Opinion | How Not to Outlaw Abortion

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But in the age of Trump, conservative commentators and lawmakers expect big results, quickly, and are not afraid to say so — or to give up the claims of neutrality that made the conservative legal movement so successful. In his 2018 confirmation hearings, for example, Brett Kavanaugh told the Senate Judiciary Committee that a good judge “must be an umpire — a neutral and impartial arbiter who favors no litigant or policy.”

That’s not what some conservatives are saying anymore. What do conservatives want instead? Some, like the Harvard Law professor Adrian Vermeule, propose new theories of constitutional interpretation. Professor Vermeule’s alternative, “common good constitutionalism,” proposes that “strong rule in the interest of attaining the common good is entirely legitimate”— and embraces “a candid willingness to ‘legislate morality,’” including in cases of abortion, sexual liberties, free speech and contraception.

Others, like Senator Josh Hawley, a Republican of Missouri, who clerked for Chief Justice Roberts and called the decision a “disaster,” want a new vetting process that would provide more assurance that Republican nominees adhere to the results that the anti-abortion movement demands. At the very least, that would mean laws criminalizing all or most abortions — and judicial nominees who would not hide their support for that outcome.

From a political standpoint, these proposals have obvious drawbacks. They ignore what most Americans seem to believe — a majority want to keep abortion legal — and they reject the idea of popular will as a basis for governing, at least on questions of morality. And in strategic terms, these proposals don’t seem likely to play well with a Supreme Court committed to the appearance of neutrality and respect for precedent.

Losses in the Supreme Court are nothing new. So why are abortion opponents so angry?

President Trump has sold conservatives on the idea that the politically impossible can be easily realized — and that the path to power comes from rallying the base. While lurching from crisis to crisis, Mr. Trump has maintained stable (if low) poll numbers, all while proposing a raft of socially conservative policies. He doesn’t seem to care what the American majority thinks. Some abortion opponents share Mr. Trump’s reckless attitude — and expect the Supreme Court to rubber-stamp absolute abortion bans immediately.

That was never likely. But this Supreme Court still seems quite willing (and even likely) to get rid of abortion rights if approached in the right way. The question is whether abortion foes are up to the task.

What is the best chance for that abortion rights will survive? The chief justice made that clear today: the impatience of conservatives themselves.

Mary Ziegler, a professor at the College of Law at Florida State University, is the author of “Abortion and the Law in America: Roe v. Wade to the Present.

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By Mary Ziegler

2020-06-29 19:00:04

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