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Print allIn new windowon Court’s legitimacy; corruption of history; false reliance; and much moreInboxEd Whelan <> Unsubscribe1:39 PM (21 minutes ago)to meFrom NRO’s Bench Memos:Dobbs and the Court’s ‘Legitimacy’By ED WHELANNovember 16, 2021 1:15 PMThe new issue of National Review is dedicated to the theme “End Roe” and features an excellent collection of sixteen articles that comprehensively “examine the legal arguments, the policy arguments, and the social arguments for finally ending the Roe era in America.” Even better, they all appear to be out from behind the paywall.I’ll highlight a few of the articles in this and follow-on posts.In the first article in the series, Matt Franck and Robby George explore the concept of the Court’s “legitimacy.” They explain that the plurality opinion in Planned Parenthood v. Casey (1992), in addressing the topic, offered “at once at once a grandiose vision of the Court’s role in our constitutional order and a kind of cringing neediness for ‘the people’s acceptance.’” Casey has been a manifest failure: “by clinging steadfastly to Roe—a ruling Casey exposed as lacking any roots in the text, logic, structure, or original understanding of the Constitution—the Court only exacerbated the country’s divisions and guaranteed continuing controversy.”By contrast, Chief Justice Rehnquist set forth in his dissent in Casey the simple proposition that the “Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”As Franck and George sum it up:To argue that indefensible precedents must be preserved only because they excite half the country to demand their preservation and the other half to demand their abandonment; to say that the Court risks some “political capital” in doing what a majority of the justices know is the right thing — the constitutionally correct thing; to quake at the thought of the political conflicts that will be loosed on the world by a sound interpretation of the Constitution, when a half century of experience shows that those conflicts were generated in the first place by a ruling that traduced the Constitution — all such arguments are founded on a confusion of the business of law with the business of politics. Abortion and the Corruption of HistoryBy ED WHELANNovember 16, 2021 1:37 PMMore from the new “End Roe” issue of National Review:Ramesh Ponnuru has a devastating piece on the “false and sometimes fraudulent version of history” that proponents of a constitutional right to abortion have propagated from the 1960s all the way through to the amicus brief filed by the American Historical Association and the Organization of American Historians in the pending case of Dobbs v. Jackson Women’s Health Organization.As Ponnuru explains, the “slipshod scholarship” that Justice Harry Blackmun repeatedly cited in his majority opinion in Roe v. Wade “was already in the process of being discredited in 1973 and has since been comprehensively de­bunked.” But the Court has “never revisited its mistaken historical claims, which have instead taken on a life of their own in academic work, popular journalism, and legal briefs.”Read the whole thing. Here’s Ponnuru’s summation:The truth is that for centuries Anglo-American law forbade abortion from the first time an unborn child was known to be alive, and that as knowledge of biology accumulated the law was deliberately changed, the better to protect unborn life. Casey’s False Reliance ClaimBy ED WHELANNovember 16, 2021 2:20 PMFor now, I’ll highlight just one more article (on top of the two I covered in these posts) in the new “End Roe” issue of National Review.In its stare decisis analysis of Roe v. Wade, the plurality opinion in Planned Parenthood v. Casey (1992) concocted what Chief Justice Rehnquist in dissent properly labeled “an unconventional—and unconvincing—notion of reliance.” In the plurality’s view:[F]or two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.Set aside the fact that this is not the sort of reliance—detrimental reliance—that stare decisis protects against (see EPPC amicus brief at 14-15), and set aside further that the democratic processes can fully take into account these concerns. Even on its own terms, Casey’s reliance argument fails.As my EPPC colleague Erika Bachiochi explains, easy access to abortion encouraged “more sexual risk-taking,” which in turn “resulted in more children conceived, and increasingly outside of marriage.” This has not benefited women generally:Ironically, in the world that Roe created, the risks of sex — and the responsibilities of having children — have been assumed disproportionately by women. For far too many men, children are no longer part of the sexual bargain.Further, Bachiochi argues, Roe and Caseybear some blame for the fact that workplaces remain deeply inhospitable to women (and increasingly men) with children. Rather than challenge workplace norms head-on, the decades-long quest for unfettered abortion feeds into the model of the ideal male worker who is beholden to no one but his boss. If abortion is what enables women to participate in the workplace, then perhaps costly accommodations, flexible work schedules, and part-time-pay equity are not so necessary.Recalling a history that many choose to ignore, Bachiochi concludes:The earliest women’s-rights advocates in this country knew that for women to participate more fully in the economic and social life of the nation, the nation would need to become far more hospitable to children and the women who bear them. The first woman to run for president of the United States, in 1872, was not only an outspoken advocate of constitutional equality for women, she also advocated the rights of children — rights that, as she said, “begin while yet they remain the fetus.” Victoria Woodhull and the women’s-rights advocates of her time knew what 1970s feminist advocates of abortion would come to forget: The advancement of women will be possible only when the dignity of their children, born and unborn, is protected.(Bachiochi’s article draws on the amicus brief that she co-authored on behalf of a large group of women scholars and professionals in the pending Dobbs case.) 

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I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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  1. claire reiss says:

    Yes! BORTION IS SATANIC HUMAN SACRIFICE before BIRTH! God is LIFE! Santan is a consumer of POOR SINFUL SOULS…. We are:One Nation under GOD! Indivisible, with Liberty and Justice for all! Where is the Justice for rthe UNBORN BABY who must die under MURDER BY HER OWN PARENTS’ HANDS and WILL!

    God have mercy on our NATION as a whole! Good night!

    God bless!


    On Tue, Nov 16, 2021 at 12:05 PM ABYSSUS ABYSSUM INVOCAT / DEEP CALLS TO DEEP wrote:

    > abyssum posted: ” 2 of 13 on Court’s legitimacy; corruption of history; > false reliance; and much moreInboxEd Whelan Unsubscribe1:39 > PM (21 minutes ago)to meFrom NRO’s Bench Memos:Dobbs and the Court’s ‘Legi” >

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