The Fourth-Best Reason to Overturn Roe

a brief to the Supreme Court regarding June Medical Services v. Gee. The case involves a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital, a policy similar to a Texas one the Court struck down in 2016. The Court might address the situation with a scalpel, or it might take the opportunity to reconsider its abortion jurisprudence more broadly.” data-reactid=”18″>Two hundred–plus members of Congress, all but two of them Republicans, have signed a brief to the Supreme Court regarding June Medical Services v. Gee. The case involves a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital, a policy similar to a Texas one the Court struck down in 2016. The Court might address the situation with a scalpel, or it might take the opportunity to reconsider its abortion jurisprudence more broadly.

calls the argument a “trick” and a “lie” that may well give conservative justices, in particular Brett Kavanaugh, the excuse they need to depart from judicial precedents that have actually worked just fine for nearly half a century. NR’s own Ramesh Ponnuru, writing at Bloomberg View, says the brief makes a strong argument that “could eventually prove decisive,” perhaps in a future case rather than in June Medical Services itself.” data-reactid=”20″>Unsurprisingly, the brief has divided legal commentators. Mark Joseph Stern of Slate calls the argument a “trick” and a “lie” that may well give conservative justices, in particular Brett Kavanaugh, the excuse they need to depart from judicial precedents that have actually worked just fine for nearly half a century. NR’s own Ramesh Ponnuru, writing at Bloomberg View, says the brief makes a strong argument that “could eventually prove decisive,” perhaps in a future case rather than in June Medical Services itself.

The Court struck down regulations in Akron and Thornburgh later approved in Casey. The Court identified two state interests for abortion regulations in Roe but recognized more in Gonzales. It struck down limits on partial-birth abortion in Stenberg v. Carhart later approved in Gonzales. It rejected facial challenges in Gonzales it then resurrected, sua sponte, in Hellerstedt. The Court has retreated from Roe in at least four cases — Harris, Webster v. Reproductive Health Services, Casey, and Gonzales — recalibrating the standard of review and giving States more deference to enact health and safety regulations and partial prohibitions.

These flip-flops, as well as the conflicting abortion decisions that routinely issue from the lower courts as they try to parse confusing Supreme Court precedents, show the difficulty of separating limits on a right that are allowed from limits that are not allowed — especially when different jurists have different ideological commitments regarding the right, and when many states are willing to get creative to limit the right any way they can. But this problem is present to some degree with any right, whether guaranteed by the Constitution, a statute, or a judicial precedent, and we rarely see it as a reason to rethink whether courts should enforce such rights at all.

There’s no argument in the brief that abortion rights are any harder for courts to manage than, say, gun rights, another area where the Court’s standards are still young and evolving and judges disagree on whether the right should exist at all. And while the Court has wavered on the ways in which states may restrict abortion on the margins, it has been rock-solid on the core question: whether a woman has a right to abort her child in the early months of pregnancy, which is when the vast majority of abortions occur.

the late Justice Antonin Scalia’s list of criteria for overruling precedents, and he did: “1. How wrong was it? . . . 2. How well accepted has it been? . . . 3. Most important to me, does it permit me to function as a lawyer, or does it make me a legislator?” (Emphasis mine.) In explaining the third part, Scalia specifically called out the “undue burden” standard for abortion laws.” data-reactid=”31″>You might disagree with my ranking. Heck, I stole three of the four elements from the late Justice Antonin Scalia’s list of criteria for overruling precedents, and he did: “1. How wrong was it? . . . 2. How well accepted has it been? . . . 3. Most important to me, does it permit me to function as a lawyer, or does it make me a legislator?” (Emphasis mine.) In explaining the third part, Scalia specifically called out the “undue burden” standard for abortion laws.

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