Monday, November 5, 2012

Roe isn't going anywhere

I wanted to comment on something I consider misinformation. I promise I will try to lighten up after the election:

Roe v. Wade is safe. Both the fear (Democrats) and the hope (Republicans) that Roe will be overturned are extremely overrated. Roe can only be overturned by the U.S. Supreme Court, and the hurdles to get to the Court (pre-trial, trial, appeal, petitions for certiorari, discretionary 
review, etc.) are monumental.

But more than the structural obstacles, precedent and credibility speak most to the survival of Roe v. Wade. Without an extraordinary shift in the reasoning behind Roe (right to privacy), any issues similar to those in Roe v. Wade (right to abortion pre-viability) will follow the precedent set forth in Roe. Thirty-seven years of Roe is interwoven with the development of our jurisprudence and culture. It does not stand alone, and if overturned, the consequences that would be set in motion are impossible to predict. Further, if overturned, the credibility of the Court would suffer greatly.

Chief Justice Roberts takes seriously the legacy of the Court (which he should), and his Court’s opinion in Citizen’s United (corporate money in political advertising) was roundly criticized by President Obama, during the State of the Union address. Justice Roberts felt deeply the sting of this embarrassment, the effect of which, I believe, is found in his own opinion upholding Obamacare. Justice Roberts only gained a majority to agree with the outcome (Obamacare stays), but he found no consistent agreement on how to get to that result (the reasoning was based on an argument barely addressed by the parties to the case – an unusual way for courts to decide cases). The concern for credibility explains why Obamacare was upheld, and why Roe is as strong as ever.

The Court has had opportunities in the past to overturn Roe, and continues to have opportunities to do so. Just last week, a case with a new attack in the form of “personhood” laws petitioned the Court. Certiorari was denied, and I predict will continue to be denied, even when the makeup of the Court changes over the course of the next thirty-seven years.

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