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President Trump’s nomination of D.C. circuit court Judge Brett Kavanaugh to fill the seat on the United States Supreme Court vacated by Justice Anthony Kennedy may furnish the fifth vote needed to overrule Roe v. Wade, the 1973 landmark ruling that legalized abortion in every jurisdiction of the United States. Judge Kavanaugh is a textualist who is suspicious of the kind of judicial innovation that led to the court’s ruling in Roe. That decision removed a matter of grave moral concern—about which there was and remains no public moral consensus—from the democratic process.
Reversing Roe will not make abortion illegal in every jurisdiction. It would simply affirm the right of the people, through their legislators, to make the law, while upholding the right of the judiciary to say what the law is. Thus more than 40 years after the court ushered in an era of abortion virtually on demand, voters may once again have the right to debate the issue and determine what public policy should govern. This should be a welcome development for the millions of people who in dozens of public opinion polls have registered their objection to the expansive permissibility of the Roe settlement. It should also be welcomed by all those who believe that democracies should settle such matters by argument and voting rather than judicial fiat. The prospect of reversing Roe increases the stakes in this nomination battle. That potential reversal, however, effectively returning abortion politics to the states, offers the way to prevent the issue from continuing to dominate future Supreme Court...
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