Why It Is Highly Unlikely That the New Supreme Court Will Overturn ‘Roe v. Wade’ (Though They Should)

Ben Shapiro:

Conservatives have high hopes that Kavanaugh — along with Roberts, Gorsuch, Alito, and Thomas — will rule to knock over that legal monstrosity.

That’s highly unlikely.

First off, it takes four votes for the Supreme Court to agree to review a particular lower-court case, and it’s unlikely that Roberts and Kavanaugh will agree to review a straight-up challenge to Roe.

It’s far more likely that we’ll see Roberts and Kavanaugh review cases that pare away at Roe via the “undue burden” standard articulated in Planned Parenthood v. Casey (1992) — a case in which the Court held that abortion laws were tenable unless they presented an “undue burden” for a woman seeking an abortion. In Gonzalez v. Carhart (2007), for example, Justice Kennedy decided for the Court that the Partial-Birth Abortion Ban Act was constitutional, because women could get abortions prior to late-stage pregnancy, and the law therefore didn’t constitute an undue burden. We could see that logic extended incrementally over time, leaving Roe in place but carving out chunks of it.

That sort of incrementalism is less likely to whip up anger against the Court — a major concern for Roberts, at least. But it’s also more likely to leave unborn children vulnerable over time, and it leaves open the possibility that if the Court moves back to the Left, the “undue burden” loophole will be closed.

We’ll probably see a gradual shift from the Court over time that leaves more room for legislatures. . . .

That doesn’t mean Kavanaugh is bad. He’ll probably rule correctly on a consistent basis. But it does mean that those waiting for the ground to shift when it comes to major decisions from the Court might be waiting in vain. Instead, we’ll probably see a gradual shift from the Court over time that leaves more room for legislatures but doesn’t implode the unconstitutional foundations of the Left’s favorite legal bulwarks.

You can read the whole thing here.

For reminders on why Roe v. Wade is such a bad legal (not to mention moral) decision, here is Robert P. George in an interview I did with him several years ago:

The legal problem with Roe v. Wade is simple: The Supreme Court’s decision to invalidate state laws prohibiting or restricting abortion lacks any basis in the text, logic, structure, or original understanding of the Constitution of the United States. The late John Hart Ely, a famous legal scholar who himself supported legal abortion as a matter of public policy, said that Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” The justices who manufactured a right to abortion in Roe violated and dishonored the very Constitution they purported to interpret by substituting their own moral and political judgments for those of the elected representatives of the people. Their ruling was a gross usurpation by the judiciary of the authority vested by the Constitution in the people themselves, acting through the constitutionally prescribed institutions of republican democracy. As dissenting Justice Byron White put it, Roe was nothing more than an exercise of “raw judicial power.” It was not merely an incorrect decision, but an anti-constitutional one.

I would venture to say that most constitutional scholars who support legal abortion basically (if all-too-quietly) agree with Professor Ely. Roe is an embarrassingly poorly reasoned opinion. Of course, some pro-abortion scholars believe that the result in Roe could be justified by a different form of constitutional argument, and there is something of an industry among them in “re-writing Roe.” Justice Harry Blackmun, in his opinion for the Court in Roe itself, claimed that restrictions on abortion for the sake of protecting fetal life violate the provision of the 14th Amendment forbidding any state from depriving any person of “life, liberty, or property without due process of law.” Frankly, that’s ridiculous, and almost all legal scholars know that (even if some won’t say it publicly). The most notable effort to place the holding in Roe on a more plausible constitutional footing involves the claim that abortion restrictions deprive women of “the equal protection of the laws” (another 14th Amendment guarantee). There are various reasons why that approach fails, too, but many of Roe’s supporters at least find it less embarrassing.

And Clarke Forsythe told me why he think it was such a horrible decision:

It authorizes the homicide of the unborn child as national policy, a national “right.” It means abortion on demand nationwide as a practical matter, and it is an unjust, unconstitutional usurpation of the people’s right of self-government to decide the abortion issue, as the people decide other controversial issues, through the normal processes of representative government. By contrast, there is no “Roe” on other controversial bioethical issues—like human cloning, stem cell research, or assisted suicide. The Court has not taken them away from the American people; we decide these issues through the public officials we elect.

In addition to the questions of moral principle and constitutional authority, there is the question of governmental competence: the Court has demonstrated through its incompetence over the past 37 years that the American people can better decide the abortion issue than the Court.

And for women’s health, the Court created a public health vacuum—meaning that women are not informed of the medical risks, among other things, and abortion clinics are little regulated. At the very least, that vacuum should be filled by regulations enforced by local public health officials.

Law professor Michael Stokes Paulsen once wrote a remarkably helpful and concise explanation of what Roe v. Wade (especially combined with Doe v. Bolton) actually means: “The Unbearable Wrongness of Roe.”

Here are excerpts from his three critiques:

1. The Radicalism of Roe

“I suspect that if more people understood Roe‘s and Doe‘s actual holding fewer would support that constitutional regime. Roe was a truly extreme decision, creating an effectively unrestricted constitutional right to abort a living human being for any reason the mother might have, throughout pregnancy right up to the point of birth.”

2. The Legal Untenability of Roe

“[Roe] has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”

3. The Immorality of Roe

“The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.”

Professor Paulsen does not quote Augustine—or Martin Luther King’s approving quotation of the same—to the effect that “an unjust law is no law at all.” But that’s essentially what he argues:

The Court’s decision in Roe v. Wade should not be accepted as law, in any sense.

It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law.

It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal.

Anything less is holocaust denial.

Read the whole thing here.