One appreciates Peter Lawler's disdain for constitutional law, while recognizing that some form of judicial decision making is necessary and a reasonable adherence to precedence allows for predictability in the law. It isn't really constitutional law that is the problem, rather it is constitutional lawyers. Lawler is certainly correct that continued intrusion into the abortion arena only damages the Court. In Planned Parenthood v. Casey the Court claimed that it must uphold Roe in order to maintain its integrity. Justice O'Connor made much the same argument in the original Carhart case (Stenberg v. Carhart ). This prompted Justice Scalia to write:
Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a fire storm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of JUSTICE O'CONNOR'S concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 947, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
The abortion question has turned the Court into a political football, dragging it from its status as an impartial monitor of the law to just another political branch. While recognizing that impartiality is an ideal, not a reality, as long as the abortion question remains one of judicial decision making, as long as we allow the courts to write an abortion code for the nation, neither the courts nor the public are well served. Roe must be overruled.
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