I mean, haven't you ever wondered? If Roe is "settled" law, if a woman's right to choose to have an abortion is clear and given in the US Constitution, why does it remain the #1 hot button political issue?
Because Roe is not settled law. Because such a right doesn't exist in the US Constitution. Oh, and because abortion supporters are chickenshits. Oh, and anti-abortion members of Congress are also chickenshits. Am I being blunt?
Roe is not settled law because no judicial decision ever is. During recent Senate hearings, we kept hearing about "super precedents". There is no such thing. Stare decisis, the rule of precedents in our judicial system, is a guideline and nothing more. Any past decision is subject to challenge if either the underlying facts or law have changed. For example, in Roe, one of the underlying facts had to do with viability, when a fetus could survive outside the mother's womb. Anyone keeping an eye on the medical science knows that viability improves all the time. Just ask anyone who has given birth to a premature baby. Thus one of the unlying facts of Roe has changed, and continues to change.
Roe is also not settled law because -- surprise -- it's not even the law any more. Roe was partially affirmed and partially overturned by Casey. Casey, as Chief Justice Roberts pointed out during his confirmation hearing, is the law, not Roe. Most people still believe that the Roe trimester approach to abortion regulation is still in effect. Nope. The rule is Casey, and Casey says that the states are free to regulate abortion in anyway they see fit as long as it does not create an "undue burden" on a woman's right to have an abortion. A two-edged sword, Casey opened the door for states to pass laws mandating parental and spousal notification, which drives abortionists up a wall or two. However, Casey states that the right to abortion is an absolute (bye bye viability!) and opened the door to late-term abortions, such as the heinous practice of partial-birth abortion. Under Casey, a woman could be on her way to the delivery room and opt to have an abortion instead.
Do you begin to see why Roe is not "settled" law? It's not even the law, yet everyone still refers to Roe when they discuss abortion rights. It's not settled because a Court could come along and, under the right legal circumstances, toss Roe/Casey out the door. To see an example of a "super precedent" that was treated just that way, consider Plessy, which stated that separate is equal. That law was in place almost 60 years (1896 to 1954) before Brown v. Board of Education declared that separate is not equal. Poof, Plessy vanished. So much for super precedents. As measured against Plessy, Roe and Casey are infants. (No pun intended, though I like the tinge of irony.)
So now we have to wonder why Senators want Roe/Casey treated as some sort of super precedent. First, they understand perfectly that a future Court could see that Roe was one of the most horribly reasoned decisions the Court has ever made, and decide that maybe it's time to eradicate that stupidity. Erasing Roe would mandate reviewing Casey (since Casey is based on Roe), and Casey would similarly be eradicated. So pro-abortion Senators -- or, more accurately, those pandering to the pro-abortion factions -- want to avoid that at all costs.
(Please note right here and now that this is not a pro- or anti-abortion issue. This is a matter of law. And as a matter of law, Roe is one of the Court's least reasoned rulings. When we hit the issue in law school, it was amazing. Even abortion supporters couldn't figure out how the Court came to its conclusions in Roe. As one [pro-abortion] woman put it, it was as though the Court simply ruled the way it did because it wanted to, and legal reasoning be damned.)
So why are allegedly pro-abortion Senators chickenshits? Because, second, if they really gave a rat's ass about protecting a woman's "right to choose" then they would introduce legislation codifying Roe and/or Casey. That's the "check" the Legislature holds over the Judiciary. If they dislike the law that has resulted from a judicial ruling, the Legislature can pass a law reversing that ruling. (It doesn't help the poor slob impacted by the ruling; it just prevents what the Legislature perceives as future injustice.) If the Legislature really wants to keep the Court out of it, they go even further and amend the Constitution.
So if pro-abortion Senators really believed in what they were spouting, they would propose a Constitutional amendment codifying Roe, Casey, or some combination thereof. If such an amendment were successfully added to the US Constitution, there would be an actual right to an abortion, and a woman's precious "right to choose" would be protected from any present or future US Supreme Court.
Of course, the pandering bastards don't do this because they know it would never succeed. They know that the statement "most Americans support a woman's right to choose" is a half-lie because polls show that support really means support for abortion "in cases of rape or incest or if the mother's life is at risk, and then only during the first trimester." They know that the majority does not support abortion on demand, or procedures such as partial-birth abortion, or -- generally -- any abortion after the first trimester.
And I'm talking about women here, because in a number of surveys it turns out that men are far more in favor of abortion than women (contradicting claims by NOW and others). Even allowing for that, the above poll results still hold.
So those pompous bastards who bark that they support a woman's right to choose, i.e., abortion, don't. They are chickenshits.
And to that precise degree, Senators who claim to be anti-abortion are also chickenshits because they could propose legislation and/or a Constitutional amendment overturning Roe/Casey. But they don't.
So abortion remains a hot button issue when, in reality, it doesn't have to be. If one side or the other proposed legislation either supporting or tossing Roe/Casey, we -- as a nation -- could have the massive national debate over the matter that the Court in Roe denied us. We could get the issue settled. You know, do that democracy thing. That, of course, would require the US Senate to do its job rather than posture and pontificate. And they are much better at that, strutting peacocks that they are.
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