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Abortion and the Supreme Court

The Supreme Court will soon rule on an abortion case in which the Mississippi has asked the judges to overturn Roe v. Wade. The oral argument suggested that five judges are inclined to do so, but a fierce lobbying campaign is trying to change their minds.

The campaign may be the most apocalyptic in its warnings since the ObamaCare case in 2012. Democrats are demanding that Judge Clarence Thomas resign because of his wife’s political activism. The New Yorker published a long piece that portrayed Judge Amy Coney Barrett as almost a religious cultist.

The court’s rulings on its emergency or “shadow” document are suddenly portrayed as a scandal, although liberals often appeal to emergencies. The press continues a constant campaign with the theme that “the Supreme Court is broken.”

The campaign is particularly intense on the Mississippi case, Dobbs v. Jackson Women’s Health Organization. Predictions are widespread that the days of abortions behind the alley will return if Roe is overturned. Atlantic magazine published a piece about a raw interim abortion device from beforeRoe era, which it suggests 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 of this is intended to make the judges resign from overthrowing Roe and Planned Parenthood v. Casey because the political backlash against the court will be violent. The special targets are Justices Barrett and Brett Kavanaugh, the two most recent Justices.

Judging from the oral argument on 1 December in Dobbsthe three Liberal judges would rule out the Mississippi Act, which bans abortion after 15 weeks as a violation of Roe and Casey. Judges Thomas, Neil Gorsuch and Samuel Alito are likely to vote to uphold the law and overturn both precedents. Judges Kavanaugh and Barrett appeared to be on the side of the three Conservatives in their question.

But Chief Justice John Roberts tried to find a middle ground during the oral argument. He seemed to want to uphold the Mississippi law on the grounds that it does not violate Casey‘s test of whether there is an “undue burden” of the possibility of having an abortion. If he pulls another judge to his side, he could write the plurality statement that governs in a 6-3 decision. If he can not, then Judge Thomas would award the opinion and the vote could be 5-4. Our guess is that Judge Alito would then be given the task.

Judges first declare their votes in a case during their private conference after oral argument, but they may change their minds. That was what the boss did in the ObamaCare case in 2012, to the great dismay of the other conservatives. He might be trying to turn another judge around now.

We do not hope he succeeds – for the benefit of the court and the country. The boss’s middle ground might be explained with some legal dexterity, but it would prolong the court’s abortion pain. Critics on the left would still regret the court for letting Mississippi’s law stand. And states would soon pass more laws with even tighter restrictions that would ultimately force judges to overthrow Roe and Casey or say that the precedents are on solid ground.

It is far better for the Court to leave the thicket of abortion regulation and return the issue to the states. There would be a political uproar, but then voters would take a stand on abortion policy through elections – starting in November.

The ability to have an abortion would not disappear throughout the United States. It may be in some states, but in some of these states there are already relatively few clinics that perform abortions. The most likely outcome is a diversity of laws depending on how the debate and election go. California may allow abortion until birth. Mississippi may prohibit 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 Roe“But that means 24 states would allow it, including some of the most populous. Based on a 2017 Guttmacher analysis of abortions performed in different states, the majority of these abortions would remain legal.

Meanwhile, a movement is already underway to pay for women in restrictive states to travel and have abortions elsewhere. Planned Parenthood would have the biggest fundraising years in its history. Opponents of abortion may even be disappointed with the outcome of the political debate. They would have to lead and win the moral cause against abortion among their fellow citizens.

This is how the American system should work, as the late Judge Antonin Scalia often wrote. After a series of elections, the abortion law will settle democratically. It had started to happen before the Supreme Court intervened Roeexacerbates the abortion debate and harms the court.

IN Dobbs The court can say that such a deep moral issue should be decided by the people, not by nine unelected judges.

Wonder Land (12/08/21): The end of Roe would erode the foundations not just for abortion, but for an entire philosophy of American governance born 50 years ago with Lyndon Johnson’s “Great Society”. Photo: Olivier Douliery / AFP via Getty Images

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