|Ed Whelan <firstname.lastname@example.org> Unsubscribe||7:07 AM (3 hours ago)|
From NRO’s Bench Memos:
By ED WHELAN
December 3, 2021 7:41 AM
Decades after the egregious errors in Roe v. Wade and Planned Parenthood v. Casey have been manifest, law professor Richard Re thinks that it would somehow be “precipitous” for the Court to overrule those precedents in Dobbs. Writing in the Wall Street Journal, Re encourages the Court to find some way to avoid addressing the fundamental issue that Dobbs squarely tees up.
The “gradualism” that Re lauds as a supposed “hallmark” of the Roberts Court has a proper role to play in many cases. But Re’s arguments that the Court should avoid addressing the fundamental wrongness of Roe and Casey in Dobbs fall flat.
Re acknowledges that some commentators—law professor Sherif Girgis, most extensively—“have argued that gradualism in Dobbs is impossible [and that] any half-measure would only end up entrenching a new abortion doctrine or leading to an unworkable morass.” Re doesn’t sketch any answer to this argument, any reason to think it might be wrong, Nor does he acknowledge, much less address, the distinct, and much more important, argument that there is no principled basis for any “half-measure.” Instead, he merely asserts that the way to discover whether “a new standard would ultimately prove workable [is] by trying it and finding out.”
Re also argues that the Court could simply dismiss the Dobbs case “on the grounds that Mississippi has sharply changed its position,” first saying in its certiorari petition that the case did not “require” the Court to overturn Roe and Casey but then directing its merits argument heavily in favor of such overruling. There is in fact no sound basis for dismissal. As the Chief Justice acknowledged at oral argument, the question whether Roe and Casey should be overturned is “fairly included” in the question on which the Court granted certiorari and is thus properly presented. Indeed, Mississippi’s certiorari petition argues at length against the soundness of Roe and Casey (as I spelled out in point 2 of this post). When the Court, after months of deliberation, finally granted cert in Dobbs, everyone—surely including the justices who voted to grant cert—understood that Roe and Casey were at stake. The briefing on both sides—including over 100 amicus briefs—focused heavily on this issue.
Re is also very wrong to contend that a decision overruling Roe would repeat “a fundamental defect in Roe itself: the pretension to resolve a complex, difficult issue in one swoop.” Far from purporting to resolve the issue of abortion,” a decision overruling Roe would return that issue to the democratic processes for decision. Far from “implementing an agenda” (as Re charges), such a decision would respect the Constitution.