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Roe Undermines the Supreme Court’s Legitimacy


In Dobbs v. Jackson Women’s Health Organization, the state of Mississippi has directly confronted the Supreme Court with an argument that, believe it or not, no state has pressed since Pennsylvania did so 29 years ago in Planned Parenthood v. Casey — that Roe v. Wade was a grievous constitutional error and should be overturned.

Casey was a close-run thing, a 5–4 decision that both preserved a virtually unlimited “right” to abortion and exposed how nakedly political and lawless was the “jurisprudence” that shielded the abortion license from democratic accountability.

The Dobbs case, then, is a long-awaited opportunity for the Court to get right with the Constitution. There are now six justices appointed by Republican presidents who are known or strongly believed to think that Roe and Casey were terrible constitutional blunders resulting in an appalling toll of human lives. There has been no better moment in the last half century than the present one for the righting of an injustice — an unconstitutional injustice.

Yet that is just what many of us thought when Casey was on the docket — that with the appointments of five justices by Ronald Reagan and George H. W. Bush, in addition to the Roe dissenters then still on the Court (William Rehnquist and Byron White), we had an excellent chance of seeing Roe fall. The shock of the Casey ruling on June 29, 1992, was that Roe was propped up in a joint opinion by three of those GOP appointees — Sandra Day O’Connor, Anthony Kennedy, and David Souter — even while they declined to affirm that Roe had been correctly decided. Instead, by playing fast and loose with the doctrine of stare decisis, the troika asserted that the 1973 decision must be preserved because otherwise the Court’s “legitimacy” would be called into question.

Read more at National Review

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