The Supreme Court will soon rule on an abortion case in which Mississippi asked judges to overturn Roe vs. Wade. The closing argument suggests that five judges are leaning towards doing so, but a fierce lobbying campaign is trying to get them to change their minds.
The campaign is perhaps the most apocalyptic in its warnings since the ObamaCare affair in 2012. Democrats are demanding that Judge Clarence Thomas resign over his wife’s political activism. The New Yorker published a long article portraying Judge Amy Coney Barrett as almost a religious cultist.
Court rulings on his emergency or “ghost” case are suddenly described as an outrage, though Liberals often make the emergency calls. The press carries out a sustained campaign on the theme that “the Supreme Court is broken”.
The campaign is particularly fervent on the case of Mississippi, Dobbs v. Jackson Women’s Health Organization. Predictions are widespread that the days of clandestine abortions will return if deer is overthrown. Atlantic magazine ran an article about a rudimentary makeshift abortion device from the avant-deer era that he believes would make a comeback.
“Abortion access is being dismantled,” says the Planned Parenthood Action Fund. The Guardian adds: “We are witnessing the last days of reproductive freedom.”
All this is intended to encourage judges not to overturn deer and Family planning c. Casey because the political backlash against the Court will be fierce. The particular targets are Judges Barrett and Brett Kavanaugh, the two new judges.
Judging by the oral argument of December 1 in Dobbsthe three liberal justices would ban the Mississippi law that bans abortion after 15 weeks as a violation of deer and Casey. Judges Thomas, Neil Gorsuch and Samuel Alito are likely voting to uphold the law and overturn the two precedents. Justices Kavanaugh and Barrett appeared in their questioning to side with the three conservatives.
But Chief Justice John Roberts tried during oral argument to find a middle way. He seemed to want to uphold the Mississippi law on the grounds that it does not violate Caseyto determine whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another judge to his side, he could write the opinion of the controlling plurality in a 6-3 decision. If he can’t, then Judge Thomas would award the opinion and the vote could be 5-4. Our guess is that Judge Alito would get the assignment then.
Judges first declare their votes on a case in their private conference after a closing argument, but they can change their minds. That’s what the leader did in the ObamaCare case in 2012, much to the dismay of other conservatives. He may be trying to turn another judge now.
We hope he will not succeed, for the good of the Court and the country. The chief’s middle ground might be explainable with some legal dexterity, but that would prolong the agony of court abortion. Left-leaning critics would still castigate the court for allowing the Mississippi law to stand. And states would soon pass more laws with even tighter restrictions that would eventually force judges to overturn deer and Casey or say that the precedents rest on solid foundations.
Far better for the Court to leave the thicket of abortion regulation and send the matter back to the states. A political uproar would ensue, but voters would then decide abortion policy through elections, starting in November.
The possibility of obtaining an abortion would not disappear in the United States. It could happen in some states, but in some of those states there are already relatively few clinics that perform abortions. The most likely outcome is a multiplicity of laws depending on how the debate and elections unfold. California could allow abortion up to the moment of birth. Mississippi could ban it except in cases of rape or incest.
The Guttmacher Institute, which advocates abortion rights, estimates that 26 states “are certain or likely to ban abortion without deer.” But that means 24 states would allow it, including some of the most populous. Based on a 2017 Guttmacher analysis of abortions performed in various states, the majority of those abortions would remain legal.
Meanwhile, a movement is already underway to pay women in restrictive states to travel and have abortions elsewhere. Planned Parenthood would have the greatest fundraising years in its history. Opponents of abortion may even be disappointed by the outcome of the political debate. They should plead, and win, the moral cause against abortion among their fellow citizens.
This is how the American system is supposed to work, as the late Justice Antonin Scalia often wrote. After a series of elections, the law on abortion will be settled democratically. This had started to happen before the Supreme Court intervened in deerpoisoning the abortion debate and prejudicing the Court.
In Dobbs the Court can say that such a profound moral question should be decided by the people, not by nine unelected judges.
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