💥 Major abortion decision today @ 6th circuit: 9–7 majority permits Ohio to bar doctors from providing abortions to women who want to end their pregnancies because the fetus has Down Syndrome.
Prohibition applies before viability, undercutting the abortion right in Roe/Casey.
Much of the highly contentious discussion in the concurrences and dissents concerns how to think about women aborting fetuses with Down Syndrome. The majority calls them modern-day eugenicists while dissenters deplore this characterization. Here's Judge Karen Moore:
And here is Judge Julia Gibbons
The central doctrinal point of contention: whether the Ohio law constitutes an undue burden on the right to pre-viability abortion.
Judge Jeffrey Sutton says no way...
...while Judge Bernice Donald says it's absolutely an undue burden.
This syllogism from Judge Donald is persuasive
A year ago @ProfMMurray mentioned to me she was working on a paper on eugenics, race and abortion & a nascent strategy for taking down Roe v. Wade. Lo and behold, it's here.
At 10 am, the Supreme Court hears its second abortion case in as many months. Have a look at my quick @TheEconomist preview and follow me here. I’ll be analyzing the oral argument as it happens espresso.economist.com/face3ee8cd23d4…
Here are the lawyers arguing today. The hearing is scheduled for one hour but, with additional questions in the justice-by-justice rounds, will probably take about two hours.
And we're off. Joshua Turner begins his defense of the Idaho Defense of Life Act that does not permit abortion in emergency settings unless the pregnant woman faces an imminent risk of death.
SCOTUS just now in 8th am homelessness case: Justice Sotomayor, pressing lawyer for Grants Pass, OR, on why "stargazers" or people lying on the beach who fall asleep ("as I tend to do") are not arrested, but homeless people are.
Kagan: could you criminalize the status of homelessness?
lawyer: that's not a status
Kagan: yes it is
Kagan: you could criminalize just homelessness. I mean that's quite striking!
Looking back at the Joint Appendix in FDA v Alliance for Hippocratic Medicine, it's remarkable how slippery the anti-mife lawyers are as to whether their objection to "completing an abortion" is (1) killing a live embryo/fetus or also (2) removing dead pregnancy tissue.
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Start w/ @Dahlialithwick and @mjs_DC's excellent piece highlighting Erin Hawley's pivot to (2): she transforms "'complicity' from a shield for religious dissenters to a sword for ideologues desperate to seize control over other people’s lives and bodies" slate.com/news-and-polit…
Yet when probed by Kagan in Tuesday's hearing for evidence that plaintiffs object to (2), she points to JA 155, graf 15.
Today Erin Hawley said her clients face a "Hobson's choice" due to FDA rules regarding access to mifepristone: the agency "forces them to choose between helping a woman with a life-threatening condition and violating their conscience".
Here's why that's wrong...
A 🧵
What's a Hobson's choice? Wikipedia helps us out: a non-choice choice. When you are given two options and one is obviously better than the other so you don't, in fact, have a choice.
That's not what Hawley is saying about the choice facing her doctor-clients. She paints their choice as between two obviously bad options (1/let a woman suffer/die; 2/kill a fetus). That's more akin to a dilemma, which, as Wikipedia helpfully clarifies, is not a Hobson's choice.