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The prospect of overturning Roe v. Wade will be at the foreground of the battle over Justice Anthony Kennedy’s replacement, and it should be.
Roe is judicially wrought social legislation pretending to the status of constitutional law. It is more adventurous than Miranda and Griswold, other watchwords of judicial activism from its era. It is as much a highhanded attempt to impose a settlement on a hotly contested political question as the abhorrent Dred Scott decision denying the rights of blacks.
Travesty - Supreme - Court - Body - Work
It is, in short, a travesty that a constitutionalist Supreme Court should excise from its body of work with all due haste.
Roe has been commonly misunderstood since it was handed down in 1973, in part because its supporters have been so determined to obscure its radicalism. It is commonly thought that Roe only prohibits restrictions on abortion in the first trimester, when it effectively forbids them at any time, imposing a pro-abortion regime as sweeping as anywhere in the advanced world.
Confusion - Scheme - Majority - Opinion - Justice
The confusion arises from the scheme set out in the majority opinion, written by the late Justice Harry Blackmun.
In the first trimester, the court declared, the right to abortion was absolute. In the second, states could regulate it to protect the mother’s health. In the third, states could restrict abortion in theory, but had to allow exceptions to protect the life or health of the mother, defined capaciously in the accompanying case of Doe v. Bolton to include “emotional, psychological, familial” considerations, as well as “the woman’s age.”
Roe - State - Laws - Abortion - Circumstances
Roe struck down 50 state laws and has made it all but impossible to regulate abortion, except in the narrowest circumstances. More to the point, the argument that its particular set of policy preferences is mandated by the Constitution is flatly preposterous.
Over the years, the decision’s laughable constitutional inadequacy has been widely recognized. Shortly...
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