Memo to Conservatives: Roe v. Wade Was Overruled -- 16 Years Ago
I'd like to address how it utterly horrifies me that Palin hasn't heard of Marbury or Brown or Bush v. Gore or Dred Scott or Plessy or Miranda or Giddeon (holy cow Batman! Where they hell was she in middle school history?). But I'll do that later. Now, I want to grind an axe about people who say "Roe v. Wade should be overruled," and in particular politicians who run on that platform So here's a message to Sarah Palin, and all politicians who think overruling Roe v. Wade needs to be a top priority:
Roe v. Wade was overruled in Planned Parenthood v. Casey, 505 U.S. 833 (1992). That's right, it hasn't been the law since 1992. The last year of the George H. W. Bush Administration. Same year as the Rodney King trial -- the first one.
I'm actually surprised you didn't know that, because Justice Scalia, who you adore, made a big stink about it. You see, the controlling plurality (it's complicated, just trust me that three Justices controlled the outcome) replaced the trimester test in Roe with a new "undue burden" test. And in so doing, the plurality relied heavily the principle of stare decisis (that is, the precidential weight accorded prior rulings). And your favorite Justice -- Scalia -- opened up a can on them for doing so, asserting that their hypocrisy was "really more than one should have to bear. " See 505 U.S. at 985 (Scalia, J., dissenting).
So, what's the point? That I have a law degree? No. I do. And I'm not apologizing for that. But that's not the point.
The point, is that if you are going to use an issue as a wedge in the national political discourse, you ought to have at least a rudimentary understanding of it. But you don't. Instead, you're focusing on a decision that has not been law since the Dream Team stormed Barcelona. Attack the undue burden test if you want. Lord knows there is plenty to attack there. (Indeed, given the Court's current composition, the undue burden test's squishy nature gives pro-life advocacy groups a huge opportunity to render the right to abortion a right in name only -- if it isn't already.) But please, for the love of god, learn something about the law in this area before you run on a platform of changing it.
Regards,
eze
Thanks for clarification, much appreciated.
September 30, 2008 9:53 PM | Reply | Permalink
Glad to oblige. Spread the word.
September 30, 2008 9:59 PM | Reply | Permalink
To be fair Democrats and Republicans alike use this for political gain.
September 30, 2008 11:38 PM | Reply | Permalink
Yes, but Dems run on the need to protect the right "to choose," which fits with the current regime. I'm not saying that abortion is not a legitimate issue, nor am I saying that running on a hard-line anti-abortion stance is illegitimate (I have LOTS of other problems with it, but there is at least a principled position there). But running against Roe just seems entirely disingenuous. If you're that concerned with abortion law, you ought to at least have a basic understanding of what it is.
September 30, 2008 11:47 PM | Reply | Permalink
This post is bizarre and dangerously wrong.
Roe was reaffirmed in Casey. Please read the link to the case, which is in the post, which makes this obvious, without the aid of a law degree.
Overruled is negated. If the test is modified, that's not overruled. Scalia sought to overrule in Casey and was smacked down. We need to preserve Roe, which remains good law.
October 1, 2008 12:18 AM | Reply | Permalink
A constitutional right to abortion remains the law. But Roe -- which set out a trimester test that was MUCH more protective than the undue burden test -- is not the law.
October 1, 2008 7:01 AM | Reply | Permalink
Um, eze, did you even bother to read PP v. Casey decision before your post? How many times did it use the words "reaffirm" or "protect", when describing Roe v. Wade, before you reached your stunning conclusion that R v. W was "overturned"? I mean, seriously. I DON'T have a law degree, and if you are a representative sample of the intelligence of your average law school graduate, I don't want one. If you are going to be snarky ("So, what's the point? That I have a law degree? No. I do. And I'm not apologizing for that."), then you should at least be RIGHT
October 1, 2008 1:07 AM | Reply | Permalink
I have read Casey, and I will stand by the assertion that adopting the undue burden test is overruling Roe, no matter what the plurality said. The plurality said it was reaffirming Roe's "core" holding, but the trimester test Roe applied was decidely overruled.
Splitting hairs? No. The trimester test was WAY more hostile to restrictions in the first three months than the undue burden test. To take one example, it is hard to see parental notifcaction passing the test in Roe (at least when applied dueing the first trimester), but passed in Casey.
The plurality said what it said, and judges often add statements to decisions to make them seem like a smaller deal than they actually are. But the fact is that it adopted a new test that, as applied by Anthony Kennedy, eviscerates much of Roe's "core" holding. (See the Scalia passage I have excerpted below. Lord knows I don't love Scalia, but I think he captured the plurality's dissonance quite well.) And if conservatives want to run against the Supreme Court's abortion jurisprudence, then they should at least know what it is. (Like I said, the undue burden test would really be an easy target for politicians wanting to say that the Court's abortion jurisprudence is just made up.)
505 U.S. at 993 (Scalia, J. dissenting).
October 1, 2008 7:20 AM | Reply | Permalink