Will The SCOTUS Nuke Its Abortion Precedents?

Bonchie at Red State has a provocative article suggesting that that is exactly what’s going to happen, based on his following of the arguments this morning. In support of that interpretation he cites “Slate’s resident pro-abortion reporter losing his mind at what appears to be forming.”

Kavanaugh is using these arguments to claim that "returning abortion to the states" is the new middle ground. I think this is pretty clearly over. There are obviously five votes to overturn Roe v. Wade.

Roberts is floating a compromise that allows abortion bans at 15 weeks (or perhaps earlier) but preserves the right early in pregnancy. But I don't hear any takers. Barrett and Kavanaugh do not sound remotely interested.

This question from Amy Coney Barrett is basically game over for Roe. She says: Now that all 50 states have "safe haven" laws that let women relinquish parental rights after birth, the burdens of parenthood discussed in Roe and Casey are irrelevant, and the decisions are obsolete.

If you want to see a running commentary on the oral arguments, I recommend Jonathan Turley’s Twitter feed (I assume he’ll have an article later).

At The Federalist there’s a good article, from which I’ll insert some brief excerpts:

3 Pro-Life, Pro-Constitution Truths From Clarence Thomas In The Supreme Court’s Dobbs Hearing

Here are those three truths, but these are only brief excerpts—follow the link for more:

1. There Is No Constitutional Right to Kill Babies

Knowing full well that there’s no explicit, constitutionally guaranteed right to kill babies in the womb, Thomas asked U.S. Solicitor General Elizabeth Prelogar to explain just what exactly the United States’s governing document allows for abortion.

2. There Are Two Lives at Stake in Every Pregnancy

During another line of questioning, Thomas repeatedly demanded both speakers on the pro-abortion legal team differentiate between prohibiting a mother from aborting her baby and stopping her from taking drugs or other substances that harm her baby.

3. Roe v. Wade Can’t Legally Stand On Its Own

In an exchange with Rikelman, once again Thomas hinted that the supposed general legal precedent set by Roe v. Wade isn’t enough to justify the removal of states’ voices when it comes to abortion policy.

My view is that, if the abortion precedents get nuked, it will be largely because of the SCOTUS’ overreach in excluding the states from having a true voice in these matters. Even Ruth Ginsburg recognized that overreach—after the fact.

Despite widespread criticism of the constitutional basis for Roe, it is now considered an inviolate case of “super precedent.” Anyone arguing that the issue should be returned to the states in whole or in part are denounced as reactionaries. That position ignores the fact that even Ruth Bader Ginsburg criticized the decision: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”