When I first saw and twitted about the Dallas newspaper story, it was because it was a funny story, a pregnant woman in the HOV lane claiming that her fetus was her second person in the car.Come on, it’s hilarious, right? But as funny as it may be, it’s also a legitimate issue, even if driving in the carpool lane isn’t the biggest legal deal around.
There’s a point here, one that lawyers who will be left to clean up the mess left behind by the Dobbs majority and the great many aspiring midwits in state government seizing the opportunity to convert their simple-minded dreams into fevered reality fail to grasp. Law is hard. Good law is extremely hard. Bad law is not merely a social disaster and failure, but gives rise to myriad new and heretofore unconsidered problems.
And in the rush to leap on the back of the Dobbs decision to prove to Reverend Billy Bob’s tent people that you hate abortion more than anyone else, a laundry list of crimes, prohibitions, threats and promiscuous evisceration of the basic rights that we’ve taken for granted are not only on the chopping block, but being chopped by the grinning fools of state legislatures.
Oh boy, are we in for a decade or two of disaster. On the one side, it’s happening with gun laws designed to circumvent the Bruen decision. On the other side, it’s old school religious freaks against the new school religious freaks, and suddenly issues that never needed to be decided before are on the table.
“Some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter,” [Justice Kavanaugh] wrote. “For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”
Is that how it works, Brett? In “your” view? Is that all it takes to resolve what will obviously become a battleground over life and death? What the hell were you thinking, if you were thinking at all?
A few hours later, Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’”
Our ability to travel from state to state as a citizen of the United States of America, unfettered by guards at the border demanding our papers or requiring us to pay an entry or exit fee, has long been taken for granted. Of course we can travel from state to state. For any reason or no reason. Since when do Americans need to explain to some border guard at the Jersey line why he wants to drive down Route 80?
But the Constitution doesn’t say so. The Supreme Court has said so, kinda sorta, but it’s never clearly enunciated why this is a right or whether it’s subject to limitations by states who decide that crossing borders to engage in criminal conduct, whether in the state in front or the state behind, is okay.
“We need not identify the source of that particular right in the text of the Constitution,” Justice John Paul Stevens wrote in a 1999 decision of “the right of a citizen of one state to enter and to leave another state.”
Similarly, Justice William J. Brennan Jr. wrote for the court in 1969 that “we have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision.”
But it’s all cool in Justice Kavanaugh’s, and only Justice Kavanaugh’s, view?
Justice Kavanaugh, for his part, cited no precedents or constitutional provisions for his statement that a state may not “bar a resident of that state from traveling to another state to obtain an abortion.”
As argued when the Supreme Court in Dobbs did the unthinkable (to me, at least) of unfinding a right that its predecessor found and upon which a nation relied for almost 50 years, the legal instability this would cause would be manifest. You don’t just snap your fingers, make a right go away, and that’s that. That’s just the very beginning of a million questions, problems, scenarios and situations that will assuredly arise to wreak havoc with the fragile eco-system of law in the even more fragile eco-system of hyper-partisan politics.
Where it ends up is anyone’s guess at the moment, though states leaping to criminalize abortion, whether surgical or medicinal, whether the person performing or receiving, whether working for companies that will assist in their going to another state where abortion is lawful threatened with prosecution as aiding and abetting murder, and the list of lunacy goes on. This is merely the beginning of a million new laws and their ensuing challenges, whether directly or on behalf of those prosecuted for the commission of the crime of doing what’s lawful in a sister state because she stepped over a border.
And if this isn’t bad enough to make one’s head spin at the obvious reality of a struggle to see who can bludgeon whom to death with the stupidest and least constitutional law possible (yes, kids, the zealots on the right hate your freedoms every bit as much as the zealots on the left), the battles will persist causing massive legal and social disruption and giving the crazies at the fringes of both sides plenty of ammunition to keep shooting at each other.
Guess who will be in the crossfire as this legal lunacy goes on for the rest of our natural lives?
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while I know it will never happen, the answer to this whole issue would be to pass a constitutional amendment on abortion. Congress could mandate that each state takes a public vote within say 3 years and if enough Americans want abortion then it would be a right from then on.
But that’s a pipe dream even though the correct thing is to let the voters decide.
Polls that show greater than 70% public support for abortion depend very much on the specifics of the question. Support for abortion right up to the moment of birth drops to the single digits as does making it illegal at the first hint of a fetal heartbeat (about 6-7 weeks). It’s ironic that neither side would willingly support a European style abortion law that cut off the right at somewhere between 12 and 17 weeks, even though what’s where the the majority of support for abortion exists.
Major League Baseball, for all of its faults, offers a model for the solution to the conundrum, “final offer arbitration.” Each side must come to the table with exactly one offer. The arbiter, the voting public in this case, must choose between the two offers with no changes allowed. In other words, the arbiter is likely to choose the least ridiculous offer. No negotiation. No compromise in the middle. Come to the table with the best offer you can live with or risk the other offer being chosen.
Of course, it’s can’t happen in our system of politics. I doubt either side would even want such a solution that could be supported by the majority of the public.
Much as your comments are otherwise welcome, either use a real email address or your comments get trashed. Sorry, but if everyone else can do it, so can you.
Nice Norm reference.
It’s ironic to me that the choice crowd lost Roe fighting a Mississippi law that was a little more permissive than most of Europe. And now many of them are extolling the virtues of Europe, when they could have accepted the Mississippi law and still been more “free” than women in the place that they openly admire and still have Roe.
Asking people to be logically consistent is just too much I guess.
I thought it was a Carrot Top reference.
As Scooby Doo would say: “Roe! Roe!”
It’s so nice being a centrist…
Unsettled times indeed. The sky falling, and a fetus in the carpool lane. I foresee an impending evolution of the lyrics in C&W songs.
Saw some legal geniuses on twitter who are doing the “everything is stare decisis or nothing is” dance, with a little Plessy twerking thrown in to make it sexy. The stupid around this isn’t going away anytime soon.
I saw some of that and considered explaining in small words, but then realized I didn’t give a damn.
People sometimes speak of the “legacy” of a particular Court.
I respectfully submit the legacy of the Roberts Court is quickly turning into “Oh shit did we do that? Our bad.”
Some suggested that Dobbs would put an end to the legal controversy around abortion. Foolish people.
I must confess when you twitted out the story of the pregnant lady in the HOV lane I initially laughed at it, then found the idea a rather novel argument given the state.
Then about three hours later I started going “Oh goddammit this is going to open up more cans of worms than anyone ever could’ve imagined.”
Pregnant women now have to pay for 2 airline tickets? 😛
The sky may be falling, but not because of the manufactured abortion debate. When far-left judges were jamming abortion clinics down the throats of conservative people who did not want them in their state, the sky did not fall. Now that the issue is up to the states (as it should be, and always should have been), the sky will still not fall. The previous state of affairs made some people unhappy. The new state of affairs makes other people unhappy Real issues will continue to be decided for the benefit of our “representatives” and their owners, unmentioned by the media cartel and unnoticed by the vast majority of Americans because they are distracted by the fake issues on which the media focuses.
And of the person who claimed the right to drive solo in the HOV lane because of ‘they/them’ pronouns you say nothing?
People who identify their gender as non-binary do not believe that they are more than one person.
It was a joke, Stephanie.
That needs to be a new meme.
The “you should have no right to question my dogma” crowd wanted to dumb the debate down to a power struggle rather than to win it on the merits, even though if they were smart they could have, and they got their wish.
That is a great description, although I think they lose on the merits. When they had power and might lose on the merits, shouting at people seemed the sure win for them.
“As argued when the Supreme Court in Dobbs did the unthinkable (to me, at least) of unfinding a right that its predecessor found and upon which a nation relied for almost 50 years, the legal instability this would cause would be manifest. You don’t just snap your fingers, make a right go away, and that’s that. That’s just the very beginning of a million questions, problems, scenarios and situations that will assuredly arise to wreak havoc with the fragile eco-system of law in the even more fragile eco-system of hyper-partisan politics.”
Sure, it’s created warfare between nitwits. No matter how the Court went about fixing Griswold and Roe, there was going to be massive chaos. There had to be a fix: the almost-never-mentioned 9th doesn’t give the Court permission to create rights. But how to go about it? The underpinning of those cases is the creation of the right to privacy. Should this decision hold there’s simply no right to privacy because the Court just made it up? Should the decision say there’s no right to abortion without fixing the wayward privacy conclusion? Is this a case of the least amount of havoc within the law? Just imagine the legal fallout from pulling the plug on privacy. It’s been the basis for a zillion decisions. The law itself, the structure of the whole thing, would be at extreme risk.
So the Court went for the direct, no right to abortion, but left privacy alone. Sure, the two sides are jumping off their sides of the teeter totter, hoping the other will die on impact. Those people are reacting in a predictable way–they want different, loudly and ignorantly. But they don’t stop to learn how to fix it. The fix is there for the doing. Maybe this causes enough people to learn how the constitutional process is to work. It doesn’t work by Court fiat. Article V doesn’t include a Court exception. That’s my hope: that people get involved in the operation of government through constitutional means. I know that sounds crazy given the current state of people, but maybe it’s a catalyst for betterment. Maybe we’ll see if people really want this republic to operate as designed.
Consider if the Court went the other way by holding no right to privacy and reminding all how that right would lawfully be created. Set aside the horrendous legal fallout. Wouldn’t you expect people to react differently? Wouldn’t there be a big push by both sides to create that right?
I remain hopeful. I just wish the subject of the fix wasn’t so controversial.
Drunk commenting from the swamp. What could possibly go wrong?
Not yet. 100% serious.
In that case, you need to drink yourself into coherence.
Thanks. I’ll consider it.
Skink has a mind like a steel trap. Keep up the good work, Skink. Just bring in the ship?
I bet this was brilliant if I had any clue what Skink was trying to say.
Are all these random words trying to say that we should amend the Constitution to include an express right of privacy? It might be, but then who knows?
“Is that how it works, Brett? In “your” view?”
I’m glad to see you are a departmentalist/popular constitutionalist. Judicial supremacy is what got us into this mess.