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November 17, 2016

    I responded to a blog seeking commentary on the future of Roe under Trump, thought the topic of general interest, and have accordingly created a blog out of it for further distribution, as follows:

    Parceling out the federal constitutional “right” to an abortion to the states is a bad idea and perhaps unconstitutional in its own right. It is not the right of divisions of the federal entity (states) to determine who is to enjoy or not enjoy rights conferred by those who enjoy federal constitutional rights, nor to provide a patchwork of jurisdictions which leave states in charge of determining which federal constitutional rights apply and which don’t in order to serve what I have always called “savage regional interests.” The Tenth Amendment doesn’t go that far!

    Thus, for instance, are we going to allow Indiana or any other state to decide if the First and Second Amendments apply within their borders? How about the Fourth, Thirteenth and Fourteenth, or the amendment limiting presidents to two terms? This is a tail wagging the dog situation and is clearly in opposition to Madison’s idea of federated states and represents a return to Articles of Confederation thinking (an abiding disaster of the first order).

    I think (without knowing, of course) that the only real way Roe will disappear will be via outright reversal. That will require that a case comes before the court on “all fours,” i.e., same or very similar facts as Roe etc., a case which anti-abortionists are likely to find in short order to get the ball rolling from trial court to the Supreme Court.

    My guess (and it’s only a guess) is that a newly reconstituted Supreme Court would not reverse Roe but rather narrow its impact, which is a reversal lite in legal reality. In such a case, perhaps some of those (along with those complicit in their pregnancies) who are in need of abortion services and who voted for Trump will experience a bit of buyer’s remorse as they learn that “elections have consequences.”    GERALD      E




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