I recently had time to reflect on the just-concluded term of the post-Ruth Bader Ginsburg Supreme Court.
With the exception of preserving Obamacare for the third time and holding that a 16-year cheerleader had the First Amendment right to F-bomb the folks who run her high school on social media, the 6-3 conservative majority performed as expected.
They ruled for business over unions, once again weakened the voting rights act and gave their stamp of approval to the type of dark money political contributions that enable companies like First Energy to buy legislation from corrupt public officials like Larry Householder.
In my view, those rulings were unfortunate, but their impact pales in comparison to the cultural and legal firestorm that will erupt as a result of the right-wing justices’ decision to hear two incredibly controversial cases when the 2021 term begins in October: New York Rifle & Pistol Association v. Corlett and also Dobbs v. Jackson Women’s Health Organization.
I will discuss Corlett, a Second Amendment case that challenges the rights of state and local governments to place reasonable restrictions on concealed carry permits, in a future column.
Today I want to concentrate on Dobbs which poses the most serious threat to a woman’s right to choose since Roe v Wade was decided 48 years ago. The case arrived to the court after a Federal District Court judge and the Fifth Circuit Court of Appeals ruled that a Mississippi law banning abortions after the 15th week of pregnancy is unconstitutional.
Dobbs sets up a classic confrontation between evolving legal theory and “stare decisis,” the legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. While the Court has over the years approved laws that limit Roe in a variety of ways, one pillar of the landmark decision has withstood withering attack: the right to choose is absolute before viability which normally occurs at 24 weeks of pregnancy.
The decision to hear Dobbs marks the first time the Court has signaled a willingness to breach the viability precedent. This should come as no surprise given that Justice Amy Coney Barrett, who now sits in the seat once occupied by RBG, once wrote that stare decisis is “…not a hard-and-fast rule in the court’s constitutional cases” and that “The public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle.”
Along with being troubled by the conservative justice’s cavalier abandonment of stare decisis, I am disturbed by the rank hypocrisy of many members of the anti-choice movement who say they are dedicated to the “right to life” but have no problem with the death penalty.
I admire the stance taken by the Catholic Church and Pope Francis who recently issued an encyclical that restated the church’s opposition to the death penalty and urged all Catholics to work for its abolition.
I would have a lot more respect for those who are anti-choice if they protested the death penalty, which has taken hundreds of innocent lives, as vigorously as they do the right to choose.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.