This is precisely what the tribunal did in Roe deer and Casey.
In 1973 and again in 1992, the court made the mistake of thinking that it should be the arbiter of a heavy social and moral issue, and essentially developed a nation-wide abortion policy. without any democratic contribution. Because the result – namely a ban on almost all significant restrictions on abortion – is to the liking of abortion rights advocates, they have invested themselves in the idea that Supreme Court precedents, even bad precedents, should be on the books forever. One of the most mind-boggling moments in the arguments was when Alito nearly cornered Administration Solicitor General Elizabeth Prelogar on claiming the Supreme Court would have been wrong to overturn its hideous ruling in favor of segregation. in Plessy v. Ferguson too early.
Conservative judges and abortion rights advocates have been back and forth over where the Supreme Court should draw the line to allow restrictions on abortions. Prelogar and Julie Rickelman, a lawyer representing the Mississippi abortion clinic in the case, insisted she should be fetal viability, around 23 or 24 weeks pregnant. Why? Because that’s where Supreme Court case law drew the line up to this point (albeit with loopholes that still allow some post-viability abortions). But that raises the question of whether the court was correct in drawing the line in the first place.
Rickelman added that the viability line is “objectively verifiable and does not address early life philosophical questions.” It is in doubt, however. Some premature babies have survived after being born at 21 weeks, and many abortion rights advocates deny that unborn babies have any moral status at any time during pregnancy.
Sotomayor said believing that an unborn baby has the right to be protected by the law is a religious point of view. If so, why does the Supreme Court succeed in imposing its “religious view” that the state can protect a fetus after 24 weeks but not before? She and her colleagues sit on the highest court in the land, not the Sanhedrin.
To draw the line to viability, it was made clear in the course of the arguments, is totally arbitrary.
Alito pointed out this arbitrariness when he asked: If abortion advocates believe there is an interest in women’s freedom to have access to the procedure, why does that interest suddenly stop at the line of viability? Likewise, why does a fetus have less interest in having its life protected before viability than after?
Chief Justice John Roberts wanted to know why drawing the line at 15 weeks, as Mississippi wants it, rather than viability would be so damaging, as it falls far short of a total abortion ban.
Justice Brett Kavanaugh noted near the end of the arguments that there is no right way to balance the interests of women’s liberty with the interests of the fetus in life – either. gives way no matter where you draw the line at any given time. . With no constitutional right to abortion, let alone guidance in the document on how to specifically arbitrate a bitterly divided moral and political issue, he suggested the court remain neutral and leave the representatives of the people take up the issue.
It is the right answer. While the Supreme Court significantly erodes Roe deer and Casey or overturn them in his Dobbs decision next year, elected bodies will have more authority over abortion than they have had in 50 years. Some will agree with Prelogar and Rickelman on the policy; others with Mississippi Solicitor General Scott Stewart, who has argued the state’s case. Many will be somewhere in between.
The initial political reaction to the overthrow Roe deer and Casey would be thermonuclear, and it is easy to see elected Republicans, who have no perceptible positionRoe deer strategy, put on their back heels. The fallout from the Court’s decision against Roe deer is the predictable event that has the greatest potential to affect the trajectory of the midterm elections next year.
On the other hand, in the bluer states, where voters are most in favor of the right to abortion, nothing would change in the post-Roe deer world. The Red States would decide to restrict abortion, but there is a good chance that these measures will be popular locally. Would they like to irritate and motivate voters in the Blue States? May be. But Democrat Terry McAuliffe got nowhere in trying to use Texas abortion law as a political stick in the Virginia gubernatorial race last month; few voters really believed that Richmond would follow Austin’s lead.
So it could be that the decentralized nature of the American system – with various state legislatures working their will in a messy patchwork worthy of a large and diverse continental nation – results in an abortion arrangement that is broadly acceptable to most. people, if not necessarily morally or logically consistent.
This may not be satisfactory for both sides, but it would be more democratic and sensible than looking to nine judges to, in their wisdom, dictate policy from above.