Today's SCOTUS Decision: Bad News and Better News

[babylonsister]

http://www.tpmcafe.com/blog/coffeehouse/2007/apr/18/todays_scotus_opinion_bad_news_and_better_news

Today's SCOTUS Decision: Bad News and Better News

By Ed Kilgore | bio

Today's 5-4 Supreme Court decision validating Congress' ban on so-called partial-birth abortions is obviously a setback for the reproductive rights of women, and a victory for those who want to roll them back. But the highly convoluted majority opinion, as reflected in the remarkably clear concurring and dissenting opinions, may make a broader attack on abortion rights harder in the long run, making the next appointment or two to the Court even more critical.

To make a long story short, the majority opinion (as brilliantly exposed in Justice Ginsburg's dissent) went to inordinate and irrational lengths to reconcile the decision with the Court's precedents, most obviously Stenberg (which struck down state "partial-birth" bans), Casey (which solidified a "health exception" to any permittable abortion restrictions), and Roe itself. Clearly the replacement of O'Conner by Alito made this result possible. But the failure of Alito and Roberts to join the concurring opinion by Thomas and Scalia calling for a reversal of all these precedents means that a further change in the Court will probably be necessary to produce a more fundamental shift in the constitutional law of abortion rights. And that's one of many reasons why Democrats need to win the presidency in 2008.

To step back from the substantive questions for a moment, Gonzales v. Carhart produced a much more meaningful set of opinions than we've seen in a while, particularly during the period when the self-admitted judicial legislator Sandra Day O'Conner often ruled the Court, and a vast and confusing array of concurring and dissenting opinions were typical in big and close decisions.

Ginsburg's opinion for the four dissenters is a model of comprehensive clarity, nailing the majority opinion (penned by that perennial abortion rights weathervane, Anthony Kennedy) for its stealth attacks on the Court's precedents, especially the health exception, the viability standard for scrutiny of abortion restrictions, and the treatment of evidence about the "medical necessity" of various abortion methods.

And the incredibly succinct Thomas-Scalia concurrence, which simply and directly attacks Roe, also challenges the majority to come out of the closet and reverse abortion rights.

There's no question that the majority opinion erodes some of the underpinnings of how the federal courts have applied Roe and Casey. And it opens the door to further abortion restrictions.

But on the basics, this decision may prove to be a pyrrhic victory for the anti-choice forces. Every time the Roberts Court validates a technical and largely marginal exception to abortion rights by claiming to respect abortion rights, it will become more difficult to overturn those rights altogether. If, however, a Republican replaces Bush in 2008, and gets another chance to reshape the Court, then I have no doubt future appointees will find a way to get the job done.

[Raven]

1. Very good summary. I think he's right that this Court is not going

to be able to overturn Roe v. Wade unless the Republicans get another appointment opportunity. Pray for the continued good health of the minority members of the Court and a Democrat in the WH in 2008.

[Nicholas D Wolfwood]

2. Well, I'll mark ya one better.

It makes pro-choice supporters, whom number well into the majority of this country, all the more fervent in getting out and voting for pro-choice candidates. Perhaps, FINALLY, more people will take this as a serious threat instead of saying "Republicans and Democrats are all the same."

[Kagemusha]

3. True. It's a far cry from a full abortion ban but plenty enough to slap people awake

I can only hope that's precisely the effect.

[babylonsister]

4. Kick. nt