debated. Nevertheless, columnist Maureen Dowd has declared that the “antediluvian draft opinion is the Puritans’ greatest victory since they expelled Roger Williams from the Massachusetts Bay Colony.”

Such claims, however, ignore that the basis for the original decision was questioned even by liberals. Harvard Law Professor Laurence Tribe wrote that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” At least some of the court’s justices clearly hold many of the same doubts over the basis for Roe in the Constitution.

There is ample cause for pro-abortion advocates to organize over the loss of Roe. However, those claims are only undermined by a parade of horribles that leaves both the case law and credibility behind.

A cynic might wonder if Democratic leaders in Congress truly want to preserve the status quo of Roe. After all, their recent proposed codification of Roe went beyond the draft decision, which the leadership knew would lose critical votes in the Senate — but which may provide what they hope will be a powerful rallying cry for the midterm elections.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

146 thoughts on “The Post-Roe World: A Reality Check on the Implications of the Leaked Supreme Court Opinion”

  1. Professore Turley ignores the elephant sitting on the draft opinion. They are using a religious definition of when life begins to ban abortion. There is no scientific consensus on when “life” begins. Sure you can say when egg meets sperm, but back that up a bit, what about the egg? the Sperm? Aren’t both of those alive? It comes down to a religious definition of when life begins. So if they can use a religious reason or this, why not a religious reason to ban same sex marriage?

    1. Conception marks the beginning of human evolution.

      Back up a bit. The mother and father are alive. There are diverse precedents for population control through planned parent/hood.

      Back up a bit. Fair weather causes (e.g. climate stasis). Net Zero effect. Carbon sequestration.

      A religious (e.g. Pro-Choice) reason to grant politically congruent (“=”) and deny equal rights: civil unions, for couples, couplets, and triplets alike. Social progress. Children, too? Perhaps transgender conversion therapy through medical, surgical, and psychiatric corruption. Mengele mandates. Follow the cargo cult.

      Also, Diversity [dogma] (i.e. color judgment, class-based bigotry), Inequity, and Exclusion (DIE), that denies individual dignity, individual conscience, intrinsic value, and normalize color blocs (e.g. “people of color”), color quotas (e.g. Jew privilege), and affirmative discrimination (e.g. too many “people of Asia”).

      That said, perhaps a pride parade of lions, lionesses, and their [unPlanned] cubs playing gay abandon, would relieve the daily burden. Not that “burden”: fetus, baby, granny.

      1. No, conception does not “mark the beginning of human evolution.”

        The only “beginning of human evolution” was when the genus H sapiens came into existence, hundreds of thousands of years ago.

        1. This is for persons that are not aware words often have more than one definition, and context matters.

          evolution:
          any process of formation or growth; development:
          the evolution of a language; the evolution of the airplane.

          1. “human evolution” is a phrase, and yes, the context — biology — matters.

            Looks like you’re excerpting the Dictionary.com definition while ignoring the part of the definition specific to biology:
            1. any process of formation or growth; development: the evolution of a language; the evolution of the airplane.
            2. a product of such development; something evolved: The exploration of space is the evolution of decades of research.
            3. Biology. change in the gene pool of a population from generation to generation by such processes as mutation, natural selection, and genetic drift.
            4. a process of gradual, peaceful, progressive change or development, as in social or economic structure or institutions.
            5. a motion incomplete in itself, but combining with coordinated motions to produce a single action, as in a machine.
            6. a pattern formed by or as if by a series of movements: the evolutions of a figure skater.
            7. an evolving or giving off of gas, heat, etc.
            8. Mathematics. the extraction of a root from a quantity.Compare involution (def. 4).
            9. a movement or one of a series of movements of troops, ships, etc., as for disposition in order of battle or in line on parade.
            10. any similar movement, especially in close order drill.

            Dictionary.com says it’s based on the Random House dictionary:
            1. any process of formation or growth; development: the evolution of the drama.
            2. a product of development; something evolved.
            3. Biol.
            a. change in the gene pool of a population from generation to generation by such processes as mutation, natural selection, and genetic drift.
            b. the development of a species or other group of organisms; phylogeny.
            c. the theory that all existing organisms developed from earlier forms by natural selection; Darwinism.
            4. a process of gradual, progressive change and development, as in a social or economic structure.
            5. a motion incomplete in itself, but combining with coordinated motions to produce a single action, as in a machine.
            6. a pattern formed by a series of movements: the evolutions of a figure skater.
            7. Math. the extraction of a root from a quantity.
            8. a military training exercise.
            9. a movement executed by troops in formation.

            How unsurprising that you cannot deal with the biological meaning.

            1. It is clear the post reffered to the evolution of the baby. That is the most reasonable definition given the context of the posts and the following discussion.

              That is a pedantry fail.

              1. You may find it pedantic, but “human evolution” does not mean the same thing as “A human’S evolution.”

    2. The egg and sperm are identical DNA to the father or the mother. The fetus is distinct DNA indicating a distinct human life. That’s the difference..

      1. The majority of embryos, despite their distinct DNA, have no biological capacity to develop into persons. Which is why the majority die prior to implantation or are subsequently miscarried.

        “Distinct DNA” is not what establishes personhood. Due to copy errors, every person alive has more than one kind of DNA in their bodies. That’s why “identical” twins and triplets can still be genetically distinguished from one another, even though they developed from a single zygote. Conjoined twins, on the other hand, have identical DNA — as they share a single body — but are nonetheless two people.

        1. It will come down to a definition, codified by our individual state legislatures, as to what is life. Are you willing to accept that from a political ideology that can’t define what a woman is?

          1. The definition of personhood, which is a legal issue, doesn’t depend on a scientific issue of “what is life.”

            For example, a body with a beating heart after brain death is alive, but the person is legally dead, and a living IVF embryo is alive but isn’t a person either.

            1. “For example, a body with a beating heart after brain death is alive, but the person is legally dead,”

              Are you telling us legally dead people voted for Biden? It’s true!

              2000 Mules check it out.

        2. “the majority die prior to implantation or are subsequently miscarried.”

          That has nothing to do with their individual status. It is more flapdoodle.

          “the majority die prior to implantation or are subsequently miscarried.”

          More flapdoodle.

    3. They’ve also used religious reasons to ban inter-racial marriage and “separate but equal” education, based on the interpretation of the Bible by certain religious zealots that God made the races look different, and therefore, didn’t intend for them to mingle. Plus, the Bible speaks to slavery, so that’s OK, too, according to some religious zealots. They absolutely could use religious reasons to ban marriage equality and sodomy between consenting adults, because the Bible speaks to homosexual acts as being sinful. So, if we’re going to let certain persons’ biblical interpretations serve as the guideline for our individual rights to privacy and intimacy, we’re in big trouble. That’s exactly what the Dobbs opinion will do.

      1. This entire train of thought misses the error on Roe – that this is a decision that must come from the individual states since we are a Federal Republic of States. There is no right to an abortion in the constitution. Please let the hordes of screaming lefties understand the constitution – not lefty talking points.

        1. No state can take away rights granted by the Constitution. Abortion before the age of fetal viability is a right guaranteed by principles of liberty and privacy. We are not a federal Republic of States: we are the UNITED States of America. Our Constitution sets forth our rights and privileges.

    4. They are using a religious definition of when life begins to ban abortion.
      The Draft opinion is out there, Quote from it to prove the notion it is a religious ruling.

      There is no scientific consensus on when “life” begins.
      Live birth? third trimester? Heart beat? 20 weeks?

      Roe ruled the States could set the regulations. Roe has become the holy grail for the pro abortion crowd, now they are against Roe. In finding the States do have the power to protect the baby, and exactly when that state power to protect the live of a baby, attaches.

      Roe good? Roe bad? You need to make up your mind.

  2. If they don’t want their organs of reproduction to be controlled, then they
    shouldn’t want to control anyone’s organs of speech.

    1. The truth that dies in darkness is that not even in the most liberal jurisdictions is there an open right to hold reproductive rites for social, redistributive, clinical, and fair weather causes (e.g. climate stasis). There is no mystery in sex and conception, a woman and man has four choices: abstention, prevention, adoption, and compassion, and an equal right to self-defense through reconciliation. Roe, Roe, Roe your baby down the river Styx, is a wicked solution to a purportedly hard problem: keep women appointed, available, and taxable, approved by feminists and masculinists alike.

  3. People are obviously believing in, or fearing, the “parade of horribles” because the Supreme Court has completely lost credibility. The five right-wing justices lied and misrepresented their opinions on Roe in order to get on the Court. Then the Alito draft threw out a half-century of constitutional precedent. Alito’s assurances that other rights are not in jeopardy are simply not credible, given his history of misrepresentations. I don’t believe him and neither should anyone else. Turley is desperately trying to convince us that the Court has some credibility left as an institution, but that horse left the barn and isn’t coming back.

    1. “The five right-wing justices lied and misrepresented their opinions on Roe in order to get on the Court.”

      Quote the questions and answers. What you said is untrue.

      Did you have difficulty understanding their answers?

  4. The Constitution does not embrace Diversity [dogma] (i.e. color judgment, class-based bigotry), political congruence to grant “=” and deny equal rights (e.g. civil unions for couples, couplets, and triplets alike), or rationalize elective homicide for social, redistributive, clinical, and fair weather causes, or establish the Pro-Choice “ethical” religion under the pretenses of a Twilight Amendment (and faith).

  5. One way to help the Ukrainians is to boycott Indian businesses. Indians are enamoured of Putin. The friends of your enemies are your enemies.

    1. Ukrainians East, West, South, or North? Ukrainians were disenfranchised in the Biden/Maidan/Slavic Spring, denied essential services (e.g. Crimea), and under attack by a Kiev-aligned military and paramilitary axis for over 32 trimesters… 8 years, 2 under the present regime. The Russians were invited by Ukrainians, perhaps a majority of the population (assuming the EU certified democracy before the Western-backed coup in the Slavic Spring), to stand with them in an affirmative action to mitigate progress.

    2. America needs India against China, no? Like actual Americans, India loves President Donald J. Trump.

  6. It’s funny that Turley is using polls to support his contention that other rights are not at risk. He obviously didn’t mention that polls also show wide support for Roe to remain. Polls are irrelevant. The Supreme Court doesn’t make decisions based on polls. They have made that abundantly clear. Also precedents are not a guarantee other states will try to use Alito’s opinion as a guide on undermining the argument for same-sex marriages and contraception.

    Turley points to Alito’s opinion specifically saying those other rights are not a concern to the court, but Turley ignores the fact that it’s not the court that brings such cases to its attention. It’s the States, specifically Republican controlled states where they will be able fo bring challenges to same sex marriages and contraception using Alito’s opinion which it does give way to challenging them because they are based on the same reasoning behind Roe.

    Turley focuses on interracial marriages and points to justice Thomas own marriage as an assurance that interracial marriage won’t be challenged. Of course it won’t. No justice will do something that will personally harm their own right. But same-sex marriages which both Thomas and Alito opposed is a different story.

    Alito and Thomas have already shown they can’t be trusted with the sincerity of their views. Democrats have plenty of reason to use fear to rile up their base. Why wouldn’t that be ok? Republicans have been doing it for decades.

    They have spread fear to their constituents with such claims like democrats will take your guns away. Take away your liberties, even this whole “great replacement theory” is part of it. How about democrats “stealing the election” or “illegals are stealing your jobs”? Turley never thought those kinds of fear inducing rhetoric was an issue, until democrats suddenly are using what republicans have used for decades is something to be concerned about. This is the nature of Turley’s massive hypocrisy.

    1. I agree, toss out all the polls. I agree to not argue from the position of polls, (except voting polls)

    2. But same-sex marriages which both Thomas and Alito opposed is a different story.

      WRONG

      They opposed the notion the federal judiciary had jurisdiction

      They also. noted. so as to not fall into the quagmire created by ROE. Allow States to continue to legislate homosexual marriage as the constitution is designed. As Europe has demonstrated, policy like abortion, is not controversial when the People, and not the courts have final say.

      1. Iowan2,

        Letting states determine the legality of same sex marriages is no different than it was for interracial marriages when states got to decide.

        If you got married to a person of a different race in one state your marriage would be considered illegal in another. It was the same scenario with same-sex marriage. Thomas and Alito opposed the idea in despite the 14th amendment’s right to equal treatment under the law. They didn’t believe the 14th applied and they wanted to interpret it in the narrowest possible way which would have not have allowed same-sex marriages to be recognized as valid in every state like interracial marriage.

  7. I would suggest that all staff of the New Yorker and the New York Times get out into the field at least once per year and drive cross country. They might be aghast at what they would find. Their are cities, farms, people of all stripes and colors and political persuasion. Of Note when they get to the Missouri state line they do not have to pick up a team of horses and a covered wagon but can actually drive on an expressway all the way to Denver, LA, SF, Portland and Seattle. Amazing things are out there. I’m sure they will run screaming back to NY in about a weeks time but that usually just means they need to get out even more often, sort of like desensitization therapy.

    1. Moreover, they may discover that the roads in between the coasts are of much better quality than in New York state.

  8. There may be nothing in the Alito opinion that anticipates striking the right to interracial or same-sex marriage but bet the house, there will be court cases — or perhaps even statutes that come after them. 100%.

  9. “Nothing in the Supreme Court’s leaked draft opinion in Dobbs v. Jackson Women’s Health Organization supports such a dire prediction.” (JT)

    For those able to think in principles, and to project future consequences of those principles, such a “dire prediction” is completely justified.

    When you grant the principle that government has the power to control a person’s body, medical choices, future, life — the rest is merely a matter of time.

    1. “When you grant the principle that government the people have the power to control a person’s body, medical choices, future, life — the rest is merely a matter of time.” exercising of constitutional governance.

      1. “the people have the power to control a person’s body, medical choices, future, life . . .”

        Thank you for stating tyranny of the majority so clearly.

        1. Thank you for stating tyranny of the majority so clearly.

          A representative republic form of governance is break, on rule of majority. (although you will find Senator Warren is a huge advocate of the unconstitutional rule by majority, or lacking the majority, rule by mob violence.)

  10. People are not address the facts. SCOTUS is not so much as “overturning” Row v Wade as they are abandoning it. These could still be future decisions which will allow for abortion.

  11. Ultimately I support any Decision that puts something out of reach from Washington. It’s never a bad thing to strip DC of power.

  12. I don’t know any “pro-abortion advocates.” I am pro-choice, but have never advocated that anyone have an abortion. It would be fine with me if no one ever chose to have one; the choice is theirs, not mine.

    “many critics claim that contraception could soon be outlawed even though the court’s draft specifically dismisses such claims. … It is true that some activists have sought to outlaw IUDs and Plan B prescriptions as “abortion-inducing.”

    We already see legislators in some states talking about the possibility of outlawing some forms of contraception, such as the emergency contraception Plan B. For example, a few days ago, Brent Crane (R-Nampa), the Idaho State Affairs Committee Chair had the following exchange with a journalist:

    Q: How about abortion pills via mail or IUDs or Plan B, would you hear legislation to ban those?
    Crane: I would, absolutely. There is some concerns, health concerns actually with the medication … [talking about abortion pills] Yes, I think we need to look at that legislation -, or look at legislation that would deal with those particular -, prescribing of those abortifacients.
    Q: How about IUDs and Plan B though?
    A: Um, Plan B I probably would hear that legislation. IUDs I’m not, I’m not for certain yet on where I would be on that particular issue.

    You can watch/listen here: https://video.idahoptv.org/video/a-post-roe-idaho-may-6th-2022-73mxhr/ That particular exchange starts ~10:44.

    Note that Plan B is not an abortifacient. Similarly, research indicates that the mechanism of action by which IUDs work is as a contraceptive, not an abortifacient. Women and men should have access to the full range of safe and effective forms of birth control.

    “there is no basis for suggesting that the court would eradicate any semblance of personal privacy and intimacy protections under the Constitution. … Nothing in this opinion endorses a ban on same-sex unions.”

    And until this year, there was no basis for suggesting that the court would strike down Roe and Casey or that they’d allow a law like SB8, which “evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.”

    I don’t trust Alito to be honest, so I find it reasonable that people think he may be lying about other things in the ruling, especially since Alito writes “None of these rights has any claim to being deeply rooted in history,” referring to many rights in two paragraphs of the draft opinion, including the right to contraception and same-sex marriage. If the Court allows Roe and Casey to be struck down — narrowing rather than broadening individual legal rights — they may do the same for other rights that the extreme right objects to.

    Turley is silent about the concern that the opinion in Dobbs will also have implications for IVF. The draft says “These le­gitimate interests include respect for and preservation of prenatal life at all stages of development,” and it’s a fact that IVF embryos are a stage of prenatal life. ACB signed a full-page newspaper ad sponsored by St. Joseph County Right to Life that said “We, the following citizens of Michiana, oppose abortion on demand and defend the right to life from fertilization to natural death.” That “right to life from fertilization” includes a right to life for IVF embryos. Jackie Appleman, the executive director of that group, is explicit about that: “Whether embryos are implanted in the woman and then selectively reduced or it’s done in a petri dish and then discarded, you’re still ending a new human life at that point and we do oppose that.” “We would be supportive of criminalizing the discarding of frozen embryos or selective reduction through the IVF process.”

    If anyone is not familiar with selective reduction, the issue is that many IVF embryos do not implant when placed in the uterus, so in a single cycle of IVF treatment, doctors often simultaneously place more than one IVF embryo in the uterus. But, sometimes more than one implants. This increases the risk of medical complications, so it’s fairly common for a doctor to then remove all but one or two of the implanted embryos with the goal of increasing the likelihood that the remaining embryo(s) survives to birth. Selective reduction is a form of abortion, and it would be outlawed in those states that outlaw abortion at all stages of development.

    1. Anonymous puts up all sorts of roadblocks but never understood Roe v Wade or abortion in the first place. Placing the same manure on the old doesn’t improve the smell.

    2. “. . . it’s done in a petri dish and then discarded, you’re still ending a new human life . . .”

      And on *that* issue, the religious right is anti-science. And it’s anti-life — the life of those whose lives can be improved or saved by the use of such medical research.

      1. And on *that* issue, the religious right is anti-science.
        Once again inserting religion. What I don’t understand, every couple of years the media trots out new surveys showing the decline of church attendance, and the decline of people self identifying with a denomination, Yet I am to believe this minortity is running state house legislatures. AND more that half of all voters are female. What could be the struggle for abortion adherents to pass suitable legislation?

        1. “Once again inserting religion.”

          “Inserting”?!

          You haven’t been paying attention, or are willfully blind.

      2. “And on *that* issue, the religious right is anti-science.”

        Sam, you generalize too much. I have many friends and acquaintances that are Evangelicals and scientists providing top-notch scientific research. I believe, Estovir, who is on this blog, may fit into your category as well, and from what he tells us, he is a medical researcher engaged in the study of viruses. Are you more involved in science than him?

        “And it’s anti-life — the life of those whose lives can be improved or saved by the use of such medical research.”

        Many are not on the religious right and also don’t like to use animals for research. A lot of animal research has been cruel and unnecessary. It’s not all or none. You are libertarian, something I have an affinity towards. Still, I wish you would represent the libertarian position with a bit more acceptance of the variation in your community and the community of the religious right.

  13. Unless I missed it, the most important detail was left out: in no way, shape, or form will this ban abortion or make it illegal. Blue states could get as wild as they want and the feds couldn’t do diddly. Such is the insidiousness of the modern dem consciousness. They want their followers to think they are losing what is actually a form of win, just as they taught them to for generations. It’s madness. More than anything, I am in awe of the unprecedented levels of glaring, blaring ignorance.

      1. What happens in the states is well within the grasp of the People. Without the prospect of a very few unelected judges creating uncertainty, the people will have the laws the people want.
        Hard for you to understand, they do not need your superior intellect to tell them how to live their lives.

        1. The Constitution provides that individual people have rights that the State cannot take away. Apparently THAT is “Hard for you to understand.”

            1. Abortion isn’t murder, and an embryo has no rights.

              Also, no matter how much you “tell” an embryo, it will not understand what you’re saying.

              1. “Abortion isn’t murder, and an embryo has no rights.”

                That is your opinion and you are free to put that through the legislative process.

                There is no statute or Constitutional direction to make such an opinion a matter law/constitution.

                1. As far as the Founders and the Constitution go, an embryo is not a person.

                  We know this, because the Constitution requires that all persons be counted in the Census, and embryos have never been counted as persons. The Founders never suggested that an embryo is a person.

                  Because an embryo is not a person, it has no rights.

                  Your claim that “There is no statute or Constitutional direction to make such an opinion a matter law/constitution” is BS.

                  1. “We know this, because the Constitution requires that all persons be counted in the Census, and embryos have never been counted as persons. ”

                    ATS, the Census was taken to apportion representation and direct taxes. Indians were excluded. Are they not persons? Are you racist?

                    This argument that you keep repeating is flapdoodle. It’s also Stupid, but I like the sound of flapdoodle.

      2. “It would result in abortion becoming illegal in many states.”

        Do you scour the net until you find another as equally uninformed as you are? Do you recognize your need to provide backup for your weak ideas and conflict-ridden ones? The author in your article made numerous mistakes and spun her wheels so fast that they came off.

      3. There are many states that had laws banning abortion when Roe was decided. Roe rendered these laws unenforceable, but they were never officially abolished. If Dobbs comes out the way the draft opinion predicts, this will automatically re-energize these statutes without any further action needed by state legislatures. THAT’S something many have not realized–the day Dobbs is published, these laws take effect.

    1. I agree with most of what Turley wrote, but there is another reason why the interracial marriage, same-sex marriage and contraception precedents are unlikely to be overturned: the five-factor analysis for stare decisis to be set aside set out in Alito’s draft. Under this analysis it is not enough that a case be wrongly decided for it to be overturned. Rather, five factors must be considered:

      1. The nature of the error;

      2. The quality of the reasoning;

      3. Workability;

      4. Impact on consistent application of other legal doctrines in those cases and their progeny; and

      5. Concrete reliance.

      Thomas has indicated that it is enough that a constitutional decision merely be wrong to be overturned but the others have not adopted that view. It is unlikely that a majority of the court could be cobbled together to overturn the precedents in these three areas, even if some consider them to have been wrongly decided initially. And there is no evidence that any of the justices consider Loving to have been wrongly decided, either in terms of reasoning or outcome.

        1. The Supreme Court just proved it was wrong, for 50 years on but one issue – the 21st Amendment proved that the 18th was erroneous, contraindicated and unconstitutional – the entire American welfare state violates the language of Article 1, Section 8, and the 5th Amendment.

          Stare Decises has no legal, constitutional basis, and no coherent or rational basis.

          The precedent is the Constitution and the Bill of Rights, and none other, certainly not post-constitution erroneous precedent.

      1. More than one has already stated that they believe Obergefell to have been wrongly decided.

          1. You have no idea whether it will be enough.

            We haven’t seen the final opinion, and we do not know whether/how it will differ from the first draft.

            Also, since Alito was willing to lie about abortion in his confirmation hearings*, what makes you think he won’t lie in an opinion?

            * In his hearings, he said that “if the issue [of abortion] were to come before me, … the first question would be the question that we’ve been discussing, and that’s the issue of stare decisis.” He also claimed “When a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis.” Yet despite the fact that Casey reaffirmed Roe AND both had been reaffirmed by subsequent cases (e.g., Stenberg v Carhart), Alito did *not* start his analysis in Dobbs with stare decisis, and when he got to it, he said that the “proper application of stare decisis required an assessment of the strength of the grounds on which Roe was based.”

            1. You have no idea whether it will be enough.

              And you have no idea that the test will be more than sufficient.

              1. Duh. As I said: we do not know whether/how the final opinion will differ from the first draft.

            2. “Also, since Alito was willing to lie about abortion in his confirmation hearings*, what makes you think he won’t lie in an opinion?”

              Since you are a well-known liar, we know not to trust what you say and shouldn’t. Your explanation is meaningless. Stare decisis probably was the first issue to cross his mind. That is the first thought to cross my mind as well, but then one quickly realizes that ultimately the merits behind Roe, though perhaps not the first thought to come to mind, is the most crucial thought to determine if one should stand by stare decisis. That Alito’s arguments regarding the propriety of Roe came first in his written decision doesn’t mean he lied when he said stare decisis is the first thing he would think about.

              You are a nutcase, and your comment makes little sense. Try it on SNL.

  14. …. keeping alive the fear that interracial marriages soon could be criminalized.

    So we are now in the apocalyptic interracial marriage season? I still have our seasonal pro-abortion decorations hanging from the front porch!

    The purpose of the Times’ commentary seems to be to inflame rather than inform readers.

    And now a word from Disinformation “Mary Poppins” Governance Board, Director, Nina Jankowicz

    🎶 Just a spoonful of sugar makes the medicine go down in the most delightful way 🎶

  15. The bill Schumer put to a vote last week to “codify Roe” actually did nothing of the sort. The bill in question would outlaw all of the restrictions that Roe accepts as being reasonable, restrictions that the vast majority of Americans support. In fact the vast majority of the citizens of all western democracies support some restrictions on abortion. Having said all that it should be noted that 49 out of 50 Democrats, including a so-called pro-life pastor, all voted in favor of the bill.

    Having a bill that does away with any reasonable restriction on abortion is the same as if the Republicans put up a bill that would ban any and all restrictions on gun rights. Imagine no waiting periods, no federal ID checks, no age limitations and no ban on machine guns or bazookas. This would be the equivalent to abortion in the 9th month for any reason.

    The Democrats always go too far and the party is way outside the mainstream of public sentiment. Think CRT in schools, transgender, “queer theory” and gender ID being taught to kids in K-3rd grade and Disney banning staff from saying “boys and girls”. The left cannot defend their positions and that is why we have the Ministry of Truth and the lunatic they put in charge of it.

    PS. Please make Anonymous stop commenting 1000 times a day!!!!!

    1. Actually I’d applaud your gun scenario. If it doesn’t make sense if any reading that replaced 2nd Amendment with 1st didn’t pass the smell test, thn it is unreasonable and Unconstitutional.

    2. “The bill in question would outlaw all of the restrictions that Roe accepts as being reasonable, restrictions that the vast majority of Americans support” is false. You are willfully ignorant.

      Here’s the text of the bill: https://www.congress.gov/bill/117th-congress/house-bill/3755/text

      Like Roe and Casey, it allows abortion to be outlawed after viability unless “in the good-faith medical judgment of the treating health care provider, continuation of the pregnancy would pose a risk to the pregnant patient’s life or health.”

      What “reasonable restrictions” do you want that would be disallowed by this bill?

      “Having a bill that does away with any reasonable restriction on abortion is the same as if the Republicans put up a bill that would ban any and all restrictions on gun rights. … The Democrats always go too far and the party is way outside the mainstream of public sentiment.”

      Republicans have put up a bill that personhood begins at conception: https://www.congress.gov/bill/117th-congress/senate-bill/99/text
      That would mean that frozen embryos should be counted in the census. Does that seem reasonable to you?

      1. “What “reasonable restrictions” do you want that would be disallowed by this bill?”

        You wish the bill to nullify any legal argument against any abortion. Either that or you are not savvy enough to understand the bill you want to pass.

        You know the loopholes or should know them. Therefore it is up to you to put forth your idea of proper controls. Instead, you play your usual What About game.

      2. Anonymous, in his 100th comment of the day, says the bill does have restrictions, but the restrictions are about as loose as the restrictions on getting medical pot from a “certified” doctor. All one has to say is “if I have this baby I will not be in a healthy place” and shazaam, a medical reason to abort at 8 months.

    3. Schumer did not want the bill they voted on to get a majority. If his goal was to get a majority, then he could have forced a vote on a bill that would have gotten Manchin’s vote and the votes of pro-abortion Republicans like Collins and Murkowski. Rs would have filibustered it, but a more reasonable bill that DID codify Roe would have gotten a bi-partisan majority.

      I don’t understand the strategy, but it’s clear he believes voting on the radical bill will keep the abortion zealots enraged for the mid-terms. They’re even calling it the Summer of Rage or something to that effect. And holding a convention in Texas.

      FishWingNut may have to knit himself a new pink pussy hat before going to the convention to promote the imaginary “constitutional right” to kill preborn babies.

  16. In an attempt to build their popularity with the voters the Democrats offer fear they have nothing else. The fuel price, economy, inflation, crime, refuse to control our border, racial issues, the Ukraine, Afghanistan departure, they despise 60% of Americans (ultra MAGA what stupidity), the Ministry of Misinformation, baby formula. From the day they took control the nation has spiraled down and it’s not by accident. It’s to a point when either the President or the VP get before a mic you need an interpreter to understand what they’re talking about.

    So it will be fear right up to midterms.

    1. Agreed. I have never seen such entropy in such a short time. Nobody sane or old enough to know better supports ANY of their madness. And I believe you are correct. The DNC will just double down and get still nastier again and again, right up to the wire. They are ethically and morally bankrupt and indefensible at this point.

    2. Democrats don’t have to “build popularity” because Republicans only represent 30% of the country. You’ve been lied to if you believe that 60% of Americans are MAGA dumbaxxes like you. Inflation IS Trump’s fault: his incompetence in starting a trade war with China caused a shortage of computer chips, resulting in shortages needed for cars, trucks, home appliances and other things. His incompetent handling of the pandemic and lying about the seriousness caused it to be prolonged, with factories and businesses shutting down for about 2 years, which also disrupted the supply chain for components of everything from clothes, furniture to automobiles and trucks and parts for them. There was 10% unemployment. When Biden turned things around, the supply chain couldn’t catch up to consumer demand. When demand is high and supply is low, prices go up. That’s inflation. Another cause of inflation was the historically high national debt caused by Trump’s tax cuts that mostly benefitted the very wealthy. Servicing this debt alone is helping to drive inflation. Biden has brought down the national debt by several trillion.

      Trump also bears blame for gas prices. When people either lost their jobs or started working from home, and stop going on vacations, and when schools closed for in-person classes and didn’t use buses, all due to the prolonged pandemic, there was a glut of fuel, so prices were artificially low. Producers cut back production, which also hasn’t ramped up to meet demand. Since Putin started a war with Ukraine and has had sanctions imposed against him which includes not purchasing Russian petroleum, global costs of fuel have gone up. One reason Putin started this war was because he fears NATO, which represents democracy–something that is a threat to his autocracy and hunger to reunite the former Soviet Union. When Trump was around, Putin had an ally–Trump trash-talked the EU and NATO, and if he could have cheated his way back into power a second time, would have pulled the US out of NATO, which would have weakened it significantly, opening the door for Russia to invade countries like Ukraine and Poland next. Trump alienated the US’s relations with its allies, and Putin thought he could capitalize on the fractures Trump caused to these relationships, but he was dead-wrong. Trump’s weakness as a leader, his arrogance and disrespect for US allies, and his urgent need to borrow money from Russian oligarchs because of his history of defaulting on loans, emboldened Putin. Biden has strengthened NATO to a degree that would have been impossible for Trump. Putin has bitten off way more than he can chew. Democracies are fighting back. Even Sweden and Finland, historically neutral, are seeking NATO membership. If Trump was still stinking up the White House, Ukraine would have already fallen, and Poland would be trying to defend itself without America’s help.

      Want to talk about crime? How about that law Trump passed called “First Steps”, that calls for releasing felons from prison before they completed their sentences? That has also contributed to crime. What does Biden have to do with causing Putin to invade the Ukraine?

      The shortage of baby formula is the fault of Abbott Labs that makes Similac. They had a bacterial contamination problem in their plant in Michigan, their contaminated formula sickened infants, two of which died. The plant closed down months ago and has not reopened. Abbott Labs formulas account for 43% of all formulas, which is the exact percentage of the shortage. This is not Biden’s fault, either.

      The nation has not “spiraled down” either–except on Fox, OAN, NewsMax, Breitbart and InfoWars. Biden has turned around unemployment from 10% to 3.9% and economic growth has set a record. People have money to spend, but there’s a shortage of goods that need computer chips, like new cars, so prices are higher. The most serious problems we face are the fallout from Trump, his arrogance and his incompetence. It is morally repugnant that ReTrumplicans are trying to blame Joe Biden for the problems caused by Trump that Biden inherited. And, what could or would ReTrumplicans do about inflation? The supply chain is trying to catch up, and Biden has done everything he can to assist. Biden has gotten formula manufacturers to ramp up production and is importing quality formula from Europe. ReTrumplicans aren’t going to stop Putin from murdering Ukrainians, nor can they get Ukraine’s allies to start purchasing Russian petroleum. All they do is try to blame Biden for everything, counting on the lies put out by Fox and other pro-Trump media misleading the disciples about the real causes for all of these problems. And, sadly, these lies often work.

      People DO need to fear what ReTrumplicans will do if they seize power. There is a proposal to sunset all laws, including Social Security, Medicare and Medicaid, which would require reauthorization. ReTrumplicans would then play politics with reauthorization–pushing for lower benefits and leveraging to get things like even lower taxes for corporations and the wealthy, rolling back environmental and consumer protections. Retired people depend on the stability of receiving the benefits for which they worked and paid into the system. ReTrumplicans don’t care. That’s just one of the bad things they might do. VOTE OUT REPUBLICANS IN NOVEMBER. It’s your patriotic duty.

  17. Iowan,

    I will agree with you that Pelosi’s remark is worthy of condemnation. That aside, you remain a lying Trumpist.

    1. All this time and you have failed to see one lie from me.

      Like Turley, I defend the Constitution and rule of law, President Trump often ends of benefiting from that defense. That’s why you are consistently wrong. All you see is the personal and not the Constitution.

    2. Pelosi’s remark is worthy of condemnation.

      Words, JS, just words, Demoracts should remove here from power. That would be action. But they agree. Democrats want no part of the people governing themselves. Democrats can’t get their agenda passed by the legislative process. Democrats need to control the judiciary in order to govern. Or create disasters to govern by decree. $5 gas, $40 billion to Ukraine, Border crises, Baby food shortage. All government created disasters allowing governance by executive order.

      But Pelosi said the quiet part out loud, Democrats hate their constituents.

  18. This needs to be bookmarked.
    Lot of great facts to silence the ‘parade of horribles’ pushed by the Democrat PR firms, msnbc, abc, cbs, WAPO NYT…..you all know who they are. I reminds me of the the last 6 years, and ‘the walls are closing in on President Trump. Non-stop talk constisiting of slight more than 100% guess, wishes, mind-reading, and mis/dis information.
    We all remember Clapper and Brenner, agreeing with the Russia collusion scam, careful to mentioned while being talked over, they had seen no evidence. Recently the 50 ex intelligence experts telling us the Hunter laptop carried all the markings of Russia dis information.

    It is important to remember who these people are talking to. The wide swath of low information voters, that comprise Democrats. All of these purveyors, of the ‘parade of horribles’ know the are lying. Don’t care, because their audience wants to be lied to. The just need the validation, to vote for a demential addled President, and a Vice President that suffers little mini strokes when ever she is in front of a camera, babbling incoherently.

    I hope there is a followup post outlining the Speaker of the house abandoning all pretense she supports the Constituion of the United States.

    “I don’t disrespect people’s views and how they want to live their lives, but I don’t think that it’s up to the Donald Trump appointees on the court or any politicians to make that decision for women,” she said.

    1. Let’s hope those States which ban abortion do not attempt to charge women with murder who leave the State to seek an abortion. I have a feeling though that anti-abortion advocates are not going to resign themselves to the “killing of babies” in a border state. And anti-abortion politicians running for office in pro-abortion stares will become a cause celebre for advocates. This issue will be contested on a State-by-State basis in many elections until a national law eventually settles the matter one way or the other. Just one more culture issue to further polarize this country just like gun regulations.

      1. Lets consider this logically. I live in PA near the Ohio border. Let’s say I cross over to commit murder. Can PA charge me or did the “crime” happen outside the jurisdiction of my home state?

        Let’s go back to an earlier time in which the states were a patchwork of drinking age laws. PA was a 21 state, Ohio was 18. I used to travel to a friend’s house there and occasionally we’d go out for a few beers. I’d often spend the weekend. Could PA charge me with underage drinking after I got back home? Of course not. It was outside of their jurisdiction and fully encompassed by the Full Faith and Credit Clause. I committed no crime under Ohio law.

        1. I wouldn’t be so sure. There is extraterritorial jurisdiction in which a U.S. citizen can be charged with a crime committed in a country where it was not a crime in that country, e.g., child sex tourism.

          1. As much as I am morally appalled by someone who does that, I have always been troubled by the legal aspects of charging someone for commiting a crime outside of the jurisdiction. It seems like legal overreach.

        2. So if a person leaves their home state to purchase a product or service that is illegal in their home state they can be prosecuted for making that purchase in another state.

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