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FDA vs Alliance for Hippocratic Medicine, the mifepristone case, was decided by SCOTUS. Full verdict here. The anti-abortion plaintiffs lose 9-0 on standing, with (quite properly for a case lost on standing) no discussion of the merits. Kav writes for the majority, with Thomas concurring on a technical point of standing law (on one of three theories of standing advanced by AHM the majority think they lose on the facts, but Thomas admits that this is correct under current precedent buy under a correct reading of the Constitution he thinks they lose on the law instead).
Quick thoughts:
Sorry for my slowness on the court. I've gone through the first three decisions for this week, but not written them up. I just saw that there are another three, so expect more of a delay.
But yeah, this one's the most straightforward opinion of the lot, and rightly so.
Standing is the doctrine that the court can't just rule on anything, but has to be dealing with an actual legal case, where there are harms that can be remedied to the petitioners, along with a few other requirements. They have to always be acting as a court, in essence, not a "I want to change the law" machine, even if they politically are treated more as the latter.
The opinion of the court is just Kavanaugh saying, "No, this theory of standing that the petitioners try to claim to be able to make their case is dumb and wrong. No, this other theory of standing is also dumb and wrong. No, that other one is wrong too" and so forth. He's compelling; the doctors are stretching anything they can to come up with standing.
The concurrence is very Thomas. Writing lone opinions to explain what he thinks the law should be in nonmajority opinions, without regard to factors other justices consider, like whether the petitioners requested it, or stare decisis, is something he often does (see, for example, his Dobbs concurrence). I love it.
Thomas is arguing that associations shouldn't have standing on behalf of their members (he also briefly throws in at the beginning that the rarely used third party). He says that this was essentially fabricated in the mid-20th century, without really any reasoning behind it. Further, it doesn't work with ordinary principles of standing (how, exactly, do you help the people by aiding the organization), or of ordinary legal process (it allows people more than one chance with the same suit, as they are treated differently than individuals containing them.) Rather, the proper vehicle for the interests of many individuals is a class-action. I think he had a few other points.
I generally found this compelling, but am not really acquainted with law for standing, as I'm not a lawyer.
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I don't see why this hypothetical mail carrier would have standing, for pretty similar reasons of attenuated causation as the doctors in this case. Even if the hypothetical mail carrier did have standing why would the remedy be to prevent mifeprestone being shipped through the mail rather than the Post Office accommodating this worker's objection and having someone else do the delivery? Think a minute about the rule implied here. "If any postal carrier has a conscientious objection to delivering X, then no postal carrier may be permitted to deliver X." That result seems absurd to me and I am skeptical the court would rule it so. I'm also not clear on how the Comstock Act is relevant here. As far as I know it is a criminal law with no civil component, so no one can sue anyone else for violations of it.
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Trump is at least aware enough to realize that hardcore prolife is very much a minority position in American politics. Some on the right seem to have run away with their own personal copium on this subject because polling shows most people don’t support unlimited abortion on demand until birth, but that doesn’t mean these pills used until the 10 week point are widely opposed at all.
The best thing the next GOP president can do on abortion is say it’s not federal business and let the states handle it. Getting trapped into promising federal / congressional restrictions would be a big mistake and highly unpopular.
Among the general populace, yes.
But getting into the White House or, worse yet, doing so and having the House and the Senate, and then doing nothing would disillusion a huge part of the base.
No win.
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This position makes no sense if you're actually pro life though. Currently all you can do is ban abortion for anyone too poor/stupid/disconnected to get a bus ticket, you can't actually ban abortion. That's a win in red states, but it isn't nearly enough of one.
If one considers abortion murder, it's little comfort that a girl has to cross a state line to do it.
What was the point of banning slavery in only some states? If people really considered slavery evil, why settle for only banning it in one's own state, while it is perpetuated just over the state line?
...I think most abolitionists did pretty much seek to end slavery throughout the country?
Abraham Lincoln, prior to his election:
If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it.
We are now far into the fifth year, since a policy was initiated, with the avowed object, and confident promise, of putting an end to slavery agitation.
Under the operation of that policy, that agitation has not only, not ceased, but has constantly augmented.
In my opinion, it will not cease, until a crisis shall have been reached, and passed -
"A house divided against itself cannot stand."
I believe this government cannot endure, permanently half slave and half free.
I do not expect the Union to be dissolved - I do not expect the house to fall - but I do expect it will cease to be divided.
It will become all one thing, or all the other.
Either the opponents of slavery, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction; or its advocates will push it forward till it shall become alike lawful in all the States, old as well as new-North as well as South.
And the way they did it was by winning locally before they went for a global solution. Pro-life has only just recently secured the possibility for local wins. They need to consolidate those wins before going for a global solution, or they will lose their hard-fought gains.
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Trump’s presumptive AG is Ken Paxton, who understands quite well that he has to throw the pro-life movement a few unpopular bones for their legal talent to help with Trump’s revenge tour.
On the other hand Kavanaugh and ACB have already indicated that beyond core tradcath issues like abortion they aren’t actually as conservative as Alito and Thomas, and often favor the status quo. The risk with ‘conservative’ Catholics is that they’re ‘conservative’ because they want to ban abortion rather than because they’re actually conservative, in the same way, say, Sheldon Adelson was conservative because he was a Zionist rather than out of particular principle.
Paxton’s staffers know the bargain they’re striking, and unlike sitting Supreme Court justices can be kicked to the curb if they don’t stick to the deal.
More to the point, ACB and kavanaugh are still conservative justices. They just aren’t Thomas or Alito. The pro-life politics drags them right.
ETA- because it might not be widely known: Thomas and Alito are the actual literal tradcaths on the court. ACB is at least as religious as them but sits well to the left in internal Catholic church politics; Kavanaugh is probably but not definitely much less religious and is definitely much less religiously conservative. Actual literal tradcaths in important government positions tend not to defect on non-core issues; that's why they're so common in hardliner right wing programs.
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I suspect Trump's personal opinion on abortion is very favorable; a guy who likes (or at least liked) to sleep around is going to want the backstop. Anyway, he's already said "it’s not federal business and let the states handle it".
Having all learned that Trump raw dogged a porn star and his joke about how his peronal Vietnam was dodging STDs, I'd be shocked if he wasn't responsible for at least one abortion.
You'd think they'd have spent the last 9 years hunting for the barest shred of evidence of this if there were any.
Even if Dems wouldn't touch it for fear of offending the sacred idol of abortion, some Lincoln Project group would do it (assuming they actually have independent oppo programs and aren't just puppets of a dem "non-profit.")
Like his business dealings, I'm continually surprised at how little dirt they've managed to pull up on him. In NYC real estate work I'd assumed he had at least a few skeletons in the closet/at the bottom of the harbor.
I don't know what to make of it. Maybe he literally only fucked porn stars so he could brag about it to other rich guys, and his body count isn't even very high?
I could honestly see that.
Most of the NYC real estate dirt existed for decades in the open because it was NY tabloid fodder, like destroying the Bonwit Teller statues, various lawsuits from tenants of the usual slumlord type, the rape allegation by an ex wife etc. Trump was famous enough that anything juicy was saleable already and so had mostly already been printed. The stuff that wasn’t was more minor, like Access Hollywood. He wouldn’t have had anyone killed, he dealt with the mafia through the unions like all NY real estate developers, and they handle their own business.
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While I doubt this, I also don't think the DNC would shy away from having their proxies couch anti-Trump arguments in anti-abortion language assuming they thought it would work. Maybe the porn stars were all on birth control(I'd assume that people who have sex for a living are).
That's a good point. Can't see Trump ever doing the old "baby I love you, but I need you to get this abortion because I can't leave my wife for you just yet. Come on, it's for us!"
More like "you and I both know it's 1-in-10 I'm the father, how's that paternity suit going to work out for you?"
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I'd expect that there are more people out there under NDA's or he otherwise has some sort of kompromat on relevant associates. Also I think his reputation as 'Teflon Don' and not backing down in the face of dirt being used against him limits the perceived effectiveness of (and thus motivation for) those kind of attacks.
Agree, if Maples did come out and say she had one Trump would simply deny he had anything to do with it, say it was “a shame” and move on, it wouldn’t hurt him.
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I'd suggest that second option: a) more talk than action when it comes to how much sex he's had, no surprise there; but also want to consider the related but separate reason b) the people with whom he does have sex have some mixture of strong NDAs, financial relationships, and aversion to publicity. For example his ex-wives were much more silent than you'd expect two ex-wives of a president to be (and Ivana passed away two years ago, before Dobbs). As a point of fact, Marla Maples has hinted at exactly what you'd expect: She has a strong NDA and a kid who is Trump's daughter.
In fact Marla Maples stated very clearly she personally was very pro-choice. I'd say strong odds she had an abortion but is not speaking about it for the aforementioned reasons.
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Are you talking about McDougal?
I mean Stephanie A. Gregory Clifford known professionally as Stormy Daniels.
But if he no-condom fucks one woman he only met once before then I suspect did it with other women.
I don’t think it is clear he did that. Stormy Daniels radically changed her story. She isn’t trustworthy.
Point taken. But "my personal Vietnam was dodging STDs" Trump publicly presents himself as the sort of guy who does that. Which could also be a ruse.
We don't really know, but I rather suspect that Trump has made unwise sexual decisions. As plainly stated by himself and at least one sexual partner.
Oh agreed there. Just not convinced he had sex with stormy (whereas much clearer that he had sec with McDougal).
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Clearly a jury who heard the facts more directly than you and I felt differently, and I'm inclined to trust them.
Woah buddy. Coming in shooting hot but not aware of the facts.
The legal issue in the Trump trial did not turn on whether Trump did or didn’t have sex with Stormy. It was orthogonal.
The jury made up of almost certainly Trump haters?
Do you also believe OJ was innocent? Believe it or not sometimes Juries get things wrong. Here that was exacerbated by a very biased judge.
Happy to elucidate the numerous legal problems with the conviction but seems like your mind is made up.
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A sentiment that never made sense to me. Aren't juries prevented from independent investigation, aren't allowed to directly interrogate anyone or anything, and commonly have arguments excluded from consideration, when a judge doesn't like them?
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I don't think this follows. The plaintiffs were asking for a few things:
So even in the non-mail-order case, there is still relief they want.
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So correct me if I am wrong, but this is suppose to induce a miscarriage at home and the woman is supposed to deal with the remains herself?
Mail-order abortificants seem like something that is going to blow up in proponents faces.
They’ll blame pro-life laws for it. As dumb as it is, there are people blaming drug prohibition for overdoses.
Those people are entirely correct. ODing from a surprising dose of Fentanyl mixed in with other drugs wouldn't happen if drugs were distributed by pharmaceutical companies rather than Mexican cartels.
The ultimate effect of drug bans are that society is awash in illegal drugs and the kinds of people who make illegal drugs have poor quality control.
I was thinking recently that this type of reasoning leads to some pretty hilarious conclusions. The splashy one is that every single pro-legalization advocate should be bowing down to the Sackler family and protesting against the cruel use of law against them, which, after all, only hurts drug users. Rather than being in any way related to increased drug usage (that's magically impossible), all they were doing was producing a perfectly safe pharmaceutical product which, as a matter of pure logic, necessarily saves lives. Will you join in erecting a statue in their honor? Maybe we can place it next to St. George Floyd's statue.
I'm not planning on erecting statues or bowing to them. But they didn't spike all sorts of drugs with surprise fentanyl, so they're better than the cartel alternative.
Boo. Boo on this kind of snark. We should be better. You have an actual point here, but your need to get in cheap snarky jabs is obscuring it.
Would you like to put in some reasoning for why this magic is actually reality? Or just boo anything you disagree with? (I stand by that it's positing magic to make ridiculous claims that violate the basic laws of supply and demand in economics.)
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I see no point in "bowing down" to the Sackler family, but I do believe their prosecution is unjust.
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No, they are not. Eradicating drug use is entirely possible- there are societies which have done so on a practical level- and people overdose on regular opiates too. Illegal drugs are because of non-enforcement of drug laws. California has a black market for dope with full legalization, for crying out loud.
It’s technically true that the fastest way to get rid of illegal drugs is to legalize them. But this doesn’t solve the problem drug laws are intended to address.
California has a a black market for weed because the "legalize and tax it" people set the taxes way too high. So cannabis enjoyers compare price and quality and make an informed choice to get the illegal stuff. No doubt encouraged by the extreme lack of enforcement.
Those other societies are other societies. We do not have a nation almost entirely composed of Japanese people. And with the enormous amounts of money involved and the mass desire for drug use, I don't think merely trying to enforce the laws harder will help. I think our collective non-compliance is so great compared to our government's law enforcement capacity that we can't eradicate drug use. But we could work around the margins to discourage it a bit more.
On an unrelated point I do wish they'd enforce the laws against open air drug markets and open use in certain major cities. But that's a quality of life complaint from me.
Bullshit. The US having a mandatory death penalty for drug dealers is exactly as likely as a national abortion ban- they have the same precondition(total red tribe political victory). Lax enforcement leads to meaningfully more drug use. California set the taxes way too high, but there's black market cigarettes literally everywhere, and California also has a large pre-existing problem with just not enforcing the law. It's not like cracking down on the illegal sellers wouldn't drive people back to paying taxes on the shit.
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The FDA authorization for mifepristone is for abortions up 10 weeks, at which point the fetus is, at best, about the size of guppy. In the context of all the shed uterine tissue that's expelled alongside it, the "remains" are not even easily identifiable as such.
Aside, mifepristone is just one of two pharmacological components of the standard "medical" (as opposed to surgical) abortion. The other is misoprostol, which can induce abortion by itself, just somewhat less reliably. Mail-order abortions would not stop if mifepristone became completely unavailable tomorrow.
Yeah. There's some awful theoretical edge cases when interacting with state laws regarding disposal of human remains, but I fully expect the typical and extreme cases to look more like this.
The bigger problem's going to be medical complications -- severe uterine bleeding is rare, but it's not very rare, and it can become life-threatening. Officially, the FDA REMS process is supposed to require patients to have medical support figured out before taking the pill; in practice, it's telehealth. And we're already getting cases where hospitals cite laws that clearly permit care as reasons to turf patients.
While there's charitable explanations (eg, the FDA hasn't really thought about it), the more morbid possibility is that they see even that as just heightening the contradictions. If you're in progressive spaces, these problems sound like every worst combination possible, with no one to blame but anti-abortion advocates.
If.
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The government can't even stop people from shipping cocaine though the mail I doubt there is any real impact they are going to have on mail-order any sort of pill regardless of the laws.
The government can't stop people from building their own guns, but that doesn't stop them from jailing otherwise law-abiding and productive citizens. They likewise can't stop criminals from purchasing guns illegally, but that doesn't stop them from shooting law-abiding and productive citizens to death under questionable circumstances in an effort to do so.
"Enforcement will be difficult and costly" is not an argument for non-enforcement, especially if most of the difficulties and cost will be borne by the outgroup.
You responded to a filtered comment.
I see both comments.
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