• Marbury v. Madison v. Joe Biden v. Abortion

    August 6, 2022 // 1 Comment »

    Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.

    Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…

    The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.

    The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.

    If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.

    Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.

    Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.

    If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.

    The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

    The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.

    That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.

    As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.

    Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”

    That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Sotomayor and End of Roe v. Wade

    December 20, 2021 // 11 Comments »


     

    I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.
    The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) the doctrine of judicial review.
    In the years since the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage only to finally confirm it (Obergefell v. Hodges, 2015.) As for precedent mattering, the underlaying laws supporting slavery and marriage had been in place much longer than Roe‘s 48 years and in their time were more broadly supported.
    But whether leading public opinion or trailing it, the Court assumed a role unthought of by the Founders, one in the absence of common agreement and/or laws passed by Congress, to decide how Americans would live with one another. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex partners be allowed to marry? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.
    And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.
    The Court tried in 1973 to pry Americans from one another’s throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.
    With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.
    Roe also said abortion was a constitutional right, a claim which forms the basis for many who claim the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not. The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise is concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe‘s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
    Roe‘s other shortcoming is in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe‘s 24 weeks or Mississippi’s 15 weeks begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?
    In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
    For all that is unclear, three things are clear: 1) Roe always allowed for regulation; it was never abortion without restriction; 2) if the Court can reverse itself on the issues of slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.
    The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3-6 months, and will likely have more affect on the midterm elections than any other factor.
    The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.
    What is troubling are some of the statements made during oral arguments by the so-called liberal judges, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself would endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
    The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.
    I don’t know the right answer on abortion. Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the boundaries among religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.
    The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.
    Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court works. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.

       

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump