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What Roe said was irrelevant


One of the strongest points made by Gerald Rosenberg’s The Hollow Hope is that the Supreme Court is not an educational institution. He marshals a lot of evidence for this, but it should also be obvious in theory, starting with the fact that virtually nobody without a professional obligation to do reads Supreme Court opinions.

Despite this, because of an unfortunate lecture/article by Ruth Bader Ginsburg a cottage industry has grown up to claim that the reason that Roe was vulnerable because 1)it rested on substantive due process rather than equal protection and 2)said too much about the rights of doctors and too little about the rights of women. I have no problem with these critiques on the merits. Where I get off the bus is the claim that had Roe been written differently it would somehow be more insulated from being overruled. But some people still see this as an argument with stakes beyond the law reviews:

In important ways, the Supreme Court strengthened Roe decades ago. In June 1992, in the case Planned Parenthood of Southeastern Pennsylvania v. Casey, a new five-justice majority on the Supreme Court affirmed Roe’s central holding and addressed its weaknesses. The authors of Casey included Sandra Day O’Connor, the first female justice. They spoke in clear terms of gender equality, recognizing that the right to choose whether and when to have a child made it easier for women “to participate equally in the economic and social life of the nation.”

Casey satisfied Ely, and he wrote a letter to Blackmun supporting the decision. (“Blackmun never responded,” Greenhouse told me. “I think he was still very hurt.”) By then, however, Roe had other prominent critics, including Ruth Bader Ginsburg, who said sex discrimination would have been a stronger rationale for the decision in a 1985 article in The North Carolina Law Review. Nine months after Casey, Ginsburg made waves by giving a lecture at New York University’s law school in which she said that Roe “might have been less of a storm center” if it had taken her incremental approach to building a jurisprudence about gender discrimination. Ginsburg’s words troubled abortion rights leaders, some of whom questioned her nomination to the Supreme Court when Bill Clinton picked her in June 1993.

The claim that Casey “strengthened” Roe is the tell here. It is true that the plurality opinion said more about how important reproductive freedom was for women than Roe did. But it also gave the state far more leeway to regulate abortion, particularly in ways that disproportionately impact poor and rural women. The material effects of the holding are far more important than what the Court says. (And Ely was in fact completely wrong that Casey is more consistent with the Warren Court’s jurisprudence than Roe — his original article is just a classic example of liberal men trivializing abortion as a second-order right.)

Anyway, what the Court says doesn’t matter to the general public because it doesn’t care about doctrine, and it doesn’t matter to future Supreme Court justices who don’t agree with any rationale for supporting Roe — the idea that any of the Court’s current anti-Roe majority would have voted differently had Roe been decided on equal protection grounds in 1976 is absolutely fantastical. Ginsburg’s argument about the effect of doctrine is the same kind of Lawyer Brain that would lead to her subsequent decision to actually put Roe in peril, which as things turned out gave Roe’s enemies the last piece they needed to do what no previous opinion could have stopped them from doing.

…this puts it perfectly:

The Find the Right Magic Words theory of protecting abortion rights is just Green Laternism applied to another branch.

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