The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Tuesday, May 14, 2019

It's not just abortion in peril

The GOP wants to make it possible for states to criminalize contraception and, though they won't admit it, not only to abolish gay marriage but criminalize gay sex.

The right to privacy was first asserted to be a right against state interference with one's sex life in Griswold, and Republicans have all along opposed it and everything Democrats have done with it to abolish laws criminalizing disobedience to the strictures of Christian moral theology relating to sex.

There is still the establishment clause, but it's clear as a bell no GOP court will ever agree that clause forbids the legal imposition by the federal government or by the states of Christian sexual morality, either.

In this as in all else, the Republican Party represents a radical minority of the people of our country absolutely insistent on imposing its will on the rest of us by hook or by crook.

Hence the importance of what happened in a case having nothing directly to do with abortion.

Supreme Court Liberals Raise Alarm Bells About Roe v. Wade

It's about stare decisis.

Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it.

. . . .

The doctrine of stare decisis directs judges, including Supreme Court justices, to adhere to prior decisions even when they think those prior decisions are wrong. 

Under the doctrine, justices shouldn’t overrule an earlier ruling unless several things are true: 

The decision is unworkable and has generated inconsistent results; it rests on outdated facts; and it represents an outdated mode of legal thinking. 

The court is also not supposed to overrule precedent where parties have relied on the decision to structure their lives.

Many legal scholars have identified stare decisis as a substantial obstacle to the overturning of Roe, since women have relied on Roe and it is not unworkable. 

Roe is also not an aberration — it is part of a long line of cases protecting rights that are not specifically enumerated in the Constitution. 

Nor does Roe rest on outdated facts; medical advances have made abortion safer, whereas maternal mortality rates in the United States have climbed.

Senator Susan Collins, Republican of Maine, who says she is pro-choice, invoked stare decisis to explain her votes to confirm the nominations of Neil Gorsuch and Brett Kavanaugh to the court. 

She pointed to the nominees’ promises to adhere to stare decisis in their confirmation hearings to ward off the suggestion that they would overturn Roe. 

People sometimes likewise suggest that Chief Justice John Roberts, who has a reputation for being an institutionalist, will display a strong commitment to stare decisis.

In Hyatt, however, the five conservative justices based their decision to overrule the earlier decision almost exclusively on their belief that it was an “erroneous precedent” that “is contrary to our constitutional design.” 

The justices’ lack of respect for precedent was evident in the amount of space the majority opinion devoted to stare decisis — a mere three paragraphs — and in what the court said about it.

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