Liberals Who Cry Roe

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RxCowboy

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#1
From the WSJ editorial page:

Liberals Who Cry Roe
A obscure case over state sovereignty triggers a Supreme Court exchange over precedent.
By The Editorial Board
May 14, 2019 7:22 p.m. ET

Who would have thought that a Supreme Court ruling in an interstate tax dispute would devolve into a brawl over abortion politics? Such are our political times as the four liberal Justices on Monday chided their conservative colleagues for overturning a 40-year precedent, which progressives warn will create a stare decisis slippery slope to banning abortion.

At issue in Franchise Tax Board v. Hyatt was whether states enjoy sovereign immunity in other states’ courts. California urged the Court to overturn its Nevada v. Hall (1979) precedent, which held that states aren’t required to grant legal immunity to other states. Most do for comity purposes, and state courts have entertained only 14 cases by private citizens against other states in the past four decades.

The Court reasoned in Hall that states have a sovereign interest in protecting their citizens, and the Constitution doesn’t explicitly require interstate sovereign immunity. But there are strong opposing constitutional arguments, which Justice Clarence Thomas explained in the 5-4 majority’s opinion overturning Hall.

The Constitution “embeds interstate sovereign immunity” in its structure and design, Justice Thomas asserts. For example, states are required to afford citizens of each state “all Privileges and Immunities of Citizens in the several States.” While interstate sovereign immunity isn’t spelled out, the founders “took as given that States could not be haled involuntarily before each other’s courts.” In other words, conservatives aren’t simply divining a constitutional penumbra.

The Hyatt case is a close call because originalist arguments swing both ways. “When a citizen brings suit against one State in the courts of another, both States have strong sovereignty-based interests,” Justice Stephen Breyer observed in his dissent joined by his fellow liberals. Respect for stare decisis also cautions against overturning precedents willy-nilly.

And here is where the real legal fight broke out. Justice Thomas defended the toppling of Nevada v. Hall by noting that stare decisis is not “an inexorable command” and “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.” The Court may overrule a precedent if a majority believes earlier Justices committed a constitutional error and there aren’t significant interests that rely on the precedent. If the Court didn’t sometimes fix its mistakes, bathrooms and schools would still be segregated. States would be prohibited from setting a minimum wage.

Yet the liberal Justices warn that conservatives by overturning Hall will “encourage litigants to seek to overrule other cases.” Citing Planned Parenthood v. Casey (1992) upholding abortion rights, Justice Breyer writes that stare decisis should be followed except in cases “when it ‘def[ies] practical workability” or “facts have so changed.”

“It is far more dangerous to overrule a decision only because five members of a later Court come to agree with earlier dissenters on a difficult legal question,” Justice Breyer warns. “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.

Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.

***
As for stare decisis, liberals would have more credibility if they didn’t so often disregard precedents they oppose. In his McDonald gun-rights dissent in 2010, Justice Breyer cavilled that “since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed.” Yet McDonald was merely a case incorporating the Heller ruling to the states, as the Court has done for the other amendments in the Bill of Rights.

Who doubts liberals would overturn Heller, Citizens United on free speech and many other precedents they oppose if they had a majority? Precedents should be overturned on their legal merits, not the politics of the day.

Appeared in the May 15, 2019, print edition.
 

StillwaterTownie

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#2
Yes, a significant ruling for states that ban all abortion when they can and don't want to become exporter states of abortion. How far will states go in prosecuting its citizens of its laws violated in other states where there is no law against what was done?
 

UrbanCowboy1

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#4
Yes, a significant ruling for states that ban all abortion when they can and don't want to become exporter states of abortion. How far will states go in prosecuting its citizens of its laws violated in other states where there is no law against what was done?
That's a good question. I noticed (I think it was Georgia's abortion bill) that they specifically called this out saying you couldn't cross state lines to get an abortion. That would be akin to Oklahoma passing a law saying you can't go to CO to and take legal marijuana.
Also, I think an important distinction is that most of the differences in state laws revolve around civil cases. These are potential criminal charges. Can you cross a state line and commit an act that's only a criminal offense in Oklahoma? Can Oklahoma try you for this? I have no clue on the history of these types of situations, curious to hear the boards thoughts.
 
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SLVRBK

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#5
Yes, a significant ruling for states that ban all abortion when they can and don't want to become exporter states of abortion. How far will states go in prosecuting its citizens of its laws violated in other states where there is no law against what was done?
Not sure if serious...oh wait, Townie post so not serious
 
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#6
That's a good question. I noticed (I think it was Georgia's abortion bill) that they specifically called this out saying you couldn't cross state lines to get an abortion. That would be akin to Oklahoma passing a law saying you can't go to CO to and take legal marijuana.
Also, I think an important distinction is that most of the differences in state laws revolve around civil cases. These are potential criminal charges. Can you cross a state line and commit an act that's only a criminal offense in Oklahoma? Can Oklahoma try you for this? I have no clue on the history of these types of situations, curious to hear the boards thoughts.
I don't agree with it, but the Alabama law's pretty simple on this. The doctor performing the procedure can be prosecuted, the woman cannot.

So this is yet another strawman presented by our resident expert on strawmen.
 

UrbanCowboy1

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#7
I don't agree with it, but the Alabama law's pretty simple on this. The doctor performing the procedure can be prosecuted, the woman cannot.

So this is yet another strawman presented by our resident expert on strawmen.
Yep, Alabama's law is explicit. The Georgia law isn't, though.

https://www.washingtonpost.com/heal...n-bills/?noredirect=on&utm_term=.6da5b07ad76c

As it's currently written, it reads as if women will have to prove their miscarriage or abortion was for medical reasons, and then it isn't very clear on what will happen to them.

So my question remains unanswered on the criminal penalties for crimes committed in other states. How does that work? Not even necessarily with abortions, just any laws where crossing state lines is involved.
 
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#8
Yep, Alabama's law is explicit. The Georgia law isn't, though.

https://www.washingtonpost.com/heal...n-bills/?noredirect=on&utm_term=.6da5b07ad76c

As it's currently written, it reads as if women will have to prove their miscarriage or abortion was for medical reasons, and then it isn't very clear on what will happen to them.

So my question remains unanswered on the criminal penalties for crimes committed in other states. How does that work? Not even necessarily with abortions, just any laws where crossing state lines is involved.
Well I'd assume you could cross state lines and have an abortion safely since I think it's the doctor being charged not the woman, so you'd be talking about doctors practicing medicine in a state they don't live in or are probably licensed in, that's not very likely. Correct me if I'm wrong though.
 

wrenhal

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#9
Yes, a significant ruling for states that ban all abortion when they can and don't want to become exporter states of abortion. How far will states go in prosecuting its citizens of its laws violated in other states where there is no law against what was done?
So let's say theft is legal in Arkansas. I go to Arkansas and steal something. Does Oklahoma have the right to bring charges against me? Or say you smoke weed in Colorado recreationally. You don't bring any back. Can Oklahoma put you in jail?
All this mind wrangling libs do to keep the right to kill babies is crazy.

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Dec 29, 2008
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#10
So let's say theft is legal in Arkansas. I go to Arkansas and steal something. Does Oklahoma have the right to bring charges against me? Or say you smoke weed in Colorado recreationally. You don't bring any back. Can Oklahoma put you in jail?
All this mind wrangling libs do to keep the right to kill babies is crazy.

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States do not have criminal jurisdiction over other states. This is common law and has been adjudicated before: https://www.courtlistener.com/opinion/1168924/people-v-brown
 

UrbanCowboy1

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#11
So let's say theft is legal in Arkansas. I go to Arkansas and steal something. Does Oklahoma have the right to bring charges against me? Or say you smoke weed in Colorado recreationally. You don't bring any back. Can Oklahoma put you in jail?
All this mind wrangling libs do to keep the right to kill babies is crazy.

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I can't speak for all liberals and I don't want to kill babies. I also don't want to prosecute women and doctors who are dealing with miscarriages and stillbirths. It's a situation that I'm sure none of us would wish on another. To potentially add legal issues on top of dealing with that type of loss is horrific. It's really important that the general public discuss and understand these laws that are being written in our name.
 
Jul 22, 2011
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#14
I know this is horrible, but I don't see it addressed anywhere.

Why are there always exemptions for rape AND incest? Don't they just mean rape? Is anyone coming in to the clinic saying "I've been having totally consensual sex with my uncle, but I don't want to give birth to my cousin-nephew! Gross!"
 

CocoCincinnati

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#15
Yes, a significant ruling for states that ban all abortion when they can and don't want to become exporter states of abortion. How far will states go in prosecuting its citizens of its laws violated in other states where there is no law against what was done?
Can California prosecute me for violating their gun laws even if I have a conceal carry permit in Oklahoma?
 

CaliforniaCowboy

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#17
I know this is horrible, but I don't see it addressed anywhere.

Why are there always exemptions for rape AND incest? Don't they just mean rape? Is anyone coming in to the clinic saying "I've been having totally consensual sex with my uncle, but I don't want to give birth to my cousin-nephew! Gross!"
may be because incest falls under a different set of laws (may not involve minors), and may be simply to be inclusive of potential developmental issues.
 

CTeamPoke

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#18
From the WSJ editorial page:

Liberals Who Cry Roe
A obscure case over state sovereignty triggers a Supreme Court exchange over precedent.
By The Editorial Board
May 14, 2019 7:22 p.m. ET

Who would have thought that a Supreme Court ruling in an interstate tax dispute would devolve into a brawl over abortion politics? Such are our political times as the four liberal Justices on Monday chided their conservative colleagues for overturning a 40-year precedent, which progressives warn will create a stare decisis slippery slope to banning abortion.

At issue in Franchise Tax Board v. Hyatt was whether states enjoy sovereign immunity in other states’ courts. California urged the Court to overturn its Nevada v. Hall (1979) precedent, which held that states aren’t required to grant legal immunity to other states. Most do for comity purposes, and state courts have entertained only 14 cases by private citizens against other states in the past four decades.

The Court reasoned in Hall that states have a sovereign interest in protecting their citizens, and the Constitution doesn’t explicitly require interstate sovereign immunity. But there are strong opposing constitutional arguments, which Justice Clarence Thomas explained in the 5-4 majority’s opinion overturning Hall.

The Constitution “embeds interstate sovereign immunity” in its structure and design, Justice Thomas asserts. For example, states are required to afford citizens of each state “all Privileges and Immunities of Citizens in the several States.” While interstate sovereign immunity isn’t spelled out, the founders “took as given that States could not be haled involuntarily before each other’s courts.” In other words, conservatives aren’t simply divining a constitutional penumbra.

The Hyatt case is a close call because originalist arguments swing both ways. “When a citizen brings suit against one State in the courts of another, both States have strong sovereignty-based interests,” Justice Stephen Breyer observed in his dissent joined by his fellow liberals. Respect for stare decisis also cautions against overturning precedents willy-nilly.

And here is where the real legal fight broke out. Justice Thomas defended the toppling of Nevada v. Hall by noting that stare decisis is not “an inexorable command” and “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.” The Court may overrule a precedent if a majority believes earlier Justices committed a constitutional error and there aren’t significant interests that rely on the precedent. If the Court didn’t sometimes fix its mistakes, bathrooms and schools would still be segregated. States would be prohibited from setting a minimum wage.

Yet the liberal Justices warn that conservatives by overturning Hall will “encourage litigants to seek to overrule other cases.” Citing Planned Parenthood v. Casey (1992) upholding abortion rights, Justice Breyer writes that stare decisis should be followed except in cases “when it ‘def[ies] practical workability” or “facts have so changed.”

“It is far more dangerous to overrule a decision only because five members of a later Court come to agree with earlier dissenters on a difficult legal question,” Justice Breyer warns. “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.

Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.

***
As for stare decisis, liberals would have more credibility if they didn’t so often disregard precedents they oppose. In his McDonald gun-rights dissent in 2010, Justice Breyer cavilled that “since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed.” Yet McDonald was merely a case incorporating the Heller ruling to the states, as the Court has done for the other amendments in the Bill of Rights.

Who doubts liberals would overturn Heller, Citizens United on free speech and many other precedents they oppose if they had a majority? Precedents should be overturned on their legal merits, not the politics of the day.

Appeared in the May 15, 2019, print edition.
MOAR GOVERNMENT
 

StillwaterTownie

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#19
I know this is horrible, but I don't see it addressed anywhere.

Why are there always exemptions for rape AND incest? Don't they just mean rape? Is anyone coming in to the clinic saying "I've been having totally consensual sex with my uncle, but I don't want to give birth to my cousin-nephew! Gross!"
No, there are not always exemptions for rape and incest, for instance, Oklahoma SB 13. This is because it can be in God's will for rapes and incest to happen. So you shouldn't make such exceptions, because to do so could counter the will of God. This video shows a Republican Christian Right Republican defending that notion:

 

StillwaterTownie

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#20
So let's say theft is legal in Arkansas. I go to Arkansas and steal something. Does Oklahoma have the right to bring charges against me? Or say you smoke weed in Colorado recreationally. You don't bring any back. Can Oklahoma put you in jail?
All this mind wrangling libs do to keep the right to kill babies is crazy.

Sent from my Moto Z (2) using Tapatalk
Don't worry, I'm sure the Republican Georgia Attorney General will fight for the right to prosecute Georgia women who get abortions in other states and come back.

It is a FACT that a number of women, who are strongly opposed to abortion, do get abortions when they find the tables are turned on them and find themselves with unwanted pregnancies. Let's keep abortion legal for them, so they won't have to deal with the medical risks of illegal ones, some which may not even be performed by actual doctors.
 
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