By Dave Andrusko
The Biden-Harris administration made its opposition official today. In a 39 page amicus the justice department rejected the position of the state of Mississippi that the Supreme Court uphold the state’s 2018 “Gestational Age Act.”
“Under principle of stare decisis–and because Roe and Casey were and remain correct–the court should again “reaffirm the right of a woman to chose abortion before viability.” And because the Act is flatly inconsistent with that right, the Court should affirm the decision below.”
The government’s same old, same old case for upholding Roe stands in stark contrast with the case for overturning Roe, as outlined by Mary Ann Glendon, the Learned Hand Professor of Law, emerita, at Harvard University, and a former U.S. ambassador to the Holy See, and O. Carter Snead, professor of law at the Notre Dame Law School and director of the de Nicola Center for Ethics and Culture at the University of Notre Dame.
For example, “Regardless of anyone’s views of abortion itself, basic fidelity to the Constitution and the rule of law, as well as the imperative of preserving the Court’s institutional integrity, warrant overruling the decisions composing that sorry record. The doctrine of stare decisis presents no obstacle to doing so. To the contrary, that doctrine and the goods it serves counsel a wholesale reversal of Roe and its jurisprudential progeny.”
Blackman invented “right”
Glennon and Snead maintain that
“Until Roe, no serious legal authority had suggested that the 14th Amendment created a right to abortion. Neither the framers of the amendment, the states that ratified it, nor any member of the American public at that time with knowledge of its contents could have thought that the amendment precluded states from protecting unborn children or otherwise legally proscribing abortion. To the contrary, when it was ratified in 1868, 30 of 37 states prohibited abortion in their criminal laws. Just four months after voting to ratify the amendment, the Ohio legislature passed a law criminalizing abortion from the moment of conception. No one suggested at the time that the 14th Amendment nullified, modified, or had any bearing on this law.”
They add,” In other words, no theory of interpretation respectful of the text, history, or tradition of the Constitution could have justified the rule or reasoning of Roe. The right to abortion is thus a rule in search of a rationale — one that the Court, to this day, has struggled in vain to reconcile with the Constitution and its own role in the American system of government.”
What about the 1992 Casey decision?
“Casey did not succeed in rooting the Court’s abortion jurisprudence in the Constitution. To the contrary, it doubled down on Roe’s freewheeling derivation of a constitutional right based on the justices’ own normative balancing of competing interests: a woman’s interest in being free to make intimate, personal, and self-defining reproductive choices on the one hand, versus the state’s interests in defending the unborn, preserving the integrity of the medical profession, and promoting the respect for life more generally, on the other. As Chief Justice John Roberts would later observe, “there is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were.” And yet Casey remains the law of the land.”
There is richly detailed exposition of where Roe and Casey dead end:
Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones….Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.
The article can be read in its entirety here.