US: Alabama Aims Squarely at Roe, but the Supreme Court May Prefer Glancing Blows - PressFrom - US
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USAlabama Aims Squarely at Roe, but the Supreme Court May Prefer Glancing Blows

01:20  16 may  2019
01:20  16 may  2019 Source:   nytimes.com

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The Supreme Court has already upheld 24-hour waiting provisions. And you could easily imagine Kavanaugh and Roberts upholding virtually any Now, the body politic doesn’t particularly care about this issue the way they care about Roe , but smart idealogues and partisans understand that, while

Alabama Aims Squarely at Roe, but the Supreme Court May Prefer Glancing Blows© T.J. Kirkpatrick for The New York Times The Supreme Court controls its own docket, and it may choose to hear other cases that chip away at abortion rights instead of overturning Roe v. Wade outright by ruling on a new law in Alabama.

WASHINGTON — Abortion rights are at risk at the Supreme Court, but the short-term threat may not come from extreme measures like the one passed by Alabama lawmakers on Tuesday.

The court led by Chief Justice John G. Roberts Jr. is more likely to chip away at the constitutional right to abortion established in 1973 in Roe v. Wade than to overturn it outright. It will have plenty of opportunities to do so.

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The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. Established pursuant to Article III of the U.S. Constitution in 1789

Where Kavanaugh, Trump’s Nominee, Might Fit on the Supreme Court . President Trump’s selection, Brett M. Kavanaugh, is a Washington insider who appears unlikely to drift left as other conservative But the younger Casey does not look like a vote in play — even with Roe possibly in the balance.

As soon as Monday, the court could announce whether it will hear challenges to three provisions of Indiana abortion laws on issues like the disposal of fetal remains and an 18-hour waiting period after state-mandated ultrasound examinations. The court will in the coming months almost certainly agree to hear a challenge to a Louisiana law that could reduce the number of abortion clinics in the state to one.

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The Alabama bill is a different kind of measure, one that squarely conflicts with Roe. It would ban almost all abortions in the state, without exceptions for rape and incest, and subject abortion providers to harsh criminal penalties. Because the Roberts court tends toward incrementalism, it is not likely to want to take on a direct confrontation with that precedent.

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The Supreme Court of Alabama is the highest court in the state of Alabama . The court consists of a Chief Justice and eight Associate Justices. Each justice is elected in partisan elections for staggered six-year terms.

The Supreme Court reversed that decision by a 6-3 vote, but the justices allowed the law to take effect once that The clerk to Supreme Court Justices Byron White and Anthony Kennedy is a Columbia If Trump is looking for a compelling personal story, Gruender may fit the bill. His father worked as a

Nor in all likelihood will it have to.

Lower courts will almost certainly strike down the Alabama statute and other direct bans on abortion, like the ones that bar the procedure after doctors can detect what the measures call a “fetal heartbeat,” which happens at around six weeks of pregnancy. The lower courts will have little choice, as controlling Supreme Court precedents prohibit outright bans on abortion until the fetus is viable outside the womb, usually at about 24 weeks.

Since the Supreme Court controls its own docket, it can simply deny review after lower courts strike down laws squarely at odds with Roe.

To be sure, recent changes on the court have given opponents of abortion rights new hope for a wholesale reconsideration of Roe. Justice Anthony M. Kennedy, who retired last year, had been a cautious supporter of abortion rights and was an author of the key opinion in 1992 in Planned Parenthood v. Casey, which both reaffirmed and modified the core of Roe, announcing that states may not impose “undue burdens” on abortion rights.

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Such laws are aimed at setting up a challenge to Roe if the Supreme Court lurches to the right — which is now an imminent possibility — and Under the new Court that could be about to emerge, some of these restrictive laws could be converted from dead letters to lively developments on a new

sit on state Supreme Courts , and almost all those who sit on federal appeals courts do so in the heartland. “But they certainly cared a lot about the Scalia vacancy and the direction of the court . might well be happy with the people he chose from Alabama and Iowa and places like that,” he said.

Justice Kennedy has been replaced by Justice Brett M. Kavanaugh, whose limited record as an appeals court judge suggests that he will be more skeptical about the right to abortion.

“There are obviously a good number of state legislators who think the time is right to mount a frontal or near-frontal attack on Roe,” said Cary Franklin, a law professor at the University of Texas at Austin. “Those legislators are not being foolish to think that five justices might now be persuaded to overrule or essentially gut the constitutional right to abortion.”

But Justice Kavanaugh has also exhibited some restraint in his first months on the court, and he may not be eager for an immediate confrontation with the basic issue when intermediate steps are available.

Alabama Aims Squarely at Roe, but the Supreme Court May Prefer Glancing Blows

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There are three members of the court — Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — who seem less patient. In February, Justice Thomas wrote that Roe was among the court’s “most notoriously incorrect decisions.” He gave one other example of such a ruling: Dred Scott v. Sandford, the 1857 decision that said black slaves were property and not citizens.

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In the years immediately following Roe , the Supreme Court grappled with a host of issues that But the three centrists were joined by the court ’s more conservative wing – Justices Rehnquist, Scalia Citing Casey, Breyer determined that the state may promote but not endanger a woman’s health Nine states – Alabama , Arizona, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska and North

President Donald Trump nominated Judge Brett Kavanaugh to become an Associate Justice of the Supreme Court of the United States on July 9, 2018

It takes only four votes to add a case to the court’s docket, meaning that either Chief Justice Roberts or Justice Kavanaugh could force the court to confront the ultimate fate of a constitutional right to abortion when a case concerning the Alabama law or a similar one reaches the court.

“What we don’t know,” Professor Franklin said, “is the extent to which either Chief Justice Roberts or Justice Kavanaugh feels sufficiently bound by 50 years of precedent, or by a desire not to be viewed by the public as discarding that precedent for political-ideological reasons, to pull back from the brink.”

Melissa Murray, a law professor at New York University, said much would turn on Chief Justice Roberts, who might have conflicting impulses.

“Recent departures and appointments, coupled with an increasing skepticism of established precedents, suggests the Supreme Court is more amenable than ever to overruling Roe,” she said. “The recent spate of restrictive abortion regulations reflects this new reality.”

“These laws are an obvious provocation — a clear attempt to take the question of Roe’s continued viability straight to the court,” Professor Murray said. “The real question is whether Chief Justice Roberts’s interest in preserving the court’s institutional legitimacy will outweigh the conservative interest in legislating abortion out of existence.”

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Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution

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Chief Justice Roberts is a product of the conservative legal movement, and his general inclination is to lean right. But he is also an institutionalist and a guardian of his court’s authority, meaning he generally makes modest and deliberate moves.

In February, for instance, he joined the court’s four liberal members to block enforcement of the Louisiana law, which requires doctors performing abortions to have admitting privileges at nearby hospitals. The court’s four other conservatives would have let the law go into effect.

Chief Justice Roberts’s vote was something of a surprise, as he had dissented in 2016 from the court’s decision to strike down a Texas admitting-privileges law essentially identical to the one from Louisiana.

Still, the court’s liberal justices seem nervous. On Monday, in a case overruling a precedent in a different area of the law, Justice Stephen G. Breyer’s dissent chastised the majority for acting rashly. Repeatedly citing the Casey decision, Justice Breyer said he feared for the future.

“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.

Chief Justice Roberts was in the majority in Monday’s decision, and he has voted to overrule important precedents on campaign finance and public unions.

At other times, he has called for restraint. During his 2005 confirmation hearings, he said the Supreme Court should be wary of overturning decisions, in part because doing so threatens the court’s legitimacy.

“It is a jolt to the legal system when you overrule a precedent,” he said. “Precedent plays an important role in promoting stability and evenhandedness.”

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The future of the Supreme Court 's ideological balance proved to be a critical factor for many Republican voters. Ginsburg may find herself in an uncomfortable spotlight. Some leading liberals had urged her to retire two years ago so Obama could have filled her seat with a younger liberal justice.

On July 1, 1991, President George H. W. Bush nominated Clarence Thomas for the Supreme Court of the United States to replace Thurgood Marshall, who had announced his retirement.

Chief Justice Roberts elaborated on the power of precedent in a concurring opinion in 2010 in the Citizens United decision, which overruled two rulings. Departures from precedent, he wrote, require very good reasons.

But he added, quoting from earlier decisions, that the Supreme Court remained free to correct its worst errors.

“Stare decisis is neither an ‘inexorable command’ nor ‘a mechanical formula of adherence to the latest decision,’ especially in constitutional cases,” he wrote, referring to the Latin legal shorthand for respect for precedent. “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the government could wiretap ordinary criminal suspects without first obtaining warrants.”

Richard W. Garnett, a law professor at Notre Dame, said the constitutional confrontation over the right to abortion sought by the sponsors of the Alabama law was unlikely to come to pass.

“It appears that the proposal’s supporters intend to create an opportunity for the current court to revisit its decisions creating that right,” he said. “However, it is not clear that the current justices who have expressed doubts about the correctness of decisions like Roe and Casey will want to take up a case that squarely presents the question whether these decisions should be overruled. Instead, they might well prefer to first consider less sweeping abortion regulations and to uphold them even under the current doctrine.”

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ACLU, Planned Parenthood sue over Alabama abortion ban.
The American Civil Liberties Union (ACLU) and Planned Parenthood filed a lawsuit on Friday challenging a law enacted by Alabama last week that bans nearly all abortions and makes performing the procedure a felony punishable by up to 99 years in prison. The lawsuit is one of several the groups have filed or are preparing to file against states that recently passed strict anti-abortion measures in an effort to prompt the U.S. Supreme Court to overturn Roe v. Wade, the 1973 landmark case that guarantees a woman's constitutional right to abortion.

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