Has the pro-life dog caught the pro-choice bus?
Harvard law professor Noah Feldman thinks Roe v. Wade will be overturned.
Here is a taste of his Bloomberg column:
Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.
In today’s historic oral argument about the Mississippi ban, the court’s liberals predictably emphasized the value of following precedent and hence not overturning Roe. The hardline conservatives made it clear that they do not like the “undue burden” on abortion standard that the court articulated in Casey v. Planned Parenthood (thus Justice Neil Gorsuch) — and that the viability line doesn’t make much sense if the fetus has an interest in life (per Justice Samuel Alito).
The potential swing voters, Justices Brett Kavanaugh and Amy Coney Barrett, seemed pretty set on making history by overturning Roe. Neither engaged Roberts’s hints about compromise. Kavanaugh asked Mississippi’s lawyer to clarify that the state was not arguing for a constitutional ban on abortion but merely saying that abortion law should be left to the states. Barrett asked the state’s lawyer whether upholding the Mississippi law would threaten rights to contraception or same-sex marriage.
Both lines of questioning make sense primarily as part of an effort by Kavanaugh and Barrett to prepare the ground to overturn Roe while reassuring the public that the only effect would be to make abortion unavailable in certain states, not to undercut the court’s jurisprudence or other fundamental rights more broadly.
Kavanaugh then went further, suggesting that the court should be “scrupulously neutral” with respect to abortion rights, hence allowing states to adopt whatever laws they might choose. He reasoned that, given that different people have different ways of balancing the interests of the fetus and the mother, the court should stand back and let each state decide.
Read the rest here.
As someone who is pro-life, I am following this closely. But I don’t see a decision on Roe as monumental to the same degree as everyone in the pro-life movement does. As I have argued before, overturning Roe v. Wade will not end abortion in the United States–it will only send the issue to the states. Pro-lifers must continue to be diligent in voting for candidates who will alleviate poverty and chip-away at systemic racism. Pro-lifers must continue to support crisis pregnancy centers and adoption. We must continue to work, with the help of local, state, and federal government, to reduce abortion and make it rare, even in those states where it will still be legal. If Roe is overturned, I want to start seeing pro-lifers put as much energy into opposing capital punishment, vaccinations, poverty-relief, the environment, and infrasturcture.
What will the dog do once it catches the bus?