The Justices’ Blocked Path

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The U.S. Supreme Court building in Washington, D.C. (Will Dunham/Reuters)

It has been widely speculated that the Supreme Court might rule in the Mississippi abortion case by upholding the challenged law while stopping short of overruling the Roe/Casey line of cases. Pro-lifers would then win the case without getting the larger victory we want: a declaration by the Supreme Court that the Constitution does not forbid legislatures from extending the basic protections of the law to unborn children. But we could console ourselves that the Court was leaving open the possibility of delivering that victory later, and was even setting up that possibility. It is further thought that this type of ruling (I’m going to refrain from any allusion to King Solomon) would be the politically safest choice for the justices.

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I’ve argued that the political landscape is about as favorable as it could realistically be for the Court finally to undo the enormity it committed in 1973. Sherif Girgis, soon to be a professor at Notre Dame Law School, makes a complementary point. He argues — very convincingly, I think — that the opinion that sounds politically savvy when described at a high level of abstraction may prove impossible to write in practice.

Girgis runs through a lot of possibilities that fail at take-off, but consider the example of a justice who wants to allow Mississippi’s 15-week ban without saying that states can ban abortion in the first trimester. That justice wouldn’t be able to ground that decision in the text or history of the Constitution, needless to say; but he also wouldn’t be able to reconcile it with Roe/Casey. So it would be necessary to scrap the precedents and come up with a justification for the first trimester as a cut-off point: ideally a justification that doesn’t sound arbitrary and made-up. And then — assuming the justice wants to chip away at Roe as a prelude to abolishing it — the justice would have to be willing, in a few years, to turn around and destroy the new legal edifice he had just created.

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The Constitution has never authorized the justices to protect abortion from legislators. The Supreme Court’s rulings to the contrary have both licensed grave injustice and done a lot to debase the court itself (not to mention our politics generally). A “middle way” in this case would require the Court to overturn Casey (which already overturned much of Roe) and to replace it with yet another judge-made framework with no basis in the text, original understanding, or structure of the Constitution. Enough. The current justices should heed Justice Scalia’s words: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

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