Sunday, November 24, 2002

Gumma comments on whether the Bush counsel is a conservative:
I heard Gonzales speak to the Council for National Policy. He said that Roe is settled law and that the President has the right to go to war without action by Congress. "nuff said.

Roe is settled law. There is a binding precedent that has been repeatedly upheld. The significant legal disputes have been resolved.

Andy writes:
Roger writes, "But saying that Roe is not settled law is like claiming Gore won the 2000 election or that the Giants won the 2002 World Series. It is using wishful thinking to deny the facts."

No, those analogies do not work at all. Unlike your examples, the reversal of Roe can be guaranteed within 5 years simply by appointing 3 conservative justices to the Supreme Court. There is no disputing the logic. So Roe no more "settled" than, say, that the Republicans will control Wellstone's Senate seat for the next 6 years.

Now, Bush may appoint a non-conservative like Gonzales, but we can try to prevent that. The Senate may filibuster a conservative Justice, but that merely delays it.

John writes:
Other branches of govt do *not* have to go along with Roe. That is my whole point. Only lower courts are bound by the decision.

I would agree to call the decision "settled law" if everyone understood that "settled law" merely means that it is binding on lower courts. Unfortunately most people, apparently including Roger, think "settled law" means more than that - that it is the "law of the land" which all branches of government must accept, enforce, and defer to.

Read what Lincoln said about the Dred Scott decision. He said that decision was final and binding only on the particular parties to the case. But he said the rule of law expressed by the Supreme Court justices in their opinion was not binding on members of the co-equal branches of government, who remained free to adopt a different rule and act accordingly.

Likewise with abortion: the President and Congress are free to repudiate and disregard the central holding of Roe. They are free to pass laws and operate the government on the principle that there is no individual right to abortion.

I am not suggesting that other branches of govt defy a Supreme Court decision; only that they are not bound by the opinion. There is a huge difference, as Lincoln explained.

There are many things Congress and the President can do to restrict abortion that are not specifically prohibited by any Supreme Court decision. For example, they could greatly extend the scope and reach of the Hyde Amendment, which the Court has already upheld in principle. If the Hyde Amendment were taken to its permissible limit, the practical effect would be nearly the same as overruling Roe.

Another example: the issue of whether a ban on partial-birth abortion is permitted by Roe v. Wade came down to a single question of fact: whether the use of that technique is ever "medically necessary."

The Supreme Court, of course, does not find facts. It must accept the factual record produced in the trial court below. In Stenberg v. Carhart (2000), the 5-4 majority accepted a lower-court finding that PBA can sometimes be medically necessary.

But Congress also finds facts. The PBA ban passed by the House (H.R. 4965) found as a fact that PBA is "never medically necessary" and "never necessary to preserve the health of a woman." It's a good bet that bill will pass both houses and become law in the next year. Anyone seeking to challenge the law in court will have the difficult job of trying to disprove that factual finding.

Sorry, but the idea that legislatures are going to find critical loopholes in Roe is nuts. About 20 states have passed some sort of PBA law, and every single one has been knocked out by the courts. Roe is absolutely emphatic that a woman has a constitutional right to an abortion throughout the entire nine months, and that it doesn't matter what anyone else thinks is necessary. If Congress passes another PBA bill, it is sure to be knocked down by the courts.

Roe defines the health of the woman as the physical, psychological, or emotional health, as determined solely by the woman and the abortionist. The decision is not reviewable by anyone, or even reportable to anyone. This aspect of Roe has been repeatedly upheld, and is central to Roe. It does not matter what opinions some Congressmen might have about the health of a woman, however they might define it. Roe requires that any ban on late-term abortion must be struck down.

It is possible that some Supreme Court of the future will hold differently, but don't hold your breath. The Supreme Court would have to admit that the central holding of its most famous case was wrongly decided and must be reversed. Entire chapters in constitutional law textbooks would have to be scrapped. The court's credibility would be damaged for a very long time, as people would assume that the court could arbitrarily change its mind about any of its opinions.

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