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Abortion at Crossroads

By: The Editorial Board – wsj.com – November 30, 2021

The Supreme Court takes up its most important abortion case in years on Wednesday, and the question will be how the Justices maneuver their way out of a thicket they should never have entered 50 years ago. Will the Court, in Dobbs v. Jackson Women’s Health Organization, settle for an incremental ruling that upholds a Mississippi ban on abortion after 15 weeks, or will it overturn its misguided precedents and return the regulation of abortion to legislatures in the states?

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These columns have long supported a policy of legal abortion before viability, albeit uneasily as technology has revealed the development of the fetus. But we have had no hesitation in saying that Roe v. Wade (1973) and its progeny, notably Planned Parenthood v. Casey (1992), were wrongly decided. Abortion is nowhere mentioned in the Constitution, and its regulation is a classic example of police powers reserved for the states.

Roe in particular is one of the worst decisions in the Court’s history, on par with Plessy v. Ferguson (“separate but equal” on race) and Korematsu (internment camps for Japanese-Americans). At a stroke, the Court overturned 50 state laws and turned abortion into a pitched political battle that nonetheless could not be settled politically through the ballot box.

As the great legal scholar Alexander Bickel wrote in “The Morality of Consent,” the Court simply invented a trimester medical analysis. “One is left to ask why. The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached.”

That mistake has distorted American politics and law for a half century. It has heightened political polarization and made the Supreme Court a partisan battlefield. With nowhere else to turn, abortion foes have looked to the Court for redress, and abortion proponents have returned the disfavor. Abortion is the Oz behind the curtain of every Supreme Court nomination as partisans try to divine how the nominee will vote on the issue.

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This is where the Justices now find themselves, with a new conservative majority and state legislatures testing the limits of Roe and Casey. That’s what Mississippi has done with its ban after 15 weeks, though it’s important to note the state’s legal bait-and-switch. The Fifth Circuit Court of Appeals blocked the law, and the state’s petition to the High Court to hear its appeal said, “To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.”

Yet after the Justices accepted the case, the state’s brief dropped the veil and urged them to overturn both precedents. “The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the brief says. “Overruling Roe and Casey makes resolution of this case straightforward.”

Easy for Mississippi to say. Not so easy for the Justices, who must look to the Constitution but also wrestle with stare decisis, or the question of when to overturn its own precedents. Mississippi’s sleight-of-hand could give the Justices an excuse to say the case was “improvidently granted,” though that would only be a temporary reprieve. Abortion cases will keep coming from the states.

The Justices could agree with the Fifth Circuit and declare that Mississippi’s law is unconstitutional. But that is highly unlikely given the new majority and its originalist views of constitutional interpretation.

They could also take Mississippi up on its initial offer and uphold its law without overturning Casey, which modified Roe’s trimester analysis. Casey’s core ruling is that states cannot impose regulation that is an “undue burden” on a woman’s ability to obtain an abortion. The Court could rule that Mississippi’s ban is not such a burden, and thus it does not have to reconsider Casey or Roe.

This would be justified as a matter of law in this case. Given the Court’s reluctance to overturn longstanding precedents, this may be where a majority or plurality comes out. Some Justices might feel this is a safe harbor to show that the new Court with its Trump appointees isn’t out willy-nilly to overturn precedent.

We disagree with those on the right who say this would betray the conservative legal movement. Such a ruling would be akin to the incremental progress the Roberts Court has made on other legal precedents, notably on free speech and religious liberty. For example, the Court ruled cautiously in Harris v. Quinn(2014) on the unconstitutionality of coerced union fees before finally overturning its Abood precedent in Janus v. Afscme (2018).

But such a ruling would not free the Court or the country from its abortion thicket. The cases will keep coming, and sooner or later the Justices will have to overturn Roe and Casey or assert that they stand on solid legal ground. This is the best practical argument for making a clean break now and return the policy choices on abortion to the political branches. Like Plessy, some precedents are so misguided and have such damaging consequences that they warrant overturning no matter their longevity.

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If the Court does go that far in Dobbs, abortion will not be barred across America. Some states may ban it. But others will allow abortion on demand right up to the last day of pregnancy. Debate and elections will sort this out, and how the politics plays out is impossible to know. Abortion would certainly roil the midterm elections, and Democrats believe it would help them retain Congress.

To give states time to adjust, the Court could also stay its ruling for a year or more. This would reduce the reliance interests at stake, as the Court did in a 1982 energy case (Northern Pipeline v. Marathon Pipe Line).

But the politics of abortion isn’t the Court’s concern. Such a profound moral question, in a democracy, should not be determined by unelected judges. Roeand its progeny didn’t end America’s abortion debate. It merely embittered it, damaging the Court in the bargain. It’s time for the Justices to bow out and let the people decide.

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Source: An Abortion Crossroads at the Supreme Court – WSJ

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