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US Supreme Court gives back power to the people
The facts
In March 2018, the state of Mississippi passed the Gestational Age Act, which banned any abortion operation after the first 15 weeks of pregnancy, with exceptions for a medical emergency or severe fetal abnormality but none for cases of rape or incest.
Republican Governor Phil Bryant said that he was:
He added:
“We’ll probably be sued here in about a half hour, and that’ll be fine with me. It is worth fighting over.”
An abortion clinic named the Jackson Women’s Health Organization and one of its doctors filed a suit in Federal District Court the day the Gestational Age Act was enacted against various Mississippi officials, alleging that the Act violated Supreme Court precedents establishing a constitutional right to abortion. The District Court granted summary judgment in their favour and permanently enjoined enforcement of the Act, reasoning that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and that 15 weeks’ gestational age is “prior to viability.”
Mississippi appealed against the Fifth Circuit to the Supreme Court in June 2020, challenging the viability standard set by previous Supreme Court decisions and asking the Court to allow the prohibition of “inhumane procedures”.
Relevant law
The Ninth Amendment to the United States Constitution provides that:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Section 1 of the Fourteenth Amendment to the United States Constitution provides that:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Roe v. Wade (1973)
In Roe v. Wade, 410 U.S. 113 (1973), the US Supreme Court majority opinion in striking down Texas’s abortion ban as unconstitutional held that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction:
“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.”
“A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.”
Roe v. Wade decided that a state’s right to regulate abortion was limited according to which trimester of pregnancy:
“With respect to the State’s important and legitimate interest in the health of the mother, the ‘compelling’ point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health.”
“To summarize and to repeat:
100
1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
101
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
102
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
103
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Planned Parenthood v. Casey (1992)
The subsequent case of Planned Parenthood v. Casey, 505 U.S. 833 (1992) resulted in a particularly divided Court.
The plurality’s opinion overturned the Roe trimester framework in favor of a viability analysis allowing states to implement abortion restrictions that apply during the first trimester of pregnancy, and the Court also replaced the strict scrutiny standard of review required by Roe with the undue burden standard.
However, the plurality emphasised that stare decisis had to apply because the Roe rule had not been proven intolerable:
“The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.”
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Justices Blackmun and Stevens approved of the plurality’s preservation of Roe. Justice Blackmun, the author of Roe, argued for a woman’s right to privacy and again insisted that all non-de-minimis abortion regulations were subject to strict scrutiny.
Justices Rehnquist and Scalia dissented from the plurality’s decision to uphold Roe v. Wade and strike down the spousal notification law, contending that Roe was incorrectly decided.
The Gestational Age Act
Mississippi’s Gestational Age Act, see Miss. Code Ann. §41–41–191 (2018) provides that:
“Except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” §4(b).
US Supreme Court decision
Justice Alito held that the divisive issue of abortion properly belongs and should be given back to the people:
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)”
“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.””
“Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.”
Full story: https://sterlinglawqld.com/us-supreme-court-gives-back-power-to-the-people/
Race hate hoaxer Jussie Smollett gets appeal bail
In December, American actor Jussie Smollett was found guilty by a jury of falsely reporting a hate crime against himself.
He claimed two racist Trump supporters wearing MAGA hats beat him up. It turned out he had paid two Nigerian brothers to stage the whole thing so that he could pretend to be a victim of a racist and homophobic hate crime.
Earlier this month, Smollett was sentenced to 150 days in Cook County jail, and 30 months of felony probation, as well as restitution of $120,106 and a $25,000 fine.
Since then, Smollett was ordered to be released from jail after posting a personal recognizance bond of $150,000 by an appeals court pending the appeal against his convictions.
In Australia, a convicted person must ordinarily demonstrate exceptional circumstances in order to get appeal bail. The position appears to be different in America.
Jussie Smollett sentenced to 150 days in jail for fake hate crime hoax
Last year, American actor Jussie Smollett was found guilty by a jury of faking a hate crime against himself.
But many in the media had believed him. His tale was simply too good to be false.
Brainless Brooke Baldwin of CNN lamented that “And this is America in 2019“.
She was correct, but not quite in the way she meant it.
America in 2019 was a country whose ruling class was obsessed with race and identity politics, and desperate to find instances of racism in order to justify their obsessions.
That remained the case the following year, when a white kid who shot some violent rioters in Kenosha, Wisconsin in self-defence was immediately characterized as a white supremist, even though all three rioters he shot were white.
Jussie Smollett understood this and figured that being the victim of a violent racist attack would spectacularly boost his profile.
He was proven right. Soon after, America’s ruling class unconditionally accepted his tale, and used it to condemn the entire country.
Full story:
Of cabbages, kings and a meeting of Blog war protagonists
Leon Bertrand and I have a face to face meet up with Scott Bridges planned for today which should be quite interesting to say the least, because how often do you get a chance to meet up with your online “enemy ” after a decade long blog war?
Hold on comrades this could be an interesting ride
Myuran Sukumaran and Andrew Chan deserve to be shot and then forgotten
Awaiting execution: Myuran Sukumaran, left, and Andrew Chan. Photo: AAP
“Australian government appeals are neither heroic nor heartfelt; Canberra is merely trying to save their own ‘subject bodies’ from the firing squad, while slowly disposing of ‘abject bodies’ it does not want through inhumane detention centres or returning them to foreign regimes that will probably finish the job for them,” Mr Marthinus said in an opinion piece in The Jakarta Post.
The impact of the executions on bilateral relations is coming under intense scrutiny in the English-speaking press in Jakarta, with conjecture that the decision to drop plans to waive visa requirements for Australian visitors to Indonesia could also be related.
However, this has been denied by the government and is also considered unlikely by migration agents.
And Bali’s Governor Made Mangku Pastika has said he would not like to see the execution take place on Bali because it could hurt the island’s public image.
I wonder If I am alone in feeling somewhat embarrassed by the excessive gnashing of teeth over the pending execution off these two scumbags? There is no doubt that they did the crime, being caught red handed with the heroin strapped to their bodies takes care of that, these two were the ringleaders of the scheme so they deserve a harsher punishment than the other seven idiots. that make up the “Bali nine”gang. That said I am sure that the usual suspects will whine and posture about how capital punishment is wrong in principle. Frankly its not something that I believe. there are crimes that clearly deserve a capital sanction multiple murder, or murder in the name of a vile ideology are obvious to me, as is the repeated sexual abuse 0f children, when it comes to drug dealers its a little less clear. Personally I tend to think that some drugs are worse than others and that those who deal in opiates, cocaine or crystal Meth are worse than those who sell a bit of Ganga.
So in the not too distant future Myuran Sukumaran and Andrew Chan will have their stroll in the jungle , be tied to a post and shot dead this little black duck won’t shed a single tear nor will most of my fellow Ausies either. The usual suspects on the other hand will have an almost orgasmic out pouring of leftist angst all because these men happen to Australian citizens…
The sooner they are shot the sooner they can be utterly forgotten because they certainly do not deserve to be remembered.
Cheers Comrades
If scumbags are shot in the jungle and no one sheds a tear…
Educated Cambridge University arses.
James Dellingpole see’s much virtue in Katie from Sidney Sussex’s pert bottom
When I was at university the students were revolting they celebrated and delighted in being transgressive Sadly that is no longer the case.
Can naked bottoms really be that socio-politically significant? Oh very much so, I’d say. Especially to anyone who has just read the quite monumentally depressing cover story from this week’s Spectator by Brendan O’Neill. His argument is that political correctness has become so heavily entrenched in academe that our seats of learning are in serious danger of abandoning perhaps their most important function: opening up developing minds to new ideas and experiences.
If your go-to image of a student is someone who’s free-spirited and open-minded, who loves having a pop at orthodoxies, then you urgently need to update your mind’s picture bank. Students are now pretty much the opposite of that. It’s hard to think of any other section of society that has undergone as epic a transformation as students have. From freewheelin’ to ban-happy, from askers of awkward questions to suppressors of offensive speech, in the space of a generation
A worthy and witty post that I commend to readers of the Sandpit
Cheers Comrades
Ring around a Rosey, or a look at how the Black Death of the middle ages is reflected in the current outbreak of a Ebola
In the middle of the 14th century, however, there seemed to be no rational explanation for it. No one knew exactly how the Black Death was transmitted from one patient to another–according to one doctor, for example, “instantaneous death occurs when the aerial spirit escaping from the eyes of the sick man strikes the healthy person standing near and looking at the sick”–and no one knew how to prevent or treat it. Physicians relied on crude and unsophisticated techniques such as bloodletting and boil-lancing (practices that were dangerous as well as unsanitary) and superstitious practices such as burning aromatic herbs and bathing in rosewater or vinegar.
In many ways we can see distinct similarities between the Black Death and the current outbreak of the Ebola virus in western Africa, Like the medieval plague then there is no known cure for Ebola now and despite all of the wishful thinking, despite all of the advances in medicine in the last 600 years we are just as powerless to stem the spread of this disease. And I am sorry to be the bringer of bad news but I think that this disease is going to have a similar effect on the population of Africa as the Plague had on 14th century Europe. We can certainly expect that the death toll will soar into the millions as efforts to contain it continue to fail.
Why do I expect such a large death toll?
This is a virus that not only spread through the exchange of bodily fluids but also remains active in the items that those fluids fall upon, thus bedding and clothing that the infected have touched becomes vectors for the disease to reach new victims. Add to that cultural practices pertaining to the care of the sick that funds family looking after their own, a low level of education, the effects of other diseases poverty and crowded living conditions and it’s not had to see just how optimistic any suggestion that the disease can be contained are. Just look to the example of the response to one man with the disease who is now gravely ill in the United States to get some idea of just how much effort is needed if you are too truly contain the infection: This level of response is just not possible in third world west Africa and so it seems inevitable to me that the infection is going to spread exponentially just as the black death spread exponentially in 14th century Europe.
So what can the modern west do to help stem the spread of the disease in Africa?
Well not much at all really, we risk losing a large number of our very skilled people if we send them into the disease hot spots firstly because the treatment that is available essentially boils down to trying to keep patients hydrated and waiting to see who has the natural ability to fight the infection. Those brave souls who are trying to treat the currently infected are trying to do so while wearing Hazmat suits that are essentially a fancy yellow plastic bag which I’m sure you will realize is nothing short of tortuous in the tropical climate of the region. So not only do the health workers run the very real risk of contracting the infection but also they risk dying from heatstroke in the suits they try to prevent infection with. Several health workers who have caught the Ebola virus have been evacuated so that they can be treated in Western hospitals but if the numbers of infected western heath workers were to increase I can foresee the practice of repatriating them being wound back or even abandoned in the effort to contain the disease. Aid in the form of medical supplies, certainly can and should be provided but the major imperative now has to be containment, and quarantine of all parts of Africa where the disease has been found.
The Environmental bigger picture, or accepting the will of Gaia
In the natural world there are clear limits to the population of any species. Be it the amount of substance that a particular species can find or something in the environment that find them tasty and therefore limits their numbers through predation. Human beings are very clever in their ability to eat almost anything that is nourishing and in many ways we have become the apex predator in every part of the eco-system. That in conjunction with our ability to mitigate that other limit to population, disease. Has seen our numbers soar beyond 7billion souls on this small planet. I would seem to me that pandemics are one of the ways that Gaia addresses the problem of too many people on the surface of the planet. Oh humanity certainly has dodged a bullet from pandemics in the recent past. But this disease is not going to be so easily dodged. I think that it has already reached a critical mass that makes it virtually unstoppable. Heck thanks to modern air travel I will be very surprised if is even just contained on the African continent.
Things are going to get a great deal worse before they get better
During the Black Death whole towns succumbed to the disease they were left with only the dead in residence sometimes the dead were not even buried and it’s not hard to imagine that happening again in Western Africa if Ebola really starts to take off as I am expecting it to do.
What we need to realize is that modern medicine is good, its clever and its largely been the bringer of better lives for all of those it has touched, from the poor children spared the mortal diseases of childhood that used to take so many children well before they reached maturity to the wonders of surgery that can see the imperfections and damages to our bodies repaired and replaced in a way that would seem magical to a medieval man contemplating the plague yet here we stand in the same place as that medieval man facing a disease pandemic that we cannot stop and a death toll that we dread will be larger than anything humanity has not seen in the last six centuries.
If this danse macabre does play up a storm it will change every aspect of global human society we could well go from a place where the people desperately compete for places in the economy to one where skilled workers will be in very short supply in many parts of the planet. The mechanized west where we already have machines that enable a very small number of people to grow the crops to feed the many or to operate the machines will probably get through this upcoming disaster well enough but any society still that practices subsistence agriculture can expect the same hard times that befell Europe after the plague because there was simply not enough people to plant and harvest the crops. Those who have been worried about climate change May well find all of their concerns are moot because a world with less people on it will not be producing anywhere near the emissions growth they are so certain is the problem. On the other hand the worlds mercantile economy is likely to be severely affected by both the loss of potential customers and the cost of trying to address the disease.
One other thing that we should recognize is that many people see the world through the lens of their religion and those religions that have a millenarian tendency may well see Ebola as some sort of divine retribution for our “sins”. A faith like Islam on the other hand which places such value in the observance of a mass gathering like their Haj could well be both a vector for the spread of the disease and suffer a huge number of casualties among its faithful.
The innocent childhood game of ring around a rosey actually has its origins in the time of the black death.
The all sneer no substance academic
After recent exchanges with University of Canberra Academic Jason Wilson, I have formed the view that there is a wide gulf between his own esteem of his knowledge and intellect and the far less impressive reality.
There is no doubt that Wilson fancies himself – this is evident from his sneering during twitter debates and his presumptuous claim to know more about the Middle East than the experienced journalists at The Australian.
One of our debates concerned whether the terrorist threat in Australia was real or whether it was just a beat up. Strangely, Wilson believed that the number of non-terror related homicides was relevant to this question:
Never mind the terrorist threat. Look at the number of men killing their partners!
So according to Wilson’s logic, we should not be concerned about men killing their partners either, because this number is dwarfed by the number of people who die every year in motor vehicle accidents.
Moreover, there are a couple of other problems with Wilson’s argument, as I pointed out:
“To point out the social effects of terrorism is to engage in nationalist fantasies.”
According to Jason Wilson, there is no unity in Australian society. For a fellow who deems himself to have a very sound knowledge of international affairs, this appears to show that Wilson does not understand that compared to many other countries, Australia is one of the most harmonious.
However, in spite of his pompous demeanor, the exchange shows that Wilson does not really think through the issues at all. It is plain that he has not considered that some terrorist attacks have killed thousands, and that a successful terrorist attack in Australia could well drive a wedge between mainstream Australian society and certain parts of the Muslim community. His only response is to accuse me of believing in a “nationalist fantasy”.
Finally, just today Wilson accused me of making up the fact that he supported some form of media regulation. Whilst I could not find the tweet where Wilson indicated as such to me, I was able to find an article he wrote for the Drum in 2012. Whilst the article does not endorse the recommendations of the Finkelstein Report, the following comments reveal that Wilson does consider a free media market to be unsatisfactory and would support some form of media regulation:
It’s a shame that most of the Finkelstein Independent Media Inquiry Report will go unread by many of those who are damning it…. The problems it identifies are real enough, and pressing.
Australia has the worst concentration of media ownership in the developed world – no other country has, or likely would have, allowed things to get to this point… There are no truly effective remedies for ordinary people with few resources, whom the news media prints lies about, whose privacy is invaded, or whose careers are ruined by baseless reporting.
It is a shame that, rather than seeing the online space as cacophonous and unruly, Finkelstein didn’t instead offer ways in which diversity and sustainability might be promoted for a better media future.
As you can see, I did not “make it up”. I was right. Wilson does want media regulation.
Iain Hall's SANDPIT 