This will be a somewhat shorter post than yesterday's: not because its material is any less important, but simply because somewhat less demands to be said about the two cases I feature today than about yesterday's unholy trinity. Two decisions this year demanded that the high court take some role in shaping the post- Dobbs landscape of abortion jurisprudence. They may be considered opposite ends of a spectrum. One of these involved FDA approvals of early-term abortion medications: the second questioned whether the federal government has mandated life-saving abortions in hospital emergency rooms in a manner that can pre-empt state law. First then, last month the Supreme Court dismissed FDA v. Alliance for Hippocratic Medicine , a lawsuit in which the named Alliance sought to restrict access to the pill mifepristone. Non-surgical abortions are typically conducted with a two-pill regimen: mifepristone followed by misoprostol. This seems to be the most effective (a...
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Court put on a bit of a show over the mifepristone litigation. Or, at least, the oral arguments were so widely and intensely followed it smelled a bit like a Barnum production. There is much that one might say about this dispute. But this is the first time you will have seen anything about it in this humble blog, so for today I will just stick to some of the basics. Mifepristone is part of the standard medicinal protocol for early-term abortions. Early here means within 70 days of a pregnant woman's last menstrual period. When it was first introduced in the United States the usual term was RU 486, and I am not sure when that more resonant term [it always sounds like a question, to be followed by "well, ARE YOU???"] lost favor. Was RU 486 a brand name? The percentage of abortions in the US that are medicinal rather than surgical has increased steadily since the approval of mifepristione here at the turn of the millennium. According to the CDC numbers, only ...
Justice O'Connor has passed away. May she rest in peace. My first thought upon hearing of this sad event was about the CASEY decision in 1992, and about how this looks in retrospect. Casey came just as a twelve-year period of continuous Republican occupation of the White House was ending. Clinton won the election that year -- before then, Reagan and the elder Bush had been President, and it was widely believed that they had put enough Federalist Society types on the High Court to ensure that ROE v. WADE was going to be overturned. Yet Casey surprised people. Not only was ROE not overturned, what the court called its "essential holding" was specifically retained. This was due to the emergence of a "centrist bloc" consisting of Antony Kennedy, David Souter, and ... Sandra Day O'Connor. Although their decisive opinion in CASEY was put out as a joint opinion -- no one author among the three -- O'Connor was the one of the three with the greatest seniorit...
What kind of blogger would I be if I didn't have a thought about this subject? In my case the arguments on abortion before the Supreme Court last week sent me back, not to 1973, but to 1992. It is worthwhile to note that 2021 this isn’t the first time Roe has seemed on the verge of demise. In 1992, after two Republican presidents over twelve years had made five Supreme Court appointments, there was a widespread expectation that the Court’s decision that year in Planned Parenthood v. Casey would overturn it. After all, both Reagan and Bush the elder had made a point of seeking jurists who would overturn Roe v. Wade . A friend of mine was working for what one may call a junk mail processer at the time. He tells me that among the items of mail they processed was a call for donations from a pro-abortion rights group. The letter began, "The Supreme Court has just eliminated the constitutional protection for...." It asked for the money to figh...
Okay, that headline doesn't sound like it describes one of the great scandals of our age. This is a little point, but annoying. In a recent tweet the ACLU quoted Ruth Bader Ginsburg on the subject of abortion and abortion rights. Clearly there is a Big Picture afoot here. The long "pro-life" campaign to get Roe v. Wade overturned is nearing its (successful) end. There is a lot that might be said about that, of course. I am not an admirer of the idea of a "privacy right" because I am not inclined to look for the "emanations and penumbra" of legal documents. And in fact Ginsburg, if she had had her druthers, wouldn't have founded a woman's right to an abortion on a broad right to "privacy" either. If I recall correctly, she would have invoked the equal protection clause. But once the case came down, with Harry Blackmun's opinion based largely on Griswold and the right to privacy, there was nothing to be done except to work wit...
It would be a great irony if, after decades of nominating Supreme Court Justices more-or-less specifically on an abortion litmus test, the Republicans still haven't managed to get a court majority that is ready to repeal ROE v. WADE. I say "it would be" rather than "it is" because we don't know whether that is the case. I am beginning to have that suspicion though,. If, with a court that is made up one-third of Bush family nominees and one-third of Trumpets, where the remnants of the Obama and Clinton administrations together get only that last third, still upholds the paradigm "liberal elitist" decision as stare decisis ... something is very wrong with the way people surrounding the Bush and Trump families think about the law. Now I hear some of you snickering about that last sentence ("he thinks the Trumps actually think???" ). Well, I'm not committed to that view but I'll entertain it for now. This year's most likely v...
Continuing my line of posts creating an arbitrary list of THE landmark case for each year. This time, we'll work our way from the moment of the lip syncing of Milli Vanilli to that of the sexual orality of Monica Lewinsky. I've posted one of them as the image for this entry. 1990, Cruzan v.Missouri -- States may require "clear and convincing evidence" of patient's end-of-life wishes (living wills). 1991, Harmelin v. Michigan -- life sentence without possibility of parole for possession of cocaine held not to be cruel and unusual punishment. 1992, Casey v. Planned Parenthood -- re-affirmation of right to an abortion as part of privacy right. 1993, Daubert v. Merrill Dow -- creation of the Daubert standard for the testimony of expert witnesses. 1994, Kiryas Joel Village School District v. Grumet -- Satmar Hasidic Jews can't get their own public school district. 1995, Adarand Construction v. Pena -- affirmative action as race-based set asides....
Is there a "most important" decision of the Supreme Court in a given year? Such a question depends, of course, on what one means by "importance." Just to satisfy my own obscure sense of fun, I'll run through the 70s, beginning then as my own political awareness began, and defining importance by my own nonappealable subjectivity. Maybe some time next week I'll move on to the '80s, if I can bear the excitement. 1970, Goldberg v. Kelly -- procedural due process rights and welfare entitlements. 1971, New York Times v. United States -- Pentagon Papers case. 1972, Gottschalk v. Benson -- software and patentability. 1973, Roe v. Wade -- abortion rights. 1974, U.S. v. Nixon -- executive privilege. 1975, Blue Chip Stamps v. Manor Drug Stores -- securities fraud. 1976, Gregg v. Georgia -- capital punishment 1977, Moore v. City of E...
One already venerable theory of why crime rates fell in the 1990s: ROE v. WADE. The theory holds that unwanted children are more likely to become criminals (18 years or so after their unwanted births) than wanted children, and fewer unwanted children were born in the years subsequent to 1973 than in the years before it. This, rates of crime began to decline when they 'should' have. Here is more information on the theory and the evidence invoked to support it. I've recently encountered another view, though. Perhaps the decline was a matter of leaded versus unleaded gasoline. . In the magazine "Mother Jones" in 2013, Kevin Drum made the point that tying the crime rate to lead emissions has the economical virtue of explaining both the rise and the fall. "lead emissions from tailpipes rose steadily from the early '40s through the early '70s," and violent crime rates rose along a dramatically similar curve with a 20 year lag. ROE v. WADE...