Last week’s Supreme Court decision rattles pro-aborts
8:45p: Here’s what Jezebel thinks:
Pro-choice advocates are worried about 2 things when it comes to the Supreme Court’s ruling in this case: the court’s willingness to abandon decades of established legal precedent (stare decisis); and the court’s decision to pick a legal question not explicitly presented to them by the case to overturn a law they’d apparently already made up their minds about. These very things are, when it comes down to it, exactly what anti-abortion advocates are cheering.
7:50p: Pro-aborts have become increasingly reliant on the principle of stare decisis, or settled law, to prop Roe v. Wade….
Not confident the Roe decision can stand on its own merits, they try to make the case it has been around so long that to overturn it would wreak too much havoc on American culture – the principle of stare decisis.
Which brings us to this January 22 Politico article entitled, “Activists see threat to Roe precedent”:
The Supreme Court’s ruling Thursday undercutting a ban on corporate political spending that had been in place for more than a century has left abortion-rights supporters jittery that the justices could be similarly prepared to upend the landmark Roe v. Wade decision the court [justices pictured left] handed down 37 years ago this week.
“Yesterday’s Roberts court decision, which exhibited a stunning disregard for settled law of decades’ standing, is terrifying to those of us who care deeply about the constitutional protections the court put in place for women’s access to abortion,” said Nancy Northup of the Center for Reproductive Rights. “We are deeply concerned…. Yesterday’s decision shows the court will reach out to take an opportunity to wholesale reverse a precedent the hard right has never liked.”…
Critics said the court’s 5-4 ruling in the Citizens United case Thursday declared unconstitutional a law which has been in place since 1907 barring corporations from involvement in federal elections. Just 6 years ago, the Supreme Court called the longstanding ban “firmly embedded in our law.” Now, it’s gone.
Abortion rights advocates said the willingness of the court’s majority to toss aside precedent undercut Chief Justice John Roberts’s assurances at his confirmation hearings in 2005 that he would tread lightly when it came to rulings like Roe v. Wade.
“It’s settled as a precedent of the court, entitled to respect under principles of stare decisis,” Roberts said then. “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents…. I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.”
“Yeah, it’s settled law – until you get enough votes in your favor,” Arons scoffed Friday. “Then it’s, ‘We respect precedent, but we still overturn it.'”
A lawyer who regularly argues before the Supreme Court, Tom Goldstein of Akin Gump, said the abortion rights supporters were right to be worried in the wake of Thursday’s decision.
“Some of the Supreme Court doesn’t like some of the court’s O’Connor-era abortion jurisprudence just like they don’t like some of the O’Connor-era jurisprudence on campaign finance,” Goldstein said. “Abortion is one of the areas where there is a long string of cases conservatives believe is totally misguided.”
Goldstein said the campaign finance decision indicates that the court is increasingly willing to break with previous precedents when it comes to “the really central questions of constitutional law,” which include abortion, gay rights, the death penalty and church-state issues.
“Those are questions I think the court thinks you just have to get right. Just because someone else got there first doesn’t give it any greater claim to legitimacy,” Goldstein added.
Abortion rights advocates said they were unsettled not solely by the court’s 5-4 holding in the Citizens United case, or by the majority’s dismissive approach to laws considered well-established, but by the unusual procedural steps the court took to tee up the ruling it issued Thursday.
In the district court, Citizens United dropped its arguments for overturning the corporate spending ban and asked that the case be resolved on narrower grounds. However, after the case was first argued at the Supreme Court, the justices ordered the parties to return and present new arguments about striking the overall ban. Additionally, the justices’ ruling Thursday also explicitly overruled a case decided 20 years ago, Austin v. Michigan Chamber of Commerce, in which the court held, 6-3, that states could bar corporations from involvement in political campaigns.
“It seems like they were looking for any opportunity and as soon as they got one, they were not satisfied to do this incrementally. They wanted to do it all at once,” Arons said. “There is concern in reproductive rights circles that if it’s something conservative justices feel strongly about, well, now they have the votes to do that.”
A supporter of the court’s campaign finance ruling, Jeff Patch of the Center for Competitive Politics, said the claims that the court had overturned a century of precedent were exaggerated. He noted that the 1907 law critics referred to was a statute, not a court ruling, and that it banned direct donations to political campaigns – not the independent expenditures the court addressed Thursday.
Abortion opponents were heartened by the boldness of the court’s ruling Thursday.
“Where they disagree with the precedent and they think it’s wrong constitutionally, they’re not afraid to say it,” said the American Center for Law and Justice’s Jay Sekulow, an attorney who has argued church-state and campaign finance issues before the justices. “Where they think the court got it wrong, they’re trying to correct that, and from my perspective that’s a good thing.” An unthinking embrace of precedent would have protracted the effect of widely reviled rulings like the Dred Scott decision on slavery and the Plessy v. Ferguson decision upholding separate-but-equal treatment of the races, Sekulow said.
Despite the signals that may have been sent Thursday, analysts on both sides of the issue said they still think an explicit repudiation of Roe v. Wade isn’t in the cards anytime soon. However, they said the tone and circumstances of the election law decision suggest the court won’t be skittish about cutting Roe back even further.
“It’s just being held up by a little camel stick,” said Janet Benshoof, a longtime abortion rights lawyer. “You’re talking to someone who considers Roe v. Wade to have been overturned already,” she said, referring to a series of rulings in recent years upholding restrictions on abortion. “It’s no longer a fundamental right. We have 300 to 400 criminal laws on abortion that wouldn’t be legal under the [original] version of Roe v. Wade.”
The majority opinion Thursday was written by Justice Anthony Kennedy, who has expressed support the central holding of Roe v. Wade but has also endorsed state efforts to regulate abortion.
Northup said she thinks laws limiting abortion will multiply further as activists learn of Thursday’s decision.
“This is going to be an invitation to folks who want Roe v Wade overturned to continue their push for restrictive state laws so they can get up before the court,” Northup said. “Everything is up for grabs.”
[HT: Susie Allen; top photo via Jezebel]

Indeed it is.
I would almost be jumping for joy but for the strong possibility that just one more justice calling it quits, and Obama’s like a kid in the judicial candy shop.
So don’t be too gloomy, pro-choicers.
Yoo-hoo you so enlightened liberals,
We have something in this country called freedom of speech. The Founding Fathers did not say it was restricted by income. They did not say that everyone must have the same ability to make themselves heard.
Is there any restriction as to how much unions donate to Democrats? They have millions. So much so they have made the Mob salivate.
Corporations consist of people, they are formed by people, they employ people. They are not non human entities.
Sure Obama and the liberals are in a panic. They’ve gone after the corporations. Now its payback time folks!
Obama, is calling on the pigs… I mean the dems, to come up with a bill that will over turn the disision. RJ
ah HA! I could not figure out WHY my liberal friends were so unsettled…this explains a lot! Thank you.
Mary,
This is something you might want to peruse.
More of the B.O. administration’s opaque transparency.
SEC mulled national security status for AIG details
yor bro ken
http://www.reuters.com/article/idUSTRE60N1S220100124
Thanks Ken,
Very interesting.
Isn’t it strange how liberals have always otherwise treated SCOTUS decisions as if they are handed down from Mt.Olympus? Reverse a SCOTUS decision? Unheard of!!
Now its the liberals squealing like pigs when its their toes that are stepped on.
This is just rich.
Corporations are in business to make a profit, even non-profit corporations.
The people who create and operate corporations know that it is hard to be profitable when you anger your potential customers.
Therefore as consumers we have great influence in how corporations participate in the body politic.
With the advent of the information age, anyone with a computer and internet access can hold the largest corporation accountable.
The keypad is mightier than the pen once was.
Political speech is the most important speech of all. Government should do everything it can to encourage the robust debate of issues and let the citizens determine what is of value and what is not.
yor bro ken
Sad to think that valuable space would be taken by any article representing the hurt feelings of the pro-child killing crowd.
What is accurately reported here is that these justices, I think seven of whom are Republican appointees, have a history of using precedent when it comes to the legality of equal protection under the law for all persons, even those persons in the womb.
The pro-life industry needs a new strategy. It’s obvious that voting for Repub’s is not filling the courts with pro-life justices.
Even if Roe were to be overturned, look at all the pro-life laws at the state level that will keep the abortuaries open for many years:
1. Wait for 24 hours…then you can kill your baby.
2. Get your parent’s consent…then you can kill your baby.
3. Notify the father…then you can kill your baby.
4. Consent to a medical exam…then you can kill your baby.
Hi Ken,
Aren’t the major news outlets, Obama lapdogs, gasp, corporations?
I understand the unions gave millions to Obama.
The Hollywood hobnobs and Oprah can use their fame and money to support Obama.
But those eeeeevil corporations, why, they must be silenced. We must be fair!
RJ 9:10PM
But, but, but RJ. According to liberal Dems, SCOTUS decisions are sent down on a thunderbolt from Mt.Olympus, personally thrown by Zeus.
These are the people who argue SCOTUS decisions, namely Roe, cannot be reversed! The SCOTUS has spoken and the issue is settled!
Now you tell us they will actually attempt to overturn this decision? Suddenly SCOTUS decisions are not divinely inspired?
Technically, no abortion would be upheld under Roe vs. Wade anymore, considering the opinion mentioned that if the humanity of the unborn was proven, the decision should be overturned.
This better be resolved in my lifetime.
For the pro-aborts who believe in stare decisis as a means of buttressing Roe:
Was Brown v. Board of Ed of Topeka wrongly decided? Should stare decisis have been employed to uphold Plessy v. Ferguson, a 58 year old precedent-setting case upholding racial segregation? Why or why not?
You are correct Marry.
Gerard,
I would be interested in hearing what you think of the Personhood Movement? Granting personhood status to unborn children.
http://www.personhoodusa.com
Carla,
” Gerard, I would be interested in hearing what you think of the Personhood Movement? Granting personhood status to unborn children. http://www.personhoodusa.com“
I know you asked Gerard, but I have no idea why any pro-life person would not support personhood. The only arguments that I’ve heard put forth against personhood are extremely unconvincing arguments about how it will be shot down immediately by the Supreme Court (true that at this point in time it may very well be, but how in the world does it follow that we should not support personhood?). Personhood is something really serious to get behind and support. It really is something to stand for and it makes a bold statement. I’d really be interested in hearing a cogent argument from a pro-lifer as to why one should not support personhood, because I’m quite shocked that there are some who do not.
Thanks Bobby. :)
I have heard that it all stems from what Justice Henry Blackmun stated when Roe was handed down…
Anyway, Cal Zastrow is one of the head guys. You can friend him on fb. :) I admire that he travels around the US to churches etc. and helps them hold petition drives.
Hi Gerard 5:11am
Should we also question how the SCOTUS found the “interment” (read: putting American citizens in concentration camps because of their race) of Japanese American citizens during WW2 as constitutional, like they did segregation?
It seems the SCOTUS has made some dubious, as well as racially motivated and bigoted decisions that should be viewed as a national shame. Obviously Court decisions can be based on human biases and failings and thank heaven for the ability to overturn them.
So when did SCOTUS decisions come to be viewed as divinely inspired and above reproach and overturning?
When they supported liberal sacred cows, such as abortion and McCain/Feingold.
“Goldstein said the campaign finance decision indicates that the court is increasingly willing to break with previous precedents when it comes to “the really central questions of constitutional law,” which include abortion, gay rights, the death penalty and church-state issues.
“Those are questions I think the court thinks you just have to get right. Just because someone else got there first doesn’t give it any greater claim to legitimacy,” Goldstein added.”
Hi Mary,
Hmmmmm. You’ve been saying this for as long as I can remember. The SCOTUS has finally caught up.
Way to go! :)
Here’s the Robert’s legislating from the bench again. I thought conservatives were against that?
Personally, I want a court that is willing to rule on whether laws are consistent with the constitution or not.
“Personally, I want a court that is willing to rule on whether laws are consistent with the constitution or not.”
Posted by: Hal at January 25, 2010 12:48 PM
Really??
Hi Carla,
I’m with the Personhood Movement all the way. I understand some in the pro-life community are not. Any idea why?
Hi Hal, 12:48PM
So you think Free Speech isn’t consistent with the Constitution? Can you point out where the Founding Fathers said this right could be restricted according to income?
I don’t see the unions, which donate millions to Democrats, being muzzled.
Mary, I’m sort of agreeing with the Court. Its job is to strike down laws that violate the constitution. This law (and McCain Fiengold too) violate the constitution.
Hal,
I’m glad we agree on McCain/Feingold but what other law are you referring too?
I’m glad we agree on McCain/Feingold but what other law are you referring too?
Posted by: Mary at January 25, 2010 2:14 PM
The law that prohibited corporations from donating directly to campaigns. Congress made that illegal over a century ago.
Hi Hal and thanks,
Interesting. Well glad to see that in the trash heap.
Liberals have no problem when it is liberals reversing conservative precedents, only when it is conservatives overturning liberal precedents. The bad news is this opens the door for NARAL and PP to buy tons of politicians with their filthy lucre.
The corporate MSM giants have been giving away what amounts to untold billions of dollars worth of free campaign advertisments to their leftist fellow travelers in the Democratic party. Because the advertisements were disguised as “reporting” and as “commentary” they were safe from campaign finance laws. Now at least the Court’s recent ruling levels the playing field a bit and allows all corporations to flood the market with advocacy ads and endorsements. And as Katie mentions even the PP’s and NARALs get to play by the same rules, so don’t fret pro-aborts.