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Brief Summary of Other

Topics here may be related to legal matters but not innately legal. For instance, discussing grocery plastic bags versus cotton cloth bags. The item itself is not legal but many city governments have placed it into legislation.

Abortion Summary

R.B. Ginsburg in Speaking in a Judicial Voice, 1992 New York University Law Review, 'Roe may have halted a political process, prolonged divisiveness, and deferred stable settlement of the issues.'

Since Roe v Wade (1973) the abortion issues seems to have been extraordinarily divisive. A multitude of people have a strong opinion of whether it should be permitted or not, and have no desire to listen to opposing views. Roe created a precedent making abortion a right, and Casey (1992) upheld this right though in a different manner entirely.

In the words of N. Gorsuch, 'Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.' This is the importance of stare decisis. However, if one of the constitutional decisions goes astray, 'the country is usually stuck with the bad decision unless we correct our own mistake.'

Even those who agreed with the outcome of Roe, agreed that it was not constitutional law and that it gave no sense of trying to be. Even Ruth Bader Ginsburg said that Roe was a faulty decision. She felt it was too far-reaching and too sweeping. She would have preferred that abortion rights be secured more gradually, and that it include state legislatures. During the time between Roe (1973) and Casey (1992), there were 5 challenges requesting the Court to overturn Roe. In Casey the court was again ask to overturn Roe, and return the decision to the people through their legislatures.

The court in Casey turned the abortion right to the Due Process Clause of the Constitution. If caution is not used the Due Process Clause may be, as the Court cautioned in Glucksberg, 'transformed into the policy preferences of the Members of this Court.' A scary thought for all. Currently legislatures, those elected by the people, make laws. The people have the power to not re-elect someone, to submit requests for changes to laws, to seek to be elected, and to challenge laws in Court. If the highest court makes a decision that is not based upon the constitution and is not in agreement with the people, to whom do they turn. Or should the court make decisions that the people currently agree with, and in 20 or 30 years expect those to be overturned as the societal normals shift.

The disruptive effect on other areas of law because of the decisions in Roe and Casey have been far reaching. Abortion cases have diluted the Supreme Court's strict standard for constitutional challenges. See United States v Salerno, 481 U.S. 739. They have ignored third party standing doctrine. See Warth v Seldin, 442 U.S. 490 and Elk Grove Unified School Dist v Newdow, 542 U.S. 1, with June Medical, 591 U.S. 28 and Whole Women's Health, 579 U.S. 4. 'They have fluted the ordinary rules of the severability of unconstitutional provisions,' and 'the rule that says that statutes should be read where possible to avoid unconstitutionality.' They have distorted First Amendment doctrines. See Sternbur v Carhart, 530 U.S. 914, Hill v Colorado, 530 U.S. 703. The courts continued exceptions to longstanding background rules means it fails stare decisis, the very thing it purports to uphold.

Blogs About Abortion

J.B. Williams, J.D. has published 5 blogs on this subtopic. The 2 most recent blogs are summarized in the following sections. A table at the bottom of the page lists the remaining blogs for this subtopic in chronological order from newest to oldest.

Abortion in 2025

Published: 2025-01-30
Less than 3 years have passed since the Dobbs decision that turned abortion regulation back to the states

Planned Parenthood v Casey

Published: 2022-06-28
The Court in Casey retained that abortion was protected under the Constitution but threw out all the other portions, included that any laws regulating abortion must pass strict scrutiny. The court in Casey changed to an undue burden standard of review. This would be much like a criminal jury only needing to find by a preponderance of the evidence rather than beyond a reasonable doubt.

Other Blogs For This Subtopic

Blog Date	Blog Headline
2022-05-22	Roe Review
2022-05-21	States and Territory Laws pre-14th Amendment
2022-05-16	Leaked Opinion

Legislative Blog

J.B. Williams, J.D.