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Re: Cuomo: New York will sue if Supreme Court rolls back Roe v. Wade

Posted by mtk52983 on Thu Jul 12 11:01:45 2018, in response to Re: Cuomo: New York will sue if Supreme Court rolls back Roe v. Wade, posted by chicagomotorman on Thu Jul 12 10:26:44 2018.

In this case there is a legitimate question that both R2 or bingbong could be correct at this time. The most recent abortion related case to reach the Supreme Court was Whole Women’s Health v. Hellerstedt, decided in 2016. That case involved Texas’s abortion restrictions under H.B. 2. The vote was 5-3 due to Justice Scalia’s death. There is no reason to believe that Justice Scalia wouldn’t have joined the dissenters nor that Justice Gorsuch would be any different than Justice Scalia. With Justice Kennedy potentially being replaced by future Justice Kavanaugh the majority becomes a little more tenuous. On the DC Circuit you rarely see an abortion related issue, but if his dissent in Garza v. Hargan , which I have linked below, is any indication, he will have a very high threshold of what constitutes an “undue burden.” Also, his treatment of Roe, Casey, and their progeny can best be described as begrudging. On the Supreme Court he is not bound by the same precedents as cases this term showed. Turning to Chief Justice Roberts, he joined Justice Alito’s dissent in whole and also joined Alito in whole dissenting from denial of certiorari about religious exceptions to filling prescriptions for contraceptives. These all point in favor of bingbong being correct that either the Court will either get rid of Roe entirely, or at least make the “undue burden” standard of subsequent cases so absurdly high that nothing qualifies short of an absolute ban. On the other hand, Judge Kavanaugh did not accept the more far reaching dissent of Judge Henderson, which could mean that in his mind that there is at least some point where “undue burden” is met. Additionally, Chief Justice Roberts has flipped on issues where the legitimacy of the Supreme Court could be called into question. I could see him becoming a bit reluctant in joining 4 Justices if they go too far to the other extreme of Roe in the first abortion related case.

Link referenced above

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