Opinion | The Dobbs arguments revealed why the Supreme Court should stay out of abortion

Which is exactly what the court did in Roe and Casey.

In 1973 and again in 1992, the court erred in believing that it should be a judge in a full social and moral issue, and essentially formulated an abortion policy for the whole nation without any democratic input. Because the result – namely a ban on almost all meaningful restrictions on abortion – appeals to advocates of abortion rights, they have been invested in the idea that Supreme Court precedent, even bad precedent, should remain in the books forever. One of the more captivating moments in the arguments was when Alito almost put the Biden administration’s Advocate General Elizabeth Prelogar in a corner to claim that it would have been a mistake by the Supreme Court to overturn its heinous pro-segregation decision in Plessy mod Ferguson too early.

Conservative judges and advocates of abortion rights went back and forth about where the Supreme Court should draw the line to allow restrictions on abortions. Prelogar and Julie Rickelman, an attorney representing the Mississippi Abortion Clinic in the case, insisted it should be at fetal viability, about 23 or 24 weeks of pregnancy. Why? For it is there, the case law of the Supreme Court has drawn the line to this point (though with loopholes that still allow some abortions after viability). But that raises the question of whether the court had the right to draw the line there in the first place.

Rickelman added that the viability line is “objectively verifiable and does not dive into philosophical questions about when life begins.” However, there is doubt about this. Some premature babies have survived after being born for 21 weeks, and many advocates of abortion rights deny that unborn babies have any moral status at any point in a pregnancy.

Sotomayor said it is a religious view to believe that an unborn baby has the right to be protected under the law. If so, why is the Supreme Court allowed to impose its “religious view” that the state can protect a fetus after 24 weeks, but not before? She and her colleagues are sitting in the highest court in the country, not the Sanhedrin.

To draw the line of viability, it was made clear during the arguments, is completely arbitrary.

Alito highlighted this arbitrariness when he asked: If abortion advocates believe that there is an interest in women’s freedom of access to the procedure, why does that interest then suddenly end up on the verge of viability? Similarly, why is a fetus less interested in having its life protected before viability than after that?

Supreme Court Justice John Roberts wanted to know why it would be as harmful to draw the line after 15 weeks as the Mississippi wants, rather than viability, as it is far from a total ban on abortion.

Judge Brett Kavanaugh noted near the end of the argument that there is no good way to balance women’s freedom interests and the fetal interest in life – one or the other recedes, no matter where you draw the line at a particular point in time. In the absence of a right to abortion in the Constitution, let alone guidance in the document on how to concretely resolve a bitterly divided moral and political issue, he proposed that the court should remain neutral and let the people’s representatives address the issue.

This is the right answer. If the Supreme Court erodes significantly Roe and Casey or overthrow them in his Dobbs decision next year, elected bodies will have more authority over abortion than they have had for 50 years. Some will agree with Prelogar and Rickelman on the policy; others with Mississippi Attorney General Scott Stewart, who argued for the state’s case. Many will be somewhere in between.

The first political reaction to overthrow Roe and Casey would be thermonuclear, and it’s easy to see elected Republicans who have no visible post-Roe strategy, put on their back heels. The fallout from the court motion against Roe is the predictable event that has the greatest potential to affect the course of the midterm elections next year.

On the other hand, in the windswept states where voters are most in favor of abortion rights, nothing would change afterwards.Roe world. Red states would move to limit abortion, but there is a good chance that these measures would be popular locally. Would they anger and motivate the voters of the blue states? Maybe. But Democrat Terry McAuliffe got nowhere when he tried to use the abortion law in Texas as a political nuisance in Virginia’s gubernatorial candidacy last month; few voters really thought Richmond would follow in Austin’s footsteps.

It could therefore be that the decentralized nature of the American system – with various state legislators working their will in a messy patchwork that suits a large, diverse continental nation – comes up with a system of abortion that is widely acceptable to most people, if not necessarily morally or logically coherent.

It may not be satisfactory for either side, but it would be more democratic and sensible than looking at nine judges to dictate a policy from above in their wisdom.

Follow us on Google News

Disclaimers for mcutimes.com

All the information on this website - https://mcutimes.com - is published in good faith and for general information purpose only. mcutimes.com does not make any warranties about the completeness, reliability, and accuracy of this information. Any action you take upon the information you find on this website (mcutimes.com), is strictly at your own risk. mcutimes.com will not be liable for any losses and/or damages in connection with the use of our website.

Give a Comment