![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
The Dobbs Leak
May. 8th, 2022 09:45 pmI really don't want to make it through this week without putting some words down about some of the most significant political news this year, the leak of a (5-4?) draft majority opinion in Dobbs v. Mississippi. The ruling explicitly overturns the precedent in Roe and Casey, and despite some weak attempts to distinguish, threatens the reasoning in Obergefell, Griswold, Lawrence, and Loving.
This ruling, if it is the final ruling of the court in this case, will lead to some grave injustices. It's a grievous violation to force someone to carry a pregnancy to term under any circumstances, and enforcing abortion bans requires an incredible degree of government intrusion into private matters when every miscarriage is suspicious circumstances. It's going to require some women facing impending medical emergencies to unnecessarily delay until they're in imminent peril, even to no discernible benefit.
(It is interesting that the reaction among conservatives is more fury at the leak / baseless speculation about the leak / statements that downplay the effects instead of jubilation. Presumably, they should see this as both significant and good.)
While the draft ruling is as bad as I'd expected, it's at least not the worst-case scenario, where the court tries to force a moral equivalency between zygotes and infants. (I expect they probably have only three or so votes for the "full fetal personhood" version.) That would lead to some absurd (and even more absurdly unjust) outcomes. It deviates so far from people's moral intuitions, it's hard to imagine the scenario where someone would prioritize saving any number of embryos from immediate peril over a single infant.
However, the ruling will lead to immediate attempts in some states to push the state of law that far. And there is nothing to prevent that battle from being fought at the national level.
This draft ruling just seems to emphasize a threshold crossed, a phase transition in how the Constitution is held by the court. It's not whether or not there's a constitutional "penumbra", it's whether that shadow is cast by the Constitution as a document of principle and the highest law in the nation, or whether that shadow is cast instead on the Constitution by a "history and tradition" of the violation, including by force of law, of those rights.
This ruling, if it is the final ruling of the court in this case, will lead to some grave injustices. It's a grievous violation to force someone to carry a pregnancy to term under any circumstances, and enforcing abortion bans requires an incredible degree of government intrusion into private matters when every miscarriage is suspicious circumstances. It's going to require some women facing impending medical emergencies to unnecessarily delay until they're in imminent peril, even to no discernible benefit.
(It is interesting that the reaction among conservatives is more fury at the leak / baseless speculation about the leak / statements that downplay the effects instead of jubilation. Presumably, they should see this as both significant and good.)
While the draft ruling is as bad as I'd expected, it's at least not the worst-case scenario, where the court tries to force a moral equivalency between zygotes and infants. (I expect they probably have only three or so votes for the "full fetal personhood" version.) That would lead to some absurd (and even more absurdly unjust) outcomes. It deviates so far from people's moral intuitions, it's hard to imagine the scenario where someone would prioritize saving any number of embryos from immediate peril over a single infant.
However, the ruling will lead to immediate attempts in some states to push the state of law that far. And there is nothing to prevent that battle from being fought at the national level.
This draft ruling just seems to emphasize a threshold crossed, a phase transition in how the Constitution is held by the court. It's not whether or not there's a constitutional "penumbra", it's whether that shadow is cast by the Constitution as a document of principle and the highest law in the nation, or whether that shadow is cast instead on the Constitution by a "history and tradition" of the violation, including by force of law, of those rights.
