« Zombie Laws | Main | Pedantry »

Saturday, June 25, 2022

Thoughts on Hopeful Retreat from Darkness: A (short) response to Howard

Unlike Howard -- and, I realize, most Prawfsbloggers and readers -- I have longed hoped for, and yesterday welcomed, the overruling of Roe and Casey.  Both were wrongly decided, and both distorted badly both the Court's role and our political life.  In my view, the traditional stare decisis factors weigh in favor of the majority's decision and I regret the Chief Justice's implausible argument that the Mississippi law can be reconciled with a re-imagined abortion right.  The three dissenters' views about Casey and judicial legitimacy are, I think, upside-down.  And, I believe that pre-natal human beings share in the equal dignity that entitles all of us to protection from violence.  (If anyone is interested, here is a law-review-type version of the amicus brief I and some others did in Dobbs.  Nutshell version, Rehnquist -- in Roe, Casey, and Glucksberg -- was right.)

Like (I assume) everyone else, I am not confident I know what the political/electoral/social consequences of the ruling will be.  I do not expect a substantial reduction in the number of abortions in the United States; I do not know which political camp Dobbs helps; I am not optimistic about the possibilities for reaching a European-style equilibrium nationwide; I do not think it is likely that Dobbs will lead to judicial retreat from other previously recognized unenumerated rights, such as those enforced in Pierce, Griswold, Loving, and Obergefell; I am sure Howard is right that the courts are not and will not soon be out of this issue; and it seems to me very unlikely that either "side" -- or, for that matter, supporters of some kind of compromise -- will secure either a constitutional amendment or nationalizing legislation. 

I hope that what (in my view) has fairly been characterized as the "abortion distortion" in other areas of law will dissipate, and also that political actors will make serious, good-faith efforts to come together on policies that generously support children and those who care for them.  I expect, but regret, that most law students, going forward, will be taught, as an orthodoxy from which dissent is at best suspect, a particular -- and, in my view, inaccurate -- narrative of Roe/Casey/Dobbs and the place of that narrative in our constitutional history, politics, and doctrine.  Those who are will be ill-served. 

Posted by Rick Garnett on June 25, 2022 at 10:25 AM in Rick Garnett | Permalink


The comments to this entry are closed.