Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 14

(File photo: Lucas Jackson/Reuters)

2005—In the mendacious screed that it issues against the confirmation of Supreme Court nominee Samuel Alito, NARAL Pro-Choice America stumbles upon some nuggets of truth: The “undue burden” standard set forth in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey “is a malleable, ill-defined standard.” Far from ratifying Roe, that ruling in fact “explicitly overruled portions of two earlier post-Roe opinions” that had struck down abortion regulations. The Court’s 2000 ruling in Stenberg v. Carhart (on partial-birth abortion) “plainly illustrates the subjectivity inherent in applying the undue burden standard.”

Thanks, NARAL, for helping to make the case that Roe has been eroded, that the “undue burden” standard is not workable, and that stare decisis considerations in favor of maintaining Roe and Casey are very weak.

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