And here, the legal principle adopted by the draft opinion - whether rights are historically grounded in the traditions of the American people - is unfortunately a road map to overruling Griswold, because it calls into question the right to privacy. Yes, a case on, say, contraception would involve different facts, but different cases always involve different facts the application of the same legal principles to different facts is an essential part of how law works. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” He reasons that other statutes do not involve the destruction of “fetal life,” so the facts of other cases would be different. The draft opinion is not unaware of this and indeed protests too much in response: “We emphasize that our decision concerns the constitutional right to abortion and no other right,” Justice Samuel Alito writes. The court’s test of “deeply rooted” traditions could now be used to attack Griswold and much more. Those objections could be accommodated.)īut while such legislation could fix the abortion restrictions, it couldn’t undo the legal reasoning in the draft opinion, which will fester and reach other cases. (Collins, however, said this week that she would not vote for the bill Democrats are pushing that would codify Roe, arguing that it does not provide sufficient “conscience” protections for antiabortion health providers. Susan Collins (R-Maine) comes to mind - should be doing everything possible to make such legislation the law of the land. Certainly senators who voted for nominees believing that they would uphold Roe v. If the Senate can skip the filibuster to confirm three justices who would not only vote to overrule Roe but decide hundreds of other significant matters, it certainly should be able to skip it for the relatively more minor task of creating a legislative fix for a single one of their decisions. Republicans already went “nuclear” and scrapped the filibuster for Supreme Court nominees (beginning with Neil M. But there is no reason to maintain a filibuster here. The obvious rejoinder is that such a statute, while supported by a majority in the House and Senate, could not overcome a filibuster. Such a law would be quite hard for the court to overturn. It can pass a statute guaranteeing the right to abortion, thereby codifying Roe. Congress could fix the problems such a decision would cause. These are the best to check out in 2021.Those despairing about this draft opinion should remember that the courts do not monopolize abortion politics. Now get to it (with consent!), you dirty animal.
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