Reviews | The end of the Supreme Court game on abortion


In fact, as Blackmun’s second note makes clear, the court that decided Roe saw a direct connection between the viability line and a woman’s ability to choose abortion. In this second note, Judge Blackmun referred to the “practicality” of the viability line, observing that “there are many pregnant women, especially young girls, who may refuse to face the fact of the pregnancy and who, for one reason or another, does not go to the doctor’s consultation before the end of the first trimester is upon them or, in fact, has passed.

And then there was Judge Brett Kavanaugh, who compiled a list of the “most important cases in the history of this tribunal” that resulted from the quashing of previous decisions. If the tribunal had adhered, for example, to the separate but equal doctrine of Plessy v. Ferguson rather than canceling this precedent in Brown v. Board of Education “The country would be a very different place,” he told Ms. Rikelman. “I guess you agree with most, if not all of the cases I’ve listed here, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the tribunal stick to a case it now considers ill-decided?

Further insight: the superficial plausibility of Judge Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second of contemplation. On the one hand, Plessy denied individual freedom, while Roe expanded it. On the other hand, Justice Kavanaugh’s list could have been 1,000 cases long without clarifying whether today’s Supreme Court should repudiate Roe v. Wade.

But the aim of justice was not to invite contemplation. This was to normalize the deeply anomalous scene unfolding in the courtroom. President Donald Trump has pledged to end abortion rights and the three judges he appointed to the tribunal – Neil Gorsuch, to a seat that was not legitimately vacant by Mr. Trump; Amy Coney Barrett, whose nomination and confirmation on the eve of an election broke long-established norms; and Judge Kavanaugh – seem determined to do just that.

It was Judge Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public’s perception that the Constitution and its reading are only political acts?” She asked Scott Stewart, a former legal assistant to Judge Thomas who advocated for Mississippi as state solicitor general. Listening to the argument live streamed, I first heard “political acts” like “political hacks”, I guess because I always had in mind the words of Judge Barrett when she spoke. spoke in mid-September at a center in Louisville, Ky. named after his Senate confirmation mastermind Senator Mitch McConnell. “My goal today, it’s to convince you that the tribunal is not made up of a bunch of partisan hackers, ”she said at the time.

Judge Barrett’s performance in Wednesday’s oral argument was beyond stunning. Speaking to both Ms. Rikelman and Elizabeth Prelogar, the United States Solicitor General who advocated for the United States on behalf of the Mississippi Clinic, Judge Barrett asked about the laws on ” shelters ”which allow women to drop off unwanted babies at police stations or fire departments. Houses; the parental rights of mothers are then terminated without further legal consequences. If the problem with “forced motherhood” was that it “would hinder women’s access to work and equal opportunity,” Justice Barrett asked, “why don’t shelter laws address this? problem ?

She continued, “It seems to me that it concentrates the burden much more tightly. There is, without a doubt, an impairment of bodily autonomy, you know, that we have in other contexts, like vaccines. However, it doesn’t seem to me that pregnancy and parenthood are part of the same burden. “

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