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OpinionIs Roe in Danger? Liberal Justices Seem to Think So

18:00  14 may  2019
18:00  14 may  2019 Source:   nytimes.com

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The Supreme Court made clear on Monday that Roe v. Wade may soon no longer be the law of the land. The decision, Franchise Tax Board of California v. Hyatt, actually has nothing to do with abortion; it concerns when one state may be sued in another state’s courts.

Opinion | Is Roe in Danger ? Liberal Justices Seem to Think So . Conservative justices took a step in laying the foundation for the reversal of Roe v. Wade.

Is Roe in Danger? Liberal Justices Seem to Think So© Damon Winter/The New York Times

Editor’s note: The opinions in this article are the author’s, as published by our content partner, and do not necessarily represent the views of MSN or Microsoft.

The Supreme Court made clear on Monday that Roe v. Wade may soon no longer be the law of the land. The decision, Franchise Tax Board of California v. Hyatt, actually has nothing to do with abortion; it concerns when one state may be sued in another state’s courts.

But Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bills about Roe, particularly as states enact draconian restrictions on abortion.

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The Supreme Court’s Liberals Are Warning Us That Roe v. Wade Is in Mortal Danger . In dissent, Justice Stephen Breyer acknowledged as much. Overruling precedent typically requires a The justice has hoisted a red flag, alerting the country that the court’s conservative majority is preparing

Even some liberal justices seem to think the rules violate the First Amendment. posing an “undue burden” on a woman’s right to choose to have an abortion, pro-life and pro-choice forces have battled over how far states may go in circumscribing the right first recognised 45 years ago in Roe v Wade.

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In Hyatt, the justices were asked to overrule the court’s 1979 decision in Nevada v. Hall, which held that an individual could sue a state in the courts of a different state.

The doctrine of stare decisis directs judges, including Supreme Court justices, to adhere to prior decisions even when they think those prior decisions are wrong. Under the doctrine, justices shouldn’t overrule an earlier ruling unless several things are true: The decision is unworkable and has generated inconsistent results; it rests on outdated facts; and it represents an outdated mode of legal thinking. The court is also not supposed to overrule precedent where parties have relied on the decision to structure their lives.

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The justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they had decided His remark was met with cold silence; one observer thought that Chief Justice Burger "was going But Blackmun felt that his opinion did not adequately reflect his liberal colleagues' views.[36]

Many legal scholars have identified stare decisis as a substantial obstacle to the overturning of Roe, since women have relied on Roe and it is not unworkable. Roe is also not an aberration — it is part of a long line of cases protecting rights that are not specifically enumerated in the Constitution. Nor does Roe rest on outdated facts; medical advances have made abortion safer, whereas maternal mortality rates in the United States have climbed.

Senator Susan Collins, Republican of Maine, who says she is pro-choice, invoked stare decisis to explain her votes to confirm the nominations of Neil Gorsuch and Brett Kavanaugh to the court. She pointed to the nominees’ promises to adhere to stare decisis in their confirmation hearings to ward off the suggestion that they would overturn Roe. People sometimes likewise suggest that Chief Justice John Roberts, who has a reputation for being an institutionalist, will display a strong commitment to stare decisis.

Supreme Court says 1 state can't be sued in another's courts

Supreme Court says 1 state can't be sued in another's courts The Supreme Court is ruling that one state cannot unwillingly be sued in the courts of another, overruling a 40-year precedent. The justices are dividing 5-4 in ending a long-running tax dispute between California officials and Nevada inventor Gilbert Hyatt. Hyatt is a former California resident who sued California's tax agency for being too zealous in seeking back taxes from him. Hyatt won a judgment in Nevada courts. But Justice Clarence Thomas wrote for the court's conservative justices that the Constitution forbids states from opening the doors of their courts to a private citizen's lawsuit against another state. In 1979, the high court concluded otherwise.

The four more liberal justices were often moved to dissent in unusually personal and vehement terms. I asked whether Stevens thought the right to abortion recognized in Roe v. Wade would survive in his As a Supreme Court justice , Stevens seems to have kept this lesson firmly in view. Emphasizing the dangers of denying anyone within American jurisdiction a fair trial, Stevens once

that at least in some ways it is better that it has become as it is. Rawls viewed his own work as a practical contribution to resolving the long-standing tension in democratic thought between liberty and equality, and to limning the limits of civic and of international toleration.

In Hyatt, however, the five conservative justices based their decision to overrule the earlier decision almost exclusively on their belief that it was an “erroneous precedent” that “is contrary to our constitutional design.” The justices’ lack of respect for precedent was evident in the amount of space the majority opinion devoted to stare decisis — a mere three paragraphs — and in what the court said about it.

Everything the court said about stare decisis in Hyatt could be part of a decision that overrules Roe v. Wade. For example, the court’s first paragraph on stare decisis declared that stare decisis is weakest — and it is easier to overrule a decision — when the decision interpreted the constitution rather than a federal statute. The second paragraph focused on how the earlier decision was wrong and “stands as an outlier.” You can imagine the conservative justices saying the same about Roe as they overrule it.

In the third and final paragraph on stare decisis, the justices said that the reliance of some parties on the prior decision was insufficient to “persuade us to adhere to an incorrect resolution of an important constitutional question.” Women who have structured their lives around being able to decide when and whether to have a child should take note.

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The fact that they fear that a a Justice who applies the Constitution as written, which is what ALL Justices are …. "What is frightening about Roe is that this super-protected right is not inferable from the Democrat fear-mongering aside, an awful lot of women seem to be genuinely worried that an

U.S. Supreme Court Justice Joseph P. Bradley commented in the Civil Rights Cases that "individual invasion of individual rights is not the subject-matter of the [Fourteenth] Amendment. It has a deeper and broader scope. It nullifies and makes void all state legislation, and state action of every kind

Hyatt’s implications for Roe were not lost on the dissenters. In contrast to the majority’s mere three paragraphs on stare decisis, Justice Stephen Breyer’s dissent devotes over three pages to it. The dissent analyzed the stare decisis factors and found that few supported overruling the decision.

Justice Breyer is not one for over-the-top prose, but his dissent is full of alarm bells. He wrote that the majority had “surrendered to the temptation to overrule” a “well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” And he accused the majority of taking the “dangerous” path of overruling a decision “only because five members of a later court come to agree with earlier dissenters.” He too seems to have prewritten an opinion — a dissent — for when the court overturns Roe.

The court will soon have the opportunity to do just that, as states scramble to impose increasingly draconian restrictions on abortion. Georgia, for example, just enacted a law that prohibits abortion after a fetal heartbeat is detected, roughly six weeks after pregnancy.

In Hyatt, Justice Breyer concluded his dissent with this pointed warning: “Today’s decision can only cause one to wonder which cases the court will overrule next.” If that statement was not enough, Justice Breyer cited Planned Parenthood v. Casey in that same paragraph. Casey is the 1992 decision in which a bare majority of the court opted not to overrule Roe.

Alabama's Abortion Ban Has A Clear Target: Roe v. Wade

Alabama's Abortion Ban Has A Clear Target: Roe v. Wade Alabama Gov. Kay Ivey (R) approved a near-total abortion ban on Wednesdayaimed at the United States Supreme Court and designed to overturn Roe v. Wade,the landmark 1973 decision establishing a woman's right to an abortion underthe U.S. Constitution.Roe v. Wade makes it clear that women have a right to abortion guaranteed bythe 14th Amendment, but the Alabama measure almost universally prohibitsabortions. Doctors who perform an abortion are to be subject to at least 10 and as many as 99 years in prison. The only exception in the legislation is if a pregnancy puts a woman’s life at risk. The law is set to become effective in six months.

Some liberals fear Roe v. Wade may be on the chopping block if a conservative majority is in place. That fear could become a reality, according to Trump. He noted that Roe v. Wade will “automatically" be overturned when he appoints justices to the high court. Clinton said she supports Roe v. Wade

JPS: Well, that 's true, there seems to be somewhat more rigidity in judicial thinking than I think was true in I gather that you balk when you're called the last liberal , because you don't think of yourself as a Since Roe was decided, two thirds of the country have said that early term choice should be

The guardrails of stare decisis have fallen. Roe v. Wade may very well be next.

Leah Litman is an assistant professor of law at the University of California, Irvine.

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