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Friday, May 27, 2022

“It’s wrong! It’s intimidation!”: Maher slams protests outside the justices’ homes

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It’s not just wrong and intimidating, he insists, it’s against the law. Which is correct.

I feel like we should start taking bets on whether he or Joe Rogan will be the first to declare themselves a Republican.

Put me down for 50 bucks on Joe. For one thing, Maher isn’t (yet) so deep in the weeds of online populist conservative commentary that he’s panicked about groomers in schools:

For another, Maher has already drawn a bright red line against voting GOP for the foreseeable future. I’m not sure if Rogan has the same line but we’ll get a better sense as we get closer to 2024.

Your read of the day comes from Akhil Reed Amar, a renowned constitutional scholar, a liberal, and a pro-choicer. He’s read the draft opinion in Dobbs, the cause of the ruckus outside the justices’ homes. Alito’s reasoning makes sense to me, Amar writes:

In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.

Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. And Roe said nothing, amazingly, about the relationship of abortion rights to women’s equality…

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

So there you go. It turns out there *is* one Democrat in the U.S. fair-minded enough to admit that Roe is trash constitutionally and overdue to be flushed.

He might be the only one, but it’s a shot in the arm for pro-lifers to have him on their side.

Here’s a little more of Maher chatting about abortion on last night’s show and worrying about the direction in which some Republicans want to take this debate. That’s another thing he and Rogan have in common. They’re both pro-choice, at least early in a pregnancy, and therefore at risk of shedding some of their conservative sympathies if the GOP overreaches by legislating strict bans. Amar is concerned about that too, reasoning that it’ll be easy enough for women in red states to seek abortions in blue states but that the calculus could eventually change: “A very different issue, however, would arise were Republicans to sweep national elections in 2024 and then pass a national abortion ban. This is the scenario that should set off the loudest alarm bells for Americans who support abortion rights.” I doubt McConnell wants any part of that, but what he wants and what the base will let him get away with may be two different things.

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