The Corner

Buck, Roe & Doe Cont.

Ramesh — I think we largely agree here. I find Buck’s post of particular interest because, as you note, it suggests that court decisions upholding modest restrictions on abortion hardly amount to a repudiation of Roe (not that Roe isn’t worth repudiating). It’s also relevant insofar as lower courts rely upon Doe to strike down state restrictions on late-term abortions or certain procedures (e.g. partial-birth) that don’t include a mental and emotional health exception. Moreover, insofar as some of the current justices refuse to reconsider what they see as the “fundamental holding of Roe,” demonstrating that the Doe holding is more limited than is sometimes supposed may even effect their votes in future cases. In fact, the Stenberg opinion striking down Nebraska’s partial-birth abortion statute held that a health exception was required. Yet, as I recall, the opinion stopped short of reiterating the need to include psychological and emotional well-being.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.

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