Thursday, October 30, 2008


There has been nothing that has come out of Barack Obama's mouth in the 10 months since he started running for President that has actually turned out to be true. Nothing. Think about that. Nothing. Not one single thing. And I wont waste anyone's time going into detail over how the news media, whose only real job is supposedly to report the truth, has turned a blind eye to all of it and in most cases aided and abetted his lying. Basically they have let Obama lie his way through the entire process.

Not only has Obama not told the truth about anything in 10 months,what turns out to be true is exactly the opposite of what he says is true. And nothing proves this more than his gratingly, completely phony line about voting your hopes not your fears.

Obama has done nothing in the entire election cycle except promote people's fears.That and if you don't support him you are a racist.

His finger mongering ranges from McCain will be another Bush (when its Obama who has embraced more Bush polices than McCain), McCain will screw the middle class on taxes, or McCain will keep us in Iraq indefinitely (when its Obama who has embraced the idea of a permanent 55,000 man force in Iraq. Also, while I opposed the surge as did Obama, the candidate who claims to be this great visionary was wrong, I was wrong, McCain was right. The surge worked).

But there is nothing Obama has used more to encourage people to vote their fears than Roe v. Wade.

Obama has been fear mongering Roe for a long time and by the tenor of some comments received here the last time this subject was dealt with, many swallow his fear mongering(though also, many don't).

Obama uses fear mongering Roe as the ace in the hole he ( and the unscrupulous wing of the Democratic Party) likes to play with women voters, the bloc he has the most problems with, to get them on board and in some cases he has been successful.

The problem is those who seem to buy into his fear mongering on Roe seem to pose the same irrational arguments as his rank and file supporters do with other issues and their main argument is that Roe would be preserved under Obama but be overturned under McCain.

As a proposition in logic and common sense that is total and complete nonsense. And the difference between the fear mongering by Obama and his supporters over Roe and how it is just that -- fear mongering -- is applying logic, reason and facts, something that always interferes with Obama and his supporters, but can be fun to dispense with at Halloween.

To give one example of the kind of irrationality gripping some with regards to Roe is an email I received from a woman whose name I obviously wont reveal. But I am reprinting her words here verbatim.

"You Hillary supporters who are voting for McCain/Palin because you're PEEVED!!! What is wrong with you?
How PEEVED will you be when you lose some of the rights we've fought for all these years when the Supreme Court takes them away? I, for one, don't want to see my daughter forced to be barefoot, pregnant, and out with a shotgun slaughtering moose for dinner!!"

I realize this is an extreme example. I don't know how much thought this woman has given to the fact that if her daughter ended up that way it might be because this woman leaves something to be desired in the way of motherhood, not to mention her daughter's own misbegotten choices rather than the fault of the government, but it does show how irrational the fears can become over Roe and how willing Obama is to exploit them.

To those who actually think a McCain presidency would lead to the overturning of Roe there are a number of things called facts to deal with first that expose that as being unfounded.

The main argument people try to make regarding Roe being overturned if McCain becomes President, is that he will appoint more conservative judges thereby insuring that Roe will be overturned. So the first question is, (which sounds like the set up to a joke) how many conservative judges do these people think it takes to overturn Roe? Nine?

Keep in mind, the reason Bush is President is because of the Supreme Court's 5-4 decision in Gore vs. Florida. Many legal scholars believe it was one the Supreme Court's darkest hours because the decision was based on politics not law. They have a point because it should be noted that the Supreme Court reversed the Florida Supreme court's ruling which did nothing but uphold Florida law but the Supreme Court never did strike down the law the Florida court was upholding as unconstitutional, only the decision to uphold it.

But the point regarding Roe is, that the 5-4 decision showed we had a conservative and right leaning court as far back as 2000. Had it been left leaning Bush would not have been President.

Since that decision Bush has had two additional conservative judges confirmed, Roberts and Alito.So the question must be asked, with a clearly conservative court in place now and having been in place really since 2000 and in the past 3 years has grown even more conservative with a conservative Chief Justice, and with a President who has stated publicly he opposes Roe on moral and religious grounds, and with a Justice Department that congressional hearings showed was highly political, why hasn't there been one single challenge to Roe during the entire Bush presidency? Why hasn't it been overturned already? You don't need nine conservative justices. All it takes is 5-4. So why hasn't it been overturned ?

If you don't know the answer to that and you are one of the fear mongers or one of the victims of it, you need to think about that and answer it before buying into the nonsense that a McCain presidency even if there were nine conservative justices, would result in Roe being overturned. It wouldn't.

And it wouldn't not only for the same reasons there hasn't been one single challenge to Roe during the Bush presidency, with a conservative court, a conservative President and a politicized justice department, I cant think of one single supreme court challenge to Roe in the 40 some odd years its been in existence. Maybe there has been and if there has I'm sure someone will point it out but I cant think of one. And there are reasons for that too.

You don't just say "goody we have a majority on the court we are going to overturn all the decisions we don't like". It doesn't work that way. And 99% of the people who are both fear mongering Roe or buying into Obama's fear mongering really don't know what it takes to get a case to the Supreme Court and one they will even take.

Which is why you haven't seen one single challenge to Roe in the 8 years Bush has been President or in the last 3 when the court has been even more heavily weighted to the right.

Roe is in no danger of being overturned in a McCain Presidency in spite how some who succumb to the fear mongering or those who want to fear monger, try and say that it will. Their biggest and emptiest argument is that McCain has said that he thinks it was wrongly decided. But there has been no President more strongly opposed to Roe than Bush and Reagan opposed it also and there were no challenges to Roe during either Presidency. And it wouldn't have mattered if there were. They could have had nine conservative judges on the court rather than five and it wouldn't have mattered.

Roe is safe. It is the law of the land and anyone who tried to challenge it would be rebuffed by lower courts. Appellate courts would rule against them on appeal. And on what grounds would they ( and no one can even say who "they" are) bring such a suit, since you have to have standing to bring such a law suit and who would have the standing to bring one against a woman to stop her from exercising her rights that have already been established and ruled Constitutional under Roe?

Someone has to say who would bring such a suit and on what grounds before they can even start to fear monger that a conservative court ( which we already have) would overturn Roe. The answer to both questions is obvious since it hasn't happened in 40 years.

There are substantial reasons there haven't been any challenges to Roe in 40 years or the last 8 or the last 3 .But reason and Obama and his supporters have proved to be mutually exclusive elements. After all, why use reason, logic and facts when they will get you nowhere and fear mongering will?

And that is what Obama was doing when he said at the last debate that the outcome of this election has Roe hanging in the balance ( if he could have played a phrase of Brahms organ music to make you shudder he would have).

This isn't the first time Obama has been caught in empty fear mongering. He did it in Ohio over NAFTA telling the voters of Ohio that if he were elected he would get rid of NAFTA while at the same time sending an emissary to the Consul at the Canadian embassy in Chicago to tell them not to pay any attention to anything Obama says publicly that he has no intention of getting rid of NAFTA, and that everything he says is all politics, maneuvering and posturing.

Telling people to ignore everything he says is probably the best advice Obama has ever given in his life. Hopefully a lot of people will take it and the end of Obama's tricks will be our treat.

Happy Halloween.


Anonymous said...


Your post is wrong on so many levels that it's difficult to even think of a place to begin. Truly. I strongly encourage you to discuss this matter with your associate, Heidi, who claims to be a law professor and therefore might be able to shed some light on an issue you refuse to take seriously.

I shudder to even count the number of times that you have preached this nonsensical argument but it's worth showing you clearly that things you have written are untrue. Not just that your opinions are wrong but that you are writing outright lies.

First - your insane belief that no one has standing to challenge Roe and that there have been no challenges to Roe in the past 40 years is bizarre beyond any belief. Please revisit Casey v Planned Parenthood in 1992 or more recently Stenberg v Carhart (2000) and Gonzales v Carhart (2007). This year, South Dakota has a ballot initiative that is designed as an assault on Roe (,0,5945574.story).

Your comments about the makeup of the Court are similarly distressing. Although you are correct in that there does not need to be a 9 justice majority and a simple 5-4 majority will overturn a case like Roe, please note that the current Court is composed of 4 "liberal" and 4 "conservative" justices with Justice Kennedy sitting somewhere in the middle, depending on the vote - and with respect to abortion, he generally votes to the left. Thus, the current structure of the Court will not overrule Roe (but please note this quote from Scalia in dissent in Carhart: "Casey must be overruled."). Rest assured, with new appointments (for instance, should Stevens, Ginsburg, and Souter step down), there would be a new majority on the Court and that would almost certainly affect Roe.

I think this is somewhat beside the point and also overlooks that reshaping the Court could have disastrous effects on expanding the death penalty, habeas corpus rights, and the rights of workers to organize.

What you have written is seriously, seriously wrong and you owe it to your readers to ground your opinions in facts.

Shainzona said...

Back in the dark ages (the Dem primary...just a few short months ago) I was driven to argue with some idiots over at MyDD who were slinging the "Roe is Me" baloney. I also read a post by - I believe it was Uppity Women (forgive me if I mis-attribute this!)that best reflected my opinion of this argument at that time.

It's still appropriate and I still can't believe that this lifelong Dem and early supporter of Choice and Women's rights now feels this way...but I do:

HOWEVER, this is now my response on Roe v Wade....

"How did I get to this point?

Barack Obama and Friends have driven me to it - there is no other possible answer (these are words first written by another commenter whom I respect and with whom I agree):

'If my younger sisters lose Roe Wade it will be their own fault for taking the rights they have for granted, because they didn't fight for them. They are complacent and can take the time to swoon over a sexy empty suit who has already set gender relations back a minimum of 30 years, and we haven't even gotten to the General Election campaign yet. Serves them right. Not my problem. I know how not to get pregnant.

It's my job to protect the rights I fought for that matter to me. This is a misogynist's campaign and if younger women are too busy spawning over Leland Gaunt handing out Needful Things and discussing his vibrating phone when he leans on one of them, then they will have to learn to take the consequences of their own folly along with the consolations. Maybe then they will Get It.

I have already done well in my life. Complacency is their enemy, not mine. Let em eat cell phones.'

Tom said...

I agree with Anonymous.

THIS group of Justices found that a woman did not have the right to sue for being discriminated against for her entire career because she did not find out about the discrimination for over 30 years. The Court gave her 60 days to discover this discrimination or lose her rights.

McCain/Palin would not even allow the Congress to re-write the law to make it Republican proof.

I understand anger; I understand voting against Obama will send a "powerful message". I just wonder how pleased you will be with a Palin chosen Supreme Court of fellow-minded Christians, and a McCain vetoing Equal Rights Provisions for women.

Marc Rubin said...

I have read Casey vs. Planned Parenthood and I wrote a reply to your post that proved and dismantled every argument you made and proved your conclusions regarding Casey vs.Planned Parenthood entirely incorrect in every way and I cited the very court opinion you mention to prove it.

Your conclusions are so off base and badly thought out not to mention factually incorrect, I am going to reply to only one of them, which is the Casey vs. Planned Parenthood case you begin with, but must do it at a later time since thanks to Google, a response to your post that took me 30 minutes to write was lost when I tried to publish it.

Suffice to say I will let people judge for themselves but for now I will say the decisions in Casey vs. Planned Parenthood make my argument not yours and I think publishing excerpts from the decision will fairly dismantle everything you had to say and I will let people judge your credibility vs mine as soon as I can post my response.

Ive also learned a lesson in copying before trying to publish.

Anonymous said...

Many thanks!

Marc Rubin said...

I have decided to add this now to begin because your arguments are so wrong and misguided your conclusions so patently false and your legal reasoning so wanting, that it really did need a more factually detailed response now and time permitting I will add more later.

First the fact that you cite a 16 year old case from 1992 when we have had a conservative court for the last few years goes more to proving my point than yours. And in Casey vs. Planned Parenthood many of the issues dealt with re-enforces my argument and dismantles yours.So I want to use this excerpt from the opinion now and I will use more later.

"(d) Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable. P. 835."

This is from the decision and as such is now part of court precedent upholding Roe. It states clearly and in a way anyone can understand that EVEN THOUGH THERE ARE THOSE WHO OPPOSE ROW, there is no proof that the law has proved UNWORKABLE, and as part of court precendent, part of overtuning Roe would means overturning precedent taht upholds it and in just this one instance would put a burden on a petitioner of showing that this is incorrect as well as putting a burden on the Justices to conclude that this finding is incorrect as a basis for overturning Roe and to find that the law is in fact unworkable. That is virtually impossible.

Even Scalia himself as said that the doctrine of stare decisis is sacrosanct to him and that there would be a very high threshold needed to cause him to overturn ANY court prescedent.

There are many more excerpts from the Casey decision that make my case not yours, and time permitting I will cite them here. In the meantime for those who wish to read it themselves and draw their own conclusions and let them apply that to your credibility and ability to apply legal reasoning to rest of your post.

They can read the entire decision it here:

please excuse any spelling errors. I just dont have the time now to proof or correct them.

Marc Rubin said...


This is the further response promised in reply to the first poster.

Unlike the first poster who said they didn't know where to begin, I do know, as well as where to end and its with Casey vs. Planned Parenthood which as I said in my first reply does more to refute the argument of the first poster and re-enforce mine and I will readers make their own decisions and will also include a link to the actual decision so they can read it for themselves and make up their own minds

But before I do, for those who are not that interested in legal argument or reasoning I'll reiterate what should be obvious to anyone. The first poster seems to be making a familiar argument: "are you going to believe what I and Obama tell you or your own lying eyes?"

What your own lying eyes will tell you is that in the last 8 years with a President completely opposed to Roe on legal, moral and religious grounds, with a conservative Chief Justice and a conservative leaning court and a politicized Justice Department committed to conservative ideology when it has come to Roe nothing has happened. Nothing. Zilch. Zero. Now Obama supporters and the first poster would have us believe that somehow electing McCain is suddenly going to make the difference and Roe will be overturned. That isn't just illogical it is exactly what I said it was -- fear mongering or a complete lack of understanding of the judicial system by people who don't want to believe their own lying eyes for whatever reason..

Now as for Casey vs Planned Parenthood.

Aside from the fact that the first citation I made which is now part of court precedent and so must be included as being flawed or wrong in overturning of Roe which is the simple finding that in spite of the fact that there is opposition to Roe the law has not proved to be unworkable, there are other findings in the court decision that, as part of the court record upholding Roe, would have to be considered flawed or erroneous by any court that would over turn Roe since you are not just overturning Roe, you are overturning every Court and every Supreme Court opinion that has upheld it.

This is a more expansive excerpt from the decision I quoted above in my first reply:

c) Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed. In reexamining that holding, the Court's judgment is informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling the holding with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling. Pp. 854-855. [505 U.S. 833, 835]

(d) Although Roe has engendered opposition, it has in no sense proven unworkable, representing as it does a simple limitation beyond which a state law is unenforceable
Any overturning of Roe would have to include this kind of examination, not simply overturning Roe but making a finding that all the majority opinions of all the courts that have upheld it were wrong.
This is a burden alone that is virtually impossible to overcome.
Then there is this from the 1992 decision:
f) No evolution of legal principle has left Roe's central rule a doctrinal anachronism discounted by society. If Roe is placed among the cases exemplified by Griswold, supra, it is clearly in no jeopardy,
and this:
(g) No change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for its overruling. Although subsequent maternal health care advances allow for later abortions safe to the pregnant woman, and post-Roe neonatal care developments have advanced viability to a point somewhat earlier, these facts go only to the scheme of time limits on the realization of competing interests.
It is not enough to WANT to overturn Roe. Even Scalia is on the record as saying that stare decisis is a sacred principle to him and the threshold would be very high for him to overturn ANY court precedent.
In order to overturn Roe you not only have to find serious judicial error in the original Supreme Court decision, you would have to find, and this would be a virtually insurmountable burden on any petitioner, that all subsequent opinions upholding Roe such as these cited in Casey vs. Planned Parenthood, were seriously flawed and needed to be overturned.
As I said in my original piece, there has been no challenge to Roe in the 8 years of the Bush administration with a conservative President, a conservative court and a politicized justice department and that there were reasons for that. You've just read only a minute number of those reasons and in my opinion Casey vs. Planned Parenthood is as good an example as any that Roe is no danger.

Anonymous said...


COME ON. You are quoting from the headnotes of this case. NOTHING YOU HAVE WRITTEN IS PRECEDENT OF THE COURT. NOTHING.

This is a complete joke. Seriously a joke. The quotes you are posting are summaries NOT WRITTEN BY THE JUSTICES. They are a Cliffs Notes version of the case.

You are not a lawyer and your reasoning is seriously flawed. By simple math, if one of the oldest Justices steps down (say Stevens) and an R is in the White House, he will be replaced with a judge in the vein of Roberts or Scalia - McCain makes that clear. At that point, the makeup moves from a 5 Justice majority in favor of Roe (Stevens, Souter, Ginsburg, Kennedy, and Breyer) with 4 in favor of overturning it (Scalia, Thomas, Roberts, and Alito) to a 5 justice majority in favor of overturning it (Scalia, Thomas, Roberts, Alito, and new judge).

Casey affirmed Roe: "It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts."

Scalia wants to overturn Casey: "Casey must be overruled." (Dissent in Stenberg v. Carhart)

Thomas wants to overturn Casey and Roe: "In 1973, this Court struck down an Act of the Texas Legislature that had been in effect since 1857, thereby rendering unconstitutional abortion statutes in dozens of States. Roe v. Wade, 410 U.S. 113, 119. As some of my colleagues on the Court, past and present, ably demonstrated, that decision was grievously wrong." (Stenberg dissent)

Alito: Lone dissenter in the underlying opinion in Casey v Planned Parenthood (while still on 3rd Circuit), which overturned the Pennsylvania law requiring spousal notification(

Roberts: hasn't yet addressed the issue squarely but sided with the majority in Gonzales v Carhart

Again, Marc, please run this by Heidi before you post something like this. You cheapen yourself and this blog.

Here's a link to the decision:

You might want to read it. The decision begins under the big Roman Numeral I where it says: Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, 410 U.S. 113 (1973), that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe. See Brief for Respondents 104-117; Brief for United States as Amicus Curiae 8.

Anonymous said...

I am not trying to play devil's advocate here but since being scared by the Obots who came on here last time, I have done some research. There have actually been a bunch of cases in the past 8years challenging Roe v Wade. None have worked but isn't that because the conservatives in the Supreme Court, when dealing with abortion rights, don't actually have a majority? The justice that is the swing vote is for Roe v Wade so even though there is a 5:4 conservative majority, there isn't a conservative majority when it comes to abortion rights. I really don't want to vote for either candidate but because of the independent research I've done and yes it was brought on by the Obots scare tactics, I am not confident that adding another conservative justice to the Supreme Court wouldn't mean the end of abortion rights.

Marc Rubin said...

"COME ON. You are quoting from the headnotes of this case. NOTHING YOU HAVE WRITTEN IS PRECEDENT OF THE COURT. NOTHING.

This is a complete joke. Seriously a joke. The quotes you are posting are summaries NOT WRITTEN BY THE JUSTICES. They are a Cliffs Notes version of the case."

It is your opinions and specious speculation which you try and pass off as fact and legal reasoning that are the joke and what you seem to call reasoning doesn't rise to the level of common sense. what you offer is just your own badly thought out opinion, an opinion I disagree and so far, an opinion not borne out by any reality. and I find them based on illogic and an inability to take a set of facts and extrapolate them to a logical conclusion. Your opinions ( and that's all they are) and your reasoning are based on nothing but your own flawed suppositions and inaccurate characterizations.

No I'm not a lawyer but I don't have to be since I have out lawyered most lawyers I have had to deal with in the past on a professional basis and went up against two corporate lawyers for gateway computers over an information subpoena in court and I beat both them. So you don't need a law degree or to be able to quote case law to be able to reason.

You seem to think that making a point of what you believe someone wants is a basis to support your arguments.

I specifically addressed that very specious argument in the original piece. Its not about what someone WANTS whether its what you say Scalia wants, what you say Thomas wants or what Bush wants or what Reagan wanted. It is about this funny thing called reality, facts and the law which you insist on ignoring in hopes of making your opinions valid.

And isn't it interesting that the source of my information which you characterize as "cliff notes" is the same findlaw site you leave in your link. The source of my information is completely reliable and accurate and I challenge you to show that its not. Your characterizing them as "Cliff notes" is about as accurate as calling Michaelangelo;'s anatomical sketches for the David, just doodles. I will leave the link here and let people judge for themselves whether it is anything less than reliable and accurate and whether your characterization is valid and let that be at least one small factual way people can judge your credibility.

Here is the link and people right now on the face of it can compare it to yours and let that go to your credibility with regards to the validity of the source of informtion.. It looks to me like the links are going to the same site even if its not exactly the same place on that site.

The one thing you can do is tell me why the challenges to Roe you refer to failed, especially those in the last 8 years and especially the last 3 when all Scalia,Thomas,Roberts and Alito would need would be one more justice to accomplish what they :"want". One assumes that to do what they "want" they must have at least some semblance of an intellectually honest legal and Constitutional argument, enough to sway at least one justice wouldn't you?And if they didn't is that the reason why the challenges failed?

Also if you could, innumerate for me the Supreme Court decisions of the last 3 years that affirmed Roe and that would have gone the other way had there been another conservative justice on the court and if there arent any explain why there aren't any.

And innumerate the challenges to Roe that didn't get to the Supreme Court the last 3 years and why they didn't get to the Supreme court. Then once you are firmly rooted in reality and not your own flawed opinions and speculation you will have something concrete to support your arguments. Or mine.

I must also add that you will probably get the last word since I wont have the time to keep responding but I would like you to answer the questions in my last three paragraphs and those answers can speak for themselves.

Marc Rubin said...

"I am not trying to play devil's advocate here but since being scared by the Obots who came on here last time, I have done some research. There have actually been a bunch of cases in the past 8years challenging Roe v Wade. None have worked"

If you go back to my peice I never said there werent any challenges, only none that I knew of and if there have been I was sure someone would point them out. The point is still the same. These challenges went nowhere and they were not challenges that lost in the court by 5-4 decisions where had there been one more conservative justice it would have gone the other way. That is not what happened. They didnt get that far and didnt "work" because it takes more than a conservative majority on the court to overturn a 40 year old decision and 40 years of precedent that has been repeatedly upheld on a number of grounds by previous Supreme Courts. To say that Roe would get reversed under Mccain is exactly what it is -- fear mongering.

Anonymous said...


You missed another point - even if Roe was overturned, abortion would remain legal in all but a few states with triggering statutes. If the anti-choice movement wanted to outlaw abortion they would have to take the issue to the state houses.

Right now politicians can posture and pander on abortion because Roe is the law of the land. If Roe is overturned, the politicians will have to answer to the voters on the issue. A solid majority of voters are pro-choice.

I'll happily fight that battle.

Anonymous said...

You want to deny reality and that's fine. It's not me who's saying what Scalia wants, what Thomas wants, or what Alito - I'M REFERENCING THEIR EXACT OPINIONS.

You're not going to change your mind and that's fine - it's tragic because you refuse to accept facts or admit mistakes but it's fine.

Let's look at a few other cases that had 5 justice majorities:
Boumedine v. Bush (Ginsburg, Souter, Stevens, Breyer, Kennedy) - Granted habeas rights to Guantanamo detainees

DC v. Heller (Kennedy, Roberts, Alito, Scalia, Thomas) - Second Amendment protects an individual right to bear arms

Kennedy v. Louisiana (Ginsburg, Souter, Stevens, Breyer, Kennedy) - Upheld death penalty ban for rape of a child

Two of those found Kennedy voting with the liberal justices while Heller found Kennedy voting to the right. If you don't want to accept the truth about Roe, that's OK and you still have to look yourself in the mirror, but maybe you're willing to accept the fact that Supreme Court nominations will shape the Court for generations. Remember, these appointments are for life. At a minimum, Heller would have been a stronger and potentially further reaching opinion, while Boumedine and Kennedy would have gone the other way. These decisions shape policy around the country (and the world).

Much of what you write is irresponsible and wrong but it fosters debate - one sided because rather than face facts, you resort to name calling or lobbing a "fear mongering" bomb.

To address your deranged statements:

1. We both cited to findlaw but the crucial difference was that I cited to the opinion of the case and you to the headnotes. Read the whole thing - there's the actual opinion right beneath Roman I.

2. Why didn't the challenges (Casey v. Stenberg and Gonzales v. Carhart) overturn Roe in the last 8 years (or the last 3)? Because there was still a majority vote generally in favor of Roe. Rhenquist and O'Connor left the Court when it was generally divided 6-3 (Stevens, Ginsburg, Souter, Breyer, Kennedy, and O'Connor in favor and Rhenquist, Scalia, and Thomas against) - they were replaced with Roberts and Alito, forming a 5-4 vote generally in favor of Roe (Stevens, Ginsburg, Souter, Breyer, and Kennedy for and Scalia, Thomas, Roberts, and Alito against). Note that Carhart upheld the federal Partial Birth Abortion ban, a clear expansion of the prior abortion jurisprudence.

3. Next, a decision in the last 3 years that would have gone the other way with another vote: Gonzales v. Carhart - Justice Kennedy wrote the opinion and he is not overturning Roe (and, in fact, the decision specifically avoided addressing Roe or Casey). However, as noted above, both Scalia and Thomas are on record as in favor of overturning it and Alito dissented in the lower court's opinion in Casey v. Planned Parenthood. Again, we don't know Roberts' vote for certain but he is expected to be a fourth vote in foavor of overturning Roe. With one more Justice in line with any of them, there is a 5 Justice majority and Roe is overturned.

There is any amount of speculation as to why Kennedy would write the opinion but at the Court, when the Chief Justice is in the majority (as was the case there), he gets to assign the opinion. And by assigning it to Kennedy, it ensured a position as far to the right as possible (thus gaining 5 votes) but that would not overrule Roe.

It gives me no joy to point out that someone else is wrong, but that's the case here, Marc. You already stated that you won't respond and again, that's fine. It's your blog and your reality.

It's just a shame that you've deluded yourself into believing it.

On the bright side, it appears that only about 20 people read this blog regularly so at best, you're able to poison the minds of only 19 others.

Anonymous said...

In response to your questions about Casey in 1992 being a starting point, please note that in 1990, David Souter replaced William Brennan and then, in 1991, Clarence Thomas replaced Thurgood Marshall. Brennan and Marshall were 2 consistently liberal votes and both were in the majority for the original Roe.

Republicans expected that both Thomas and Souter would vote in favor of overturning the decision and they were halfway home - turns out that Souter agreed with O'Connor's reasoning.

There is no question that a new appointment to the current court who would favor overturning Roe would invite precisely the same challenge.

Anonymous said...

Happy Halloween to you too Marc and thank you for this post, it has gone out to all my friends who are still on the fence over Roe.
I must say, it was the most liberating day of my life when I realized that the DNC could not hold me hostage based on my fear of Roe- you outline this beautifully- too many people believe if McCain gets in he will appoint (most don't know it takes a vote of congress) a new SCOTUS on day 1 and by day 2 Roe will be overturned.
This link has gone out to all my friends and I have asked to make it viral.
Keep up your good work

Anonymous said...

#1 anonymous- are you suggesting we us the LA Times as a source of valid information??? You MUST be kidding!!

Anonymous said...

Marc, you are hilarious! I love how lawyers think they know everything about the law when most of it is common sense! I didn't go to medical school but I still know to put a band aid on a cut when it bleeds.

What do you call 25 attorneys buried up to their chins in cement?
Not enough cement. HAHA!!!!

Anonymous said...

It's hard to believe how thick anonymous is. He/she tries to confuse us by linking to the SAME EXACT CASE that you already gave us. Hysterical! Obama may want to ask for his money back from that one. Seriously, these Obamabots are so dumb they probably think you need to pass a test to get into the middle class.

Anonymous said...

so by your reasoning, since Roe is safe no matter what, I don't have to let you intimidate me into voting for McCain to prove a point to the DNC. take that.

Anonymous said...

As a latte tree-hugging pro-abortion liberal, I want to see Palin solve this problem -- by getting better contraceptives developed so abortion will become obsolete. When asked about abortion, Palin talks about contraception, sex education, etc. She won't maintain the Roe issue as an eternal vote cow as Obama and Romney would -- she will solve the underlying MEDICAL problem.

Remember the Clntons: "safe, legal, and rare."

Brian H said...

Good post, though a little disjointed. One expression will stick with me forever, because it evokes such a gruesome image:
"His finger mongering... "

Anonymous said...

Just to understand...Roe is not a reason to vote Democrat. Got it. Of course, you have not given me one reason to vote Republican. And, I still have 100 other reasons to vote Democratic, including, economic issues, Women's issues, education, social security, health care, gay rights, humanitarian issues, Iraq, foreign policy...oh yeah, and the fact that the vice presidential choice of John McCain is about as qualified as I am for the job should she become president. The thought of having Palin lead this country is reason enough to try to keep McCain out of the white house.

Marc Rubin said...

"Just to understand...Roe is not a reason to vote Democrat. Got it. Of course, you have not given me one reason to vote Republican. And, I still have 100 other reasons to vote Democratic, including, economic issues, Women's issues, edu"

Under normal circumstances so would I. And I can see voting for Democrats for Congress, especially non Obama supporting Democrats. But when it comes to Obama how many times does he have to lie, reverse his positions,and break promises and pledges for someone to decide he cant be trusted and that voting for him on the "issues" is ridiculous? What makes anyone think Obama would do one single thing he says he'd do when he not only doesnt have the skill to do it, he has no good will in the senate where he has double crossed senators just the way he's double crossed Democratic voters so far. No one has been more underhanded than Obama. He actually signed a pledge in writing to use public financing if he were the nominee and it didnt take him one minute after he became the nominee to tear it up and throw it away. Whatever your issues if you think you can trust Obama to do one single thing you want to see done then you havent been paying attention. Voting a brand this year means nothing.