Mulhall column: An outcome worth watching
If you hold an opinion about abortion or gun control, you may want to pay attention to the upcoming Supreme Court session.
Among the cases the court agreed to hear include Dobbs v Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen.
The case that will undoubtedly garner the most media attention is Dobbs, simply because it threatens not only Roe v. Wade but also Planned Parenthood v. Casey — the case that re-framed the timeline of fetal viability in terms of weeks instead of trimesters.
Dobbs involves a challenge to a 2018 Mississippi law that bans most abortions after 15 weeks of pregnancy, seven weeks earlier than state laws that have withstood judicial scrutiny.
The central question in Dobbs is this: Are all laws prohibiting elective abortions before fetal viability unconstitutional (violations of the right to privacy)?
The Biden administration’s position on this case makes it even more interesting.
In response to the Supreme Court’s acceptance of Dobbs last May, White House press secretary Jen Psaki said, “The president is committed to codifying Roe v. Wade, regardless of the outcome [of Dobbs].”
In other words, Ms. Psaki — perhaps as a nod to the “no uterus no opinion” crowd — says the president prefers to pass a federal law on abortion.
If the president were somehow able to codify Roe v. Wade in federal law (assuming congressional assistance, since writing law is not within a president’s power), that law would preempt state laws and any variations among them.
Before Roe v. Wade, abortion and fetal viability were state issues, ostensibly decided by states’ voters. The Biden administration would rather replace voter discretion with a Hobson’s choice — you can have your pick of any horse, as long as it’s the one by the door.
Were the Supreme Court unaware of the Biden administration’s druthers, it surely knows now. If the conservative justices view the idea of a federal abortion law unfavorably, perhaps the court will rule in Dobbs to return more discretion to the states.
Oral arguments on Dobbs are set for Dec. 1.
The other potentially historic case on the docket is New York State Rifle & Pistol Association v. Bruen.
In 2008, the Supreme Court handed down a ruling in District of Columbia v. Heller that affirmed the Second Amendment protects an individual’s right to bear arms.
At a time of rhetorical brevity guided by Twitter and sound bites, it’s astonishing that we need a Supreme Court ruling to understand a 27-word amendment.
Yet, since Heller, the courts have ruled that numerous state laws restricting gun ownership, concealed carry and ammunition do not trump the right to bear arms. States with major urban areas have written most of these laws.
Bruen involves a New York law that restricts who can obtain a concealed-carry permit. Under this law, an individual must be “of good moral character” and show “proper cause” to get one.
A brief filed by the Department of Justice on behalf of the Biden administration says, “Congress has disarmed felons and others who may be dangerous or irresponsible. It has forbidden the carrying of arms in sensitive places, such as courthouses and school zones. … All those regulations pass constitutional muster.”
The DOJ’s use of the verb “disarm” is nothing if not honest.
Worth noting, too, is the DOJ’s reference to “school zones.” In November 1990, President George H. W. Bush signed S. 3266, aka the “Crime Control Act of 1990.” This 80,000-word bill introduced by then-Senator Joseph R. Biden Jr., imposed criminal penalties for possessing or discharging a firearm in a school zone. Since the advent of gun-free school zones, school shootings have become almost as commonplace as completed homework.
As with Dobbs, the conservative justices on the court are probably aware of the president’s views on Bruen. Hence, they may see in Bruen another opportunity to reinforce existing decisions on Second Amendment protections.
Oral arguments are scheduled for Nov. 3.
If the court rulings in these and other cases oppose the president’s views, look for President Biden to pack the Supreme Court with more liberal justices sooner rather than later, taking “guidance,” of course, from the commission he established last April to study the idea.
Should President Biden elect to pack the court, he will again demonstrate a guiding philosophy of lifelong politicians: Advancing your political goals justifies any act.
Mitch Mulhall is a husband, father and longtime Roaring Fork Valley resident. His column appears monthly in the Post Independent and at PostIndependent.com.
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