Wednesday, January 25, 2017

How would they reject Roe?

The least disruptive thing would be to reject it without comment, but I doubt that would happen.

Alternatives to that, however, would likely be very disruptive.

Prior to Roe, there was no federal or authoritative legal view as to the personhood of fetuses or zygotes, I believe, nor had the recently invented constitutional right to privacy been applied to the question of abortion.

As I recall, Roe insisted both that the fetus is not a person in the legal sense of the term and hence has no constitutionally protected rights, and that the right to privacy guarantees self-determination regarding whether a woman will abort her pregnancy, at least in the first trimester, and subject to health or other regulation under the police power of the states.

If the Supreme Court rejected Roe by declaring the fetus a person that would certainly not restore the legal status quo ante and would raise hell with fetal research, the handling of zygotes, and maybe the law of adoption.

If the Supremes rejected the existence of the constitutionally protected right to privacy per se, essentially rejecting Griswold to reject Roe, that would allow a return to 1950’s style state use of the criminal law to enforce Christian sexual morality.

A minimally disruptive way to reject Roe while actually giving a reason might be to deny that the right to privacy guarantees self-determination regarding abortion, and deny it precludes the right of the states to criminalize it, while accepting its existence and leaving its application to other legal questions - such as the legal prohibitions of contraception, fornication, adultery, homosexual acts, and so on - undisturbed.

It would also be possible, I suppose, in the same decision to insist on a limited right to abortion for health or other reasons, though on what constitutional basis I have no idea.

That sort of strategy might leave things where Trump has said he wants them: abortion criminalizable by the states with constitutionally protected rights concerning gay sex and gay marriage undisturbed.

After all, quality bullshit is what we pay judges that heavy coin for.

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