There is no valid defense of Roe. That’s why that side resorts to threats

Opinion by Timothy P. Carney

Roe v. Wade “is not constitutional law and gives almost no sense of an obligation to try to be.” That was the conclusion in the Yale Law Journal of pro-choice legal scholar John Hart Ely.© Cami

A crowd gathers in front of the Supreme Court in Washington, May 3, 2022.
Mondeaux/Washington Examiner.A crowd gathers in front of the Supreme Court in Washington, May 3, 2022.

“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” That’s liberal legal scholar Laurence Tribe.

It’s near-consensus among legal scholars, even those who believe abortion should be legal, that Roe was a shoddy decision, not grounded in the Constitution.

“You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result,” wrote pro-choice scholar Kermit Roosevelt in the Washington Post.

“This is not surprising,” Roosevelt continued. “As constitutional argument, Roe is barely coherent.”

The Constitution quite obviously does not protect abortion as a fundamental right. Roe relied on a “right of privacy” “emanating” from a “penumbra” cast by actually enumerated rights. It was clearly motivated reasoning.

Abortion has thus been protected from democracy by a ruling that everyone knows is garbage, motivated reasoning. I’ve collected here many pro-choice legal scholars saying how bad Roe was.

Subject to scrutiny, Roe falls, and abortion defenders need to convince politicians to vote in order to strip unborn babies of any legal protections.

This is why the pro-Roe side is relying on threats to protect Roe. Democrats promise that they will declare the Supreme Court illegitimate if it doesn’t uphold their decision. That directly implies that they believe the federal government and state courts should disregard any subsequent rulings from the court.

Some Democratic senators already declare the Supreme Court is illegitimate. That means they don’t believe in the Constitution and thus have violated their oath of office.

Sen. Ed Markey of Massachusetts is threatening to pack the court — add four or more additional justices so that Democrats have a majority. (You can imagine the one-upping cycle this would set off.)

Bullying a court to rule along with the party in power has a storied history (FDR did it), but it doesn’t exactly smell of good norms.

Chuck Schumer even threatened violence against the majority if they overturned Roe. “I want to tell you, Gorsuch,” Schumer said. “I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Supreme Court justices don’t face elections, and so Schumer was obviously calling for violence. He apologized for that, but expect more to come these days.

Sonia Sotomayor, the most political and least judicial of the nine justices, even threatened that overturning Roe would harm the legitimacy of the court. “Will this institution survive the stench that this creates in the public perception?” she asked during oral arguments.

All this to protect a Supreme Court decision that protects abortion up until the moment of birth, when everybody acknowledges that is the killing of a human being.

Read More From ForAFreeAmerica

When you have the scientific facts on your side, argue the facts. When you have the Constitution on your side, argue the Constitution. When you have only a dishonest precedent on your side, threaten the judges.

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