The Rule of Law might have been Overturned Today
Roe v. Wade hasn’t been overturned. The rule of law might have been; The Washington Post, Erwin Chemerinsky
Dean at the University of California, Berkeley School of Law. Prof. Erwin Chemerinsky; “The majority was mute on the right to privacy, abandoned its constitutional role and held, indirectly but unmistakably, that the Constitution is a mere inconvenience that states are at liberty to violate if they can come up with cunning statutory language.
Even though Roe is still the law, the women in Texas no longer have the right that it protects. Such has no resemblance to the rule of law.”
SCOTUS Chief Justice Roberts: Rather than waiting to adjudicate the Texas law on its merits, members of the Whole Woman’s Health majority tossed out; “very old and very important legal wine: The ability to ask the Judiciary to protect an individual from the invasion of a constitutional right.”
Hiding behind an unsigned opinion and burying their heads in the sand as Justice Sotomayer termed it, the five members of the majority, over the “signed” dissents of Chief Justice John G. Roberts Jr. and the court’s three other justices, declined to carry out their central functions of protecting constitutional rights and uphold the rule of law.
Roe v. Wade was a constitutional hail Mary rather than the rule of law. That SC decision was a stop gap solution for the cowardice of lawmakers. Congress should have made the law, but feared retribution from the Right at the ballot box. SC is appointed, not elected and should only decide the law rather than create the law. Roe v. Wade lacked constitutional merit despite its urgency for women’s health. Roe v. Wade saved lives, but cost the political system credibility and civil order.
[This interpretation of the original Roe v. Wade decision would have resulted in better standing had we stuck to it.]
https://www.oyez.org/cases/1971/70-18
“…In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health. In the third trimester, once the fetus reaches the point of ‘viability,’ a state may regulate abortions or prohibit them entirely, so long as the laws contain exceptions for cases when abortion is necessary to save the life or health of the mother.”
Ron:
Since I know Mr. Chemerinsky, I am going to go with his interpretation. Roberts is partially at fault here for not corralling his associates justices. The one possibly left is Kavanaugh may follow Roberts lead which he has done in the past.
Run,
When Roe v. Wade has been challenged in the past in front of SCOTUS with roughly even balance between Right and Left, then it has been upheld purely because it was accepted as settled case law despite the merits, purely as a matter of upholding precedent. When the political winds shift then settled case law can become unsettled. Not many legal scholars now or even 50 years ago believed in the validity of the constitutional basis of the RvW decision. It was a matter of political expedience and remained settled case law in lieu of proper legislation or a changing of the guard. Arguing the constitutional legal merits of the case is a novel approach though. OTOH, it may well be that conservatives are overplaying their hand now and get scalped in the 2022 midterm elections. Generally speaking one should not telegraph their punch as a strategy for winning a fight. It is an emotional hot button issue than can mobilize strong opposition on ether side of it. However, it will not really be settled until one side or the other can get it out of the courts and into legislation where it always belonged to begin with.
https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
“…On March 6, 1857, the Supreme Court ruled against Dred Scott in a 7–2 decision that fills over 200 pages in the United States Reports.[10] The decision contains opinions from all nine justices, but the “majority opinion” of the court has always been the focus of the controversy.[26]
As I understand this decision, the majority is saying that the “case” is simply not a real case, but rather more of a description of a possible case that could show up at some point. There seems to be no real defendant that the plaintiffs are alleging harmed them. I don’t think the decision precludes further court involvement when a real case shows up, even if that is just later today. The plaintiffs might recruit someone to file one of those $10K lawsuits (if nobody else beats them to the punch).
@Eric,
Yes. Although the SCOTUS could have suspended the law until they heard a case. I took the announcement as a signal that they intend to either severely restrict or overturn Roe the next time they hear a case, though. Which will be next session.
Well I think the heart of the ruling is that the majority feels they cannot do what the plaintiffs want if there is no real case. If some party in Texas actually files one of these suits, then there’ll be a real case, but the courts don’t have any track record of deciding anything absent a true case. You can read into this that Roe is doomed, but another view is maybe Sotomayor and the others should have made this 9-0, in which case the only takeaway would be not to file before a real plaintiff and defendant are available. Roe supporters might take heart here in that the 4 votes in support of the plaintiffs here are probably a clearer indication of intent of keeping Roe than Kavanaugh, Gorsuch or even Barrett to ditch it based on their decisions on this.
You may say that no one is harmed yet. OK.
Do the laws against extortion demand that the mobster or gang banger actually burn your store down?
This is intended to intimidate anyone who might help a someone get an abortion. It doesn’t need a suit to be brought, but I expect there will be many, most brought by the same people who harass women outside Planned Parenthood on their way to get mammograms.
@Jane,
I’m sure harm is already being done.
We’re making a big donation to Planned Parenthood.
Jane:
Thank you for commenting to this post. We do lack for women and their commentary at AB.
No, because threats to burn down your store are criminal acts themselves. This “case” seems to have been that the law set up the possibility that somebody might do something, which is true enough. And the court is saying that their role is to reach judgement on live disputes, which this was still a ways from becoming. It is not as if the court were addressing a state court judgment of $10,000 against the plaintiffs that the plaintiffs rejected, but someday soon they might have that case. This was an effort to draw attention to this law, and it succeeded.
Nonsense. Total nonsense.
It was a poor legal case, but a not-so-bad bit of publicity. I agree that this is a situation that will almost certainly have serious litigation. The decision in this case was not related to the legal merits of the heartbeat law or the novel enforcement mechanisms. It was that the plaintiff’s case lacked a real defendant. They named defendants but that was really all they did. There was no true legal controversy between the parties of this case but unless the statute is ignored by everyone in Texas, there probably will be between some parties quite soon.
I think Roe “fans” probably should be encouraged here. Roberts will vote to protect Roe in some manner and probably a substantial manner is the most unmistakable message out of this. Three of the 5 votes not to do anything now are possibly entirely sincere about the procedural aspect of this decision…..Thomas and Alito might also be, but will vote to spike Roe almost certainly. So in reality I think this says that the “overturn Roe” baseline is 4-2 to keep Roe (in some manner) and the overturn has to get every one of the other 3. They might, but then again they might not.
Jane is absolutely correct and the dissenters pointed that out clearly. It is not true that scholars “generally” have criticized Roe. It was a reasonable extension of the rule of Griswold v. Connecticut which has its critics, as do many, if not most, constitutional decisions but it also has many advocates. The basic argument is that some things are nobody’s business and this is one of them.
The problem with the privacy justification is that conception most often does not happen in complete privacy and if the fetus is not aborted then the biological father is on the hook for that “private” decision. Effectively, conception is an implicit contract to raise a child, which only one partner can revoke. To be clear, I am not saying that abortion should not be legal only that it has not been made law. The SCOTUS decision was a huge stretch. This is a matter that needs to be codified into law by legislation. What SCOTUS did was overturn state law rather than make federal law. That the US is still wrestling with this issue fifty years after the SCOTUS decision is purely a matter of legislative cowardice opting for political convenience.
We get what is wrong with SCOTUS on Citizen’s United, but not how Roe got us there.
The privacy of emaculate conception gave birth to the consciousness of corporations, only in Amerika.
As a moral or ethical matter, then there is no way to make abortion in the first trimester illegal for so long as EPT + D&C provide an early warning and a broadly used procedure applicable to several circumstances other than just abortion. D&C has more risk for impairing future pregnancy than modern methods, but it absolutely works in the first trimester.