Columnist Bill Newman: Will Roe survive?

Posted: 12/03/2021 17:48:46 PM Modified: 12/03/2021 17:48:12 PM “T his case calls on us to reconsider a previous decision, as the C...

Posted: 12/03/2021 17:48:46 PM

Modified: 12/03/2021 17:48:12 PM

“This case calls on us to reconsider a previous decision, as the Court, throughout its history, has often been called upon to do.

These words from the 1943 Supreme Court decision in West Virginia Board of Education v. Barnette have echoed ominously this week as the court looked set to overturn Roe v. Wade.

The Court should be able to reconsider an earlier decision. And it often is. In Brown v. Board of Education, for example, the Court overturned the 1896 decision of Plessy v. Ferguson, which sanctioned separate but equal laws as the law of the land. And in Gideon v. Wainwright, the court ruled that defendants have a right to counsel and overturned a ruling that only people wealthy enough to afford it actually had that right.

These are examples of the court asserting a constitutional right that it had previously limited or denied. In contrast, gutting the long-recognized personal constitutional right to abortion would constitute, in the words of United States Solicitor General Elizabeth Prelogar, “an unprecedented contraction of individual rights …”

On Wednesday, the court heard oral argument in Dobbs v. Jackson Women’s Health Organization, where the issue is the constitutionality of a Mississippi law that prohibits all abortions after 15 weeks with no exceptions for rape or incest. The law intentionally violates Roe, who allows abortions until viability, typically 24 weeks, which harkens back to the Supreme Court quote this column started with.

In 1973, Roe recognized a woman’s right to choose as a fundamental constitutional guarantee. Republicans and conservatives, who call themselves defenders of individual freedom, could have applauded the decision. But they didn’t. Instead, they entered into a marriage of political convenience with evangelical Christians and others and embarked on a half-century political, religious and legal crusade to deliver the bodies of women to the callous hands of the government. .

The six current, so-called Conservative justices were installed on the Supreme Court in the hope that they would rule generally in favor of business and against employees, unions and environmental protections; allow states to prevent black and brown citizens from voting; enshrine gerrymandering as a political right for those in power (mainly Republicans); grant immunity to the police for unlawful acts of violence; undermine laws designed to improve discrimination against marginalized groups; and, perhaps more than anything else, undoing Roe v. Wade. This week, the time for the reward for political obedience has arrived.

The Supreme Court, in previous decisions, has formulated criteria to guide it when called upon to overturn an earlier decision. These considerations include whether the previous case was badly decided or badly reasoned; whether the lower federal courts found the decision puzzling to apply; whether the facts underlying a decision have changed; and on the other side of the ledger, whether people have relied on and continue to trust that decision.

These factors, malleable and unweighted or hierarchical, allow the Court to achieve the result it wishes. Notably, in 1991, in Planned Parenthood v. Casey, the same arguments in favor of overturning Roe were presented in the Supreme Court that were presented this time around. Casey asserted Roe. If the Court sets aside Roe in this case, it will necessarily set aside not only abortion precedents, but also its own rules for setting aside. Justice Stephen Breyer made this point during argument.

Which brings us to consider the words used this week – stare decisis – Latin for standing by a decided thing – and previous, which means pretty much the same thing. In our legal system, these concepts are fundamental. They prevent judges from deciding cases willy-nilly, guided only by their own personal and political predilections. Conservative jurists have traditionally been strong supporters of stare decisis.

But this Supreme Court is not a conservative court. It is a political tribunal. During oral argument, Judge Sonia Sotomayor asked how the court would “survive the stench” of making the essentially political, not judicial, decision to quash Roe. No clear answer was offered.

Chief Justice John Roberts, most Court observers agree, would prefer a phased approach that would allow him to ostensibly follow case law while accommodating anti-choice judges. The court could accomplish this sleight of hand by overturning the viability standard in Roe and upholding Mississippi’s 15-week ban and later approving bans at 12, then six weeks, then no weeks. In all cases, immediately or more gradually, the right would be destroyed.

Which brings us to the scariest part of this already scary story. By definition, a right is something that cannot be taken away. At least that’s what we thought – apparently wrongly because the Supreme Court acts as if it has the right to take away established personal rights. This is not a judicial decision. It is judicial authoritarianism.

Such a break from the precedent would put in place the last piece of the puzzle of what is needed for legislatures and government officials to undermine constitutional rights and target traditionally marginalized communities. The missing piece was a judicial printer. This piece will no longer be missing. The sound you hear is the death knell for freedom and democracy.

Bill Newman, a Northampton-based lawyer and radio show host, writes a monthly column.

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Newsrust - US Top News: Columnist Bill Newman: Will Roe survive?
Columnist Bill Newman: Will Roe survive?
Newsrust - US Top News
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