Abortion and the Supreme Court: how the debate has changed

https://www.ncronline.org/news/opinion/distinctly-catholic/abortion-and-supreme-court-how-debate-has-changed
MGB: It turns out that the thing that decided this nomination was the rather craven decision by Trump to go with a nominee who might rule that subjecting him to prosecution would be too disruptive to allow, although for now he believes that no such right to avoid prosecution now exists. Trump is good at grasping at straws. It's an executive trait for those with big brains and no analytical skill.

Kavanaugh's only decision on this issue is anti-immigrant, not pro-abortion, although it creates a quandry for pro-life, pro-immigrant Catholics.  Hard cases make bad law, as does defending stupid Administrations. Now that he is on the Court, we will find out what he really thinks.

The pro-life, pro-states rights Federalist Society endorsed the nominee, but I believe they also endorsed Alito and Roberts and probably Gorsuch too.  The hue and cry is that this could be the fifth judge that overturns Roe. That is the comment to win support by people who don't know much about Roe on both sides.

To overturn Roe, you have to accept the possiblity that any Supreme Court will give back federal authority over state equal protection decisions and that privacy, the right to be left alone by the tyranny of the (Catholic) mob in state legislatures, will similarly be overturned.

The best the Court could do is go along with Justice Thomas, who believes that the Court can unilaterlally decide that the unborn at some stage prior to viability, are legal individuals protected, not from abortion, but from infanticide.  They might have that power under the Civil Rights Act of 1875 or they might insists (as they should have in Gonzalez) that Congress make that decision specifically (rather than rely on the Commerce Clause) based on the enforcement section of the 14th Amendment. Part of enforcement is definition and Congress should be the definer.

Of course, the political process will likely yield the status quo, but it would also give us a vehicle for a higher child tax credit, which would reduce abortoin drastically - much more so than the Court could and certainly more than Republicans would outside an abortion debate with the Catholic Bishops looking over their shoulder. The reality is that they don't want to pay for other people's sexuality, but will control it with police power. How anyone can be pro-life and a decent human being given those facts is beyond me.

MSW still assumes that overturning Roe means empowering states. Under the 14th Amendment that is not only impossible, it is STUPID. We fouight a Civil War about state power over slavery. No way should we return to states right regarding abortion. Whether a person is a person is a FEDERAL question and always will be. Brennan correctly weighed the rights of all the unborn to be protected by positive law against the mother's rights to be left alone and found for the mothers because the state had no compelling interest to compel their behavior.

The law is all about compelling interest analysis and Brennan got it right. Roe was not wrongly decidied, those who react to it simply don't understand legal reasoning. Lawyers who say it was wrongly decided are being paid to say so. They have no ethics. Everyone else does not know any better.

Now, back to counting Justices. Anyone who remembers April 2007, when Congress sided with the Government in supporting the Partial Birth Abortion Act by a 5-4 vote. This was not a win for the pro-life side. Kennedy wrote the decision based no on overturning Roe and privacy, but on the Commerce Clause. Scalia and Thomas wrote concurrences saying they would overturn Roe and Roberts and and Alito JOINED KENNEDY. in preserving Roe.

For those who can count, that means there was a 7-2 Court UPHOLDING ROE including two Bush appointees. One of those two is now dead and Gosuch and Kavanaugh are Kennedy law clerks, with rumor having it that Kavanaugh is Kennedy's own pick (and Gorusch might have been too). Now, the bad news is that on conservative economic issues and affirmative action, this is very bad news (to permit myself a Yogi). On abortion, however, that is 4 Souters in a row on Roe.  By my count, that is 8 pro-Roe justices and one against and Thomas is old. Stick a fork in the pro-life movement. It;s done.

People are still calling Trump a pro-life POTUS, but reports are that he taunts the Vice President about his pro-life views and in private is still pro-choice. I am not naive enough to think differently, although if you do, you can pool your money and give it to Donald Trump as he has a bridge in New York to sell you.