Sunday, May 21, 2023


By Tim Rohr

This is heavy reading, but JUSTICE SCALIA'S opinion here in 1989 demonstrates why Roe eventually came tumbling down:

The real question, then, is whether there are valid reasons to go beyond the most stingy possible holding today. It seems to me there are not only valid but compelling ones. Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count. Alone sufficient to justify a broad holding is the fact that our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and life-tenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will. Indeed, I expect we can look forward to even more of that than before, given our indecisive decision today. And if these reasons for taking the unexceptional course of reaching a broader holding are not enough, then consider the nature of the constitutional question we avoid: In most cases, we do no harm by not speaking more broadly than the decision requires. Anyone affected by the conduct that the avoided holding would have prohibited will be able to challenge it himself and have his day in court to make the argument. Not so with respect to the harm that many States believed, pre- Roe, and many may continue to believe, is caused by largely unrestricted abortion. That will continue to occur if the States have the constitutional power to prohibit it, and would do so, but we skillfully avoid telling them so. Perhaps those abortions cannot constitutionally be proscribed. That is surely an arguable question, the question that reconsideration of Roe v. Wade entails. But what is not at all arguable, it seems to me, is that we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment. The only sound reason for the latter course is to prevent a change in the law — but to think that desirable begs the question to be decided.

It was an arguable question today whether § 188.029 of the Missouri law contravened this Court's understanding of Roe v. Wade, and I would have examined Roe rather than examining the contravention. Given the Court's newly contracted abstemiousness, what will it take, one must wonder, to permit us to reach that fundamental question? The result of our vote today is that we will not reconsider that prior opinion, even if most of the Justices think it is wrong, unless we have before us a statute that in fact contradicts it — and even then (under our newly discovered "no-broader-than-necessary" requirement) only minor problematical aspects of Roe will be reconsidered, unless one expects state legislatures to adopt provisions whose compliance with Roe cannot even be argued with a straight face. It thus appears that the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.

- “That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote...” 

...“Of the four courses we might have chosen today — to reaffirm Roe, to overrule it explicitly, to overrule it sub silentio, or to avoid the question — the last is the least responsible” Webster v. Reproductive Health Services, 492 U.S. 490, 537 (1989) 

Webster v. Reproductive Health Services, 492 U.S. 490, 534-37 (1989)

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