The Supreme Court’s decision constitutionalizing the alleged right to abortion in Roe v. Wade (1973) was about as bad as it gets. Expressing the Court’s sheer will to power, it is one of the worst decisions in the history of the Supreme Court.
The principled liberal law professor John Hart Ely called out the Court in the classic Yale Law Journal comment “The Wages of Crying Wolf.” Professor Ely condemned Roe as “a very bad decision. Not because it will perceptibly weaken the Court-it won’t; and not because it conflicts with either my idea of progress or what the evidence suggests is society’s-it doesn’t. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be'” (footnote omitted).
Yet Roe lives on. Indeed, the Court continued in this mode — seizing from state legislatures the power that properly belongs to them — as long as Justice Kennedy was around to develop his jurisprudence à la Walt Whitman and Song of Myself: “I and this mystery here we stand.” If the Supreme Court is ever to climb down from this particular ledge, it is sure to do so in some incremental fashion.
Yesterday the Supreme Court issued a per curiam (i.e., unsigned) opinion in Box v. Planned Parenthood of Indiana and Kentucky. The opinion ruled on Indiana’s petition for the Court to hear the case addressing two new provisions of Indiana law: the first relating to the disposition of fetal remains by abortion providers and the second barring the knowing provision of sex-selective, race-selective, or disability-selective abortions by abortion providers. The Court summarily reversed the Seventh Circuit decision striking down the fetal remains provision and denied the request to take up the Seventh Circuit decision striking down the second provision, thus leaving the Seventh’s Circuit’s invalidation of that provision of Indiana law in place without ruling on the merits.
The per curiam opinion is worth reading for Justice Thomas’s concurrence. “Given the potential for abortion to become a tool of eugenic manipulation,” he anticipates the Court’s “need to confront the constitutionality of laws like Indiana’s” some time soon. In a footnote that is not to be missed Justice Thomas addresses the dissent by the left’s sainted Justice Ginsburg from the Court’s summary reversal of the Seventh Circuit on the fetal remains provision (internal citations omitted):
JUSTICE GINSBURG’s dissent from this holding makes little sense. JUSTICE GINSBURG does not even attempt to argue that the decision below was correct. Instead, she adopts [Seventh Circuit] Chief Judge Wood’s alternative suggestion that regulating the disposition of an aborted child’s body might impose an “undue burden” on the mother’s right to abort that (already aborted) child. This argument is difficult to understand, to say the least—which may explain why even respondent Planned Parenthood did not make it.
You can see why the left hates Justice Thomas.