Texas man charged with capital murder for slipping pregnant woman abortion pill

A North Texas man charged with capital murder this month after he allegedly slipped his girlfriend abortion-inducing medication and caused a miscarriage marks the first time a murder charge has been brought in an abortion-related case in Texas, reported the Texas Tribune.

The case tests a new method for reining in abortion pills — by threatening to prosecute individuals who provide them with the most severe criminal charge — while advancing the longstanding legal provision that defines an embryo as a person, legal experts say. The latter could raise serious implications about the legality of fertility treatments and in other legal realms such as criminal and immigration issues.

“It is shocking to people that the law can be used this way… that this is the extent and result of the more than 20 year old fetal personhood laws,” said Blake Rocap, a Texas attorney who works in abortion rights advocacy and studies pregnancy criminalization. Legal experts say the case will not change Texas laws that prevent women who receive abortions from being prosecuted.

According to an affidavit filed in Tarrant County by the Texas Rangers, 39-year-old Justin Anthony Banta put mifepristone, an abortion-inducing medication, into cookies and a beverage that he then gave to his pregnant girlfriend. Banta had previously asked her to get an abortion, but she said she had wanted to keep the child, according to the affidavit. A day after drinking the beverage, the woman miscarried.

The Texas Rangers did not respond to multiple requests for comment. The Tarrant County District Attorney’s Office, which must decide whether and how to prosecute the case, has not yet brought its own charges, according to a spokesperson.

Before Roe v. Wade was overturned, a fetus was not considered a person constitutionally. However, when Roe v. Wade was overturned, the whole opinion was overruled, including the idea that a fetus does not have the same rights as a person. That did not immediately mean that fetus personhood is established. But, Joanna Grossman, a professor at Southern Methodist University Dedman School of Law, and other experts see Banta’s case as an attempt to move further in that direction.

“The purpose of this has nothing to do with caring whether this woman was victimized, but it's about trying to establish fetal personhood in a more direct way than they've been able to,” said Grossman.

If Banta is convicted and fetal personhood is established in the case, it could complicate a variety of issues, including whether IVF is still legal because it involves destroying unused frozen embryos. Last year, the Alabama Supreme Court ruled that frozen embryos are considered children.

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Texas GOP push for sweeping anti-abortion law which includes century old criminal statute

In late March, women who had suffered severe pregnancy complications and were forced to leave Texas for care sat in the state Senate chamber and implored Texas lawmakers not to make such situations even worse, according to Bolts. Some had previously sued the state over its abortion bans, after being denied needed medical care in Texas. Devastating fetal diagnoses—one woman learned that the fetus was developing without a skull and would not survive, another was told that severe complications with one developing twin threatened her life and the life of her other healthy twin—left some scrambling to get over the state line. 

But instead of expanding medical exceptions to the state’s abortion bans in order to protect people in these circumstances, the women said, measures being pushed by Texas Republicans threatened to further criminalize them and their loved ones. 

The senators had been hearing testimony on abortion legislation, including a bill that purported to clarify the narrow medical exceptions in Texas abortion bans, following reports of deadly delays in care due to the vague language and penalties of up to life in prison for doctors who violate them. For weeks, that bill, Senate Bill 31, dominated advocacy efforts and headlines. This was in part because the bipartisan measure, deemed a priority bill by even the staunchest anti-abortion lawmakers, contained what some called a “Trojan Horse” provision: By including an early 20th-century, pre-Roe abortion law among the several abortion bans that SB 31 amended, critics said the bill could help resurrect the century-old abortion ban that would allow for criminalizing pregnant people seeking abortions, along with anyone who helps them get the procedure, even if it’s out of state. Eventually, the bill’s authors agreed to add language clarifying that the legislation was neutral on this issue, and it passed the Texas Senate last week. 

Yet Texas Republicans have at the same time been pushing forward another sweeping anti-abortion bill, Senate Bill 2880, which also includes language that could be used to enforce the same pre-Roe ban, often called the 1925 law. 

“This is a backdoor effort to fully reinstate the 1925 law,” Houston-area Democratic Senator Carol Alvarado said last week, just before SB 2880 also passed the full Senate. “It is a vote to criminalize women, trap them within the borders of Texas, and to threaten anyone who tries to help them, regardless of whether the abortion occurs legally in another state.” This includes situations where the pregnancy is a result of rape or incest, or where the fetus has an anomaly that means it will not survive—none of which are an exception under Texas law. 

Multiple Texas attorneys who specialize in reproductive health told Bolts that SB 2880 and its inclusion of language amending the state’s century-old abortion law could constitute an unprecedented step toward the sweeping criminalization of abortion in a state that already has some of the strictest abortion laws in the country. The measure, billed as an effort to crack down on abortion medication following an influx of the pills into the state via telemedicine, would allow anyone to sue individuals or companies who prescribe, manufacture, transport, or distribute abortion pills to a Texas resident, in exchange for a $100,000 reward. The bill would also empower people to bring wrongful death lawsuits following an abortion, and give new powers to the Texas Attorney General to enforce the state’s abortion bans, including the 1925 ban.

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Creators: Report: White House Controlled 'Investigation' During Kavanaugh Confirmation

Matthew T. Mangino
Creators Syndicate
October 14, 2024 

The old adage that the cover-up is often worse than the crime is no more evident, as we have recently learned, than with the confirmation of U.S. Supreme Court Justice Brett M. Kavanaugh.

In 2018, Kavanaugh was nominated by President Donald Trump to fill the seat left vacant by the sudden retirement of Justice Anthony Kennedy. Kennedy was appointed by President Ronald Reagan. A Republican appointee, Kennedy consistently voted for such left-leaning causes as narrowing the death penalty, same-sex marriage and abortion. Kennedy's departure opened the door to appoint a conservative to the court with an eye toward eliminating women's reproductive rights.

However, after two women, Christine Blasey Ford and Deborah Ramirez, came forward with allegations of sexual misconduct, it appeared Kavanaugh's appointment might be derailed.

In what appeared to be a magnanimous move, Trump called for a supplemental background investigation by the FBI. The investigation was to be done by the book. Unfortunately, there was no book on supplemental background investigations. The White House set the parameters for the "investigation."

Trump promised that the FBI would have "free rein" to investigate claims by Ford and Ramirez. He went on to say the FBI was "talking to everybody" and he wanted the FBI "to interview whoever they deemed appropriate, at their discretion."

As shocking as it might seem to some, Trump was not telling the truth when he described the 2018 "investigation" of Kavanaugh. The Kavanaugh "investigation" was really not an investigation at all.

Sen. Sheldon Whitehouse (D-R.I.), a Senate Judiciary Committee member, released a recent report into the time leading up to Kavanaugh's confirmation. He found that messages to the FBI tip line regarding Kavanaugh were forwarded directly to the White House and never investigated. The FBI was instructed by the White House to talk to 10 potential witnesses and was not given the leeway to pursue corroborating evidence.

"On instructions from the White House, the FBI did not investigate thousands of tips that came in through the FBI's tip line," according to the Whitehouse report. "Instead, all tips related to Kavanaugh were forwarded to the White House without investigation. If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information."

According to the Guardian, the FBI received more than 4,500 calls and electronic messages. Even when senators contacted the FBI directly with the names of people who claimed to have relevant information about Kavanaugh, the FBI did not contact them.

The FBI wrapped up their "investigation" within a week. They never even interviewed Ford or Kavanaugh.

Several senators went on to vote to confirm Kavanaugh based on the FBI investigation not finding any corroborating evidence to support Ford's and Ramirez's stories. The FBI didn't try to corroborate their stories, and if there was corroboration in any of the thousands of tips received by the FBI, no one saw it except maybe the White House.

This isn't a failure on the part of the FBI. The Trump White House, the report found, "exercised total control over the scope of the investigation, preventing the FBI from interviewing relevant witnesses and following up on tips. The White House refused to authorize basic investigatory steps that might have uncovered information corroborating the allegations."

If Trump had no qualms about lying to U.S. senators about something as fundamentally important as the confirmation for a lifetime term on the United States Supreme Court, what is the likelihood he'll be honest with the rest of us?

Here the cover-up made it possible to turn back the clock on women and their reproductive rights. Kavanaugh joined the high court, and in less than four years, the court overturned Roe v. Wade.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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Be careful what you wish for, SCOTUS creates volatile campaign issues

 Professor Eric J. Segall of Georgia Sate University, writing at Jurist:

The conservative justices on the Roberts Court consistently lecture the American people about the importance of text, history, and tradition to constitutional litigation. They use the term originalism as a catch-all phrase for their alleged focus on prior law. They want the American people to believe that their preferred outcomes are based on legal sources external to their own ideological preferences.

As the Court starts the new term, however, we can see from last year’s important cases that the justices’ alleged commitments to originalism are illusory. Election concerns and pragmatic factors drove the Court’s important decisions not any open-minded journey through our Constitution’s text, history, and traditions. That pattern is always true no matter which political party controls the Court. But the liberal justices do not pretend they can fill the open spaces of constitutional law with answers derived exclusively from text, history, and tradition.

As a matter of governmental transparency and rule of law values, the justices should justify their country-defining decisions with reference to their values, politics, and experiences and not pretend that text, history, and tradition are the drivers of the results they reach. Last term’s cases starkly and dangerously illustrate the disconnect between how the Roberts Courts describes the methods they use to solve hard issues and the actual factors generating those decisions. A summary of those cases and their context demonstrates that politics not law were at the forefront of the justices’ considerations.

Abortion

Donald Trump’s and J.D. Vance’s meandering and changing statements about abortion reflect GOP awareness that they are on the wrong side of this issue in a post-Dobbs world. According to Whit Ayres, a GOP pollster and consultant, “when you’re talking about abortion, you’re playing on the Democrats’ turf just like when you’re talking about immigration and inflation, you’re playing on Republicans’ turf.”

The conservative justices understood the politics of the moment so were also “loath” to talk about abortion last term, just like the leaders of the Republican Party. That concern resulted in the Court’s dismissal on procedural and standing grounds of two huge cases because the justices were wary about issuing anti-choice opinions five months before a monumental election. The cases were dismissed prior to the justices’ reaching the merits, so it is likely both, one involving a suit by anti-choice doctors to make abortion drugs much harder if not impossible for women to obtain, and one dealing with emergency room procedures during difficult pregnancies, will return to the Court, but not in an election year.

Trump Cases

The dismissal of the abortion decisions, admittedly, is one step removed from cases directly impacting elections, although the effects of those two cases, had they been decided differently, would have hurt the GOP in November. The two Trump cases the Court heard this term demonstrated how much the six conservative justices were focused on the upcoming presidential election not text, history, or tradition.

Section 3 of the Fourteenth Amendment forbids any person “who having taken an oath . . . to support the Constitution . . . shall have engaged in insurrection or rebellion” from holding “any office, civil or military, under the United States, or under any State.” Two conservative scholars—Professors William Baude and Michael Stokes Paulsen—wrote an important article arguing that President Donald Trump is disqualified from seeking the Presidency because of his involvement in the January 6, 2021, attack on the Capitol. Subsequently, the Colorado Supreme Court agreed and ruled that Trump could not be on the Colorado ballot.

In a unanimous and fast-tracked ruling, the Court held that states have no jurisdiction to disqualify a President under Section 3, at least absent a federal law authorizing them to do so. The justices knew that Congress would not pass such an authorization, and the disqualification issue vanished from the scene, certainly helping Trump.

Why did the liberal justices go along, even if they disagreed about the breadth of the opinion? They knew that red states were not going to disqualify Trump, that they were out-voted anyway, and they were likely scared of future disqualifications of Democratic candidates by red states.

But the most important aspects of this case were the Court’s speedy resolution of the controversy and the complete absence of any serious discussion of text, history, and tradition. Instead, the justices focused on pragmatic and prudential concerns. When originalism does not align with the conservative justices’ values and politics, the Roberts Court consistently minimizes or ignores text, history, and tradition.

The second Trump case, involving the President’s immunity from criminal prosecution after he leaves office, was characterized by one noted commentator as the legal nadir of the Roberts Court, putting the President “above the law.” There can be little doubt that the result and the timing of the decision was designed to help the former President. They made Trump’s prosecutions as difficult and as delayed as possible.

The Court created three buckets of Presidential conduct. For core constitutional functions, such as the President’s pardon power, he possesses immunity. For acts taken pursuant to congressional authority, he has presumptive immunity. For unofficial conduct, he has no immunity.

This approach is reasonable and had the Court stopped there, the lower courts would have had to figure out in which bucket Trump’s efforts to steal the election belonged. But the Roberts opinion (with the liberals dissenting) went much further and held that, when judges try to figure out the relevant buckets, evidence of motive, other official acts, and discussions with top advisors cannot be considered by the courts. Pursuant to those gratuitous add-ons without any basis in text, history, or tradition, Presidents are now effectively immune for acts taken while they were President, no matter how criminal.

The Court’s fast-tracking of the disqualification case way back in February combined with their delay of the immunity case and its eventual holding (on the last day of the term) insured that Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election, and that the disqualification question would not affect the election.

No constitutional text provides immunity for the President, the Court barely glanced at history, and the entire decision reads like living constitutionalism on steroids. In both the immunity and the disqualification cases, the justices barely glanced at the law and decided based on other concerns, mostly about the upcoming election. They acted exactly as one would expect Republican politicians to act.

Second Amendment

And then there were guns. Two years ago, the Court decided New York State Rifle & Pistol, Inc. v. Bruen, in which the Court overturned a 1911 New York law requiring a special license to openly carry a firearm and issued a new and bizarre analysis that has caused chaos and confusion in the lower courts. Part of the chaos included an unhinged Fifth Circuit decision invalidating a federal law disarming people who are under domestic relations protective orders. The defendant had a history of violent threats, including against the girlfriend who was the subject of the order.

The Court could not affirm that madness shortly before the election. Such a holding would have been a complete disaster at the polls, especially among women who are much too often the victims of domestic violence. Thus, in Rahimi v. United States, the Court reversed the Fifth Circuit and said the defendant in the case could be constitutionally prohibited from owning a gun. Only Justice Thomas dissented.

The Roberts Court used the issues of abortion, guns, Presidential immunity, and Trump’s potential disqualification to protect Republican politicians running for office. Text, history, and tradition simply did not matter to the originalists in these cases. Although the justices often hide behind legalese instead of the real drivers of their judgments, last term was one of the worst measured by pure hypocrisy. The conservative justices should stop pretending their important constitutional law decisions flow from legal sources or their originalism. They do not. The justices hiding that reality is a gross affront to transparency and the rule of law.

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Florida Governor DeSantis tries to strong arm political opponents

Florida Gov. Ron DeSantis’ (R) administration is reportedly trying to intimidate television stations into taking down advertisements put out by supporters of Amendment 4 — a proposal on the ballot in Florida this fall that seeks to codify abortion access into the Sunshine State constitution, where abortion is banned after six weeks, reported Talking Points Memo.

On Oct. 3, DeSantis’ Department of Health sent a letter to at least one local NBC affiliate, WFLA-TV, suggesting they could face criminal charges for airing ads that encourage voters to support Amendment 4.

The letter, first reported by Florida investigative journalist Jason Garcia, claims that such ads violate Florida’s “sanitary nuisance” law and suggests that stations may be committing a misdemeanor offense by airing them.

Floridians Protecting Freedom, the group sponsoring Amendment 4, responded to the Health Department’s letter with one of their own, addressed to the local news station.

“The Department cannot criminalize media outlets running political advertisements with which it disagrees,” they wrote in the letter they shared with TPM. “Such advertisements are not a ‘sanitary nuisance.’ They do not expose the stations running the advertisements to criminal sanction. Speech criticizing the government in the context of a political campaign is the lifeblood of democracy and lies at the very heart of the First Amendment’s protections. The Department’s letter is a flagrant abuse of power and must be rejected.”

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Creators: The Right to Bodily Autonomy

Matthew T. Mangino
Creators Syndicate
August 13, 2024

The art of movie making can be provocative, a glimpse of the past as a harbinger of the future. There is a scene in the classic film "Judgment at Nuremberg" where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a German judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a "feeble-minded" woman who was the daughter of a "feeble-minded" mother. The court opinion concluded, "Three generations of imbeciles are enough."

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. "Judgment at Nuremberg" was a fictional account of the war crime trials of German judges. However, Justice Holmes' opinion in Buck v. Bell — which upheld the sterilization of women in the state of Virginia — was indeed cited in Nuremberg.

Carrie Buck became pregnant at age 16. Her foster parents had her institutionalized as a "feeble-minded moral delinquent," despite her claims that she had been assaulted by their nephew.

After she gave birth, Buck was sent to the Virginia State Colony for Epileptics and Feeble Minded in Lynchburg. Buck's mother was already a resident there.

Virginia had a law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck's sterilization by a vote of 8 to 1. Holmes' 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

Here we are 97 years later and America is embroiled in the same debate. Do women deserve the right to make decisions over their own bodies and decide when and if they want to have children?

In Dobbs v. Jackson Women's Health Organization, the 2022 abortion decision, the U.S. Supreme Court held "that Roe [v. Wade] must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision."

"The Dobbs case and the Buck case can both be boiled down to an issue about bodily autonomy," wrote Livia LaMarca, a student at the University of Pittsburgh, in 2022.

In Buck, the court acquiesced to the involuntary sterilization of women, and in Dobbs the court rescinded a woman's right to make her own reproductive choices. The decisions are about control. In both cases, according to LaMarca, the Supreme Court decided "that the right to one's own body isn't important enough to protect and that it isn't protected by the constitution."

According to USA Today, Buck was the first victim of Virginia's sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

The government — at different levels — continues to take away the right of women to make reproductive decisions. In 2015, a 36-year-old Tennessee woman had been charged with neglect after the death of her 5-day-old baby. The prosecutor would not move forward with a plea bargain to keep her out of prison unless she agreed to undergo a sterilization procedure. According to The Tennessean, the case ignited outrage over the proposed use of sterilizations as a bargaining chip in a criminal prosecution.

Seven years later, that very state enacted a total ban on abortion. The Tennessee law, with few exceptions, went into effect on Aug. 25, 2022. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in their dissent in Dobbs, "The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman's rights to equality and freedom."

The Buck court, in much the same way, thought forced sterilization did not implicate a woman's right to due process and equal protection — a decision ignominiously invoked by the Nazis in defense of crimes against humanity.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Gun supporters use anti-abortion strategy to challenge gun restrictions

From 2020 to 2022, the Constitutional Defense Fund (CDF) collected $12 million in cash and funneled nearly $10 million to two connected gun rights groups and a DC law firm, Cooper & Kirk, which together have filed at least 21 lawsuits since 2020 that challenged gun restrictions, reported Mother Jones. 

These lawsuits, aimed at getting an eventual Supreme Court hearing, concern bans on AR-15-style rifles and high-capacity magazines, as well as restrictions on young adults buying and carrying handguns. During its next term, which begins in October, the court will hear one of the suits, a challenge to the government’s ability to check the spread of home-produced, unserialized “ghost guns.”

The CDF paid Cooper & Kirk more than $8 million between 2020 and 2022. The fund also made payments to the Second Amendment Foundation and the Firearms Policy Foundation (an offshoot of the Firearms Policy Coalition), which are the plaintiffs, individually or together, in every one of the 21 lawsuits the operation is behind.

The CDF’s money came via Donors Trust, a pass-through fund founded in 1999 with the aim of “safeguarding the intent of libertarian and conservative” philanthropists who seek to channel their wealth into right-wing causes. The trust has more than $1 billion in assets and is not legally required to identify its donors.

In short: An anonymous funder or funders is bankrolling a legal attack aimed at providing the conservative majority on the Supreme Court an opportunity to wipe out America’s firearms laws. It’s akin to the Christian right’s abortion playbook but for guns.

It’s akin to the Christian right’s abortion playbook but for guns.

“It’s about as far from a bottom-up, grassroots operation as possible,” said Adam Skaggs, chief counsel and vice president of Giffords Law Center, who has spent a decade tangling in court with gun rights interests. Skaggs said that in terms of its ambition and scale, the dark money operation is unlike any litigation funding arrangement he’s seen.

The motives of many of the players in this drama—gun rights advocates and the conservative lawyers who work for them—are obvious. But Sutherland is more of a mystery. People who have known him for years say they’ve never heard him talk about the Second Amendment or state a position on the gun debate.

Over the past two years, I have tried to piece together this network and chart its workings. It’s an effort that has involved reading many thousands of pages of financial filings, depositions, and court records. I’ve done dozens of interviews and knocked on the same doors again and again, trying to figure out how an undercover pastor became the unlikely middleman for a covertly funded operation to abolish gun laws. Here’s what I’ve learned.

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The Supreme Court is on the ballot this fall

America is facing an assault on our democracy, carried out by the Court’s supermajority, led by Chief Justice John Roberts, and lower court judges, reported the Washington Monthly. Democrats must respond to this attack, no matter their nominee, even if the Court is out of the headlines with its term concluded earlier this month. We’re glad to see reports that President Biden will soon propose term limits and a binding ethics code for Supreme Court justices.

It’s time. In February 2017, shortly after Trump took office, The Washington Post, which first reported the Biden-Harris looming reforms, adopted its slogan: “Democracy dies in darkness.” But democracy can die in broad daylight. Witness Federal District Court Judge Aileen Cannon casting aside long-standing precedents this week to rule that the appointment of Special Counsel Jack Smith is unconstitutional in the Mar-a-Lago documents case over which she’s presiding in Florida. Then there’s the Supreme Court’s stunning decision this month finding the president virtually immune from prosecution. The opinion, authored by Roberts, may scuttle the remaining federal and state cases against Trump, even if Trump loses the election. In New York State, where Trump was convicted on 34 felony counts related to his hush money and election interference scheme, sentencing has been delayed because of the Court’s ruling and may never be carried out.

It’s a familiar but still trenchant observation: There is nothing “conservative” about the Court’s supermajority. It is radical and untethered by conservative respect for precedent or the historic prerogatives of branches besides the executive.

While the Court issued questionable decisions when Chief Justices Warren Burger and William Rehnquist led it—Bush v. Gore—it never strayed so far from respecting constitutional consensus as it has under Roberts, despite his posture as an institutionalist only interested in “calling balls and strikes.”  

Things changed in 2005 when President George W. Bush nominated, and the Senate confirmed Roberts and Samuel Alito to the Court. It created a 5-4 precedent-smashing majority that discovered a Second Amendment right to private ownership of guns (District of Columbia v. Heller, 2008), equated money and speech in extremis (Citizens United v. Federal Election Commission, 2010), and invalidated the pre-clearance requirements of the Voting Rights Act which Congress had almost unanimously extended. (Shelby County v. Holder, 2013) Thanks to Senate Republican Leader Mitch McConnell’s manipulation of the confirmation process to confirm Trump’s three nominees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the 5-4 Court wielding a sledgehammer became the 6-3 radical court swinging a wrecking ball.

Although the Trumpified Court’s abortion and presidential immunity decisions received the most attention, equally radical are its evisceration of the ability of states and localities to regulate guns, elimination of affirmative action in university admissions, and reversal of the 40-year precedent requiring deference to administrative agencies when statutes are ambiguous. So, too, were its decisions breaching the wall between church and state where even the flimsiest claim of religious liberty sent the justices running to grant a license to discriminate.

“The least dangerous branch,”—Alexander Hamilton’s famous description of the courts—has become the most dangerous, even without the sword or purse.

Trump and McConnell gave us this Supreme Court supermajority to change our country in ways that would be difficult to undo. Taking a victory lap when Barrett was confirmed days before the 2020 presidential election, McConnell boasted: “A lot of what we have done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time.”

He’s right. The Constitutional five-alarm fire lit by the Supreme Court supermajority illuminates the only way to respond to this attack on democracy. Whoever the Democrats nominate in Chicago must fiercely counterattack the Supreme Court, putting it front and center in their presidential campaign. They must detail the damage done and offer a clear response. The voters must know that if they elect a Democratic president and a Democratic Congress—very big “if”s, to be sure—the chief executive will fight to enlarge the Supreme Court from nine to 13 members, impose term limits on the justices, and pass a binding ethics code.

The case for these changes has been compelling for many years. Of the advanced democracies, America has the smallest number of jurists on its high court. We also have the only high court whose members are not constrained by age or term limits. Their replacement is a matter of the vicissitudes of death and resignation rather than any predictable timetable, leaving some one-term presidents like Trump with three nominations and others, like Jimmy Carter, with none.

Ignoring this antiquated and arbitrary system was possible when the Court commanded widespread respect. That is no longer the case, and “we the people” need not stand by while six justices remake our country, some while enriching themselves. When the Civil Rights Act neared passage in the summer of 1964, a very different Senate Republican leader, Everett Dirksen, who backed Lyndon Johnson’s historic legislation, quoted the French novelist Victor Hugo: “Nothing is more powerful than an idea whose time has come.” The next Democratic president needs to act on that truth.

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Arizona legislature repeals 1864 abortion ban

 The Arizona State Senate voted 16 to 14 to repeal an abortion ban dating back to 1864, leaving it to Democratic Governor Katie Hobbs to sign the repeal into law, which she has committed to do, reported Jurist.

The State Senate’s debate was contentious, with lawmakers delivering theatrical monologues frequently punctuated by cries of protest in the gallery.

The vote follows a ruling by Arizona’s Supreme Court that the 159-year-old law banning abortion was enforceable in the aftermath of the US Supreme Court’s 2022 decision to overturn abortion rights case Roe v Wade, sending a 52-year-old case back to trial court.

The Arizona State House took up and passed the bill to repeal the ban, HB2677, two weeks following the state Supreme Court’s ruling, sending the bill to the State Senate.

Arizona’s abortion ban was enacted shortly after it was designated as a US territory and decades before it attained statehood. The ban was part of the Howell Code, a comprehensive set of laws enacted by the territory’s First Legislative Assembly, encompassing procedural regulations and establishing criminal laws ranging from bigamy to duels to mayhem.

That code stated, in relevant part:

Every person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years.

The 1864 version provided an exception if a physician were to perform an abortion in order to save the mother’s life. The following year, the provision was amended slightly to stipulate that the life-saving exception could apply to anyone performing an abortion. The regulation has remained largely unchanged since 1865, and the near-total abortion ban was codified into Arizona state law in the early 20th century.

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GOP lawmakers in Missouri raise concerns about death penalty

A group of Republican lawmakers raised concerns about the death penalty and advocated for legislation that  would abolish it in Missouri during a recent press conference at the state Capitol — characterizing it as an issue of restraining government overreach and protecting life, reported the Missouri Independent. 

Rep. Chad Perkins, a Republican from Bowling Green, has filed legislation to abolish the death penalty and sentence those on death row instead to life in prison without parole.

“I think morally, I feel obligated,” Perkins said. “Anyone who says they’re pro-life should feel a little conflicted on this topic — because if you’re pro-life then I think you’ve got to look at it and say you’re that way from the beginning to the very end. And I don’t think that the government should have a monopoly on violence.”

Joining Perkins at Tuesday’s Capitol rally were Republican Reps. Tony Lovasco of O’Fallon, Jim Murphy of St. Louis and Travis Smith of Douglas.

Missouri was one of only five states to carry out death sentences last year, along with Texas, Florida, Oklahoma and Alabama.

Missouri executed four people in 2023 and two in 2022.

Between 1989 and 2021, the state executed 91 people, according to the Death Penalty Information Center.

Four people on death row in the state have been exonerated in Missouri since 1989.

“If we are truly at a 100% pro-life state, and being 100% pro-life,” Murphy said, “I believe that the death penalty is something that we really need to examine and put an end to because there’s just too many errors to be made and it’s just too big an error to make.”

Demetrius Minor, national manager for that national advocacy group Conservatives Concerned About the Death Penalty, said Missouri could look to other states like Ohio, where there is a Republican trifecta and momentum against the death penalty, with legislative hearings over a bill to abolish it.

“The trend is beyond dispute,” Minor said, “An increasing number of conservative Republican state lawmakers nationwide are taking the lead because they believe in limited government, they demand fiscal responsibility and most importantly, they value life.”

 Lovasco, who filed the bill in previous years seeking to abolish the death penalty in Missouri, said he’s seen increased momentum on the issue from his fellow Republicans. 

“We’re seeing, finally, willingness to have a discussion about this within the Republican Party,” he said, “both behind the scenes and now finally in public.” 

Last year, after Lovasco introduced an amendment during the budget process to defund the death penalty, he said, “almost double the number of people in the Republican Party voted in favor of defunding the death penalty than when it had happened previously, when roll call votes had been done in the past by Democrats.”

Perkins is hopeful the issue gains traction this session, but it hasn’t been referred to a House committee yet. 

“Oftentimes an idea comes about and starts to get a bit of traction, and it doesn’t quite make it across the finish line,” Perkins said. “But you can feel that there’s a direction that people are going and so maybe it’s an idea whose time hasn’t quite come about, but I think that the time is coming.” 

Another bill, filed by Republican state Sen. Mary Elizabeth Coleman of Arnold, would limit but not abolish the death penalty. Her legislation would repeal a state law allowing a judge to decide on a death sentence when a jury is not in unanimous agreement.

Most of the states with active death penalty laws  require unanimous jury decision. In only Indiana and Missouri, a judge is allowed to impose a death sentence when a jury decision can’t be reached on sentencing. 

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GOP legislators in Ohio want to undo abortion referendum

Ohio state Republican lawmakers are once again trying to overturn the will of the people, after a devastating loss on abortion rights, reported The New Republic.

Ohioans overwhelmingly chose to enshrine abortion protections in the state Constitution earlier this week. Republicans had tried multiple times to block the referendum, called Issue 1, but they were handily defeated every time.

So on Friday, the state GOP unveiled a new tactic: stopping the courts from allowing the new amendment to take effect.

“To prevent mischief by pro-abortion courts with Issue 1, Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative,” Republican state representatives said in a press release. “The Ohio legislature alone will consider what, if any, modifications to make to existing laws based on public hearings and input from legal experts on both sides.”

The new amendment doesn’t take effect until December 7, and even then, it isn’t automatically implemented. Each individual abortion restriction needs to be repealed by a court. And Ohio has a lot of restrictions.

Abortion is legal up to 22 weeks, but certain abortion procedures are banned. Patients must wait 24 hours and undergo anti-abortion biased counseling before they can undergo the procedure. State-based insurance is prohibited from covering abortion services, and minors must have the consent of a parent, guardian, or judge in order to get an abortion.

As abortion reporter Jessica Valenti explained, Ohio Republicans don’t want the courts to repeal all of these restrictions. They want the GOP-controlled state legislature to decide whether to repeal the restrictions.

In the press release, lawmakers also blamed “foreign billionaires” for interfering in the election and tipping it in favor of abortion rights. In reality, right-wing billionaires and organizations donated millions of dollars from out of state (although still domestically) to try to block Issue 1.

This isn’t the first time Ohio Republicans have blatantly ignored—and actively worked against—what the people want. In August, they tried to raise the threshold for constitutional amendments to a 60 percent vote instead of a simple majority.

When that failed, the Ohio Ballot Board voted 3–2, along party lines, to change the text of the amendment on the ballot to a Republican-authored summary littered with inflammatory and fearmongering language.

Republicans have repeatedly refused to accept the results of elections on abortion, in a massive threat to local democracy. In Kansas, despite residents voting overwhelmingly in August 2022 to keep abortion rights in the state Constitution, the state legislature is still trying to pass laws that would restrict abortion access. And in Wisconsin, after voters elected a state Supreme Court judge in large part because of her outspoken support for abortion access, state Republicans tried to impeach her.

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DOJ targets antiabortion protestors who interfere with clinics

In February, the Justice Department announced a federal indictment in a case that could send abortion protesters to prison, reported the Washington Post.

They were charged under the Freedom of Access to Clinic Entrances Act, a 1994 law that Attorney General Merrick Garland has called a key tool in the Biden administration’s efforts to protect reproductive rights in the face of tightening legal restrictions for women seeking abortions.

Some conservative groups, Republican lawmakers and defense attorneys have rebuked Garland, accusing the department of going too far in aggressively pursuing members of antiabortion groups who have not necessarily been dangerous. They say authorities are ignoring similar threats and vandalism at Catholic churches and reproductive health centers that counsel women against abortion.

But federal authorities and abortion rights groups said harassment, stalking and intimidation at abortion clinics have escalated since the Supreme Court’s decision in the Dobbs case in June 2022 overturned Roe v. Wade — the court’s 1973 decision recognizing the federal right to an abortion. That behavior, they argue, has made the Justice Department’s push for federal charges that come with harsh prison penalties more urgent.

Even as he and his aides have touted the prosecutions as a response to the Dobbs decision, Garland has defended the agency’s approach, saying the Justice Department and FBI are investigating disruptive acts on both sides.

“We prosecute without respect to ideology,” he said at a Senate hearing in the spring, “but we do focus on the most violent acts, the most dangerous actors and the cases most likely to lead to danger to most Americans.”

Federal authorities are prosecuting several allegations of extremely dangerous behavior at abortion clinics that go well beyond being disruptive. Among the examples are cases involving charges that a man threatened to burn down an Ohio abortion clinic last year, that a man set fire to an Illinois clinic in January and that three men conspired to firebomb a California clinic in March.

The indictments do not link the men in those cases to organized antiabortion groups. The defendant in the Illinois case, Tyler W. Massengill, pleaded guilty and was sentenced in August to 10 years in prison and ordered to pay $1.45 million in restitution to the clinic.

Since President Biden took office in 2021, the Justice Department has brought 2o criminal prosecutions and one civil case under the FACE Act against a total of 46 defendants, according to federal officials, with all but one of the cases involving charges for disruptions at abortion clinics. That one exception is a criminal case against four abortion rights activists accused of spray-painting threatening messages last year at three Florida reproductive health centers that counsel patients against abortion.

Decrying what they view as an imbalance, Rep. Chip Roy (R-Tex.) and Sen. Mike Lee (R-Utah) introduced legislation in September to repeal the law. Roy accused the Justice Department of having “brazenly weaponized the FACE Act against normal, everyday Americans across the political spectrum, simply because they are pro-life.”

“I certainly believe the undercurrent to all of this was a pushback on Dobbs,” said Bradley Friedman, an attorney for Chester Gallagher, 74, one of eight people charged in the Michigan case involving the antiabortion protesters who refused to move. “All this is, is criminal trespass. If the owner of a business does not want someone on their property, they can ask them to leave.”

Prosecutors said the protesters in Michigan blocked a patient, an employee and the clinic’s owner from accessing the building. Two of the eight defendants are facing an additional count of allegedly obstructing another Michigan abortion facility in April 2021.

Obstructions at clinics across the United States rose from 45 in 2021 to 287 last year, while stalking incidents rose from eight to 81, according to the National Abortion Federation’s annual survey. There were also increases in bomb threats, burglaries and assaults.

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Indiana doctor who provide abortion to 10-year-old rape victim sues attorney general

Dr. Caitlin Bernard, the Indianapolis obstetrician-gynecologist who provided an abortion to a 10-year-old rape victim from Ohio, is suing Indiana Attorney General Todd Rokita, alleging he has relied on "baseless" consumer complaints to launch "overbroad" investigations into physicians who provide abortion care, and issued subpoenas seeking the confidential medical records of their patients, reported CBS News.

The lawsuit, filed by lawyer Kathleen DeLaney on behalf of Bernard and her medical partner Dr. Amy Caldwell in Indiana Commercial Court in Marion County, claims Rokita opened investigations into seven consumer complaints filed against Bernard after she came under scrutiny for performing the medication-induced abortion on June 30, days after the Supreme Court reversed Roe v. Wade.

Bernard was thrust into the national spotlight after she told the Indianapolis Star that a child abuse doctor in Ohio had called her about the pregnant 10-year-old, who was seeking an abortion out of state due to Ohio's near-total abortion ban. A man was arrested and charged with rape two weeks later. Ohio's abortion law, which bans the procedure once an embryonic heartbeat is detected, typically around six weeks of pregnancy, took effect after the Supreme Court issued its decision overturning Roe.

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TCR: The High Court’s ‘Self-Inflicted Wounds’: A Backward Look

Matthew T. Mangino
The Crime Report
July 13, 2022

Was the Supreme Court decision last month overruling Roe v. Wade one of the worst decisions in the 233-year history of the Court?

 The ruling in Dobbs v Jackson Women’s Health Organization has been described as such by many judicial commentators and experts in the middle of the spectrum, and a large segment of the U.S. public seems to feel the same way.

 As this year’s session drew to a close,. the Court’s approval rating was at 25 percent and falling, according to a poll last month.

It may be small comfort. But Dobbs does have stiff competition for the “worst-ever” title.

Let’s start with Dred Scott v. Sanford, a ruling handed down in 1857. Chief Justice Charles Evan Hughes, who served on the court from 1930 to 1941, called Dred Scott the Court’s great “self-inflicted wound.”

The decision has been described by many scholars as the most egregious example in the history of the Court of applying a judicial solution to achieve a desired political result. Sound familiar?

Dred Scott was a slave, whose owner took him to Illinois where slavery was illegal.  The owner later took Scott back to Missouri, a slave state.  Scott sued for his freedom, arguing once he was brought to a free state he was no longer a slave.

His case ended up before the Supreme Court, which issued a 7–2 decision against Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

The Court held that black men and women, free or slaves, were not American citizens. There is no question today that the Supreme Court got it wrong.

Yet, that is the same Constitution that Justice Samuel Alito said did not provide for abortion and the same constitution that contains the Second Amendment which Justice Clarence Thomas recently said prevents New York state from regulating the carrying of a concealed gun.

Forty-two years later, in another embarrassing moment for the High Court, a seven-justice majority  ruled, in Plessy v. Ferguson, that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as ”separate but equal.”

In 1892, Homer Plessy, a mixed-race resident of New Orleans, violated Louisiana’s Separate Car Act of 1890, which required “equal, but separate” railroad accommodations for white and non-white passengers.

Plessy was charged with boarding a “whites-only” car. The Louisiana Supreme Court refused to throw out the charge against Plessy, his  case ended up before the U.S. Supreme Court.

In its 1896 decision, the Court decided 7-1 that the Louisiana law did not violate the Fourteenth Amendment. Noting that although the Fourteenth Amendment established the legal equality of whites and blacks,  it did not and could not require the elimination of all “distinctions based upon color.”

It took more than half a century to puncture a gaping hole in that decision.

In 1954, the Court ruled in Brown vs Board of Education that the “separate but equal” doctrine is unconstitutional in the context of public schools and educational facilities. Although the Court did not specifically overrule Plessy, it relegated the Court’s reasoning to the trash heap of jurisprudence.

But Plessy was not the only example of the Court’s racism.

In the aftermath of Japan’s attack on Pearl Harbor, the military was charged with coordinating the defense of the West Coast, and ordered “all persons of Japanese ancestry” to relocate to internment camps.

Fred Korematsu, a young Japanese-American refused to comply and challenged the order on the grounds that it violated the Fifth Amendment. In Korematsu v. United States, Justice Hugo Black, writing for a 6-3 majority in 1944, held that the need to protect against espionage by Japan outweighed the rights of Japanese-Americans.

Black wrote that “Korematsu was not excluded from the Military Area because of hostility to him or his race,” but rather “because the properly constituted military authorities … decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast” during the war against Japan.

The decision has been criticized as “an odious and discredited artifact of popular bigotry”  It was effectively overturned in 1983.

But even in a more “enlightened age,” the Court’s rulings raised questions.

In 1989, the U.S. Supreme Court decided in Stanford v. Kentucky that juveniles—16- and 17-year-olds—could be executed if convicted of first-degree murder. The decision was so out of step with the idea of dignity and decency, that it was overturned 15 years later.

In overturning Stanford, the Court cited evolving standards of decency as evidenced by a national consensus against executing juveniles.  The court determined a national consensus existed by the number of state legislatures that had outlawed juvenile executions.

A CNN poll conducted in May immediately after the leaked Roe v. Wade draft opinion, found that 66 percent of Americans said they did not want the Supreme Court to completely overturn Roe v. Wade.

 So much for the influence of a national consensus.

And it could get worse. Next year will tell us if the hard-right turn continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA. He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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Police officer, and candidate for Rhode Island state senate, punches female opponent at pro-choice rally

A Republican candidate for Rhode Island state Senate dropped out of the race on Saturday after a video that went viral allegedly showed him punching his Democratic challenger in the face during an abortion rights rally in the wake of the Supreme Court’s overturning of Roe v. Wade, according to Talking Points Memo.

In a video filmed Friday night, Rhode Island Democratic state Senate candidate Jennifer Rourke is seen at a rally outside the State House protesting the Supreme Court’s ruling ending the right to abortion. The video shows tensions escalating, with people throwing punches at each other. Rourke alleged that her GOP challenger, Jeann Lugo, punched her in the face. Lugo is a Providence police officer who was off duty at the time.

The Providence Police Department announced Saturday that it launched a criminal investigation and an administrative review of the “behavior of an off duty officer” during a protest on Friday night involving the assault of a female.

The Rhode Island State Police said Lugo was arraigned on Saturday. Following a joint investigation between the state police and the Providence Police Department, Lugo was arrested on a State Police affidavit and charged with simple assault and disorderly conduct. He was released on personal recognizance and assigned a re-arraignment date next month. He is suspended with pay from the Providence Police Department while the incident remains under investigation.

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Dobbs overrules Roe v. Wade how did we get here?

Roe v. Wade is overruled. The Republican Party, which achieved a generational victory when it captured a supermajority of the Supreme Court’s seats under former President Donald Trump, has now capitalized on that victory to achieve one of its longtime political goals. The half-century when American constitutional law protected a right to an abortion is now over, wrote Ian Millhiser at Vox.

Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization is substantially similar to a leaked early draft of that opinion, which was published by Politico in early May. Alito’s opinion was joined by the Court’s four most conservative members. Chief Justice John Roberts, a conservative who often takes a more incrementalist approach than Alito, wrote a separate opinion arguing that the Court should limit but not yet overrule Roe.

Alito’s final opinion doesn’t just allow Mississippi to enact the 15-week abortion ban at issue in Dobbs — a ban that violated Planned Parenthood v. Casey, a 1992 opinion that weakened Roe while retaining the constitutional right to an abortion up to the point of “viability.” Alito’s opinion goes further, and concludes that Roe and Casey “must be overruled.” It is written in Alito’s characteristically snide tone, repeatedly referring to abortion providers by the pejorative term “abortionists.” And it rests on a conservative theory that limits which rights are protected by the Constitution.

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito writes.

According to Alito, if a right isn’t explicitly mentioned in the Constitution, it must be “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty’” to qualify for constitutional protection. He then spends many pages of his opinion arguing that the right to an abortion is not rooted in legal history or tradition.

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Overturning Roe v. Wade could lead to further mass incarceration

The NACDL published a report last August warning the public that, without the legal protections under Roe v. Wade, thousands of abortion laws could lead to a new chapter of mass incarceration, reported NPR. 

The invasion of privacy alone is a big concern to the NACDL. Anyone who needs or wants an abortion outside of the legal limits of their state is not only a target for criminal charges, but risks implicating others, too — by confiding in friends or family, crossing state lines for procedures, or even using a transportation app to get to an appointment. 

"Not just fines. We're talking about prison time," Wayne said. "We're talking about minimum mandatory sentences — aiding or abetting someone who gets ultimately charged with manslaughter or murder, which is a life sentence."

And for those who think a future of mass incarceration is too unlikely, Wayne points to the War on Drugs, starting in 1971. 

"Suddenly people who were being prosecuted for small amounts of drugs were now involved in larger and greater conspiracies with minimum mandatory sentences," Wayne said. "People were looking at life sentences and still remain incarcerated to this day. You have to ask yourself, what lessons did we really learn?"

Who will actually pay the price?

The NACDL has tens of thousands of members. Actual feelings and opinions on abortion vary within the organization, as expected. But that's not what this collective red alert is about.

Wayne says that despite a range of personal views, the membership as a whole is concerned about invasion of privacy, government overreach, and a massive stretch on legal resources if a wave of abortion-related criminal charges hits the U.S.

And that pain won't be distributed equally.

"Whenever you're talking about overcriminalization, you're talking about money," Wayne said. "Rich people will always be able to lawyer up. They will always have access to attorneys. Poor people will be left behind." 

She points to an already overwhelmed public defender system, which people can't access until after their legal troubles have started.

"I don't get a lawyer, if I'm poor, until I'm actually charged with a crime in this country in most jurisdictions," she said. "So I have to wait until that moment until I get charged. If I have money, access to counsel, I get advice on the front end of being able to perhaps avoid the consequences that I would face if I didn't have money."

The perfect victim

A future without Roe v. Wade ultimately leads back to that courtroom and jury, where the task at hand becomes navigating perception. The burden of being "the perfect victim" is nothing new when it comes to cases of harassment, sexual assault and domestic violence. 

"To be a perfect victim of sexual assault, human trafficking or intimate partner violence, you cannot also struggle with addiction, poverty or mental illness," wrote Amanda Rodriguez, a former federal prosecutor and the executive director of Baltimore's rape crisis center, TurnAround Inc, in a 2021 op-ed for the Baltimore Sun. "To be a perfect victim, you cannot accept a drink, engage in commercial sex or walk alone at night. You cannot wear tight clothes or have a criminal record. You cannot be human."

Except with a criminalized abortion, the "victim" isn't pressing charges. They're fighting them.

"At the end of the day, it's going to be the bias going into the courtroom," Wayne said. "The bias dealing with the district attorney who has preconceived notions of their own about how these cases should be prosecuted, the judges who oversee these cases and how they feel — and then ultimately go to the jurors' bias."

And that's a main focus of NACDL's training at the moment: preparing to help clients who have been charged with abortion-related crimes look sympathetic and relatable to a group of their peers (wherein the degree of difficulty varies, depending on your race.)

But in some cases, that might not be enough. While more than a dozen states have trigger laws that would immediately go into effect if Roe is lifted, restrictive abortion bans already exist in many states — some without exceptions for rape, incest or to save the life of the mother. And the Supreme Court might be about to grant state lawmakers the freedom to ban abortion however they want.So when a jury is asked to determine whether someone broke a law post-Roe, even a "perfect victim" might still be a guilty one.

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The Capital-Star: There’s a path for John Roberts to save Roe. He should take it | Opinion

Matthew T. Mangino
Pennsylvania Capital-Star
May 10, 2022

In 1972, not long after the decision in Roe v. Wade, the U.S. Supreme Court was asked to determine whether the death penalty violated the Eighth Amendment ban against cruel and unusual punishment.  

The death penalty had been around for more than three centuries in North America by the time the court was asked to review it.  However, there hadn’t been an execution in the United States for five years preceding 1972.  

Not unlike the case currently before the high court regarding abortion, its decision in 1972 known as Furman v. Georgia was controversial.  

The startling leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health has revealed massive fissures between the justices. Chief Justice John Roberts has worked assiduously at protecting the integrity of the court.

The leaked opinion does not appear to include Roberts with the majority, at least at this point, of Justices Alito, Clarence Thomas, Brett Kavanagh, Neil Gorsuch and Amy Barret.  

Supreme Court custom provides that the senior member of the majority in a case pending before the court would appoint a member of the majority to write the opinion.  In Dobbs, it would appear that Thomas assigned the duty to author the majority opinion to Alito.

If Roberts is opposed to overruling Roe v. Wade, can he learn anything from studying Chief Justice Warren Burger’s actions in the Furman decision?   

Evan J. Mandery’s book, “A Wild Justice,” examines just how close the Supreme Court came to abolishing the death penalty in 1972.  

As Mandery tells it, when Furman  reached the court three justices opposed the death penalty — William O. Douglas, William J. Brennan, Jr. and Thurgood Marshall.  Two additional justices — Potter Stewart and Byron White — were leaning toward abolishing the death penalty.  

After Furman was argued the court met in conference.  A poll was taken among the justices. Marshall, Douglas and Brennan voted as anticipated. White and Stewart agreed to vote with the three liberal justices to abolish the death penalty.  

According to Mandery, there was a five vote majority to abolish the death penalty.  Justice Brennan would be charged with assigning the responsibility to write the majority opinion.  

At that point Burger, who was opposed to abolishing the death penalty, did something brilliant to gain control of the process. He switched his vote to the majority.  As the chief justice, and now a member of the majority, he could pick the author of the majority opinion.  

As Mandery pointed out, Burger took the unprecedented position, that all nine justices should write their own opinion because “no coherent rationale had emerged” during the course of the conference. Under Burger’s strategy the coalition to abolish the death penalty collapsed.  

Justices White and Stewart made a side deal to find, not that the death penalty should be abolished as a cruel and unjust punishment, but rather that it was merely broken.  

As a result, a number of states amended their death penalty statutes, and the death penalty was back within four years and, as we all know, is still around today.  

Could, or can, Roberts use Burger’s strategy to re-direct the decision in Dobbs?  

Roberts could switch his vote to the majority and as chief justice he could select himself or someone other than Alito to write the majority opinion. Instead of overturning Roe, he could forge some compromise that doesn’t directly overrule nearly fifty years of precedent.

Maybe Roberts can forge a compromise that puts in place some additional restrictions such as those proposed in Mississippi — no abortions after 15 weeks. He has, in the past, signaled his support for such a compromise.

Although the five conservative justices indicated that they agree with overturning Roe v. Wade, they may not have agreed to join in Alito’s opinion. This leaves open the opportunity for deal making. Roberts has always been protective of the court’s reputation. This is his opportunity to save the court from the tarnish of partisanship.  

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former elected district attorney of Lawrence County, Pennsylvania.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at mmangino@lgkg.com. 

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