Roe v. Wade Challenges - Is Chief Justice Roberts the New Swing Vote?

Do you remember Chief Justice Roberts’ confirmation hearings about 15 years ago? How bright and bushy-tailed and darned affable he was? Treating each senator’s question as if it was a profound truth uttered during a fascinating conversation?

It worked. He got the job.

And if Alabama's, yes, hardline abortion law does spark a series of legal challenges (how could it not? it was designed to do so) that will surely lead to a Supreme Court hearing, then we will get the chance to watch Justice Roberts at work in what will be the case of his lifetime, and one of the key cases in the history of the Supreme Court.

An (attempted) overturning of Roe v. Wade.

Margaret Carlson has an angry, or perhaps more accurately, frustrated take on the likelihood of a successful challenge at The Daily Beast writing,

"We all fudge a bit when it comes to Roe. The framework devised by the decision, I don't like to admit, is increasingly at war with our own eyes. Those of us who've had babies, visited a NICU, or gone to Little League games where there's at least one child swinging a bat who was born at 22 weeks, know that viability has moved from the third trimester to the second. Democrats should concede that fact, not argue it, and certainly not stand and cheer at a new law that ignores it.

Roe gave abortion opponents one target instead of 50 states. It's taken a while, but the battle has been joined. The losers could well be those of us in the middle. And, if there's any justice on earth, the biggest loser of all will be Donald Trump."

I fear she may have less to fear than she suggests as a relatively moderate pro-choicer. Yes, I'm using that archaic term that abortion activists have pushed to the side of the road as they link arms and sing their abortions proudly and loudly or re-enact scenes from The Handmaid's Tale. And who insist that abortion has to be an absolute right without any conditions, unlike Margaret Carlson.

I fear so because I've suspected that Chief Justice Roberts will pull another ACA-style ruling on us all should his Supreme Court have to rule on a possible overturning of Roe v. Wade. He seems to see himself as the new swing vote, the great moderating force in America's highest court. It's not a 5 - 4 SCOTUS, it's a 4 - 1 - 4 SCOTUS. Jim Geraghty makes that argument quite convincingly in his Morning Jolt at National Review:

"Roberts "initially voted in a private conference to strike down the individual insurance mandate -- the heart of the law -- but he also voted to uphold an expansion of Medicaid for people near the poverty line. Two months later, Roberts had shifted on both." We don't know precisely why Roberts changed his views so dramatically, but there is a widespread belief that the public pressure campaign affected Roberts's decision."

In other words, a public pressure campaign by Democrats to pushback against a legal challenge to the ACA may have caused Roberts to radically change his view on the individual mandate over a period of around 8 weeks. His legal decision to view it as a tax and therefore as a Congressional prerogative well within the Constitution's delineation of the powers accorded to each branch of government raised more than a few eyebrows.

Does the bright-eyed, polite and affable Chief Justice hate not being liked?

Or does he genuinely hold a centrist position that inevitably pushes back against the more conservative rulings of Justices Thomas, Alito, Gorsuch, and Kavanaugh?

It would not surprise me if Chief Justice Roberts decides that stare decisis provides the perfect excuse for him to rule that both Roe v. Wade with its use of the 14th amendment to create a right to privacy on behalf of women on the issue of whether to abort or not, as well as Casey v. Planned Parenthood, are now settled law and that the reasons argued for overturning them are not vigorous enough to overcome stare decisis. And therefore, it should remain a federal issue and not one decided state by state. Apparently, smart legal minds insist that stare decisis merely means that precedent has weight but is not absolute and if a law is wrong, it should be overturned regardless of precedent. But that may not be enough for Chief Justice Roberts.

Will we finally find out if Catholic-educated Justice Roberts believes Roe v. Wade to be wrong?

I'm not sure I'd even bet on that being clear from any ruling that might emerge from the pen of the Chief Justice. But we may find out within a couple of years.

Posted by Keeley at May 21, 2019 4:43 PM
Comment #443704

Can someone find my comment in the spam? I used the s word and it flagged it.

Posted by: Weary Willie at May 21, 2019 8:35 PM
Comment #443729

This is a very contentious issue, because it attempts to define whose rights supersede the other (i.e. the woman, or the unborn), and it is complicated by instances of rape, incest, and potential death of the woman.

Posted by: d.a.n at May 22, 2019 9:23 AM
Comment #443789

It is no surprise that economic issues are often a reason behind abortion.
Some women don’t want to be pregnant.
It’s their body.
The question remains: Whose rights supersede the other (i.e. the woman or the unborn)?
There are many women who say they have rights too.
Regardless of the moral issue, should abortion be criminalized?
IF criminalized, what portion of society will be affected most?
For all of those who want to criminalize abortion, what are they willing to do to ensure the woman will, and can afford to carry the baby to full term (regardless of whether the woman puts the new born up for adoption, or not)? What if the baby is born with deformities? Will the adopter still want the new-born?
It’s not easy to legislate ALL moral issues.
MANY women don’t want anyone trying to tell them what they can (or can’t) do with their own bodies.

I understand both sides of the issue.
But the question still remains to be answered: Whose rights supersede the other (i.e. the woman or the unborn)?

Regardless of the moral issue, Roe v. Wade answered that question in 1973.

For all of those that want abortion stopped, they could provide a nation-wide (or global) service for all women, to provide all healthcare and money necessary for women to carry the unborn to full term (regardless of whether they put the new born up for adoption, or not)?
The point is, some peoples’ morals may have limits on how far they are willing to go (and spend) to truly protect the unborn, and some may simply say that the costs are not their problem, but still choose to criminalize abortion, and choose to ignore all of the reasons many women feel like abortion is their best choice.

Posted by: d.a.n at May 23, 2019 10:42 AM
Comment #443863

How would you know someone is getting an abortion if they don’t tell anyone they’re getting an abortion?

This is an instance where “loud and proud” should be discouraged.

Posted by: Weary Willie at May 24, 2019 9:01 AM
Comment #443868

If a woman does tell someone she wants an abortion, should she be incarcerated to ensure an abortion is not attempted?

Posted by: d.a.n at May 24, 2019 11:05 AM
Comment #443889

No, people should point at her and whisper to others while looking at her. They should make her feel like she’s doing something wrong. They should refuse to pay for it. They should prohibit abortion clinics in their neighborhoods.

There is no right to not being ridiculed for your actions. There is no right to have an abortion clinic in your city.

Society should put abortion back in the realm of “women things”.

Does a woman naturally have 4 arms and 4 legs? Does a woman naturally have 2 heads and 2 brains? If they do then they have a right to do what they want with their bodies, otherwise there doing something to someone else’s body.

Posted by: Weary Willie at May 24, 2019 2:19 PM
Comment #443912

I do agree about free speech (i.e. no one is immune from ridicule), and that tax payer money should not be used to fund any abortions (which it does now, via Planned Parenthood).

Posted by: d.a.n at May 24, 2019 10:15 PM
Comment #443927

It is impossible for a woman to get pregnant without a man’s contribution. Impossible! So, it is not her body, but the body of a third party. There would be no third party if the man were not participating.

Posted by: Weary Willie at May 25, 2019 11:01 AM
Comment #444125

That’s true, but the man has the easy part.
Women got the difficult part, and women are often abandoned and left alone to deal with the many consequences.
Regardless of the moral issue of abortion, there are MANY women that don’t want anyone (especially men) telling them what to do with their own bodies.
And, there are MANY men that would be relieved IF the woman had an abortion.
These are the ugly facts of human nature.
Regardless, it still comes down to the question:

    Whose rights supersedes the other(s)?
There’s a LOT of talk and concern about the moral issue of abortion, but not nearly as much talk and concern about the reasons why many women feel like abortion is their only choice, which reveals the ugly fact that most (if not all) of the burden is left to the woman.

Posted by: d.a.n at May 29, 2019 5:51 PM
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