Home Stretch for SCOTUS

 Class,

Well, since we last met, the Court has made more news by the cases it is considering to take for next term (or has already taken by granting cert) than in the opinions that the Court has issued.  So, let's start with that- and we must start with one case from Mississippi that the Court considered several times and finally determined that it would hear and decide. The Mississippi legislature drafted legislation that prohibited nearly all abortions at a point BEFORE viability. That point is significant because in most previous legislative attempts to restrict abortion, the states have tip-toed around the rules the Court issued in Roe and later in Casey, seeking to limit or make more complicated the practice of abortion on hospitals, doctors and women. This case is a direct challenge to Roe. If Mississippi can restrict abortion prior to the date that the fetus become viable outside the womb, (which gives the state a heightened right to regulate on behalf of that life) then it follows logically that the states could prevent abortion entirely. That was essentially status of the law pre-Roe.

Remember that throughout our history, the regulation of medicine, medical practice and prescription drugs has been a duty of the states. There are some federal overlays (health insurance has imposed many of those) thatlmay override state regulation but doctors and hospitals are licensed per state law. There is no requrement that each state adopt the same rules. 

Now, what will happen is anyone's guess. The Court probably has five members who would overrule Roe, all things considered, but that is not the end of the story. How they might do that, and how sweeping the ruling, is as significant as what they might do. Roberts is not irrelevant, and Kavanaugh is not the kingmaker, as much of the nattering nabobs of negativity (Thank you  Spriro Agnew) might have you think. And those calling for Breyer's early retirement might re-think replacing a Justice who has immense instititurional memory and is, among both the left and right leaning members of the Court, highly respected. He is likely to be the most influential members opposing a full on over ruling of Roe. 

The Court finds all kinds of ways to do sometning, or not do something, and explain to our general confusion that they are or are not doing what we think they are doing. Let's just keep our powder dry and trust that the Court can find a way through this morass created in 1973 with a decision that has grown stronger even as most commentators today would argue that Roe was poorly reasoned even if they approve of the outcome. 

Comments? Questions. I am going to post again in a day or two about some other cases that the Court has decided, so check back soon.

Kurt