The Court would be perfectly justified in concluding that its attempts to micromanage abortion policy have failed, in regarding this failure as an indictment of its pretensions to have any special expertise or authority to do so, and in scrapping Roe. In Casey, the Court argued that many people have relied on the availability of abortion in the event of contraceptive failure, and that this fact was a reason to continue to protect a right to abortion. But legislatures are perfectly capable of deciding what weight to give to that fact.
The justices may prefer to move incrementally. They may decide, when they again rule on partial-birth abortion later this year, to rule narrowly: to cede just enough legislative authority back to legislatures to let them prohibit partial-birth abortion. Little by little, they might restore democracy in this area.
Roe‘s twin fortifications are there to protect each other’s weaknesses. The alleged popular ratification of Roe is invoked to cover its legal implausibility. But a truly populist constitutional law would allow prohibitions on late-term abortions and substantial restrictions on early-term abortions, so the majesty of the law and the authority of the court have to be invoked against this threat. The only way to keep the game going is through sleights of hand, diversions, and illusions: Roe creates only a limited right to abortion; everyone loves Roe; it is settled law; repeat as necessary.
The pro-abortion activists are right to be alarmed.
John Derbyshire on pendulums and the confidence that there’s no going back from Roe.
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