Saturday, February 04, 2006

How Roe v. Wade will be overturned.

I feel like making my prediction publicly, even though I think nobody's paying attention. It'll be archived so that I can say I was right. Or (I hope!) wrong.

Roe v. Wade is close to settled law. It will not be overturned directly. Instead, conditions must be created to change the assumptions, so that it is conspicuously in error.

The key assumption that will be changed is whether or not the fetus has rights. I forsee the Roberts, Scalia, Thomas and Alito block setting precedents for fetal rights. At some point, after fetal rights are firmly established in a variety of cases, Roe v. Wade will be found in error because fetal rights conflict with (and outweigh) the woman's rights.

First attempts along the lines of fetal rights have already taken place, both in the courts and in legislatures.

All that's needed is one more anti-abortion vote on the court. They will find for fetal rights, and then "regretfully" have to overturn supreme court precedent.

1 comment:

John said...

You can tell from this post how its author is clearly more aware of the public campaign against Roe than the legal arguments advanced to undermine Roe's central holding. The latter has little (actually, nothing) to do with "fetal rights," and everything to do with women's rights; specifically, whether or not the Due Process Clause of the 14th Amendment protects a woman's right to abort a fetus prior to the last trimester of gestation.

Scalia and Thomas have certainly expressed their views on the matter - and to think that they would suddenly co-opt some "fetal rights" theory void of any basis in Constitutional jurisprudence (in lieu of the argument they've advanced for decades) is an unwarranted insult to their intellectual credibility. Anyone who has read Scalia knows that he doesn't "regretfully" sign on to any opinion.

I imagine the same is true of Roberts and Alito - though it remains uncertain where precisely where they would come down in balancing the principle of starry decisis with the violence done to it when Roe was decided. Roberts would probably (and certainly "regretfully") vote to uphold the central holding of Roe in precisely the same way that O'Connor did in Planned Parenthood. Alito, probably not.

However the Court comes down, if Roe is to be overturned, it won't be by proxy. It will be overturned on the only grounds available to the Court: It is flat-out horrible law - originating and sustaining itself on a very vocal and shrill political constituency armed with vacuous Constitutional "reasoning" tantamount to legal anarchy.