Editorial Roundup: U.S.

Excerpts from recent editorials in the United States and abroad: Nov. 30 The Wall Street Journal on U.S. Supreme Court at abortion crossroads: The Supreme Court takes up its most important abortion case in years on Wednesday, and the question will be how the Justices maneuver their way out of a thicket they should never have entered 50 years ago. Will the Court, in Dobbs v. Jackson Women’s Health Organization, settle for an incremental ruling that upholds a Mississippi ban on abortion after 15 weeks, or will it overturn its misguided precedents and return the regulation of abortion to legislatures in the states? These columns have long supported a policy of legal abortion before viability, albeit uneasily as technology has revealed the development of the fetus. But we have had no hesitation in saying that Roe v. Wade (1973) and its progeny, notably Planned Parenthood v. Casey (1992), were wrongly decided. Abortion is nowhere mentioned in the Constitution, and its regulation is a classic example of police powers reserved for the states. Roe in particular is one of the worst decisions in the Court’s history, on par with Plessy v. Ferguson (‘œseparate but equal’� on race) and Korematsu (internment camps for Japanese-Americans). At a stroke, the Court overturned 50 state laws and turned abortion into a pitched political battle that nonetheless could not be settled politically through the ballot box. As the great legal scholar Alexander Bickel wrote in ‘œThe Morality of Consent,’� the Court simply invented a trimester medical analysis. ‘œOne is left to ask why. The Court never said. It refused the discipline to which its function is properly subject. It simply asserted the result it reached.’� That mistake has distorted American politics and law for a half century. It has heightened political polarization and made the Supreme Court a partisan battlefield. With nowhere else to turn, abortion foes have looked to the Court for redress, and abortion proponents have returned the disfavor. Abortion is the Oz behind the curtain of every Supreme Court nomination as partisans try to divine how the nominee will vote on the issue. This is where the Justices now find themselves, with a new conservative majority and state legislatures testing the limits of Roe and Casey. That’s what Mississippi has done with its ban after 15 weeks, though it’s important to note the state’s legal bait-and-switch. The Fifth Circuit Court of Appeals blocked the law, and the state’s petition to the High Court to hear its appeal said, ‘œTo be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey.’� Yet after the Justices accepted the case, the state’s brief dropped the veil and urged them to overturn both precedents. ‘œThe conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,’� the brief says. ‘œOverruling Roe and Casey makes resolution of this case straightforward.’� Easy for Mississippi to say. Not so easy for the Justices, who must look to the Constitution but also wrestle with ‘œstare decisis,’� or the question of when to overturn its own precedents. Mississippi’s sleight-of-hand could give the Justices an excuse to say the case was ‘œimprovidently granted,’� though that would only be a temporary reprieve. Abortion cases will keep coming from the states. The Justices could agree with the Fifth Circuit and declare that Mississippi’s law is unconstitutional. But that is highly unlikely given the new majority and its originalist views of constitutional interpretation.