Op-ed: Supreme Confusion
By CHARLES FRIED
New York Times
Cambridge, Mass.
IN supporting John Roberts’s nomination to be chief justice of the United States in 2005, I spoke to the Senate Judiciary Committee of his commitment to clarity, consistency and stability in the law — qualities that included respect for precedent, essential if the Supreme Court is to be the guarantor of legality under the Constitution and not an unnecessary third political branch of government.
Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted — in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die — that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.
The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.
Justice Anthony Kennedy’s decision for the court in the abortion case last week does not change my mind, because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Kansas partial birth abortion ban. The Kansas law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden. The federal ban cured the vagueness, but sought to overcome the medical testimony by a legislative proclamation of a fact that is not a fact: that the procedure was never safer for the mother.
(Continued here.)
New York Times
Cambridge, Mass.
IN supporting John Roberts’s nomination to be chief justice of the United States in 2005, I spoke to the Senate Judiciary Committee of his commitment to clarity, consistency and stability in the law — qualities that included respect for precedent, essential if the Supreme Court is to be the guarantor of legality under the Constitution and not an unnecessary third political branch of government.
Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted — in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die — that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.
The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.
Justice Anthony Kennedy’s decision for the court in the abortion case last week does not change my mind, because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Kansas partial birth abortion ban. The Kansas law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden. The federal ban cured the vagueness, but sought to overcome the medical testimony by a legislative proclamation of a fact that is not a fact: that the procedure was never safer for the mother.
(Continued here.)
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