Strengthening Constitutional Self-Government

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Let Me Say Something Good About Justice Kennedy

This article by Steve Chapman gives the clearest case for the conceptual change occasioned by Kennedy’s opinion I’ve seen. It’s caused me to think I was a little harsh below. Steve shows that the animosity of Ginsburg and her many "pro-choice" supporters has nothing to do with health, and Kennedy’s tweaking of the PLANNED PARENTHOOD health concern in the direction of "rational basis" or legislative deference isn’t the big deal. (It really isn’t a big deal!) This case does establish the principle that the fetus itself need not be treated as just disposable material, or no differently from some cancerous tumor to be excised by any means necessary. It’s a real breakthrough in how the law is permitted to understand what a fetus is. There is a subtle change from upholding policies that show respect, in princple, for potential life toward ones that show respect for the reality--the stuff, the animated body--that is fetal life, but that change is not self-evidently or blatanly incompatible with the doctrine of PLANNED PARENTHOOD. This breakthrough is not one that allows the government to prevent a single abortion, but maybe the "pro-choice" people are right to worry that it is genuine progress in our country’s thinking. The Court has always resisted calling the fetus the woman’s property to be disposed of as she pleases, but the "pro-choice" or Lockean principle has always implied that in its proponents’ eyes. And now the Court has clearly--with teeth--contradicted them. But it’s still the case, I think, that no further progress can be made within the confines of PLANNED PARENTHOOD.

Discussions - 3 Comments

The Court prefers incrementalism. Griswold preceded Roe, so before any decision overruling Roe and Casey in their entirety is rendered, there will be decisions carving into the progeny of Roe and Casey. Last week's decision should be understood in that light.

Thus the decision is a harbinger of what will come.

And Ginsburg knows it, which is why she flipped out. The morality of the issue has been redefined. It's no longer a comfortable abstraction. When health is usually mentioned in abortion decisions, it's almost always concerned with the health of the mother intent on killing her child. This decision now will enable legislatures to place the health of a late trimester child on equal par with the mother. This decision opens the door for many an imaginative legislator. That's what focusing on partial birth abortion accomplished.

This was a great legal triumph. And decades worth of effort went into it.

That is, if it goes anywhere. Will "Spinnin' Tony" allow any further progress?

That's odd. I don't recall multiple postings.

Whatever.

I'm sure you guys got the gist.

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