Steven Mazie Profile picture
Apr 13, 2021 8 tweets 3 min read Read on X
💥 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.
Here are all the opinions opn.ca6.uscourts.gov/opinions.pdf/2…
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.

Given today's 6th circuit ruling, this is jumping to the top of my reading list harvardlawreview.org/2021/04/race-i…

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More from @stevenmazie

Jun 14
This is one of the two big gun cases we've been expecting, and again it's a 6-3 decision along ideological lines.

The ATF under Donald Trump started regulating bump stocks as machine guns after the 2017 Las Vegas massacre.

Today SCOTUS says the govt can't do that.
Alito writes separately to say that Congress can change the law to allow bump stock regulation Image
Read 6 tweets
Apr 25
Kav on OLC opinions: clear statement rule for official acts, but none of these statutes in this case have a clear statement.

Kavanaugh seems REALLY INTERESTED IN EXPANDING PRESIDENTIAL POWER
Kav: some acts in indictment are private and some are official. Who decides which is which?

Sauer: the district court
Barrett: what if the criminal acts aren't discovered until after president leaves office? no chance for impeachment/conviction in Congress?

Sauer: better to under-enforce than "lose liberty"
Read 65 tweets
Apr 24
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. Image
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.
Read 78 tweets
Apr 22
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!

Lawyer: we do not do that.

Kagan: *could* you?

Lawyer: ...
Read 20 tweets
Mar 28
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.

🧵
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. Image
Read 11 tweets
Mar 26
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. Image
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. Image
Read 9 tweets

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