David Garrow has an important oped in the Wall Street Journal. Here is the gist:
Has Roe v. Wade Met Its Match?
The brief by Mississippi’s attorney general makes a surprising argument aimed at Chief Justice Roberts.
No finer or more important brief has been submitted to the U.S. Supreme Court in many decades than the one Mississippi Solicitor General Scott G. Stewart filed last Thursday in Dobbs v. Jackson Women’s Health Organization, the abortion case the justices will hear in the fall. Dobbs is the most important challenge to Roe v. Wade (1973) since Planned Parenthood v. Casey (1992), in which the court upheld Roe’s “essential holding” 5-4. Thanks to Mr. Stewart’s handiwork, Roe’s status is more fragile than ever.
Mr. Stewart argues that “a viability rule has no constitutional basis” and that “even if the ‘liberty’ secured by” the 14th Amendment’s Due Process Clause does “protect some right to abortion, nothing in constitutional history or tradition supports tying such a right to viability.”
But viability and the undue-burden standard are only Mr. Stewart’s intermediate targets. The true crux of his brief, aimed squarely at Chief Justice John Roberts, is that it is in the court’s institutional self-interest to jettison Casey and Roe.
Terming Roe and Casey “irredeemably unworkable,” Mr. Stewart argues that those precedents “force people to look to the Judiciary to solve the abortion issue—which, 50 years shows, it cannot do.”
You can read the entire oped here (paywalled with free registration).
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