COMPASS: SCOTUS takes up major abortion case on Wednesday

November 29th, 2021

Good afternoon from Capitol Hill.

The House and Senate are back in session this week, and the December pile-on starts now. Government funding runs out on Friday, which means a short-term continuing resolution will likely kick the funding deadline out a few more weeks — just to turn up the panic.

Congress is also juggling a highway funding deadline, a host of expiring tax provisions, and another debt limit extension. Senate Republicans have made a to-do about not helping Democrats raise the debt ceiling again, but they also said that last time, and did it anyway. (Chris Jacobs has more on the debt ceiling at The Federalist today.)

But before they get to any of that, the Senate returns to the National Defense Authorization Act this week — the bill that includes extending selective service registration to women. This “draft our daughters” provision has a surprisingly strong amount of support among Republicans. Sens. Josh Hawley and Mike Lee have both offered amendments to strip the provision, though it remains unclear if votes will be forthcoming.

In other major news this week, the Supreme Court will hear arguments in Dobbs v Jackson Women’s Health Organization on Wednesday, December 1. The question presented to the Court in Dobbs is clear and fundamental: whether or not bans on pre-viability elective abortions violate the Constitution.

Dobbs is the most significant abortion case to come before the Court in decades, and bears with it the possibility of striking down Roe v Wade and Planned Parenthood v Casey — the two cases which created the modern architecture of abortion. I wrote about this case in October

The conservative legal movement has long pointed to the constitutional feebleness of these cases as at least one reason for their dismissal. Just last year in a dissent issued in June Medical Services v. Russo, Justice Clarence Thomas pointed to Roe and Casey as having ‘created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.’

Even proponents of legal abortion have acknowledged Roe’s status as constitutionally dubious. Writing shortly after the decision was handed down in 1973, pro-abortion legal scholar John Hart Ely called Roe ‘bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.’ Judge Richard Posner has labeled parts of the ruling ‘sophomoric.’ The late Justice Ruth Bader Ginsburg thought the ruling was far too broad.

It was up to a determined plurality in Casey, as Notre Dame law professor Sherif Girgis has pointed out, to attempt to salvage the judicially embarrassing mess that Roe created. Yet Justice Antonin Scalia still identified Casey as an instance of judges making ‘raw judicial policy choices concerning what is “appropriate” abortion legislation under the banner of applying the law.’

Scalia understood that the larger conflict the case presented was between judicial fiat and self-government, a tension which is also at issue now in Dobbs. That is, surrounding the legal question of Mississippi’s law is a broader question of state sovereignty and the right of a self-governing people to determine for themselves questions at the intersection of morality, theology, public policy, and medicine.

If the Court were to agree in full with the state of Mississippi — that pre-viability abortions are indeed constitutional, thus striking down Roe and Casey — the question of abortion would return to state legislatures.

The left will, no doubt, present this question as an ideological exercise for the court’s conservatives, ignoring the vast evidence that Roe and Casey are simply bad law. And if a Supreme Court cannot overturn unconstitutional decisions when presented with the question, then what is it there for? The same can be asked of the Court’s conservatives, should they try to find a middle way out of a question to which a clear answer is required. 

As Ronald Reagan’s Attorney General Edwin Meese III argued today in the Washington Post, should the court’s conservative majority fail to overturn these cases, the impact will linger: 

The voters who trusted in the public statements of judges to interpret the law as written would have reason to doubt whether their trust was well placed. The next generation of law students would fairly ask whether it is worth standing for neutral interpretive principles when most of a court purportedly committed to them will, when the stakes are sufficiently high, set them aside. These law students will be tempted, understandably so, to abandon this philosophy in favor of a purely results-oriented approach to judging.


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Why is the Biden administration trying to create a national gun registry? CPI’s Phil Reboli has details for Gun Owners of America here, and another update here.