The Failure of Roe v. Wade

Editorial of The New York Sun | May 19, 2021 

Apart from all the constitutional fine points in respect of abortion, the grant by the Supreme Court of certiorari on yet another challenge underscores the failure of Roe v. Wade. We are coming up on 50 years since the Nine, in a seven to two decision, concluded that a right to privacy protects abortion. Yet the country and our states remain bitterly divided — and, in some ways, seem to be growing more so every year.

The current case arose from Mississippi. It challenges a law the Magnolia State passed prohibiting nearly all abortions after the baby has a gestational age of 15 weeks. The law was struck down in federal district court. Mississippi appealed to the riders of the 5th Circuit, who sustained the district court ruling. The most memorable part of it, though, was a concurrence, by Judge James Ho, that is just flabbergasting. Here’s how it begins:

“Nothing in the text or original understanding of the Constitution establishes a right to an abortion. Rather, what distinguishes abortion from other matters of health care policy in America — and uniquely removes abortion policy from the democratic process established by our Founders — is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.”

...............That, incidentally, was predicted by no less a sage than Justice Antonin Scalia in his historic dissent in Casey. He warned that “foreclosing all democratic outlet for the deep passions this issue arouses” and “banishing the issue from the political forum” the Court “merely prolongs and intensifies the anguish.” He reckoned the court should “get out of this area, where we have no right to be.” In the Mississippi case, opportunity knocks again...............To Read More....