The background facts are that Roe was originally appealed to the Supreme Court from a case originated under Texas law that held that abortion is illegal except to save a woman’s life, and if accompanied by a physician’s referral. Roe sought an abortion in violation of Texas law, claiming “The law was vague, abridged her right to privacy, claimed that privacy is a natural right, and referred to in the Constitution as a right upheld in amendments I, IV, V, IX, and XIV. The Supreme Court agreed with plaintiff’s right to privacy and upheld the referrals. Furthermore, the Supreme Court upheld those rights in all cases during the first trimester of pregnancy in all States, and during the second and third trimester, subject to other specific conditions. Two decades later, Roe was affirmed in Planned Parenthood v. Casey in respect of both of Roe’s holdings on a plurality of votes among three separate decisions.
Roe has claimed to be settled law on the basis that it has double precedent by the Supreme Court (affirmed by Roe and Casey affirms Roe). Roe being overturned is the more vulnerable opinion, but Casey is not entirely free of misgivings.
Without doubt, abortion has been the most toxic political question during the last forty-nine years since Roe was originally decided. On account of the toxic nature of the subject, it has been polled extensively, opined frequently by legal scholars, reported by journalists in mass market media, et al. Seldom is Roe reported as inconclusive in any media, and usually more often reported as conclusively affirmed. The purpose of reporting these observations is that such a situation does not lead to discussion, but rather shouting. The most neutral source I have read is Justice Ruth Bader Ginsburg’s commentary on Roe, which is incorporated in this essay, as appropriate (Ginsburg’s opinions are widely distributed, and always taken seriously).
The public opinion about Roe is now that the original case for Roe is “settled law.” It was acclaimed to be “settled primarily during the first two confirmation hearings of President Trump’s nominees Gorsuch and Kavanaugh. They were badgered into stating, “Yes, with the facts being as they are now.” “Thank you, that is all I need to know,” said Senator Collins or words to that effect. However in the Barrett confirmation in the fall of 2020, she said that “settled is a changeable matter, and the more questions asked about its settledness the more it trends toward doubt. Senator Collins should have become informed, even if it was not her question. She now claims she was misled particularly by Kavanaugh; he is at fault!
As you can seek to claim a case becomes “settled law” by not much more than a claim, or even a rumor of a claim.
Justice Ginsburg, who was not then on the Supreme Court, opined in several highly regarded public speeches that Roe had warning signs, and was not up to her standards of jurisprudence. The Warren Court that heard Roe was hasty in choosing the wrong case, justified privacy as a basis for a right to an abortion based on “due process of law,” was not as good a case as “the Equal protection of the law” would have been. The latter increased the value of the reasoning, and would be a better position from which to opine on other cases applicable solely to women. Finally, and most importantly, it was not necessary that the court broadly applied illegality of all states’ bans on abortion. It by-passes all opportunities for additional states to reach better solutions, and at least avoid gain better consensus. This is a common Progressive approach to eliminate alternatives. “Hear me now, this is the answer, it is over now! Below is my favorite quote from a too-smart Progressive political science professor:
“Progressive political science was based on the assumption that society could be organized in such a way that social ills would disappear.”
The above quotation is by Frank Goodnow (1859 – 1939) president of Johns Hopkins University and the first president of the American Political Science Association in a speech he delivered at Brown University in 1916. The complete speech is titled, “The American Conception of Liberty”
Publiustoo.com May 9, 2022
