Greviously and Egregiously Wrong: American Abortion Jurisprudence


Published November 10, 2021

Texas Review of Law and Public Policy

Abstract

This paper considers American abortion jurisprudence in the light of the Supreme Court’s grant of certiorari in Dobbs v. Jackson Women’s Health Organization. We conclude that Casey and its precedent case of Roe are egregiously wrong, have no grounding in the Constitution, and are unjustifiable on stare decisis grounds. This article argues that the Court should take this opportunity to overturn Roe and Casey once and for all, and restore to the political branches of government the authority to enact laws and policies that offer comprehensive protections to mothers, children (born and unborn), and families. Just as both parties made clear at oral argument, the conflict between the Mississippi law and the Court’s abortion precedents is so stark and direct, the only options before the Court consistent with a fair reading of the legal authorities at issue are (i) to reaffirm Casey and strike down the challenged statute, or (ii) overturn Casey, uphold the law, and return the matter of abortion law and policy to the political branches of government where the people can deliberate and enact laws that care rightly for women, children (born and unborn), and families. Given the Court’s fidelity to the Constitution, the rule of law, and the proper limits of its own authority, it will likely choose the second path, and resist the temptation to “reinvent” Casey in order to retain its dubious role as the country’s ultimate arbiter of abortion.

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