Keep this in mind: Overturning
Roe is a
compromise decision, restrained and limited.
- 1973
Roe claims that the 14th Amendment casts shadows that empower every mother to abort her child.
- Pro-lifers wanted the Court to overturn
Roe AND decide that a pre-born child is a natural person, whose life would be fully protected under the law by the 14th Amendment.
This draft decision overturns Roe, but it restores states to legislate their own practices.
If this Court were truly extreme, dominated by activist Conservative justices, then it could have rendered every pro-abortion law unconstitutional -- just as Roe and Doe and Casey rendered every pro-life protection unconstitutional.
Thunktank wrote: 10 May 2022, 23:27
There’s a reason why our courts have moved away from Hanes for a while now, that is until Alito dusts him off.
Here's the reason why modern Courts have disregarded
stare decisis, and it is not a good one:
In the last half-century, modernist government has moved away from many democratic practices.
Congress handed most of their duty over to the Executive.
Controversial laws that should have been legislated were imposed by the Court.
And then
stare decisis was fully aborted by
Roe v. Wade. (Of course, the pro-abortion lobby immediately turned around demanded that
Roe must be honored as sacred precedent.)
[I don't want to get political, because conservatives, liberals, and leftists have all abused the modernist license to impose whatever we want right now and disregard the past.]
Thunktank wrote: 10 May 2022, 23:27I’m curious to learn more about how and why he did it.
To restore stare decisis to its proper place in American judiciary, of course!
Alito establishes that
nowhere in legislated law or judicial precedent (going way back to English Common Law) was there are a "right to abortion" in the minds and hearts of Americans when the 14th Amendment was ratified in 1864.
In Alito's 90-some page draft, he devoted
30 pages to listing the laws against abortion that were current in every state in 1864. And for states that were admitted after 1864, he listed every law against abortion that was current in that state when it was admitted.
And then he listed all of the Court precedents that applied to abortion, going deep into history and English Common Law.
This is the legal analysis that should have been done in 1973. We are doing it now.
By 1973, some states had passed legislation to permit and regulate abortion. This is the proper way for a society to change its culture, for good or for ill. The draft decision seeks restore the decision process to its proper place, in state legislatures and popular referendum elections.
When
Roe v Wade and subsequent cases squinted and stretched to invent a "Constitution Right" to abortion -- utterly disregarding proper
stare decisis -- it created a complex crisis (social, political, and judicial) which has been with us for 49 years. It is time to fix this, at least in the judiciary.
And it is time to banish the arrogant modernist foolishness that disregards centuries of human wisdom "because it's old."
In this Court, if you want to win a legal case then you have to make a compelling legal argument based on precedent. Emotional arguments won't fly anymore, like
"but we want it so badly!"
This court is saying,
"Go to your legislatures, and make your laws there."