Notre Dame law professor Carter Snead makes the case against despair:
[N]ow is not the moment to dwell on anger or disappointment. Now is the time to get back on our feet and return to the work of building a civilization of love, radical hospitality, and legal protection for unborn children and their mothers. We have no choice but to continue to fight for the lives and dignity of these most vulnerable members of the human family. Quitting is not an option. So, the question before us is this: What in the Chief Justice’s concurrence (which controls as precedent for the lower courts) points a way forward for the legal effort to build a culture of life? A careful reading of his concurrence reveals several points to consider.
First, Roberts acknowledges that Whole Woman’s Health v. Hellerstedt (2016), which struck down Texas’s admitting privileges requirement (and clinic regulations), was wrongly decided. Thus, as Justice Kavanaugh points out in dissent, there is currently a majority of five Justices who (correctly) share this view. I would add that given all the publicly available information, it is impossible to imagine that Roberts and the four dissenters in June regard Roe v. Wade and Planned Parenthood v. Casey as correctly decided in the first instance. Indeed, in his concurrence he notes that both parties to the matter agreed that Casey is the correct standard to apply and neither side asked that it be reconsidered; he does not here endorse or reaffirm Casey as a precedent. However, it is clear that going forward, in order to persuade Roberts to overrule these cases, restore justice, and repair the rule of law, pro-life litigants will have to muster arguments responsive to his view that the prudential doctrine of stare decisis requires additional reasons to do so concerning these precedents’ “administrability, [their] fit with subsequent factual and legal developments, and the reliance interests that [they] have engendered.” The good news is that this case can be readily made. The Roe/Casey jurisprudence has never provided a stable, coherent, or predictable legal framework for the political branches; it is built on outdated and dubious factual predicates; it has been retheorized on multiple occasions by various Justices, thus diluting its precedential authority; and there is powerful evidence available that women have not, in fact, structured their lives around the freedom to choose abortion, nor does their flourishing depend on it.
Read the whole thing here.
