I’m Just Going To Say It

I know some “normal people” who would beg to differ. https://t.co/1wSuAPdenW

— Steve Vladeck (@steve_vladeck) May 4, 2022

Gregg Nunziata is as dumb as a box of 🪨.

There. I feel better. Thank you.

Staying with Professor Vladeck

What’s revealing about Orin’s thread is that it’s not an argument about substantive limits baked into the *rationale* of Justice Alito’s draft in Dobbs, but rather about assumed limits in the majority’s willingness to apply that same rationale to more popular unenumerated rights. https://t.co/dcFRT9T5vh

— Steve Vladeck (@steve_vladeck) May 4, 2022

Actually what’s revealing is the assumption that Dobbs, and the other cases it mentions, are almost purely political.

Second, public opinion on abortion remains deeply divided (it hasn't shifted much in 50 years, from what I understand), and the issue has remained extremely important to those on both of the policy question. https://t.co/8Wu5dUySec pic.twitter.com/Q9fzSVfqQ8

— Orin Kerr (@OrinKerr) May 4, 2022

That’s not a legal argument, chum. And this is just whistling past the graveyard:

I take it that's part of why the Dobbs draft states it wasn't questioning cases involving gay rights, etc. Critics of Dobbs think of all of these cases as raising similar issues, but the Justices likely to sign on to Dobbs would tend to see those cases as different.

— Orin Kerr (@OrinKerr) May 4, 2022

Once you "undo" Roe, it’s a straight line to Griswold, and many other applications of the Constitution to state laws. Which is actually the basis of Alito’s draft: that the issue of abortion should return to the states. Why shouldn’t contraceptives and marriage and sexual practices (“sodomy”) follow suit?

And this is how it will happen:

The end of a national right to abortion could trigger a surge of interest in a method of pregnancy termination that has become popular in states that already restrict the procedure: Abortion pills by mail. https://t.co/NV1eZfYzXr

— The Washington Post (@washingtonpost) May 4, 2022

Can states ban possession and use if abortifacients which are legal under Federal law for that use? Can they ban receipt of them through the U.S. mail? Or just possession? And the fundamental distinction with Griswold is what?

Besides, all that energy that was put into overturning Roe for 50 years is going to need a new target. Having finally won, it’s not going to just go away.

Or will the courts just consult the latest polls to decide what’s “traditional” and what isn’t? If that’s not political, what is?