High Court considers ‘A’ word | News, Sports, Jobs
Let’s pick up where we left off four weeks ago.
Speaking at Notre Dame on September 16, U.S. Supreme Court Justice Clarence Thomas was asked to name the greatest threat to the justice system.
Thomas said some people expect too much, in part asking him to resolve issues that are not the business of the courts.
A major misconception of the judiciary – especially in the press – is that it makes politics, Thomas said. Some think that judges are like politicians.
Thus, in constitutional challenges – such as Dobbs v. Jackson Women’s Health Organization, which the High Court will hear on December 1 – one wonders: does the Constitution answer the questions raised by the challenges?
The issue in Dobbs is the constitutionality of Mississippi law restricting anything that begins with “A” and that Thomas said was the big deal in Supreme Court confirmation hearings.
If you are not sure what “A” word is, please keep reading.
If you’re sure, read on anyway.
The Dobbs parties agree that the question posed is whether all the restrictions on “A” are unconstitutional pre-viability.
A larger question that the court does not need to address in Dobbs is: to what extent does the Constitution deal not only with the question asked, but “A” in general?
To assess the constitutionality of any law restricting “A,” it is important not to confuse – as some people do, many of them in the press – two problems. The first question is to know to what extent, according to individual political preferences or according to public opinion, “A” should be legal. The second question is to what extent the government, under the Constitution, can restrict “A.”
These are separate issues. The Constitution does not impose the political preferences of anyone. The Constitution does not depend on opinion polls either. If so, Brown v. Board of Education could well – wrongly – go the other way.
The introduction in Mississippi’s brief gets right to the point of Mississippi and echoes two Supreme Court decisions: Roe v. Wade from 1973 and Casey v. Planned Parenthood from 1992.
To put it far too simply, Casey achieves a similar result to Roe’s while replacing Roe’s quarter-based reasoning with Casey’s excessive demand reasoning.
If you are still not sure what “A” word is, please read the next paragraph.
With Roe and Casey in mind, here’s the essence of the Mississippi Point: “On a good understanding of the Constitution, the answer to the question posed in this case is clear and the path to this answer is straight. Under the Constitution, can a state ban elective abortions before viability? Yes. Why? Because nothing in the constitutional text, structure, history or tradition supports a right to abortion ”, says Mississippi. “The two lower courts understood that Roe and Casey were asking them to overturn the Mississippi Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks of gestation and therefore before viability. . Roe and Casey therefore disagree with the simple and constitutionally correct answer to the question presented. The question, then, is whether this Court should overturn those decisions. It should.”
The challengers disagree: “Mississippi is now asking the court … to quash Casey and Roe in their entirety, or” at least “to dismiss the viability line,” say the challengers. “Nothing in the years since Casey’s ruling has made the rights of individuals to make fundamental decisions about their bodies and lives less worthy of constitutional protection. On the contrary, two generations – spanning nearly five decades – have come to depend on the availability of legal abortion, and the right to make this decision has been further strengthened…. “
Watch this notice.
The most recent US Supreme Court Brief of Dr. Randy Elf can be found at https://works.bepress.com/elf/30
COPYRIGHT ç 2021 BY RANDY ELF