I wrote the following piece and posted it on TOS on Feb 19, 2007. I would post a link to it, but there are many here who probably wouldn't go there to read it.
So, I'm posting it in its entirety here.
You're not going to like it:
====================
Jim Robinson wrote:
"I'm also supporting appointing judges who will correctly interpret the constitution per original intent and I'm sure eventually they will overturn Roe vs Wade and whatever other decisions that may be blocking a return of the issue of abortion to the states. Let the people decide. Not the feds or the courts."
Roe v. Wade will never be overturned in the Supreme Court.
Let me repeat that for emphasis: NEVER.
As no less "conservative" a jurist as John G. Roberts said - during his confirmation hearings, if I recall correctly - Roe v. Wade is "settled law".
Yes, we have seen Clarence Thomas and Antonin Scalia make noise about tossing Roe. But they enjoy the _luxury_ of making such noises, so long as they KNOW they are in the minority and that their contrary votes have no chance of effecting such a change.
If ever presented with a case where they truly have in their grasp the opportunity to overturn Roe, I predict that even the most conservative justices will gripe, grumble, perhaps even issue separate opinions - but that they will be _concurring_ opinions grudgingly supporting the continued observance of the core principles of Roe. When the chips are down, conservatives will back away from this one.
There are two good reasons why they will do so.
Reason number one is a longstanding legal principle that is one of the fundamental principles of the Court: stare decisis. That is: "stand by that which has been decided". And that's EXACTLY why - in his confirmation hearings - that Justice Roberts referred to Roe as "settled law". Because he is, at heart, a justice, and he recognizes the need to stand by "things decided".
Reason number two is that even the conservative justices realize that to overturn Roe would all-but destroy conservatism in America, by reviving one of the great issues of The Left to be used in the ongoing struggle with The Right.
Conservatives would be grinning ear to ear with the tossing of Roe, but - like the Cheshire Cat - they would find their ranks gradually melting away. Because I contend that there are even a large number of REPUBLICAN women [and men] that - although they may have never needed an abortion personally - feel like something would have been pulled out from under them.
There is also a THIRD reason why Roe will not be overturned, and this is a "Fishrrman original": you haven't heard it mentioned from anyone else, anywhere yet:
The Left will never permit a case with the potential to overturn Roe to come before a conservative Court that might use such a case to do exactly that.
"Nonsense!", you're thinking. But there is stark precedence for this based on recent Court history.
Recall, if you will, the not-so-long-ago case of schoolteacher Sharon Taxman vs. the town of Piscataway, New Jersey. Ms. Taxman had been denied a job promotion (that went to a black teacher) and had been told explicitly that the _reason_ she was passed over was because she was white.
Taxman filed suit. And the Supreme Court eventually agreed to hear the case, which was scheduled for oral argument. The facts of the case were cold as ice, and it was recognized widely (on all sides of the political spectrum) that the Supreme Court [even a moderate Court] would use the case to outlaw affirmative action once and for all.
But the Taxman case was never heard.
Knowing that Taxman was certain to win in court, civil rights groups offered her a large sum of cash (about $480,000, if I recall correctly) to "buy her off" and withdraw her petition before the Court. She sold out, took the bait, and withdrew her petition before the Court only days before it was to be heard.
And that is why Affirmative Action continues to exist today as social and governmental policy. The Left knew they could not win if the facts were to be heard in court, so they made sure that the facts would not come before the court.
And so it will go with the abortion issue.
I predict that if an abortion-issue case arose at the grassroots level that had the potential to reach the Supreme Court - particularly a Court packed with conservative justices - that The Left would ultimately "cede the case" at the local or state level, and concurrently do everything in its power to prevent the case from reaching the high court. They would "pull a Taxman" on the abortion issue, even if that meant giving up their control over the issue in a single state, for the time being. Although [at the state level] this might be touted as a "defeat" for The Left, viewed more circumspectly, it would be a strategic victory for them, a la Taxman vs. affirmative action.
Even a conservative Supreme Court, willing to pull the trigger on Roe, is helpless to do so without the "ammunition": that being a court case on which to rule
Part of embracing conservatism is opening one's eyes to reality. Reality isn't always pleasant to look at, but it must be seen clearly and understood. And the harsh "reality" of the abortion issue is that it IS "settled law" in the United States. It will never be overturned - whatever opportunities that once may have existed for doing so were lost soon after the Roe decision by the Court (of course, the ONLY "opportunity" would have been a Constitutional amendment, which is NOT ever going to happen now).
The only _other_ opportunity would, of course, be the Court re-examining Roe and invalidating it, returning the issue to the states. But that won't happen for the reasons I've outlined above.
Some years ago, back before FreeRepublic or even the World Wide Web, there was a poster on AOL named "LizardNC" (he might even be a Freeper today) who very wisely stated:
Reality is what it is. It is not what we believe it to be.
And the reality of abortion in America, is that - like it or not - it is here to stay.
===================
I wouldn't mind being proven wrong.
We'll have to wait and see.
