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thoughts-of-a-social-worker · 2 years

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Roe, Blackmun, and Abortion: A Reflection on the Interpretation of U.S. Law

As a woman, and as a human rights advocate, I was surprised to learn how little I knew about Roe v. Wade and the process by which the original Supreme Court decision was decided upon in 1973. This is unsurprising, since I was born more than 10 year post-Roe. My life was one where the protections afforded by Roe simply were – up until this summer anyway. I never learned about Supreme Court Justice Harry Blackmun and knew only sparse details about the case itself.

The podcast Slow Burn dedicated significant time and energy to research this in their episode “Roe Against Wade.” It details the journey of Justice Harry Blackmun – a centrist who came from extreme poverty and was “ludicrously modest” according to those who knew him. The story follows him from his initial hesitance to accept President Nixon’s nomination all the way to the present day where he has only grown more resolute about his opinion on Roe. In his work for the Court, Justice Blackmun identified as a strict constitutionalist, someone who believes the Constitution must be interpreted in the context of today’s problems. His life-long friend, Chief Justice Burger, assigned him to write the Roe opinion with the hope that it would be a narrow ruling. But, Blackmun wanted to be recognized as an independent thinker – not as a political pawn or a copy of Burger – so he set to work to learn as much about abortion history as he could in an attempt to discover whether or not abortion was a constitutional right. His research was extensive, ranging from ancient Greek and Roman perspectives on abortion to the medical profession’s ethics (informed by the Hippocratic Oath) to common law and English law. I was fascinated by how much of this knowledge he rolled into his opinion on the case. Most Court opinions are not so lengthy, but Blackmun’s arguments provided a strong enough case of support for Roe that an astounding seven out of nine Justices assented to the opinion – resulting in the legal right to abortion.

One thing that Blackmun (and other judges in the U.S.) struggled with was the fact that many laws are written vaguely. If you have read my blog post about the Declaration of Independence, Ibram X. Kendi, and the importance of language in our founding documents, you’ll notice a connection here. Like in Jefferson’s declaration where “all men” were said to be created equal – who did he mean by “all men” in that statement? Who was deserving of freedom, and what rights came with that freedom? It is difficult to prove with certainty that any law was ever created with the specific intent to be vague, but it does seem as though vague laws allow flexibility to interpret the law in ways that can be exploited to the benefit of one group or another. Individuals, groups, and our own leaders can then act in ways that they feel the law allows them to until they are legally challenged and a decision must be made by the courts to decide what is lawful and what is unlawful. The outcomes may be different depending on who is judging the case. This phenomenon of “legislating from the bench” is decried by some and lauded by others. I have to wonder if those who laud this act – sometimes called “judicial activism” – are correct.

For those who are less familiar with American law and are wondering why “legislating from the bench” or “judicial activism” might be a good thing, I will provide some foundational knowledge. American law is rooted in the United States Constitution, a document that was signed by 39 of 55 delegates in 1787 and was ratified by all of the existing states by 1790. The Bill of Rights, a separate document originally proposing 12 amendments to the Constitution that was ultimately reduced down to ten, was ratified in 1791. These ten amendments provided the foundation for American freedoms. It is important to note that these amendments provided no protection from slavery, no right to due process of law or equal protection under the law, and no protection of the right to vote (on account of race, color, previous condition of servitude, sex, or age). It was not until 1920 that women were granted the right to vote with the passage of the 19th Amendment. Despite the protection of these rights being written into constitutional law, there are many human rights issues that have not been given legislative protection – in part, due to the issue of vagueness Blackmun noted in his own opinion with Roe. For example, in June 2020, the U.S. Supreme Court dealt with a case of employment discrimination on the basis of sexual orientation and gender identity. Because the language of the Civil Rights Act of 1964 only used the language “sex” the Court had to decide if the same law protected sexual orientation and gender identity. Justices on the bench had to decide what the intent of that law was and how to apply it to the current case. They chose to legislate from the bench, interpreting that if the original law was created “because of sex” then it necessarily included sexual orientation and gender identity. This was a major victory for the LGBTQ community, giving those who have experienced employer discrimination the right to file a complaint with the Equal Employment Opportunity Commission (EEOC). However, as our recent experience with the overturning of Roe has shown us, any of these rights which are not written into constitutionally-protected laws are at risk of being lost.

As a woman, a parent, a human rights advocate, and a social worker, I wish more people knew about the history behind the case of Roe v. Wade and were able to learn about the amount of research and contemplation that informed Blackmun’s final decision. A year before the decision was made, Gallup released poll results that showed 2 out of 3 of Americans believed abortion should be a matter settled between a woman* and her doctor. According to Pew Research Center survey results from July of this year, 62% of Americans say abortion should be legal in all or most cases, and these numbers are higher among young adults and those aged 30 to 49. Despite having majority support, the issue of abortion and reproductive rights remains a contentious and politicized one.

Blackmun and his colleagues hoped to settle the issue of abortion rights once and for all with their decision in 1973. Now that I have read the opinion in its entirety, I cannot say that I agree with everything Blackmun said. I do agree, however, that there should be a guaranteed right to privacy which includes liberty from being forced to complete an unwanted pregnancy. Until Congress can pass a law explicitly stating a person’s right to bodily autonomy and reproductive rights, our nation will continue to see cases like this brought before the courts. Laws are made by legislators, and we have the power to decide which legislators represent us. I encourage all eligible voters to leverage their voting power in this fight. Show up to the polls in November – or submit an absentee ballot – and do not forget to research your candidates at the local, state, and federal level. I also highly encourage you to check out Slow Burn’s podcast episode on this topic. Whether you are for or against abortion, the background and history on this issue may help further inform your opinion and impact how you choose to advocate on the topic moving forward.

* The term “woman” was used in this context because this was the language utilized in the Gallup poll and is not a reflection of my own personal beliefs. I know that the issue of abortion is one that affects many more people than just women and want to express my continued support for pregnant persons of all identities, as well as those who are continuing to fight for the right to bodily autonomy and reproductive freedom.

#Abortion #Harry Blackmun #Roe v Wade #Reproductive Rights #American Law #Supreme Court #Social Justice #Judicial Activism #Vote

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conptyusa · 1 month

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#judicial activism

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beatjackkerouac · 4 months

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#judicial activism

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asagi-asagiri · 11 months

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People surprised at the supreme court supporting the worst reactionary stuff don't know their history. There's reasons small government conservatives/minarchists/libertarians/small-state reactionaries want to keep the courts/law enforcement funded whenever they cut the government's budgets instead of doing the libertarian/small government thing and defunding the courts/cops.

#supreme court #us supreme court #scotus #roe v. wade #judicial activism #defund the police #defund the courts

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notwiselybuttoowell · 2 years

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How did we get here?

This all started when the Obama administration issued its Clean Power Plan to curb greenhouse gas emissions from the power sector. When deciding how emissions should be reduced, it took into account the fact that power companies were shutting off coal-fired power plants and turning on renewable generation instead.

The Supreme Court immediately jumped in and put that regulation on hold.

Then, when the Trump administration’s much less effective regulation was struck down in court, red states attorneys general and the fossil fuel industry asked the Supreme Court to step in again, arguing that EPA lacked the authority under the Clean Air Act to regulate carbon emissions from coal-fired power plants by shifting the way electricity was generated.

Neither of the two emissions policies is in effect. Yet the Court chose to take the case anyway.

What did the Court do?

The Supreme Court sided with coal companies and their allies, restricting the EPA’s ability to set effective standards to address climate pollution from power plants.

It ruled that EPA can’t take into account the reality that the most effective way to address greenhouse gas emissions from power plants is to shift to sources of energy that produce fewer — or no — emissions.

It did so by applying a new doctrine it enshrined into the case law, the “major questions doctrine.” So now, if a court thinks that an agency is trying to do too much — tackle a big problem, or try a new strategy — it will put the thumb on the scale against the agency when asking if its regulation is legal.

Why it matters:

The power sector represents a major greenhouse gas emissions source.

The federal government plays a critical role in addressing climate pollution and will need a wide and robust set of tools to prevent the worst impacts of climate change.

Today’s ruling limits the tools that the EPA can use in significant ways without providing clarity on what would be acceptable policy under current law.

The “major questions“ legal doctrine was essentially made up to serve by those who want to limit the federal government’s power to regulate industry. Now it can be used in future cases by judges to strike down any manner of policies that they deem to “go too far” without any real test to know when it applies. This puts federal authority and agency power in a very precarious position.

What happens next:

Climate change isn’t at our doorstep, it’s inside the house sitting on our couch. Global greenhouse gas emissions need to be cut by 50% by 2030 to prevent the worst effects of climate change.

The federal government still has tools at its disposal to spur the shift to clean renewable energy and mitigate the pollution from fossil fuels in the meantime.

It is up to all of us to demand the strongest policies possible to curb climate emissions, make the investments needed to protect communities most impacted by the burning of fossil fuels, and build community resilience.

#west virginia v epa #scotus #environmental protection agency #climate change #judicial activism #supreme court #carbon emissions

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competingabsolutes · 2 years

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#climate change #supreme court #federal courts #judicial activism #counterenvironmentalism #counter environmental movement #injustice #electoral politics

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nodynasty4us · 1 year

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#reproductive rights #matthew kacsmaryk #judicial activism

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thethreshsite · 2 years

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The Supreme Court Is Not Supposed to Have This Much Power

By Nikolas Bowie & Daphna Renan The Atlantic It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by…

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ehlnofay · 1 day

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Pax should have said no.

Damn it all, they should have said no. Should have said go to hell and fucked off back – stop contacting me, sort out your own shit – but they didn’t, fuck knows why, and now they’re stuck here.

(They know why. They know exactly why; absolutely anything would be better than fucking off back to Cyrodiil. What’s for them there?)

But there’s nothing worth staying for here either, and now she’s crammed in between strangers on a long table, everyone dressed in fabrics she’s never seen with dyes so saturated they seem almost gory, eating stuff that isn’t food and talking loud enough to make her want to hurl a glass into the wall. It’s bizarre. The woman next to her, ruddy-faced and bald, wears a headpiece that shines like the sun the Isles doesn’t have; the other side is taken up by a stranger in a bone-white porcelain mask who has not moved but to swill the wine around in their glass. There’s scarcely room for Pax’s chair. It all feels like such a baffling pantomime of aristocracy (she's known the real thing well enough – feasts and toasts and luxurious gifts she had no use for, and if she doesn’t stop thinking about it she actually will throw a glass), bright colours and rich settings and a god taking offerings at the head of the table.

At least, Pax thinks, no-one tries to talk to him; they’re too busy fawning over their lord. Which is probably to be expected; but it all feels so strange, so unsettling, the way they all lean in towards it like flowers turning to face the sun, like seaweed dragged at by the inescapable pull of the tides. They grow towards it through the cracks in the air, matter moving toward the inevitable centre, as if they can imagine nothing more than this.

(Even more unsettling is the way it responds in kind, listening attentively to anyone who speaks to it, leaning in as though to kiss them, as though to swallow them whole. All hell, why did Pax agree to this? Why did they come?)

(They should have told it to fuck off. Should have said no way, I don’t want to help you, don’t want to get involved in anything you’d need my help for. I don’t owe you anything. I don’t need anything from you. I don’t want anything to do with you. I’m done.)

(Pax is done. Pax is sick to death of all this shit; doesn’t want to deal with this, the vaguely described problems of a god that picks people apart like it’s unravelling a thick yarn shawl. Doesn’t want to deal with anything like this. He’s had his fill of gods.)

(Why is he still fucking here? Why did he agree to this? This is no better than eating in that weird fucking inn in town. This is no better than –)

(That’s a lie. It’s a bit better than Cyrodiil. Just as much a shithole, but it pulls the rug out from under him often enough that he doesn’t have time to think too much.)

“Not hungry?” says a prowling voice, coiling catlike into the plaits in their hair, and Pax jumps enough to jostle the masked bastard sitting ramrod straight next to him.

He looks up.

At the empty placemat across from him sits a figure veiled in gossamer, glittering in the glow of the lit-up lichen on the distant throne; the fabric of its endless shawls pulls apart at the ends, peeling away from itself, shedding patches like iridescent insect wings every time it shifts. If Pax squints, they can see through it to the grand marbled wall behind.

She glances back at the chair at the head of the table, where something lounges, eyes dripping gold, intricately carved cane laid across its knees; its too-many fingers are laced with the hand of a man whose gown blooms floral. Flatly, she says, “What the fuck?”

“Aren’t you hungry?” Sheogorath asks, pouting; she can hear it laughing down the other end of the table. “It’s a proper feast. We pulled out all the stops.”

Pax shifts their eyes away to peer down at their plate. “You have served me worms,” she says. She flicks the dish with a fingernail. “In jelly. With flowers.”

“Larva, actually,” Sheogorath replies. It’s still at the other end of the table. It doesn’t seem eager to explain this. When it smiles, the gossamer falls away; its whole face splits in half.

It’s all so fucking stupid. Pax takes a deep breath – in through the nose, ignore all the odd spiced smells, and out – and does not yell at it, or try to hit it, because she’s gotten herself into a situation where that’s not really an option, because she’s a fucking idiot. Why didn’t she just say no?

(She knows why.)

The Mad God’s teeth flash bright as the ornate silver cutlery. Its chair scrapes back from the table. “It melts in your mouth,” it tells her, eyes glittering, “but I won’t make you try it. Walk with me?”

The figure still sits at the head of the table, snatching something from someone’s plate, always, always laughing. Its limbs sprawl like tentacles, like the silken threads of a tapestry, to encompass the whole room. The dinner guests stare as though bewitched, bedevilled, beguiled. Not one of them is looking at Pax. If he were to drop dead with his face in the food his corpse would not be discovered until sunrise.

Pax sniffs and shoves his chair back from the table. He lets Sheogorath (the second Sheogorath – but it must be, what else could it be?) lead him through a narrow door into some winding hallway, the walls lined and rimed with ornate coloured-glass windows. (It’s so much quieter. Still as garishly bright, but Pax is getting the sense that that is inescapable, here; the clothes they wear, as crumpled and covered in travelling-grime as ever and startlingly out of place against the odd jagged finery of the dinner party, seem unimaginably dull in comparison. Everything seems unimaginably dull in comparison.) Outside the windows, they can catch glimpses of the city – its winding, lamp-lit streets, the jumbled mess of its architecture, the sky arcing above it like a child’s attempt at watercolours. Pax wants to smash it, tear it down.

There’s no sun here, but still it’s night. The sky has shifted to purple and black.

“Isn’t it nice?” says their companion; when they look back, it’s nothing more than a shifting impression in the stained-glass window, a series of hairline cracks. It still manages, somehow, to smile at them.

It’s not. The sky is a shadow and the flamboyance of the palace is scraping at their spine. “Sure,” Pax says flatly. When she flexes her fingers, the bruising staining the base knuckle of her thumb aches.

Sheogorath looks at her – an ancient man leaning on a stick, a flickering painting, a bloody corpse, a little girl in velvet-red skirts, a breath. In its mercurial shifting she catches the flowery blossom of the man at the table’s collar, an unpleasant glimpse of her own braided hair, the smell of sulphur. It tips its head. She can’t focus on it anywhere but for the eyes.

“You don’t like my dinner parties,” it announces, as though it’s a revelation, a tragedy; its body crumbles like sea cliffs slowly eroded by the ways. It’s annoying – bloody obnoxious, and incomprehensible, and kind of weird that it noticed, that it would even care. (She’s never liked dinner parties. Nobody ever commented on it before.)

I’ve had well enough of them, Pax could say, or no, I don’t like you, but it’s the fucking Mad God, Daedric Prince of – Pax doesn’t even know what, he’s never known much about this shit, only that it’s well worth avoiding. Prince of the mad and the missing and the foolish, of breaking and breaking and putting yourself back together backwards. She should have said no, but she didn’t, and who knows what would happen if she went back on that now?

It's slinking closer. All that stay static enough to make out are eyes and teeth.

“Pax, yes?” it says, soft-voiced – a hand lands on his arm, small and dry and shivering, the skin as thing as a mouldering leaf. “You have no obligations here. If you want to be on your own, be on your own. We’ve plenty of space for it.”

Pax’s eyes narrow. He does not jerk away from it.

In the light of the coloured sky, the coloured windows, its face is phantasmagorical. “If you don’t want to be here,” it continues – still so skin-pricklingly gentle – “then your hand will not be forced. I’ll speed your way home if you wish.”

They can’t help but twitch at that. It’s setting their teeth on edge. (It’s lying – has to be. After its ages of coaxing them in, meting out information, not telling them where they were until they were on its doorstep, it would not give them the chance to leave.) Rough, still covered in road-grime, Pax asks, “Why should I believe you?”

(None of them have ever given them the chance to leave.)

Sheogorath, a figure of hollow skin and bone, inclines its head. “I wouldn’t lie to you, Pax,” it says. Its eyes are wide and bulging, whites on full display like a frightened horse; it grins again. “Others might. But we’re not a monolith. We’re not even especially similar.”

Pax bites down on the flat edge of their tongue. “That doesn’t mean anything to me.”

The light coming in through the windows flickers. The Mad God turns to meet it.

“I’m the youngest,” it says, its voice glittering like mist on the air. “Did you know that? I don’t remember the world without you in it.” Its form spasms, volatile, wings and limbs and eyes like a snail’s on stalks sprouting and choking and subsiding back into its mass. “I’m closer to you than any. I understand, almost.”

“That doesn’t mean anything,” Pax repeats. She’s gritting her teeth, tonguing at her gums where two are missing. Are two devil-gods not enough to deal with for a lifetime? Is there really going to be more of this now, too?

Rolling through the air like smoke, the voice says, “It will.”

Pax presses purple-green knuckles to her mouth. Her teeth dig into the soft meat of her lip.

Sheogorath turns to face her, hair moving as though blown by the wind, as though tugged by the tides. It sighs. “You don’t believe me,” it says. Its tongue pokes through its teeth. “That’s perfectly fine. Clever, even. But if you want to leave, all you need to do is tell me so.” It pauses, then; the train of its strange, gnarled crown shifts over its shoulders when it moves its head. “Or just leave. The door is still open.”

“You’d be fine with me just leaving,” Pax rasps around his knuckle, “after weeks of not leaving me alone?”

(Of begging him to come, poorly-hidden agitation giving way to blatant franticness, half-swallowing the fear that choked its face in every mirror it spoke to him through. Of begging him still, after he got here, after he met it – begging in a roundabout manner, casual as anything, its every motion reeking of fear. Its abject terror when he turned to leave. You’ve come this far. Why not hear an old man out? Pax told it that it wasn’t an old man, that he didn’t give a shit either way, and it slid through a child, a monster, a sulphur-burned body coughing blood, his own shuddering form in armour he hasn’t seen in months, and it said please.)

(Regained its composure, its gentleman’s face, immediately afterward. But it – the Mad God, unknowable, inconsolable – said please. Pax still doesn’t know what to do with that.)

The Mad God, now, shrugs. Taps at the hairline cracks in the stained glass windows. “I’d prefer you didn’t,” it says, one pair of hands braiding something intricate into its beard. The hand on the glass slips down. “I told you. I do need a champion.”

“And I told you,” Pax bites, something aching and ugly surging in their gut, “not to call me that again.”

A smile, bloody-mouthed and beaming. “But we will abide,” says Sheogorath, and digs its fingers into the cracks of the stone. One brick slides loose, mortar dug up under its nails. It offers it up.

Pax licks their teeth and takes it.

The brick shivers, momentarily – crumbles, in their hand, like sand slithering through their fingers, and left in their palm is a hardy slip of bone. Spiked and sprawling, carved with intricate patterns; it arranges itself around an oval of empty space, the perfect size for four sharp-knuckled fingers.

“You can always leave,” the Mad God tells them, and for a moment it does look so very young and strangely, staggeringly hopeful. “But give it a chance. I think you could love the Isles, if you choose to.”

#for context - in my version of events sheogorath's recruitment of the HoK is a lot more active #it needs someone who can fulfill the metaphysical niche of the hero. it needs someone experienced enough that they might not even die tryin #and it needs someone desperate enough to take the deal #pax is fifteen years old has alienated everything that maybe could have been a support system and is grieving very badly.#perfect mantling material!!#so sheogorath pursued them very specifically and was very judicious about what they revealed when. which is why pax already has some kind o #relationship with it here - they've interacted before - in that for weeks pax's reflection has been constantly begging them to 'visit'#writing the interactions of these guys is a lot of fun because there is always so much sheogorath is keeping from pax. it is #extremely strategic in how it presents itself #and pax falls for it hook line and sinker. though we can't really blame them #it's hard to outsmart something that's in your head #and at this point pax is pretty much made up of their worst impulses #which sheogorath cannot and does not help with #see: this piece #“I would NEVER make you do something you don't want to do <3 if you'd like to go back to your miserable self-destructive hellscape that's #YOUR CHOICE. but wouldn't it be more fun to be regular destructive here... i made you brass knuckles... 🥺“#im obsessed with them #the elder scrolls #tesblr #tes #my writing #fay writes #oc tag #pax #oblivion #shivering isles #the shivering isles

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