The Supreme Court recently heard oral arguments over the partial-birth abortion act. The pachyderm has a few thoughts, unrelated to the big “Kennedy Question.” First of all, under what enumerated power may Congress enact such a ban? We are about to see another one of the federalist-conservative splits, highlighted in Gonzales v. Oregon (2006). (The pachyderm would like to note that it is always amusing to see liberals who get up in arms about federal government intervention. After a few more years of the Bush administration, she thinks that a new crop of states’ rights advocates will be born from the left side of the aisle.)
More than that, there is the issue of how broadly the Court will make its ruling. If it upholds the D&X ban, will it do so on the theory that there is no constitutionally-protected interest in late-term abortions? O’Connor’s words – that Roe is on a collision course with itself – will ring true as the Court considers that most of the fetuses in question are viable. Or, will the ruling seek to undercut Roe -that abortion in general is not constitutionally-protected – and pave the way for it to be overturned, such as by calling the entire doctrine into question as unworkable or a legislative issue?
Scalia uses three criteria in determining whether to overturn precedents: (From Dominion Wine & Cheese Society):
1) Was the decision wilfully wrong?
2) Has the wrong ruling been generally accepted?
3) Does the existing precedent put me in the role of a legislator rather than a judge?
Roe and its progeny would probably fall under all three categories – the big question is to what extent the Court will use D&X as a wedge into the entire abortion jurisprudence.