Failing to Protect the Rule of Law – Twice!

Failing to Protect the Rule of Law – Twice!

Glenn C. Smith, professor at California Western School of Law in San Diego discusses the recent abortion cases before the US Supreme Court and their impacts on the future of reproductive rights… 2021 is ending sadly for Americans who believe in the rule of law, the supremacy of constitutional rights and/or the institutional authority and reputation of the US Supreme Court. On September 1 and again on December 10, five Supreme Court Justices essentially hoisted the white flag of surrender when presented with different challenges to S.B. 8, Texas’s unprecedented law authorizing private individuals to interfere through civil-damage actions with constitutionally protected abortion rights. The technical issues and procedural posture of each Court capitulation vary. But the result of each decision is the same: Even beyond the serious and lifelong impacts for thousands of Texas women denied the right to choose abortion after five weeks of pregnancy (and thus before they likely can learn that they are pregnant), the consequences for the constitutional system seem dire. The current Court majority has signaled to those opposing long-standing constitutional precedents that it is unwilling to cut through a fog of procedural technicalities to defend its basic role and the Constitution. States will likely pass copycat laws seeking to undermine existing rights involving abortion and beyond. (For example, California’s Governor Newsom garnered headlines recently by expressing interest in an S.B.-8-style law to deter some Californians from using guns in ways a lower-court ruling greenlighted under the Second Amendment.) S.B. 8: Unprecedented and […]

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