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The · Psychohistorian

The law of the land

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In his confirmation hearings, Chief Justice John Roberts characterized the Roe vs. Wade decision on abortion rights as "the law of the land". This so assuaged the many proabortion senators, both Republican and Democrat, that he was confirmed by a wide margin. There were warning signs that he might not hold subsequent decisions - such as Casey, which clarified points regarding previability and postviability distinctions and the requirement to safeguard the health of the mother - in such high regard, but these warning signs were ignored.

Last week, we saw the result of this process: the Supreme Court essentially gutted the Casey precedent, citing from it only a few words that were unrelated to its holdings in that case, and ignoring the holdings themselves. So much for respect for precedent.

The law at issue was the "partial birth abortion act of 2003", which bans a particular form of mid to late term abortion, intact dilation and extraction. ("Intact" refers to removal of the fetus in one piece, as opposed to dismembering it within the uterus and removing the pieces separately.) The law was widely regarded as a congressional attempt to overturn Roe, and included aspects - such as the lack of an exception for endangerment of the mother's health - that directly challenged Supreme Court precedent.

Nominally, the court only rejected a facial challenge to the law - a challenge that it is so clearly unconstitutional that it can't be enforced. The majority opinion briefly claims to leave open the avenue of a future challenge in relation to a specific case. The bulk of the opinion, however, makes it clear that such a challenge would likely fail. By accepting Congress' clearly false blanket statement that intact dilation & extraction is "always" less safe than partial dilation & extraction, the majority opinion makes it clear that they are reasoning from effect to cause - they have a result that they want, and they are willing to twist the reasoning to support that result. Would they reverse that twisted reasoning just because a clearly forseeable case came up? It seems far more likely they would simply reject the relevant precedents outright - or simply do any further twisting that was necessary.

The minority isn't clean on this one, though. They spend much too much time railing at wording that isn't even prominent in the majority opinion, and not enough on logic and the facts, where their case is much stronger. Indeed, the opinion is reminiscent of Rehnquist's abortion dissents on the other side - and those opinions were among the few where Rehnquist departed from a logical approach.

Perhaps the most important opinion is the concurrence of Thomas and Scalia. Well, it would be important if anyone paid attention to it. It notes that no objection was made to the law on the basis of the Commerce Clause, and strongly hints that these two justices would be willing to reject it on the basis that it exceeds Congress' Commerce Clause powers. Unfortunately, this opinion will likely be ignored; conservative politicians will ignore it because they don't want another challenge to the law, and liberal politicians will ignore it because they want to maintain the present interpretation of the Commerce Clause which allows virtually unlimited Federal power.
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