About whether the Dobbs case will overturn Roe v. In the Wade case, on whether American women will lose their freedom to have abortion, since last year, I have written five articles about the different stages of this matter. Yesterday, the US Supreme Court finally handed down the dobbs verdict, and the result was not unexpected, Roe v. The Wade case was formally overturned.
Today I'm going to start from scratch and comb through the whole thing. Friends who have read the previous articles can directly pull down to Part 6 to start reading. Friends who have not read the previous articles can read this article in order.
01
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Origin: Roe v. What is the Wade case? Why is it important?
Roe v. The Wade case, a 1973 case pronounced by the U.S. Supreme Court, affirmed that the U.S. Constitution guarantees women's right to abortion by invoking the right to privacy.
Wade was the name of the Dallas prosecutor that year, and Roe was a pseudonym, which was named after two lawyers, Wittington and Coffey, for the plaintiffs. The plaintiffs sued for rape and pregnancy, but because of Texas law, she was unable to access safe abortion services within the state.
Roe, whose original name was McConnivee, openly admitted in 1987 that the plot of the rape and pregnancy was deliberately fabricated by two lawyers in order to make the case look more extreme and gain more public sympathy. She was also sought out by two lawyers, not the lawyer she took the initiative to find. From the very beginning, Waddington and Kofi went with their political goals in mind.
In the United States, the issue of abortion has always been a major political and social issue, and to use an inappropriate analogy, abortion is to the United States what surname social capital is to China. Liberals believe that women's right to free choice should be guaranteed and the right to abortion should be defended, they call themselves "pro-choice", while conservatives believe that abortion is the murder of life, oppose abortion rights, they call themselves "pro-life". The attack between the two factions lasted for half a century.
Roe v. The victory in the Wade case became a small climax of the civil rights movement in the United States in the 1960s and 1970s, and it was once a sample of the United States' promotion of its progress to the world.
And for non-Americans, especially law students around the world, if there are a few cases that are familiar to everyone, Roe v. The Wade case must have been one of them.
So now, the U.S. Supreme Court overthrew Roe V. The Wade case represents a major setback for the feminist movement in the United States, a major victory for conservative liberals, and a worldwide reversal of history by the advanced United States. It triggers a cascade of domino effects.
02
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Mutiny: What is the Casey case? The "troika" turned out to be a reality
In fact, over the past half century, Roe v. The Wade case has already suffered several attacks by conservatives. Abortion rights have been at stake several times, and the closest conservatives have come to victory was the 1992 Casey case (Planned Parenthood v. Casey）。
Of the nine justices in the U.S. Supreme Court that year, republican-appointed justices accounted for eight. Of these eight, there was Roe v. Blackman, who wrote the majority opinion in the Wade case, also has Renquist, who was fiercely opposed to abortion rights and is now promoted to chief justice. White, the only Democratic-appointed justice over there, is a pioneer in the fight against abortion.
Then-President George W. Bush made it clear that he supported the overthrow of Roe V. Bush. Wade case, and also intimately sent a special envoy to oversee the case.
Conservatives are hopeful and feel that victory is just around the corner. Renquist even started writing majority opinions early.
Overnight, however, the storm changed. Renquist's classmate was also a good friend, the most famous swing ticket in the Supreme Court, and the only female justice of the year, O'Connor, who secretly met with Kennedy and Souter, two justices, to form an alliance known as the "troika" and defected together. They came up with their own opinions, although they thought that roe v. The outcome of the Wade case, however, does not agree to completely overturn the bottom line conclusion that "women have freedom of abortion".
A popular argument is that as a conservative justice, O'Connor did not support abortion much, but that there was a clause in casey in casey, in which pregnant women in Pennsylvania must notify their spouses of abortions, which made O'Connor very unhappy and considered sexist.
In any case, the Casey case of 1992 was a major defeat suffered by conservatives with an absolute numerical superiority. It provides American women with freedom of abortion for 30 years. The conservatives, on the other hand, went underground and began to lurk, gathering strength for the next charge.
Before Casey was brought before it was brought before the Supreme Court, it was heard by the Third Circuit, and among the trial judges was an ultra-conservative judge named Alito, who was unequivocally supportive of the notification of spouses, and Justice O'Connor, in writing his opinion, used Alito as a target to scold. But it is this Alito who will, in the future, assume all the hopes of conservatives and play a key role in turning history around.
03
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Lurking: A gentleman takes revenge, thirty years is not too late
In the United States, which is in the ascendant period, the atmosphere of freedom in society is very heavy, which is reflected in the Supreme Court and also affects the division of the camp of the justices. But as the U.S. weakened, things changed.
After the case was frustrated, conservative forces turned into a period of dormancy. After ten years, the time came to 2005. That year, Justice Renquist died suddenly, and George W. Bush nominated Roberts, a self-styled "staunch conservative," to succeed him as chief justice. At that time, perhaps inferior to That of Justice Thomas, Roberts' political leanings had shown to be more conservative than most of the judges in the Supreme Court.
Critics are keenly aware of the trend toward the Right of the Supreme Court.
In 2006, Justice O'Connor retired, and this time George W. Bush nominated a candidate who was scolded by O'Connor 14 years ago. Interestingly, it was with his performance in the Casey case that Alito made a name for himself within the conservatives and won the favor of the bigwigs. Now that he has been pulled out to confront O'Connor's deficiency, conservatives seem to be mocking something, and Bush Jr. seems to be avenging bush sringman.
Alito's assumption of office is even more disturbing than Roberts's, and perhaps the most important legal philosopher and political philosopher of our time, Dworkin, wrote a book in those years, The Formation of the Supreme Court: The New Right Group in the Supreme Court, predicting that roe v. A large number of cases, including the Wade case, will be overturned by the Roberts Court.
In the third chapter of The Formation, "The Court and Abortion: Worse Than You Think," Dworkin writes bluntly:
"Now, we must see that all of these verdicts can easily be reconsidered and overturned in the coming years, because extremely conservative justices have begun to rewrite the Constitution without caring about the internal logic they use." Bush's despicable administration has created many disasters, and the appointment of Roberts and Alito will prove to be one of the worst of them. ”
Dworkin was slurred, and even the reality was worse than he had predicted.
In 2017, the conservative Justice Gorsuch joined the Supreme Court. In 2018, conservative Justice Kavanaugh joined the Supreme Court. In 2020, conservative Justice Barrett joined the Supreme Court. Since then, the ratio of conservative and liberal justices in the Supreme Court has reached 6:3.
Overthrow Roe V. The time is ripe for the Wade case. In 2021, the Supreme Court brought in the case of Dobbs v. Jackson Women's Health Organization, in which Mississippi's attorney general sought to completely overthrow Roe v. The legal concept of abortion established in the Wade case and the Casey case.
After thirty years of fierce fighting, the two sides finally came to the battlefield of decisive battle.
04
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Clarion Call: The National Review is ready for theoretical weapons
The conservatives are by no means unprepared, how well prepared they are, how confident they are, and how careful they are in their mindset, from last November when the Conservatives' important position, The National Review, overthrew Roe v. This can be seen in the special issue of the Wade case.
The cover of this issue is printed with the words "Overthrow roe case", and the composition is extremely ingenious, from the three major directions of law, policy and society, inviting big names and attacking liberals.
Let's take the legal section as an example. The first was a "Fallacy of Legitimacy", which slammed O'Connor's 1992 Casey verdict. An important theory of O'Connor is roe v. The Wade case has existed for twenty years, and its social impact is far-reaching, and once it is overthrown, it will definitely affect people's lives. The two authors of "The Fallacy of Legitimacy" from the Political Science Department and the Law School of Princeton University asked: The justices of the United States are lifelong, unelected, and do not need to be accountable to any voter, not to any electoral body such as Congress, all they have to do is to follow the logic of the law and provide "guidance", so are O'Connors not putting themselves in the right place?
In the second part, "The Corruption of History", the target of the attack shifts from the "troika" in case Casey to Roe v. Blackman in the Wade case, the author asks: Blackman is a medical layman, his three-stage division of abortion has no authoritative medical endorsement, and it is a selective misrepresentation, why should Americans be ruled by the medical standards of medical laymen for half a century?
The third, "Unresolved," returns to the "Troika" in Casey's case. When the "Troika" said to follow precedent, the author said that the original Latin text of "follow precedent" was "Stare decisis et quieta non movere", that is, "follow the precedent, do not disturb the solved problem". The question is is abortion rights a "solved problem"? The author says that both Blackman and O'Connor are strong and messy, and since they are "unresolved," they can certainly be overturned.
The fourth part, "Abortion as an Anti-Legal", is written by a retired professor of jurisprudence, who starts from what he has seen and heard, attacks upwards from the perspective of life experience, and attacks downwards from the height of legal philosophy, saying that "some people with college diplomas, abortion makes it unclear to you who you are."
The fifth is the most interesting, called "Roberts v. Roy v. Wade", which is not so much an analysis of the case as a knock on Roberts. After the liberal power of the Supreme Court shrank rapidly, Roberts, who was the far right of the year, became the new swing vote. Many liberal media have long noticed that Roberts is a very vain justice, and many times he will be unique in order to make a splash for himself. The National Review article reads: "The Chief Justice made the right choice in 2010, and he will remain on the right side in 2022." "Just say Roberts, don't be a traitor in 2022."
There is also a final article in the law section, "The Tested Conservative Legal Movement," which is a sensational summary statement to the effect that if roe v. In the Wade case, many precious things will never return.
Looking at several manuscripts of the National Review, the reasoning is pressing step by step, and the lyricism is progressive, forming a set of dense combination fists. Glimpse the ambitions of conservatives.
(For a detailed version of the first four parts of this article, see the humble article "Will American Women Lose Their Freedom of Abortion Next Year?") 》。 ）
05
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Conspiracy: Who is the leaker?
Conservatives sharpen their knives in that box, and liberals are ready to go. The great war was about to break out, and at this time the most dramatic scene of the whole thing appeared.
On May 2, the liberal POLITICO released a message confirming that Roe v. Wade will be overthrown, and the news will immediately detonate the field of public opinion. Later, Justice Alito wrote for the Dobbs case, overturning Roe v. The 98-page draft majority opinion in the Wade case was placed online in its entirety by POLITICO.
POLITICO featured a feature story and excerpted key passages from Alitto's draft for separate posts. In the draft, Alito writes: "Roe v. The Wade case was a shocking mistake from the start. ”
POLITICO also broke the news that eight of the nine justices have been selected to form a conservative liberal 5:3 pattern, and the only remaining one is Justice Roberts.
Although Roberts' votes do not hinder the overall situation, although according to past experience, Roberts only swings at 4:4, when the vote is one-sided, he will not hesitate to join the majority and then compete for the right to write the majority opinion, because that is the most prominent at that time. However, POLITICO notes that it keeps Roe v. There are also theoretical possibilities in the Wade case. The possibility is that Roberts persuaded the relatively moderate and conservative Justice Kavanaugh to form a key swing group like the "troika" of the year, and finally give a result that did not directly overturn the Roe case but supported the Dobbs case, giving conservatives and liberals a mutually acceptable compromise.
Suspense came to Roberts and Kavanaugh. However, Roberts at that time was violently criticizing the leak. Before the verdict was handed down, the draft opinion circulating internally was leaked in its entirety, the first time in the history of the U.S. Supreme Court. Roberts angrily denounced this as a betrayal of the entire justice system and a taint to noble American law.
So, who leaked the draft opinion?
Liberal and conservative media blamed each other, and the scene was close to Rashomon. But one of the most convincing ones comes from Tom Goldstein, a lawyer who has long observed the Supreme Court.
Goldstein says there have actually been three leaks. The first time before POLITICO, the right-wing Wall Street Journal released the news on April 26 that Roe v. The Wade case may be overturned, and it was Alito who drafted the majority opinion. Note that the author of this news article is the Editorial Board of the Wall Street Journal.
The second leak was POLITICO's report that exploded public opinion. The third leak was followed by a second, and Alitto's 98-page draft opinion was fully obtained by the media.
If all three leaks were true, Goldstein said, they would almost certainly be political operations. The first time is obviously good for conservatives and can be used to measure the direction of the wind. The second and third times, it seems to be more favorable to liberals, or to the Democratic Party, because there will be a midterm election at the end of this year, Biden's support is low, the general prediction that the Democratic Party will lose the House and the House of Representatives, and the use of abortion to detonate public opinion will help urge young voters to come out and vote, which is conducive to the Democratic Election.
Goldstein further said that in the eyes of the second and third leakers, it was the other party who leaked the secret first, and he obtained some legitimacy by leaking the secret.
One of Goldstein's most interesting observations is that he directly guessed the identity of the second and third leakers, saying that there was a person in the signature column of politico's exposé article, Alexander Ward, and this person was very special. Because he's not from the POLITICO legal team, he's a journalist in charge of national security news. Politico said in response to an interview with the Washington Post that the news of the leak is top secret within POLITICO, so Goldstein asked why the name of a national security reporter appears in the author's column for such a confidential legal report? The only explanation may be that the leaker provided the message through Alexander Ward.
Who in the national security department would reveal information to Alexander Ward?
Roe v. Wade is no longer a purely legal case, it is a political event.
There is not a single major legal case, only about the law.
(For a detailed version of part V, see the humble article "Talking about the Leaks in the U.S. Supreme Court: Behind the Overturning of the Roe v. Wade Case" and "Revisiting Americans' Freedom of Abortion: Is There a Turning Point in the Dobbs Case?") "Reality House of Cards: How the Draft Judgment of the Supreme Court Leaked Out". ）
06
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Assassination: The Justice Who Led America into Darkness
Since May 2, the media has focused on three people: Alito, Roberts and Kavanaugh.
The demonstrations organized by the "Choice Faction" basically started in front of Alito's house, swung around in front of Roberts' house, then swung around in front of Kavanaugh's house, and finally ended at the door of the Supreme Court.
Perhaps the most interesting of Alito's manuscripts is Aziz Huq, a constitutional law professor at the University of Chicago School of Law. Huq's unexpected denial that Alito is a conservative, saying that Alito's jurisprudence logic does not matter at all, whether he is a conservative or not has nothing to do with the grand purpose, it should be noted that Alito is an angry judge, and his anger reflects the grievances of white men who have been replaced in social and cultural change.
Huq says a lot of Alito's opinion is naked emotion. Compared to Alito, Kavanaugh appeared more like a purely conservative lawyer. So, will Kavanaugh and Alito go all the way?
Ever since POLITICO rumored that Roberts was going to woo Kavanaugh's defection, Kavanaugh was on the cusp. We later learned that the biggest suspect in the leak was the White House national security services. But at the time, liberal media outlets like The New York Times were taking the rhythm of kavanaugh's lost in cafes.
The rumors of the liberal media are actually a kind of pressure. But it's not just the media and those behind it who pressure Kavanaugh. In early June, a 26-year-old Young American man with a gun stood in front of Kavanaugh's house, ready to assassinate Kavanaugh and kill the evil justice who "will plunge America into darkness." But in the end, he did not move, but called the police to turn himself in. The media, including The Washington Post and Britain's Reuters, were the first to cover the incident.
Suspense may be left to the last minute, will Roberts defect? Will Kavanaugh mutiny? Will the Casey case in '92 repeat itself?
(For a detailed version of the first half of Part VI, see the humble essay Alitto: Destroying the Right to Abortion.) ）
07
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Hammers: The justices made their final choice
On June 24, 2022, the U.S. Supreme Court finally decided by a 5:4 vote to formally overthrow Roe v. Roe v. Wade case.
The majority opinion in the final draft was not much different from the previously leaked 98-page draft. Kavanaugh did not defect. Roberts mutinied.
Although on the side of the liberal justices, Roberts wrote in his minority opinion that he actually supported the conservative position in the Dobbs case, but he opposed the direct overthrow of abortion rights, hoping that the two sides would compromise and that the issue would be left to be resolved later.
Breyer, Sotomayor and Kagan, three liberal justices, signed a sad objection, criticizing the conservative justices' majority opinion as "unwise" and "confusing" and that "taking back women's right to decide whether or not to continue their pregnancy does not mean that there is no choice, but that this choice is taken from the female audience and handed over to the states... Many women are born with only Roe v. In the Wade case, when the Roe and Casey cases were gone, what disappeared was power, control and dignity... We fear that today's verdict is aimed at the rule of law. ”
Liberal justices caution that overturning Roe will never be the end, but the beginning, and that Dworkin's predictions made more than a decade ago have been fulfilled, and conservative justices will then launch a long-planned counterattack on a range of civil rights such as same-sex marriage.
In fact, Thomas, the most senior conservative justice in the Supreme Court, has made it clear in his collaborative opinion that this is our next goal.
For the time being, however, conservatives have strategically chosen not to "do their best in one battle", but to solve only Roe v. The problem in the Wade case. The majority opinion states that only the right to abortion is denied for now, and the Dobbs case will not deal with other related constitutional rights.
Even so, the current victory is enough for conservatives who have been dormant for thirty years to cheer.
08
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The future: It's just getting started
The impact of the Dobbs case won't be apparent all at once, and the most immediate consequence for now may be that abortion will become illegal in 16 states in the short term.
The next effect is that women who want to have an abortion will be in a much tougher situation. The cover article of the latest issue of The Atlantic is about overturning Roe v. What about women who had abortions after the Wade case. Originally, in the United States, many of the abortion business were small clinics, because they could circumvent the law and ignore complicated hospital procedures. The number of these small clinics, which was not much in the first place, is now afraid that it will be further reduced. The case of trekking thousands of miles only for abortion is likely to become more common. Even like many Americans who go abroad for medical treatment, there may be a phenomenon of abortion abroad in the future.
In addition, because of the controversy over abortion, a considerable number of American women choose to take abortion pills themselves. Abortion drug startups are also a relatively hot category in the United States. With the overthrow of Roe v. In the Wade case, state laws may target these startups.
Related to the abortion drug startup is the import of abortion drugs, so there may be policy adjustments in the customs. Formal channels are limited, and it is even possible to see strange scenes of drug traffickers shipping abortion pills to the United States in the future.
These consequences are only medical, and there are bigger storms brewing in politics. Imagine how the gun issue, which has been buzzing with the massacre at Uvard Primary School, will give way to abortion in the future, and how will this affect the midterm elections at the end of this year? How will this involve Biden's future energy in domestic and foreign affairs? How will it fit into the inflation crisis? How will the struggle between the Democratic and Republican parties continue?
In a way, the overthrow of Roe v Wade was not a tsunami, but just a high tide in a tsunami. It didn't come out of thin air, and it won't just go away.
Finally, as a legal person, I would like to say that for a long time all legal people have a dream, or a naïve belief, that the law can become an independent kingdom different from politics. Yet again and again, this has proven to be just wishful thinking on the part of legal people.
Around Roe v. The conspiracy and intrigue unfolded in the Wade case unveiled a cruel corner of reality, and in many cases, law, like war, is just an extension of politics, it claims to be independent, but it has never been independent, and it is impossible to be independent in the future.
Sisyphus, who kidnapped the god of death, the most cautious and wise of the people who will eventually die, can only push the boulder up hard, and then watch the boulder roll down again and again.
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