No, Justice Kavanaugh, the Court should — the Court must — decide the hard case of abortion policy. One way or another - and no argument as to abortion per se is made in this essay. It is a conflict of individual interests and rights. it is a hard case. It is not addressed expressly in the U.S. Constitution. Neither is the Court’s fundamental source of authority — the seminal Marbury v. Madison that made the Court the one and only final arbiter — or ‘umpire” as Chief Justice Roberts put it in his conformation hearing. The court made an abortion rights decision once, then twice some decades ago. Mississippians have thrown the red challenge flag and asked for a not-so-instant review. That’s their right - there is no official statute of limitations on reversal of even long-standing precedents. But punting the decision to the people of the several states in the false flag of ‘neutrality’ actually threatens to neuter the Court itself — and one must ask whether that is the Conservative Justices real ‘political” goal: as they like most of us only like having the Court around when its on their side. But that just proves why we play sport with refs.
Justices generally inquire what is the “limiting principle’ when discussing important cases involving personal rights, even those directly named in the U.S. Constitution. We know, for example, that even with freedom of speech. You cannot just yell fire — or fire a weapon — in a crowded theater; yes, there are even some limits left on Second Amendment rights. The Court may appear one-sided to some in its decisions on personal rights, but it has not hidden behind a curtain of neutrality. That word becomes especially dangerous wen it comes to deeply personal considerations.
For example, Justice Barrett, not known to be a reader of ‘The Handmaid’s Tale,” has advanced the legal theory that, to coin a phrase, adoption trumps abortion. But with a neutral Court — where a Conservative majority seems ready close to deciding that Fourteenth Amendment “liberty’ is too vague to apply to women’s reproductive choices - what if a deeply red state chose to arrest rape, incest or other pregnant women to force them to carry to term. After all, this would simply be a case where the state made the “hard call’ to come down 100% on the side the fetus using its Constitutional police power - a no-go territory for the Court according to Justice Kavanaugh, and there is no Fourteenth Amendment around to protect the women. Habeas Corpus? Which “corpus”?
Moreover, once the Court decides to make legislatures the ultimate, un-reviewable umpires of reproduction, a governmental entity, it would seem that a state than t can ban abortions could also compel them for legitimate policy interests such as a rising birth rate that cannot be accommodated by its limited resources as a result of climate change. One-child policies are not unknown — see a very big country with politically-neutered courts. There is not express Constitutional right for a woman to carry her pregnancy to term, either — unless you count “liberty” — but as noted above, the Conservative Court majority does not give that term much weight when it comes to reproduction choices. Neutrality is not as easy as it looks.
We already have trigger laws that would ban morning after pills. certain contraceptives and even in-vitro fertilization if Justice Kavanaugh’s views were to prevail — creating a new legal category of the ‘wrongfully born? Would they be “persons” under the Constitution, since legally they should not exist. Even the “pro-life’” stance has its limits.
If the Court were to rule simply that Roe v. Wade was wrongly decided is one thing: the Court could retains its power to address other related cases such as an in-vitro ban. But to affirmatively leave the field of Constitutional play to purely political umpires wherever there is a genuine but difficult conflict of rights is a leap too far, that cuts both ways.
It would seem that deeply-religious majorities in some states could ban morning-after pills and other contraceptives from being ordered from out-of-state with no likely court intervention, even though that would effectively overrule the decades-old Griswold decision on Connecticut’s broad contraception ban, citing right to privacy based on the “penumbra” of related, specific Constitutional rights like limits on government search and seizure. (So much for that sort of invented rights, per Justice Kavanaugh.) The state could offer neighbors a civil bounty to check your mailboxes per the new Texas statute on abortion limits — welcome to Citizen Stasi.
The gay marriage precedent would also be at risk - but the door would also be open to states allowing anti-gay restrictive covenants in specially-zoned again, that’s just another conflict of putative rights — some of which, freedom of religion and of contract, is no expressed directly in the Constitution directly. and the other regarding gay rights, is not.
But wait till the liberals get ahold of the opportunity to mess with the Second Amendment at the state level, especially if the new Texas vigilante statute prevails in the Court. prior Court precedents on gun rights — so what, its again just a hard choice between citizens claiming different rights — on to ‘life” (it’s in the Constitution, if you count the Fourteenth Amendment) , the other to guns.
But the real risk here is to another Court precedent, the decision in Marbury v. Madison that has been relied on for over two centuries (are you saying “so what,” Justice Kavanaugh? - as wise Justice Sotomayor bluntly inquired) to underwrite and cement the Court’s role as the supreme and un-reviewable umpire of decisions about Constitutional rights. A neutral court on rights would effectively neuter itself.
I ask again, is that the real goal of the Conservatives Justices in the Dobbs case: Kill the Umpire? At least in baseball, we are talking only about replacing with computers.