Jonathan: Interesting post by Stuart Buck. Thanks for bringing it to our attention; I’ll give it a closer look later. But let’s assume for the moment that he’s right. How much difference does it make? The interpretation of Doe that he upholds as correct appears to be a minority view on the Supreme Court today. At some point, the Court reached the conclusion that any abortion regulation, at any stage of pregnancy, had to include an exception that allowed abortion when a woman’s emotional or psychological health could be said to be threatened by the pregnancy–or even, in recent cases, by an abortion method different than the prohibited kind. Exactly when the Court reached this conclusion is a matter of historical interest. But the basic situation–that the Court enforces abortion on demand at all stages of pregnancy–is true whatever the answer.
The actual conventional account of the Court’s abortion jurisprudence holds that the Court defends a right to abortion in the first trimester–I can cite you plenty of examples of journalists, pollsters, and politicians saying this–is still untrue. Indeed, to the extent that this actual CW holds that the Court retreated from Roe in Casey, and now allows more regulations, Buck’s account suggests that this conventional wisdom is even less true than we thought. The Court has gotten more imperious, not less.