I think today's SCOTUS decision is about much more than abortion rights.

[BattyDem]

The majority opinion says that opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." Look at those words again: "large fraction of relevant cases." The fact that they included those words in the opinion proves that the law IS unconstitutional in a small fraction of relevant cases. They're acknowledging it.

So this is what it comes down to:

Five Supreme Court justices have decided that it's perfectly legal to enact unconstitutional laws just as long as the majority of the populace isn’t affected by them. However, the Fourteenth Amendment to the US Constitution includes the Equal Protection clause, which "requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions."

Five Supreme Court justices have determined the constitutionality of a law by ignoring the Constitution. They announced to the entire country that they are NOT going to strike down a law that violates constitutional rights if that law doesn't affect a "large fraction" of the populace. I’m not a lawyer, but it sounds like the opinion itself violates the Fourteenth Amendment of the Constitution!

These five justices don't belong on a park bench, much less the bench of the SCOTUS!

[Horse with no Name]

1. This is red meat for the base

They are disappointed with the President.
The SCOTUS just threw them a bone. It's all political.
Every damn fucking bit of it.

[BurtWorm]

2. You are exactly right.

This is a shamelessly awful decision. As awful in its own way as Bush v. Gore. An admission by the court that it doesn't have to protect the constitution if the majority of justices disagree with one of its principles. The court has just come unhinged from its raison d'etre and guiding star since Madison v. Marbury. This is a disastrous decision.

[blondeatlast]

6. And the danger will go unrecognized because of the emotional impact of the

fact that it is an abortion decision.

It's too difficult a concept for the pundits to take on, yet it strikes at the heart of what the Founding Fathers proposed.

[AndyA]

3. I would just like to know *EXACTLY WHEN* does a human being become worthless?

We know that Conservatives will bend over backwards to protect an unborn fetus, regardless of the circumstances. If the mother is only 13, and was raped by her Father or an Uncle, too bad. Have that kid, honey.

If a woman is brutally raped by a gang of hoodlums and gets pregnant from it, too bad. You have to have that kid.

If a woman is emotionally or mentally unstable, too bad. Have it anyway and raise it.

If a woman is financially broke, too bad. Have the kid.

But after the baby is born, they become expendable. They can do without doctor's care. Medicine to prevent disease and illness. They can do without a quality education, because lots of kids are being left behind under the Bush Administration.

They can work like a slave for minimum wage, never making enough to even get by, regardless of how many jobs they have.

They can be sent off to war without a plan to win. Without protection in the form of body armour and safe vehicles for transport. They can get their limbs blown off, an eye gouged out, or they can be blown in a million tiny little pieces, and that's OK. Bush won't even attend the funeral of a single soldier killed in action, so worthless and meaningless are these lives. How's that for supporting the troops?

So when exactly does this transformation take place? At birth? When the water breaks? When exactly does this precious life, that must be preserved no matter what, become useless?

Answer that, Conservatives. I hope there's a special place in HELL for every one of you miserable hypocrites!

[BattyDem]

4. They don't care about the living

They only care about the unborn and I think the reason they care is because it gives them an opportunity to control women.

[ehrnst]

18. After birth apparently. (eom)

[DCKit]

23. Great list of horrors AndyA, but you forgot to mention the total dismantling of the

Social services system. Not only can disadvantaged mothers care for those children, but the state and federal gubmints are way past "I don't care".

HRC got some legislation passed in the Senate that seems to have improved the rate of adoption, but until we have a real safety net for ALL children and families, it will remain apparent that current mindset is to blame the victims for their circumstances.

The unavailability of mental health care alone is responsible for a world of hurt.

[blondeatlast]

5. Scary wording indeed, and the precedent has been set.

Very good point. The ruckus will be about the fact that this is an abortion decision (and rightly so), but the effect is far, far more reaching than just one law. :scared:

[Bandit]

7. I want to know when the Extreme Court can be used as legal precedent.

In all their history their entire perpose was to establish legal precedent. That is the entire purpose of the Supreme Court. However in Bush* vs Gore they claim that their decision can not be used as precedent. So if they do not automatically establish precedent how are we supposed to know the difference? :shrug:

[blondeatlast]

10. You can bet that this time they WILL stick to precedent.

And the point is, you and I, political wonks that we are, are watching and worrying.

But most Americans will largely have no idea of the import of this--all they know is that an abortion decision was made.

[blondeatlast]

8. Note they don't even use the term "majority" and that they inserted this into

into an explosive decision. A large fraction can be very loosely defined (remember W's "mandate?")

They know that the focus will be on the abortion issue while they quietly do in the Constitution they were sworn to protect.

[BattyDem]

9. We have a rogue court. They're making up new rules.

:scared:

[blondeatlast]

11. I'm going to keep kicking this. I'd like to see the law, language (like me),

and political wonks see this.

Even I would have missed it if not for BattyDem's post, and it's critical.

[Hepburn]

12. Just wait until one of those five bastards that voted in support...

...of that obscene law has a female relative who would die but for medical treatment like this. Please note: I am NOT wishing this on anyone and would never do this. However, karma has a hell of a way to come back and bite evilness squarely in the butt.

I am a firm believer in the theory that if one does harm, harm will come back. And today with the manner in which this obscene majority decision was written, it is CLEAR as the nose on my face that those bastards acknowledged that to some, harm will come.

I am totally disgusted by this BS ~~ there is ABSOLUTELY no legal, moral, or justifiable reason of ANY nature to substitute the reasoning of a medical provider, on the spot in an emergency, with the thinking of any legislature on what is medically necessary or not. That is simply WRONG.

[blondeatlast]

17. That could never happen. Only bad women have traumatic pregnancies.

:sarcasm:

[supernova]

13. Of course it is,

outlawing abortion is just the tip of the iceberg. What they really want is to outlaw birth control too. They want women making no decisions whatsoever about their own uteruses and fetuses.

[blondeatlast]

16. It's far more than that. Read the excerpt Batty highlighted--this is far more than

medical rights. They deliberately put this into an abortion decision so it would be clouded by the inevitable uproar over medical rights.

"Large fraction?"

Remember W's "mandate?"

[Nite Owl]

14. Those are the words that

got to me when I read this too. It seems like it was a no brainer that you would want to protect a woman's life and ability to bear future children over a fetus that will die before or shortly after birth. I thought that our constitution was to protect the minority from the majority not the other way around. It doesn't make sense.

[kiahzero]

15. They're not saying that.

The fact that they included those words in the opinion proves that the law IS unconstitutional in a small fraction of relevant cases.

I find this ruling abhorrent, but they're not saying that it would be unconstitutional in a small fraction of cases; they're saying that they believe that the law would be constitutional in the vast majority of relevant cases, and therefore a facial challenge (as opposed to the more standard as-applied challenge) is inappropriate.

Ginsburg, on the other hand, rightly argues that the "relevant" cases are those for whom the restriction is an actual rather than a irrelevant restriction.

So, they didn't "announce to the country that they are not going to strike down a law that violates constitutional rights if that law doesn't affect a 'large fraction' of the populace."

[BattyDem]

19. The wording of the decision is very odd

"I find this ruling abhorrent, but they're not saying that it would be unconstitutional in a small fraction of cases; they're saying that they believe that the law would be constitutional in the vast majority of relevant cases, and therefore a facial challenge (as opposed to the more standard as-applied challenge) is inappropriate."

What does "constitutional is the vast majority of relevant cases" mean? A law is either constitutional or it's not; it's relevant to anyone affected by it, majority or otherwise. The purpose of "equal protection" is to prevent the minority from being victims of laws that don't affect the majority.

I'm very disturbed by that wording. If you have legal experience, please direct me to one other SCOTUS decision that determined the constitutionality of a law based on how it affects a "large majority" of the populace, as opposed to the populace in general.

[kiahzero]

20. It's a facial challenge.

Most SCOTUS cases are as-applied challenges - they come up when someone has suffered some sort of adverse action as a result of the law, rather than just challenging it as facially unconstitutional. For a law to be held to be facially unconstitutional, it must be shown that there is no set of circumstances under which the Act would be valid. Any case with a facial challenge would be treated similarly.

Note that Ginsburg isn't disagreeing that it is a question of whether the law affects a "large fraction of relevant cases," she simply disagrees as to what determines a "relevant case."

For the record, I'm currently a first-year law student with undergrad experience in the field.

[BattyDem]

21. Thanks for the info.

:hi:

I wasn't being snarky when I asked if you had experience; I really did want you to educate me. :-)

So ... unless someone dies or is hurt in some way, the constitutionality can't be challenged? :shrug: That seems really ... stupid. :-(


edited: typo :blush:

[kiahzero]

24. Yeah, I agree.

Like I said, I agree with Ginsburg... this decision is really bad.

[blondeatlast]

25. So, is that wording typical? Sorry to pester about this, but I'm a language geek

and it appears quite vague to me.

The way I'm reading it is that it can apply when SCOTUS wants it to, and be ignored when SCOTUS desires. I see the Constitution as an all or nothing document; perhaps I misunderstand?

Very much appreciating your knowledge on this; thanks for sharing it.

[kiahzero]

26. Well, this law was being challenged under the "vagueness doctrine"

Which, in a great example of the law not making a damn bit of sense, has very little to do with vagueness. Basically, unless it can be shown that the law cannot be applied in a constitutional manner, the law is facially constitutional; it still can be overruled if it's shown that it's being applied in an unconstitutional manner.

[progressoid]

22. Animal Farm Variant:

Everyone gets equal protection but some people get more equal protection?

:banghead:

Our country is regressing.

[Kurovski]

27. Kick. (nt)

[Morgana LaFey]

28. Superb analysis. Thanks. nt

[Jim Lane]

29. Sorry, but I think your criticism is off base

A law can be unconstitutional on its face -- "No person shall criticize the President of the United States" or some such.

Other laws, though, can be generally constitutional, but unconstitutional as applied in some particular cases. For example, consider the death penalty. Some experts, of course, consider it to be always unconstitutional. There is, however, a logically consistent position that the death penalty is generally constitutional, but that it's "cruel and unusual" -- and therefore unconstitutional -- as applied to, say, children or the mentally retarded.

If a case came up where the state wanted to execute an adult of sound mind, it wouldn't be a valid argument against the death penalty to say that some other cases of its application might be unconstitutional. I think the Court was reaching a similar conclusion here. The language about the "large fraction" of cases is part of a discussion leading up to this conclusion: "Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds." The point about "large fraction" is that, if the law would be unconstitutional in all or almost all cases, then it can simply be overturned; but if there is a reasonably large number of cases to which the law could be constitutionally applied, then it's not unconstitutional on its face.

The Court was not saying that it's OK to violate some people's constitutional rights as long as most of the public isn't affected. A violation of constitutional rights in a particular application of the law could still be a basis for challenging that particular conviction. For example, I gather from the opinion that a doctor might accidentally perform an abortion in a way that violated the law. Based on the Court's decision yesterday, that doctor could argue that the absence of intent meant that s/he hadn't violated the terms of the statute. If the statute didn't have an intent requirement, a doctor in such a situation could challenge it as unconstitutional on that basis, but that wouldn't excuse a doctor who did have the requisite intent.

Now, before I get flamed, let me say that, if I were a legislator, I would have voted against this bill, and I would vote against any bill authorizing the death penalty. A law can be permissible under the Constitution and yet be a bad idea. As Felix Frankfurter wrote, "much which should offend a free-spirited society is constitutional." I'm not expressing an opinion about whether this particular statute is constitutional. My point is only that some of the criticism of the decision appears to me to be misguided.