Monday, July 21, 2008

Tertium Quid Takes on the Subject of Abortion

Tertium Quid writes at From Burke to Kirk and Beyond ... on what he envisions a post-Roe U.S. will look like:
... Roe, whether you like it or not, is not going to last another generation. I think it likely that the U.S. Supreme Court will size up the case law sometime in the next twenty years and ask: Why did we have to pronounce on this issue as if we were the Taney Court during Dred Scott v. Sanford? Roe is a classic case of overreach, not unlike Lochner v. NY. The Court does such an overreach once or twice a generation and then has to create more lousy case law trying to defend the overreach. Moreover, Roe and similar overreaches undermine the Court's credibility for more than a generation.

When Roe is overturned (or perhaps ended not with a bang but a whimper), the Court is not going to overreach the other direction. The Court is likely to vacate its old position and turn abortion law in the first trimester back to the states with a list of restrictions, immunities, and tests. I would expect the Court to allow states to restrict abortion but not make it a felony and allow medical necessity or rape as a complete defense. Thus, abortion in states such as Alabama will be illegal but seldom prosecuted. (And people in Alabama will be able to travel to Tennessee and Georgia, which would likely have less restrictive laws and courts. Those used to seeing big signs for "fireworks," "cigarettes," "lottery tickets," and "liquor" at state borders might see "women's clinic" as well.) In New York and California, nothing will change except the lobbying activities of different groups upon the legislatures instead of the courts.

UPDATE: As I contemplate constitutional law without Roe, I am not optimistic about improving substantially the lives of women or children, though I wish the hopes of the pro-life movement were better founded. The worst aspect of Roe is the Supreme Court's delusion that it could engineer a solution to a complex problem that will never be solved, only bandaged, through the laws of 50 jurisdictions. In doing so, the Supreme Court made itself into a panel of nine gods. Anyone nominated for a seat on the Supreme Court must now prove not that he is a good judge, but rather, that he would make a good god to two very cantankerous factions.

My Comments:
I believe Tertium Quid will be proven to be quite prescient in his analysis. Unless, of course, the Freedom of Choice Act becomes law, thereby outlawing at the federal level (i.e. enshrining Roe v. Wade as a federal law) all state restrictions on abortion.

By the way, if Tertium Quid's predictions eventually become reality, and I believe they will, that means pro-lifers will REALLY have to get busy. Don't count on the Supreme Court doing our work for us by contstitutionally protecting the right to life of the unborn. It ain't gonna happen, at least not anytime soon.

Just contemplate for a moment the multi-front efforts that will have to be engaged in by pro-lifers should the scenario Tertium Quid describes reach fruition. That's not necessarily a bad thing. But it certainly won't be easy. And it will force those pro-lifers who have to date put all their efforts into getting the "right" kind of judges to get their hands dirty in the trenches. We'll have won a significant victory by removing the scourge of a constitutionally protected "right" to abortion from our constitutional jurisprudence, but the efforts to protect the unborn will just be getting started.

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At 7/22/2008 6:03 AM, Anonymous Anonymous said...

Once it becomes a state by state battle all the rules change. Abortion will become a perennial issue in most states with the legislatures constantly tinkering with it. However this alone will be a giant advance for the pro-life cause. Abortion will no longer be a constitutional sacred cow, but just another issue that has to be addressed in the usual legislative process. People will get used to regulation in this area. Few states will implement a Roe-like abortion on demand regime, and certain regulations: informed consent, parental notification, bans on late term abortions, regulation of abortion clinics, will become almost universal. Over time, as with most political battles, this contest will be decided by demographics, and the pro-life side is the one that does not kill its young.


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