This is a picture of a twelve-year old girl.
(I assume. It's from an article titled "Awesome Things About Raising 12 Year Olds." For obvious reasons I didn't want to spend too much time Google Image searching "12 year old girl").
This is an article about a different twelve year old girl.
Ashley just had a baby. She’s sitting on the couch in a relative’s apartment in Clarksdale, Miss., wearing camo-print leggings and fiddling with the plastic hospital bracelets still on her wrists. It’s August and pushing 90 degrees, which means the brown patterned curtains are drawn, the air conditioner is on high, and the room feels like a hiding place. Peanut, the baby boy she delivered two days earlier, is asleep in a car seat at her feet, dressed in a little blue outfit. Ashley is surrounded by family, but nobody is smiling. One relative silently eats lunch in the kitchen, her two siblings stare glumly at their phones, and her mother, Regina, watches from across the room. Ashley was discharged from the hospital only hours ago, but there are no baby presents or toys in the room, no visible diapers or ointments or bottles. Almost nobody knows that Peanut exists, because almost nobody knew that Ashley was pregnant. She is 13 years old. Soon she’ll start seventh grade.
In the fall of 2022, Ashley was raped by a stranger in the yard outside her home, her mother says. For weeks, she didn’t tell anybody what happened, not even her mom....
[Ashley's mother] Regina tentatively asked [Dr.] Balthrop if there was any way to terminate Ashley’s pregnancy. Seven months earlier, Balthrop could have directed Ashley to abortion clinics in Memphis, 90 minutes north, or in Jackson, Miss., two and a half hours south. But today, Ashley lives in the heart of abortion-ban America.... Within weeks [of the Dobbs decision], Mississippi and every state that borders it banned abortion in almost all circumstances.
Balthrop told Regina that the closest abortion provider for Ashley would be in Chicago. At first, Regina thought she and Ashley could drive there. But it’s a nine-hour trip, and Regina would have to take off work. She’d have to pay for gas, food, and a place to stay for a couple of nights, not to mention the cost of the abortion itself. “I don’t have the funds for all this,” she says.
So Ashley did what girls with no other options do: she did nothing.
It bears repeating what Scott Lemieux said: the very consistent Republican position on cases like Ashley's is that states should have more latitude to force child rape victims to give birth compared to the average women (and they very much believe the average women shouldn't have much in the way of rights either). Ashley's situation isn't a case of unintended consequences; it's the Dobbs ruling doing exactly what its proponents intended and wanted it to do.
20 comments:
This is the most insane and unjustified hyperbole I've ever seen! Where the hell did you get the idea that the Dobbs majority specifically *hoped* that Ashley's situation would happen as a result of their decision? You don't even *try* to explain in your blog post how you know their motives! Neither does Scott Lemieux in his blog post and the Time article doesn't even mention the issue of the Dobbs majority's motives.
The GOP has for my entire lifetime made no secret of its view that it should be harder for pregnant children -- which is to say, child rape victims -- to get reproductive care than it is for adult women. They are well aware that cases like Ashley exist, and they have been entirely upfront in declaring that, as a matter of policy, Ashley should be forced to give birth. There's no secret here, only the completely straightforward articulation of the GOP's unabashed policy choices.
The ruling on the field stands as called.
First off, your blog post was about the *Supreme Court*, not GOP party officials or GOP politicians. Your blog offered zero evidence that the Dobbs majority specifically hoped for this situation and neither does your response to my comment.
Second, you don't even provide evidence that GOP party officials or GOP politicians specifically hoped for this situation. You provide no such evidence in either your blog post or your response to my comment. The GOP isn't a hive mind with a single view on abortion. The GOP has a wide variety of views on abortion.
The ruling on the field is clearly wrong. Please tell me you have the basic decency to admit that your obviously false claim about the Dobbs majority is wrong.
Sorry, you don't get to issue rulings on my blog.
The GOP faction of the Supreme Court carried out the longstanding agenda of the party that appointed them for the specific purpose of achieving the outcome in Dobbs, one part of which was to change the governing legal rule from "child rape victims have a constitutional right not to give birth to their rapist's babies" to "child rape victims can be legally compelled to give birth to their rapist's babies."
I honestly don't know where your objection is coming from. This wasn't some unforeseen or unpredictable scenario -- the issue of "what right to an abortion should child rape victims have" was a longstanding part of the abortion rights conversation, and anti-abortion conservatives have always answered "they should have no rights whatsoever," which is the rule they imposed once they attained a SCOTUS majority.
The GOP SCOTUS majority could have very easily not imposed a rule that permitted legally compelling child rape victims to give birth to their rapist's babies, and they intentionally and consciously chose instead to impose exactly that rule. There is no foul in calling it what it is.
Sorry, you don't get to blatantly lie about incontrovertible facts and not be called out on it.
My objection comes from your intentional conflation of what the Dobbs majority knew was a *possibility* and what it specifically *hoped* would happen. You’re not a complete moron. You certainly understand this distinction. Knowledge of a predictable scenario happening as a result of your action is NOT the same thing as taking that action specifically because you want that predictable scenario to happen. You claim in your blog post that the latter is true of the Dobbs majority in regards to Ashley's situation. Yet you have absolutely NO evidence for that claim.
Your claim is the equivalent of saying that the Miranda majority specifically hoped that some criminals would get away with their crimes or that the Supreme Court upholding the 8th amendment right of suspected terrorists to not be tortured would mean it specifically hoped that terrorists would be able to carry out terrorist attacks against the U.S.
Your claim about what the Dobbs majority "hoped" for is clearly unsupported by the facts. Please have the basic decency to admit that what you said is a lie.
You claim that the Dobbs majority could "easily" have imposed a rule to allow child rape victims to have abortions but you don't actually explain what would have actually made that easy. The Dobbs majority found that there's simply no right to abortion in the Constitution. That lack of a right to abortion applies just as much to child rape victims as to everyone else. There is no constitutional basis for the exception you claim would have been “easy” to carve out. It would NOT have actually been “easy” to simply pretend such an exception existed in the Constitution. You forget that the Supreme Court's job is to properly interpret the Constitution, NOT pretend that it demands every good public policy under the sun.
You liberals like to pretend that the Constitution as written is necessarily a perfect public policy document. It clearly isn't. Where it allows for bad policies you would expect that to be reflected in Supreme Court decisions. America has a long history of bad public policies. 200 years ago, the Constitution allowed slavery. As bad as slavery was, the Supreme Court didn't respond by pretending that the Constitution forbade slavery. Instead, Congress wrote a constitutional amendment to ban slavery.
I'm not saying the Roberts Court wanted a child to get raped, become pregnant, and then bear her rapist's baby. Of course they didn't. I'm saying that if a child did get raped and became pregnant, the Roberts Court wanted the state to be allowed to compel the child to bear her rapist's baby. Because that's exactly the ruling they made, reaching out to overturning the status quo constitutional doctrine under which "no, the state could not compel the child to bear her rapist's baby."
And if they didn't want that outcome, it would have been absurdly easy and could have been done in a nine word opinion: "The petition for a writ of certiorari is denied." That's all they needed to do, they had absolute discretion to do it and stare decisis supported doing it. Nothing compelled them to do otherwise; they wanted to do otherwise. The better analogy is if the Supreme Court had ruled that slavery was unconstitutional for fifty years and then suddenly was like "actually, we're overturning our prior case law to reinstitute the legality of slavery." That'd be bad! And it'd be entirely justified to say "they ruled the way they did with the intention of permitting states to reestablish slavery"!
(For what it's worth, yes, it'd also be accurate to say that, following cases like Mapp v. Ohio and Miranda, if a confession was obtained without Mirandizing a defendant and that confession was accordingly suppressed, that this is the outcome the Court wanted to see happen, because that's exactly what the rule they imposed said should happen.)
Trying to clarify what you meant about what the Dobbs majority wanted isn't helping your case. Claiming that it wanted states to be allowed to compel a child to bear a rapist's baby if such a rape happened is a total lie. You have zero evidence of the Dobbs majority specifically wanting this outcome. You talk as if it had some sort of investment in such a specific policy outcome. There's zero evidence for that.
Even if you could prove that it wanted any changes at all in abortion policy, you have zero evidence that it specifically wanted this specific public policy. Nothing. Nada. Zip. Zilch. You have zero evidence that it wanted this specific law to be enacted and zero evidence that it wanted that law to be enforced. It would have to get some sort of gain out of Ashley's situation in order for that to be true and you don't even try to prove that it got any such gain. You're still intentionally conflating what the Dobbs majority knew was a *possibility* and what it specifically *hoped* would happen.
I could just as easily claim the Miranda majority specifically wanted some criminals to get away with their crimes. The Miranda majority obviously knew that cops wouldn't properly Mirandize criminals 100% of the time, making it an inevitable outcome that some criminals would get away with their crimes due to the circumstances of their arrests.
You still wrongly claim that it would have been "absurdly easy" for the Dobbs majority to avoid this. You give away the store by suggesting it should have simply denied cert, acknowledging that finding no abortion right in the Constitution and no special exception for this situation was the inevitable outcome of the Supreme Court actually taking this case. This merely proves that it would NOT have actually been "absurdly easy" for the Dobbs majority to take this case. You're suggesting it should have avoided this case all for the purely political desire to avoid certain policy outcomes. And that is absolute bullshit. The job of the Supreme Court is to interpret and enforce the Constitution, NOT avoid bad policy outcomes. You're a freaking law professor. You know this! Abortion proponents clearly do NOT have an extra-constitutional right to impose unconstitutional restraints on state action. It's completely absurd to demand that the Supreme Court just completely ignore an unconstitutional status quo in the law. That unconstitutional status quo clearly compelled the Dobbs majority to take the case.
Your appeal to stare decisis and your slavery analogy are an epic fail. Plessy v. Ferguson was a precedent for 58 years. I could just as easily claim that the Warren court had absolute discretion to deny cert for Brown v. Board and that stare decisis supported doing it. Nothing compelled it to do otherwise. The Warren court wanted to do otherwise. The Supreme Court had ruled that segregation was constitutional for 58 years and then suddenly was like "actually, we're overturning our prior case law to institute desegregation". And it would be entirely justified to say "they ruled the way they did with the intention of permitting the federal government to impose desegregation"! But you're totally okay with what the Warren court did because stare decisis doesn't actually mean anything to you.
You keep on doing these weird "gotchas" for things I've already cheerfully agreed to. I already said that the Miranda and Mapp Justices wanted the outcome that, where a suspect wasn't properly Mirandized, their confession would suppressed, even if that meant that they couldn't be convicted of the crime they were accused of. It would be facile for them to look at such a circumstance, clap their hands to their mouth and say "We never intended for that to happen!" Of course that's what they wanted to have happen! That's exactly what they ruled should happen!
Ditto Brown: Obviously, the Court could have refused cert. in Brown -- they have discretionary control over their docket, that would have been entirely their call. Likewise, they could have relied on Plessy and stare decisis to yield a different outcome in Brown. They didn't do those things because they wanted to overturn Plessy and impose a new doctrine that separate but equal was inherently unequal. I'm thrilled they made that choice, but I'm confused at the notion that this wasn't something they did intentionally. Obviously they did it intentionally! Nothing forced them to do so (and for what it's worth, as anyone who's ever read Bickel's "The Passive Virtues" knows, there are a plethora of mechanics by which the Court is empowered to avoid toxic outcomes and there are many excellent arguments why it's good that the Court can't be "forced" into decisions it doesn't want to make).
So yes, it's accurate to say the Brown Court wanted to create a rule that segregation was unconstitutional, and the Miranda Court wanted to craft a rule that confessions could be suppressed for defendants who were not read their rights, and the Dobbs Court wanted to impose a rule that states could force child rape victims to give birth to their rapist's babies. Because that's what they did, of their own volition, with nothing at all compelling them to do so aside from their own single-minded belief that this is the unquestionably and indisputably proper constitutional order of things. And those of us who don't believe that the proper (let alone indisputably and unquestionably proper) constitutional order of things is "children can be forced to give birth to their rapist's babies" are absolutely entitled to look contemptuously upon that choice.
You're still not acknowledging that you lied about what the Dobbs majority wanted. You've still provided zero evidence that it actually wanted this situation. You've provided zero evidence that it wanted what you claim it wanted. Just admit it that was a lie. The most insane part of this is that you're not even *trying* to prove that the Dobbs majority actually *wanted* what you claimed it wanted. Don’t tell me that anyone “wanted” something unless you have the actual *facts* to prove it.
The Dobbs majority didn't "impose" a rule. It clarified the rule imposed by *the Constitution*. That rule is that there's no constitutional impediment to states imposing any restrictions on abortion. That obviously includes restrictions on raped minors getting abortions. The Constitution clearly compelled them to do so. You don't even try to prove otherwise. The Constitution clearly isn't "nothing".
For the last time, the Supreme Court's job is to *interpret and enforce the Constitution*, NOT impose good public policy on the country. That's what the Constitution itself says. You're a law school professor. You know this. States forcing children to give birth to their rapists' babies is constitutionally protected action. You know this but just don't want to acknowledge it. So you're absolutely NOT entitled to look contemptuously on the Supreme Court's choice. It's not the Supreme Court's fault if state legislatures make bad policy choices.
As I said before, abortion proponents clearly do NOT have an extra-constitutional right to impose unconstitutional restraints on state action. If the Supreme Court upheld the constitutionality of slavery 200 years ago, that would be equally “toxic”. But the Constitution would obviously demand that outcome of the Supreme Court. "Toxic" outcomes are in the eye of the beholder. Millions of people in this country believe that every single legal abortion is a "toxic" outcome, even for minors who were raped, because they view every single fetus as precious life. But you arbitrarily claim to know better than them what’s “toxic”. And according to the overwhelming majority of Southern whites in 1954, the Brown v. Board ruling was “toxic”.
No one can claim to have a monopoly on the wisdom of what “toxic” means. That's all the more reason the Supreme Court should avoid trying to create "good" policy. It's completely absurd to suggest that the Supreme Court had to completely ignore the utter fiction of there being a constitutional right to abortion all because of the possibilities of such rare situations as that of Ashley.
The point of the Miranda analogy is that the Supreme Court knew the ruling would inevitably enable some criminals to get away with their crimes. It would be bullshit to claim that that meant it specifically wanted some criminals to get away with their crimes rather than to simply *protect constitutional rights*. Likewise, the Dobbs majority simply wanted to protect the right of states to make their own free decisions on abortion restrictions.
Claiming to be "thrilled" by Brown v. Board only proves you don't give a damn about stare decisis. If it means nothing to you then why should it mean anything to the Supreme Court?
I can't stop snickering at how you keep on returning to this Miranda example after I keep happily agreeing to it. For the last time: If a scenario occurred where a person was arrested for a crime, and the police violated his rights in the investigation, and so evidence was suppressed and he could not be convicted, I think it would be absolutely, 100% accurate to say that is the result the Court "wanted" to have happen. I don't know how I can be any clearer about that.
I think part of the problem, though, is you have an adorably naive view of what courts do -- you have some vision where the law gives clear and unambiguous answers to contested constitutional questions and judges are compelled, robot-like, to apply those conclusions in a completely non-volitional manner (which is why you can cartoonishly assert that justices literally had no choice but to issue the Dobbs ruling -- it was completely divorced from their own intentionality).
This is comically absurd on virtually every level (though I kind of wish I could have included this exchange in my Sadomasochistic Judging article, since it illustrates some of the points beautifully). It's obviously wrong in thinking that legal argument (or any argument, as Nozick points out) can compel action. It's wrong in thinking contested substantive constitutional questions are that clear-cut. And it's obviously wrong in overlooking the myriad portions of judicial practice -- of which docket management and decisions over whether to adhere to stare decisis are two of the most prominent -- that are clearly discretionary in character.
Newsflash: Judges exercise judgment. They are not robots. They make choices, with their soft human brains. I don't think Roe was incorrectly decided and I don't think it is "extra-constitutional" -- it flows straightforwardly from Griswold, which in turn is amply supported by the Pierce and Meyer line of cases, all of which are acknowledgments of the (admittedly difficult -- but therefore self-evidently not obvious) question of what unenumerated rights nonetheless receive constitutional protection (a category which justices of all ideological stripes have conceded the existence of since at least Slaughter-House if not Corfield v. Coryell). And, for what it's worth, I don't think people give the Thirteenth Amendment argument enough credit: compulsory childbirth is "forced labor" in the most literal sense.
Likewise, I think the Dobbs Court got its stare decisis analysis wrong -- partially because I disagree that Roe was wrong (let alone "egregiously wrong") in the first place, partially because it was cartoonishly dismissive of the reliance interests that Roe engendered. Put all that together, and I see no good reason for the Court in Dobbs to have exercised its pure unbridled discretionary authority over its docket to grant cert. Even if you think Roe was substantively in error, SCOTUS will be the first to tell you that it is not a Court of general error correction. Something needs to explain why this error -- amongst the countless legal errors that no doubt pervade the legal system each year -- is one that needed "correction", and by definition that cannot be answered solely by a substantive legal appraisal.
(Cont...)
But I'm modest enough to recognize that my assessment of all those points is likely influenced by my broader belief that things like compulsory childbirth for child rape victims is bad, and incompatible with the "liberty" protected by the Due Process Clause of the 14th Amendment. Others, as you correctly observe, do not share my view: they think a world where child rape victims are not compelled to give birth to their rapist's babies is bad, or at least it would be bad not to let states choose to make such compulsions. Persons who take that outlook are quite likely to assess the relevant legal questions differently. And that's what happened: the faction holding the latter won enough political power to get judges amenable to that outlook into a SCOTUS majority, and that gave us the Dobbs ruling. That's a choice they made with the power they amassed. But don't be naive enough to think that this flowed out of some inexorable command of the law. It's time to lay aside childish things.
And you’re still completely avoiding the main issue, which is your outrageous lie about what the Dobbs majority wanted. You claimed that “Forcing Child Rape Victims To Give Birth Is Exactly What the Dobbs Justices Hoped Would Happen”. But there are 4 other possibilities:
1. they didn’t believe Ashley’s situation could happen as a result
2. they didn’t even think about the possibility that Ashley’s situation could happen as a result
3. they realized that Ashley’s situation could possibly happen as a result but believed that the larger endeavor of ending a constitutional right for abortion was more important
4. they were completely indifferent to the possibility that Ashley’s situation could happen as a result
You provided zero evidence in your blog post that the Dobbs majority actually wanted this situation to happen. No evidence at all. NOTHING. NADA. ZIP. ZILCH. Neither have you done so in any of your subsequent responses. You tried to clarify by “saying that if a child did get raped and became pregnant, the Roberts Court wanted the state to be allowed to compel the child to bear her rapist's baby” BUT THAT’S ALSO A LIE! The mere fact that the Dobbs majority technically enabled Mississippi to create the statute is NOT evidence that it specifically *wanted* Mississippi to do so. Nor is it evidence that the Dobbs majority specifically *wanted* Mississippi to actually enforce this statute. Enabling the mere *ability* to do something is NOT the same thing as actually wanting that thing to be done. Your argument is just a completely pathetic post hoc ergo propter hoc claim and nothing more. You don’t even *try* to present actual evidence of motive.
I can’t keep snickering at how wrong you are about my analogy to Miranda. What I’m saying is that what you claim about the Dobbs majority is the equivalent of someone claiming that the Miranda majority only made its ruling with the goal of helping guilty criminals get away with their crimes and for no other reason. It would be the equivalent of claiming that the Miranda warning was just a constitutional smokescreen, a means to an end of helping criminals get away with their crimes out of a love for criminals. You DON’T agree with that. Another good analogy would be claiming that Dobbs minority wanted to keep abortion a constitutional right because they get sadistic pleasure from causing physical harm to fetuses. Would such a claim be correct or would it be an outrageous lie without any basis in fact?
Telling me that the law doesn’t give clear and unambiguous answers is dumb in this context because it means that you can’t authoritatively tell me that Dobbs was wrong. That’s just your opinion, which you admit can’t be perfect. You already gave away the store in regards to Ashley’s situation by saying that the Supreme Court should have denied cert. That’s an admission that hearing the case forced the Dobbs majority to make the ruling it did and it’s an admission that the ruling unavoidably led to Ashley’s situation because it was impossible to make an exception to their finding that there was no constitutional right to abortion. As you understand it, Ashley’s situation was an inexorable command of the general rule established by Dobbs.
Claiming that the law doesn’t give clear and unambiguous answers is also completely disingenuous in this context because you claim that it’s a clear and unambiguous fact that the Dobbs majority wanted Ashley’s situation to happen. You can’t claim to be uncertain about the meaning of a written document and then claim to be certain about the beliefs of particular people in regards to a matter on which they haven’t spoken.
This is just sad. The Supreme Court denies cert to innumerable cases each year; doing so is not a tacit admission that it would have had to rule in favor of the petitioner (or respondent) had it granted. As I said, I don't think Roe was wrong at all (which is on its own more than enough reason to deny cert), and I certainly don't think it was so obviously wrong so as to warrant the Court exercising its unbridled discretion over its docket to affirmatively overrule it (which is also more than enough reason to deny cert). Meanwhile, the Supreme Court granting cert is an admission that it thinks something about the case is important beyond -- and this is critical -- whether the lower court's decision is merely right or wrong (since the Court is not a Court of general error correction). That assessment by definition has to rely on factors beyond assessments of the positive law -- such as an especially passionate desire to ensure that, inter alia, child rape victims are forced to give birth to their rapists' babies.
The idea that the majority justices had never even dreamt of a child rape pregnancy is fanciful -- this has been an active subject of the Court's abortion jurisprudence for decades (it was directly at issue in Casey!). They are not morons or simpletons. They wanted the result that they reached, which was (among other things) to allow states to compel child rape victims to give birth to their rapists' babies. And incidentally, one reason we know that they wanted this result, particularly, is that even in the Roe era it was the consistent position of the legal conservative movement that states should be given more latitude to limit the ability of child rape victims to choose not to bear their rapists' babies compared to other abortion restrictions. Anti-abortion conservatives want to permit compulsory birth across the board, but they feel especially strongly that they have an entitlement to compel girls to give birth when they are child rape victims.
Of course, I'd never assert that this was the only motivator of the Dobbs Court. Obviously, they wanted to achieve many things with their opinion, from permitting states to compelling child rape victims to give birth, to permitting states to force women to endanger their health by continuing carrying dangerous pregnancies, all of which fall under the broader umbrella of permitting states to ban abortion in any and all cases, without exception. So permitting states to compel child rape victims to give birth to their rapists' babies is absolutely not the only outcome the Court wanted -- it is just an outcome the Court wanted.
It's as simple as this. In order for Ashley's situation to be "exactly" what the Dobbs majority "hoped" would happen, they would need to have a clear investment in Mississippi creating and enforcing this statute. They would have to actually lose something from this statute not being created or not being enforced. If Mississippi voluntarily chose to not create this statute or to not enforce it after the Dobbs ruling then what would the Dobbs majority lose? Can you explain that to me?
What's really sad is the fact that you still haven't come anywhere close to proving that the title of your blog post is true. Your allegation remains completely unproven. I listed 4 possible explanations for what the Dobbs majority was thinking other than your claim. At the very worst, their awareness of the issue of abortions for child rape victims when considering Dobbs would prove that they were *indifferent* to the possibility that their ruling could lead to Ashley's situation. *YOU'RE* not a moron or a simpleton. You understand the difference between *indifference* to an outcome and *specifically hoping* for an outcome. Allowing states the *mere ability* to compel child rape victims to give birth to their rapists' babies *if* those states wanted to do so is *NOT*, I repeat *NOT*, the same thing as actually wanting states to specifically do that. You're not so stupid that you don't understand that difference. Therefore, your claim that Ashley's situation was just one of many outcomes the Dobbs majority wanted is still a total lie. A desire to give states *more general latitude* to restrict abortion is NOT evidence that the Dobbs majority wanted *this* specific outcome. At most you’ve proved that the Dobbs majority wanted to give red states more general latitude on abortion laws. Wanting to give states more general latitude on such matters does NOT translate to wanting them to use that general latitude for any specific ends.
You keep saying you don't think that Roe was wrong but that's still just your own personal opinion. That's just as true for your claim that Roe wasn't so wrong to justify the Dobbs majority going out of its way to put the case on its docket and affirmatively overrule it. When you say the Dobbs majority wasn’t compelled to overrule Roe what you really mean is that, in your opinion, it was actually compelled to do the opposite. You're arbitrarily arguing that forcing child rape victims to give birth provided an extra-legal justification for preserving Roe. Which only proves that you believe that destroying healthy human fetuses is more important than forcing child rape victims to give birth. Thus, your argument that the Supreme Court has to rely on factors beyond assessments of the positive law *cuts both ways*. The moral outrage you rely on *cuts both ways*. Who the hell do you think you are to presume that destroying fetuses is so much more preferable to forcing child rape victims to give birth? This is what makes your analysis of Dobbs just so much total bullshit. Your condemnation of Dobbs is nothing without your arbitrary policy priorities.
It's obvious you now realize that my Miranda analogy was perfect. You have no more proof that the Dobbs majority specifically wanted Ashley's situation than you do that the Miranda majority just wanted to help guilty criminals get away with their crimes out of a love for criminals.
I don't need to say that the Dobbs Court wanted MS to pass a law compelling child rape victims to give birth to their rapists' babies. All I need to say (and all I have said -- read the comments more carefully) is that the Dobbs Court wanted to allow MS to pass a law compelling child rape victims to give birth to their rapists' babies -- which they clearly did, and indeed went out of their way to overrule previously governing case law to ensure. That is appalling enough on its own, and it is a perfectly accurate descriptor of the atrocity the Court inflicted upon Ashley.
I've also never denied that my point about "extra-legal" factors influencing judicial decision-making "cuts both ways". That's been my point from the get-go -- you're the one who keeps on acting like the judges are robotically compelled to issue their rulings by the inexorable force of law, and I'm pointing out that that's transparent nonsense. Certainly, I think my opinion as to the correct legal outcome is right -- otherwise I wouldn't hold it -- but I'm not so arrogant as to think my mere argument, no matter how right it is, can compel a legal outcome.
So my objection isn't that the Court relied on extra-legal factors in deciding to grant cert in Dobbs. That's unavoidable for any cert grant. My argument is that the particular extra-legal factors at issue here were risible. I fully concede that if one disagrees with my moral priors on this, and thinks that the importance of protecting healthy human fetuses from destruction is more important than avoiding forcing child rape victims to give birth, one won't share my disgust. But that doesn't alter the contours of the argument -- the Dobbs side of the argument is the side that says "it's extremely important to permit states to force child rape victims to give birth in order to ensure that fetuses aren't destroyed", and they can be forced to own that position.
Whether you like it or not, words actually have meanings. You said that "Forcing Child Rape Victims To Give Birth Is Exactly What the Dobbs Justices Hoped Would Happen". That title means you're saying that the Dobbs majority "wanted MS to pass a law compelling child rape victims to give birth to their rapists' babies". It does NOT mean that they just "wanted to allow" MS the mere ability to pass such a law. Whether you like it or not, your title means the former and NOT the latter. Saying that they "hoped" it would happen does NOT describe the latter. It clearly describes the former. Therefore, it's a lie. Time to fess up.
Below the blog post title you have the cover up a book titled "The Cruelty is the Point". This just adds to the lie. The mere ability to pass such a statute has no supposed cruelty. There is no supposed cruelty without the statute itself. Even then, the actual creators of the statute see themselves as merciful rather than cruel.
You have not in fact admitted the *legitimacy* of extra-legal factors that cut against Roe. *YOU* act like the Supreme Court *was* robotically compelled to *uphold* Roe. You never actually said that but you clearly believe it. According to pro-lifers, upholding Roe and the constitutional right to abortion was what was actually "risible". If you can actually admit the legitimacy of that point of view then you have to admit that your disgust is unwarranted. According to pro-lifers, the real "atrocity" was Roe and destroying healthy human fetuses. Without your certainty that their opinion on that is completely wrong, you have absolutely no room to condemn the Dobbs majority. What makes you so certain that pro-lifers are wrong about this? Without that certainty, you can't self-righteously condemn the Dobbs majority for anything. Without that certainty, you can't tell such ridiculous lies as you do in the title of this blog post.
I don't need to think the Court was robotically compelled to uphold Roe (of course they weren't -- they didn't!). I just need to assert that it would have been a legitimate choice for them to uphold Roe (which it was). They could have chosen to uphold Roe, and they instead went out of their way to choose to impose a rule that its okay for states to compel child rape victims to give birth to their rapists' babies. That is a cruel decision. I fundamentally disagree that merely "permitting" such cruelties is not itself a form of cruelty and unjust domination. Living in a polity where the state can, at its discretion, force you to give birth to your rapist's baby is a cruelty and injustice, and its a cruelty and injustice regardless of whether the state ultimately chooses to exercise its prerogative or not. Likewise, if the Court rules that Joe is permitted to impress me into slavery, that's unjust domination by Joe over me, and it is a cruel injustice by the Court to put me in that position of subordination to Joe regardless of whether Joe ultimately decides to exercise his Court-permitted prerogative to enslave me.
At most, you've demonstrated that the title of the post had a bit of rhetorical license to it. I'll agree that it is not established that the Court specifically wanted MS to pass this law, only that the Court specifically wanted MS to be allowed to pass this law and the Court specifically wanted Ashley to be constitutionally helpless in the face of MS passing this law. I think that was already made clear in the body text ("the very consistent Republican position on cases like Ashley's is that states should have more latitude to force child rape victims to give birth ...."), and it certainly was made clear in the comments. In any event, I am happy to rest on the proposition that the Court's cruelty was in choosing to allow states to force child rape victims to give birth to their rapists' babies; that is a cruelty enough for me. And again, I fully recognize that there are others who disagree, and find the idea that the state cannot force child rape victims to be give birth to their rapists' babies to be what is "cruel" -- that is fundamentally the debate being had between majority and dissent in Dobbs, and in the pro-choice/anti-abortion debate more broadly. I'm happy to let readers be the judge of who is correct in their assessment of what is cruel.
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