The leaked opinion that may overturn Roe v Wade and Casey v Planned Parenthood would correct an egregious mistake that began in 1973. This mistake was compounded by Casey v Planned Parenthood in 1992. Regardless of which side of the debate over killing unborn children one comes down on, the fact is that decisions by the Supreme Court need to be grounded in the law. While I have a particular position on the killing of unborn children, this post is focused on the legal aspects of this decision in this country, not the moral ones.
Richard M. Reinsch II is a senior fellow at The Heritage Foundation and columnist for The Daily Signal. He is also a senior writer for Law & Liberty. Reinsch has written an excellent summary of the draft opinion. In it he indicates that the decision is “rich, bold and comprehensive.”
Reinsch notes:
This is the occasion for the Supreme Court’s ruling. Justice Samuel Alito’s opinion is a thorough cleaning of the stables of the court’s 20th-century abortion jurisprudence. Virtually every conceivable argument, fact, and shibboleth launched by pro-abortion legal forces has been considered, evaluated, and rejected.
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…one obstacle the Supreme Court faces is the arrogance of the Casey opinion itself, which upheld the central viability (ability to survive outside the womb) holding in Roe while refusing to defend the actual constitutional reasoning in the opinion. The Casey plurality ruled as it did based on stare decisis, i.e., the proclaimed need to adhere to a settled abortion jurisprudence to preserve the reliance interests of the public and the legitimacy of the court.
Reinsch makes a very important point here. The decision in Casey in 1992 did not defend Roe v Wade based on a constitutional rights issue. In fact, the initial vote out of conference had Roe v Wade being overturned. One justice of the minority convinced several others on the majority side, that precedent was too important. This resulted in the “undue burden” test that has been problematic since its inception. So, to be clear, in 1992, only a minority of the justices believed that Roe v Wade was constitutionally correct.
You will not hear that from the NYTimes or WaPo. What you will hear are terms like “settled law” and “reproductive rights.” There is absolutely nothing in the majority opinion that inhibits the “reproductive rights” of any woman. And “settled law” is like “settled science.” When more accurate information comes along, “settled science” changes to accommodate the new, more accurate facts. The same is true for “settled law.”
An example of an egregiously wrong-headed decision by the Supreme Court that was “settled law” for 58 years is Plessy v Ferguson.
Plessy v. Ferguson was a landmark 1896 U.S. Supreme Court decision that upheld the constitutionality of racial segregation under the “separate but equal” doctrine. Rejecting Plessy’s argument that his constitutional rights were violated, the Supreme Court ruled that a law that “implies merely a legal distinction” between white people and Black people was not unconstitutional. As a result, restrictive Jim Crow legislation and separate public accommodations based on race became commonplace.
It wasn’t until 1954 that the Court recognized and overturned this monumental mistake. And monumental it was with the rights of Blacks withering away under legislative fiat that was supported by Plessy. While this was especially true in the South, discrimination based on race reached all corners of the country.
It is only 49 years since Roe. And only 30 years since Casey. Justice Alito’s opinion demolishes the underlying rationales in Roe and Casey.
Reinsch states:
The court flatly pronounces: “Roe either ignored or misstated this history, Casey declined to reconsider Roe’s faulty historical analysis. It is therefore important to set the record straight.”
And set it straight is what Alito’s opinion does. It also shines a spotlight on the problems and issues that arise when an activist Court creates new “rights” that, at best, are only loosely tied to constitutional text.
Reinsch goes on:
Roe and Casey announced an abortion right without a clear connection to constitutional text and then proposed regulatory schemes rooted in viability of the fetus and with Casey an “undue burden” analysis for regulation. Both systems were compelled by nothing other than judicial contrivance with no past precedent guiding them.
In other words what Reinsch is saying here, and I agree with this, in Roe, justices made law. They diid this without textual support in the Constitution. They compounded this error in Casey. The function of the Court is to interpret the law not to make it. While precedence is very important for the stability of the law, when clear errors are discovered as in Plessy and Roe, these errors should be corrected.
Reinsch agrees:
The Dobbs majority plainly points to the hubris of Casey on these points. In contending that it had finally settled the issue of abortion, the court “exceeded the power vested in us by the Constitution.” Moreover, “The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles.”
It is interesting to note that even Ruth Bader Ginsburg, that famously liberal justice, thought the Roe decision to be “bad law” and “quite flawed” and that she was pretty sure it might be “overturned by SCOTUS” one day. Again this is not something that one will hear from the left wing media who will screech and caterwaul over “women’s rights being taken away.”
Reinsch finishes his article:
In exceeding its constitutional remit on abortion, the court has worked grave damage to our republic. In the end, the Dobbs majority states, “We can only do our job, which is to interpret the law.” If it stands, they have done still more. They have given us justice under the Constitution.
Amen!
Link to Reinsch’s article…It is worth your time to read Reinsch’s entire article.