That’s the title of my Forbes oped today, following on some comments this weekend from the man that some polls show has taken over from Donald Trump as the new Republican frontrunner in the race for the White House. Before you can even begin to analyze how a president would go about changing abortion jurisprudence, however, you first have to understand what that jurisprudence says:
… Roe isn’t even the governing legal precedent regarding abortion—and hasn’t been for over two decades, since the Supreme Court’s ruling in Planned Parenthood v. Casey (1992). While Roe recognized a right to abortion as part of constitutional privacy protections, it set up a trimester framework to balance that right against the governmental interest in protecting the “potentiality of human life.” First‐trimester abortions were to be at the complete discretion of the woman and her doctor, states could ban third‐trimester abortions, and there was a gray area in the middle.
Casey collapsed that framework, upholding Roe’s “essential holding” about the abortion right but replacing the trimester framework with one that focused on viability. No regulations that placed an “undue burden” on the abortion right would be allowed before viability, while after viability states had more leeway so long as they made exceptions for maternal life and health. What constitutes an “undue burden”? In effect, it’s whatever you can get five votes for at the Supreme Court.In other words, if you’re pro‐life, returning to a world where Roe v. Wade is the law of the land would actually be an improvement over the current situation.
I go on to examine the institutional dynamics of trying to change the Supreme Court — which has some application to debates beyond abortion, though I doubt potential nominees’ (assumed) positions even on such controversial recent cases as Heller, Citizens United, Shelby County, and NFIB v. Sebelius, would play as large a role in the political battle. In any event, to see my further analysis of the Carson conundrum, read the whole piece.