I find this bit of analysis to be rather intriguing – and a sign that current justices have learned from the over-reaching of an earlier era.

In other contexts, this sort of turmoil might amount to an invitation for the United States Supreme Court to step in. But there are all sorts of reasons the court is likely to keep its distance, and a central one is the endlessly debated 1973 decision that identified a constitutional right to abortion.
“The concern about creating another Roe v. Wade looms large,” said Nathaniel Persily, who teaches law and political science at Columbia. “At least five members of this court, if not more, would probably be reluctant to weigh in on this controversy, especially given the progress that is being made in state legislatures, state courts and public opinion.”

Let’s be really honest here – in 1973, there was already movement towards legalizing abortion in many states. Indeed, Ronald Reagan had signed legislation allowing it, though he later came to regret his decision. But the issue was being handled as the Framers would have hoped – on the state level, by the people and their elected representatives.

Unfortunately, I suspect that there will be a need to settle this question on the national level. Once an abortion is performed, it is done. A marriage, on the other hand, might well be described as a movable feast. Indeed, I was an Illinoisan who was married in Pennsylvania and later moved to Texas – and every state in the union would most certainly recognize my marriage as valid. The same is not true of marriages between individuals of the same sex, and that does ultimately raise a question under Article IV. Does the federal Defense of Marriage Act shield states from recognizing these marriages? Or does the requirement of “full faith and credit” mean that states must recognize marriages that would be forbidden under their own laws? The federalism issue here is one that must ultimately be resolved in the federal courts – or by a constitutional amendment.

Posted by: Greg at 12:45 PM | No Comments | Add Comment
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