Print allIn new windowDobbs and fate of conservative legal movement; CA6 en banc rehearing in TN abortion case; CA6 en banc divide on Chevron/criminal law; and moreInboxEd Whelan <ewhelan@eppc.org> Unsubscribe12:29 PM (1 hour ago)to meFrom NRO’s Bench Memos:Joel Alicea on ‘Dobbs and the Fate of the Conservative Legal Movement’By ED WHELANDecember 6, 2021 10:49 AMIn a City Journal essay, law professor Joel Alicea (whose work I’ve had ample occasion to praise) soundly observes of the pending Dobbs case:This, then, is the moment the conservative legal movement has fought to bring about. If the Court fails to overrule Roe, the ruling will likely shatter the movement, and while (under a proper conception of the judicial role) the potential effect of Dobbs on the conservative legal movement should be irrelevant to the outcome in that case, it would be a significant legacy of the Roberts Court if Dobbs brought an end to one of the most successful intellectual and political projects of the past half-century.Alicea explores the “intellectual tensions with the conservative legal movement—present since its inception and now coming to the fore.” He identifies and discusses two major tensions. One is an “intra-originalist tension … between those who saw originalism as a means to achieving some other substantive end [most prominently, judicial restraint] and those for whom it was the only legitimate constitutional methodology.” The second tension involves “disagree[ment] about whether originalism rests on a sufficiently robust moral foundation.”Alicea forecasts that the decision in Dobbs “will likely either increase those tensions to the point of rupture”—if, that is, the Court fails to overturn Roe—“or greatly alleviate them.” He bracingly warns:If the Court fails to overrule Roe and Casey, there is a very good chance that [Adrian] Vermeule would become the most important intellectual figure in whatever succeeds the current conservative legal movement. Sixth Circuit Grants En Banc Rehearing in Tennessee Abortion CaseBy ED WHELANDecember 6, 2021 12:23 PMI’m pleased to see that the Sixth Circuit last week, on the same day as oral argument in Dobbsgranted en banc review in Memphis Center for Reproductive Health v. Slatery.The case involves a challenge by abortion providers to two provisions of Tennessee law. One provision (section 216) bars abortion, except in the event of a medical emergency, at cascading intervals—detection of heartbeat, 8 weeks gestational age, 10 weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22 weeks, 23 weeks, and 24 weeks—and provides that any interval determined to be unenforceable shall be severed from the law. The second provision (section 217) forbids anyone from performing an abortion if that person “knows that the woman is seeking the abortion because of” the sex or race of the unborn child or “because of a prenatal diagnosis … indicating Down syndrome.”The Sixth Circuit panel opinion in September was unanimous that section 216 was barred by Roe v. Wade and Planned Parenthood v. Casey, even as Judge Amul Thapar wrote a powerful opinion explaining how wrong those precedents are. The panel divided on the anti-discrimination provision: the majority ruled that section 217 is unenforceable, while Judge Thapar dissented, pointing out (among other things) that earlier in the year the en banc Sixth Circuit had upheld “Ohio’s nearly identical anti-discrimination law.” (As Thapar points out, “Tennessee added race and gender to the protected class,” but those additions have nothing to do with the majority’s grounds of objection.)It’s a safe bet that the Sixth Circuit granted en banc review primarily for the purpose of revisiting the section 217 ruling but realized, now that Dobbs is pending in the Supreme Court, that it ought to hold the section 216 ruling for possible re-examination as well. My guess is that the Sixth Circuit will not act on the case until the Court rules in Dobbs. Section 216 will be unenforceable in the meantime. Section 217, as I understand it, remains in effect, as a Sixth Circuit motions panel issued a stay pending appeal of the district court’s preliminary injunction as to that provision. (I’m told that Tennessee, evidently eager to have crystal clarity on the matter, has just asked the Sixth Circuit for an identical stay.)The cascading provisions of section 216 also highlight what a foolish exercise it would be for the Court in Dobbs to say that Mississippi’s 15-week bar is okay without being able to draw a principled line that would substitute for the arbitrary line of viability. Such a delaying action would just ensure that cases like Tennessee’s would move quickly through the pipeline to the Court. Once again, there is no coherent middle ground in Dobbs, and the only legitimate option is for the Court to overturn Roe and Casey.  

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I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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