Law Professor Michael Paulsen on <i>Dobbs</i> Abortion Case

uTN Social - Free Speech Social Media

On Public Discourse, law professor (and occasional Bench Memos contributor) Michael Stokes Paulsen has published the first part in a two-part series on Dobbs v. Jackson Women’s Health Organization. Dobbs, you will recall, is the big abortion case on the Supreme Court’s docket for next Term—the case that ought to bring a decisive end to the illegitimate Roe/Casey regime that the Court has inflicted on the American people for nearly fifty years now.

Some excerpts from Paulsen’s piece:

Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes….

In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868….

In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself. In tomorrow’s essay, I will attack this craven, unprincipled reasoning. For now, my point is simpler: Roe is a relic of abandoned reasoning that almost no one—including the Court itself—any longer thinks correct on its own terms. If Roe retains any legitimacy at all, it is only because it is a precedent and for no reason moored to the text of the Constitution….

It is worth pausing briefly to reflect on just how radical the RoeCasey abortion-rights legal construct is. It is no cautious “balance” of interests. It is almost unreservedly pro-abortion. It adopts one of the most extremely lenient pro-abortion legal regimes anywhere in the world. It fails to recognize any legal rights of the unborn human fetal children, in any respect, at any stage of pregnancy. It does not recognize them as legal persons in their own right, entitled to the equal protection of the laws from private violence (a debatable but infinitely more plausible legal understanding of the common law and of the Constitution’s guarantees than is Roe’s creation of a constitutional right to abortion). Nor, short of that, does it recognize the unborn as members of the human species meriting protection by the state, whether or not they possess a constitutionally recognized legal “right to life” of their own. The living human fetus is treated, absurdly, as “potential life.”

Read the whole essay, and tomorrow’s installment on stare decisis as well.

Recommended


The Coming Backlash against Woke Public Schools

Parents have had enough of the politicization of their local schools. And even if the schools themselves can’t see it yet, they will soon.


The Problems with Laurel Hubbard’s Qualifying for the Olympics as a Woman

The New Zealand weightlifter, who was born and competed as a male, has clear advantages over female competitors.


The Lab-Leak Theory: Evidence Beyond a Reasonable Doubt

Every good prosecutor will tell you that the best case is a strong circumstantial case — and that’s exactly what we have.


A Grad Student Tried to Correct a Misleading COVID Narrative. Rebekah Jones Tried to Ruin His Career for It

Jon Taylor had a disagreement with Jones over COVID data, so she falsely accused him of sexual harassment.


The Breaking of Stephen Colbert

The demands of nightly doses of craven partisanship for year upon year have ruined him.


Maggie Haberman Is Right

Donald Trump really does believe that he, along with two former GOP senators, will be ‘reinstated’ to office this summer.

The Latest


Facebook Lands a Major Court Victory

A discussion on how Facebook beat regulators in court, House Republicans released a tech-regulation framework, commodities traders are cashing out, and more.


Tucker Carlson Says the NSA Is Spying on Him. Sadly, It’s Plausible

Thanks to the intelligence community’s appalling conduct for years, we can’t dismiss it out of hand.


Majority of San Francisco Residents Want More Policing amid Crime Surge: POLL

Roughly $80 million will be stripped from the San Francisco Police Department budget over two years.


Arizona’s Maricopa County to Replace Machines Seized by GOP-Led Audit, Citing Security Concerns

The GOP-controlled state Senate seized voting equipment with a legislative subpoena in late April. 


Tucker Carlson Claims Biden’s NSA Is Spying On Him

Carlson claims an NSA whistleblower read his texts and emails back to him over the phone to prove he is being surveilled.


The Justice Department’s Stunt Voting-Rights Lawsuit against the Georgia Election Law

The complaint reads more like an op-ed in Mother Jones than a legal case.

Top Stories

Get our conservative analysis delivered right to you. No charge.


Most Popular


Where’s the Equity for Black Murder Victims?


Where’s the Equity for Black Murder Victims?

That the disproportionate number of black murder victims doesn’t exercise progressives more remains one of the paradoxes of our time.


Just What Is Kamala Harris’s Role in the Biden White House?


Just What Is Kamala Harris’s Role in the Biden White House?

Joe Biden is giving Kamala Harris the unpopular, controversial, grunt work. Maybe that’s all he wants her to do.


The Surfside-Condo Tragedy Does Not Need Your Political Hot Take


The Surfside-Condo Tragedy Does Not Need Your Political Hot Take

This is a tragedy, not an election. Those pressing it into a partisan narrative are broken.


View More

Read More Feedzy

The Foxhole App - Trusted News Podcasts

Leave a Reply

Your email address will not be published. Required fields are marked *