Politics

The Final Epicycle of Roe v. Wade

On November 2, 2021–the day after S.B. 8 oral arguments–I wrote a submit titled “End the Epicycles of Roe.” I highlighted the various methods during which Roe has distorted different areas of legislation, together with stare decisis, freedom of speech, facial challenges, tiers of scrutiny, and third-party standing. Justice Alito made many of those identical factors in Half III.D of his draft majority opinion:

Members of this Court docket have repeatedly lamented that “no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion.” Thornburgh (O’Connor, J., dissenting); see Madsen v. Ladies’s Well being Heart, Inc. (1994) (Scalia, J., concurring within the judgment partially and dissenting partially); Entire Lady’s Well being (THOMAS, J., dissenting); id. (ALITO, J., dissenting); June Medical (GORSUCH, J., dissenting). The Court docket’s abortion circumstances have diluted the strict normal for facial constitutional challenges. They have ignored the Court docket’s third-party standing doctrine. They have disregarded normal res judicata ideas. They have flouted the strange guidelines on the severability of unconstitutional provisions, in addition to the rule that statutes must be learn the place attainable to keep away from unconstitutionality. They usually have distorted First Modification doctrines.

The leak is a manifestation of one more abortion-based epicycle: the breach of Courtroom confidentiality. Somebody (we have no idea who) although the problem of abortion was important sufficient to justify leaking a draft majority opinion to the press. I had lengthy presumed such a leak would have been unthinkable, however abortion drives individuals to such extremes. This final breach in Court docket confidentiality supplies but another reason why the Supreme Court docket should exit the world of abortion. Hopefully, this leak can be Roe‘s ultimate epicycle.

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