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Carter: On Roe v. Wade, Trump appointee might not be enough to overturn

Politics, sex and religion. Once upon a time, these three subjects were considered rude to discuss. Now, it seems, you can’t have a discussion at the neighborhood barbecue without one, two or all three coming up. Perhaps not surprisingly, some of the most controversial political issues of our time come at the intersection of these three taboo topics.

Notably, with Supreme Court Justice Anthony Kennedy’s announced retirement, the 1973 landmark decision in Roe v. Wade, which ostensibly gave women the right to have an abortion, has come to the political forefront in recent weeks. The expectation is that President Donald Trump will appoint a young conservative to the high court, giving the Supreme Court bench a distinctly conservative majority, and open the door to a case that may ultimately lead to the court overturning Roe v. Wade. Trump is expected to announce his pick Monday.

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This possibility — likelihood? — has pro-life conservatives, particularly evangelical Christians, brimming with hope that the 45-year-old ruling will be overturned; while liberals are doing much hand-wringing and discussing potential ways to block Trump’s Supreme Court nominee, or delay the process until after the November election, with hopes of taking control of the Senate. The sentiments on either side cut deeper than Roe v. Wade, of course, with the issues of same-sex marriage and affirmative action also possibilities to be re-examined by the court.

Undoubtedly, Trump’s pick will be a pro-life conservative. Trump has said as much. The Democrats’ only realistic hope of blocking his nominee would be to convince moderate Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska, both of who may be hesitant to confirm a nominee who outwardly opposes Roe v. Wade.

But could the histrionics from the left and, ergo, any celebration from the right, be moot?

Even if a conservative majority were to find flaws with Roe v. Wade, there is the matter of the 1992 case Planned Parenthood v. Casey. That case, heard nearly 20 years after Roe, rejected the notion that states’ ability to regulate abortion began in the third trimester, instead tying a woman’s right to an abortion to fetal viability. However, it also re-affirmed the central holding of Roe, that “matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”

It’s notable that it was a group of three justices appointed by Republican Presidents Ronald Reagan and George H.W. Bush — Sandra Day O’Connor, David Souter and the soon-to-be-retired Kennedy — that authored the plurality opinion in Planned Parenthood v. Casey, upholding the “essential holding” of Roe, a crushing blow for the religious right that had expected that conservative group to overturn the previous court’s decision in Roe v. Wade.

In that same opinion, the “troika” as this group of three justices came to be known, wrote that the then nearly two-decades-old decision in Roe should be respected under stare decisis, that is, that you don’t overturn precedent without a strong, compelling reason.

“The very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. …

“Because neither the factual underpinnings of Roe’s central holding nor our understanding of it have changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973.”

The opinion also emphasized that should the Supreme Court frequently change its constitutional decisions, it would undermine the legitimacy of the Court.

“The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”

And therein lies the rub. No matter who is nominated by Trump to be the next Supreme Court justice, any Court that hears a challenge to Roe v. Wade or any other decision by a previous Court will have to determine what, if anything, has changed since that case became law, beyond the presumed make-up of the Court and current political climate (and even that latter point is debatable, considering most polls find the pro-life, pro-choice divide to be roughly 50-50 and have for many years, and some polls have found that a majority do not support overturning Roe v. Wade).

The Supreme Court is often thought to be above politics. Regardless of where you stand on abortion rights, should Roe v. Wade be overturned based simply on the partisan make-up of the bench, the Court could be well on its way toward descending into the political quagmire that has already absorbed the White House and Congress. So much for draining the swamp.

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