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View Diary: Alito rejected abortion as a right (96 comments)

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  •  you missed the difference (none)
    Overturning Roe would mean an elimination of abortion in the minds of voters.  What the republicans want to fight about is restrictions on abortion like parental notification and partial birth abortion.  Those are the areas that they think they ahve a vast majority of the country on their side and that democrats will still oppose.  The democrats need to make it seem like Alito will completely overturn Roe- not that he would let legislatures have women say that they told their husbands.
    •  Well (none)
      Justices who disagree with a landmark decision can still vote to uphold the essential holding of a decision in the name of stability in government and predictability and the law.  Justice O'Connor, for example, clearly disagreed with Roe v. Wade as evidenced by her dissenting opinion in Akron v. Akron (1983).  The decision, which struck down an Akron ordinance that, among other things, required minors under age 15 to have either written consent of one of her parents, or obtain a judicial waiver in order to obtain an abortion, and required a mandatory 24-hour waiting period to obtain an abortion.  Justice O'Connor wrote a dissenting opinion, which included the following:
      The trimester or "three-stage" approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests. The decision of the Court today graphically illustrates why the trimester approach is a completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.

      Justice O'Connor, concerned with stability in government and predictablity in the law, later voted to uphold the essential holding of Roe in Planned Parenthood v. Casey, but replaced the trimester framework with a narrower "undue burden" standard.

      As with then-Judge Roberts, I questioned at the time whether a Chief Justice Roberts would vote to overturn Roe.  I had no doubt, however, that a Chief Justice Roberts would vote to narrow the protections under Roe if not overrule the landmark case, and allow a state to enact access restrictions that the Courts that decided Roe and Casey would never have upheld, i.e., mandatory spousal notification.  But every Republican appointee since Ronald Reagan -- Justices O'Connor (Reagan), Chief Justice Rehnquist (Reagan for elevation to C.J.), Justice Scalia (Reagan), Justice Kennedy (Reagan), Justice Souter (G.H.W. Bush), Justice Thomas (G.H.W. Bush) -- has voted to narrow the protectons under Roe.  Elections have consequences.

      I think Judge Alito is more likely than Chief Justice Roberts to overturn Roe, but my sense is that like Chief Justice Roberts, he will vote to retain the decision to the point where the protections under Roe become virtually irrelevant, and it becomes virtually impossible for women to obtain an abortion.  I don't think it's necessarily truthful to say that Judge Alito will vote to overturn Roe.  We want to be truthful since that enhances our credibility.  I'd stick to the mandatory spousal notification case.

      The quest for freedom, dignity, and the rights of man will never end. - Justice Brennan

      by jim bow on Mon Nov 14, 2005 at 07:55:46 AM PST

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