on overruling Roe, and more
|Ed Whelan email@example.com via mailchimpapp.net||Fri, May 17, 11:17 AM (1 day ago)|
From NRO’s Bench Memos:
Some Thoughts on Overruling Roe
By ED WHELAN
May 17, 2019 11:51 AM
· 1. For reasons I explained more fully in my Senate Judiciary Committee testimony in 2005, I believe that the case for overruling Roe v. Wade and Planned Parenthood v. Casey is overwhelming. Here is an excerpt:
Roe is the Dred Scott of our age. Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship. Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people. Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states. Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth. Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion. Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.
See part 2 of that testimony for some devastating criticisms of Roe from liberals who support a right to abortion.
2. The wave of protective pro-life legislation demonstrates that Planned Parenthood v. Casey’s effort to preserve Roe has failed. As Harvard law professor Adrian Vermeule succinctly explained in a tweet the other day (my underlining):
The premise of Planned Parenthood v. Casey was that the Court’s abortion jurisprudence could succeed in “call[ing] the contending sides of a national controversy to end their national division.” Doesn’t seem to have worked. Casey fails its own test.
3. We often hear from the Left pleas for “judicial statesmanship” to preserve liberal precedents. But real judicial statesmanship would be for the liberals on the Court to recognize that Roe is a dismal failure and to forge a unanimous ruling against it.
4. All the clamor over the Alabama and Georgia laws ignores that there are certiorari petitions pending before the Court right now that provide the opportunity to erode or overrule Roe.
One petition (which the Court has been sitting on for months now) presents the questions (1) whether a state may require health care facilities to dispose of fetal remains in the same manner as other human remains (i.e., by burial or cremation); and (2) whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus.
Another presents the question whether a state may require an ultrasound at least eighteen hours before an abortion.
And yet another challenges a Fifth Circuit decision that upheld a Louisiana law that requires physicians who perform abortions to have admitting privileges at a local hospital. This is the law that the liberal justices, together with the Chief, blocked from taking effect, so it’s a safe bet that certiorari will be granted in the case.
5. Any justices who recognize that Roe should be overruled but who are waiting for just the right occasion to do so are fooling themselves. There will never be a perfect time, and stretching things out unnecessarily just means that the Court will be a fat political target. That doesn’t mean that the Court necessarily needs to overrule Roe at the first opportunity, but it shouldn’t shy from the challenge.
By ED WHELAN
May 17, 2019 8:00 AM
1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”
1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”
Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.
2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.
Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.aw has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a propositi
Mr. Whelan is co-editor of the New York Times bestseller
Scalia Speaks:Reflections on Law, Faith, and Life Well Lived
and On Faith: Lessons from an American Believer, both
published by Crown Forum