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Sessions Gets it Really Wrong, Calls Roe v. Wade Unconstitutional


The following exchange happened during Jeff Sessions’ confirmation hearing this morning:

Democrat Sen. Dianne Feinstein (the ranking member of the Senate Judiciary Committee), said, “You have referred to Roe v. Wade as, quote, one of the worst, colossally erroneous Supreme Court decisions of all time, end quote. Is that still your view?”

Sessions replied, “It is. It violated the Constitution, and really attempted to set policy and not follow law.”

I’ve got to jump in here. That’s just not quite right. Saying that a Supreme Court decision “violated the Constitution” is essentially meaningless. The Supreme Court sits as the final authority on interpretative questions of federal law. In other words, what SCOTUS says the Constitution says is what the Constitution says. That’s just how it works. There are plenty of ways to appropriately critique Supreme Court decisions – but most of them are some version of “SCOTUS shouldn’t have ruled that the Constitution means _____, because I think the Constitution actually means _____, and here’s why I think that…”

Roe v. Wade is actually a fairly easy case to criticize using such a format. Reasonable minds can certainly disagree on the method by which the 1973 Supreme Court handled the issue of abortion.  For decades, legal scholars have debated whether reproductive freedom appropriately falls within the scope of the First Amendment, or whether the right to privacy should take precedence over the right of society to intervene on behalf of the unborn. Those arguments are complex and nuanced, and Jeff Sessions knows it. It’s just far easier for him to yell “unconstitutional!” and hope people will think that sounds powerful.

In reality, no discussion of Roe v. Wade could ever be meaningful unless it includes analysis of a specific statute. The entire concept of due process and individual liberty centers on the analysis of specific laws as compared with the rights we are guaranteed by the Constitution. Sessions’ flip “Roe really stinks, but I’ll grudgingly follow it anyway” is a prelude to what we know Sessions will do as Attorney General. He will continue to obscure the legal issues surrounding reproductive freedom. He will continue to fuel the arguments of the uninformed by suggesting that Roe was some sort of judicial anomaly. He will continue to conceal the actual issues of reproductive freedoms facing Americans, namely whether certain state laws purporting to “regulate” abortion are actually illegally circumventing our Constitutionally-guaranteed rights; such an analysis has far more to do with Planned Parenthood v. Casey than with Roe v. Wade – and again, Sessions knows it.

Sessions went on to tell Senator Feinstein that Roe, “is the law of the land. It has been so established and settled for quite a long time, and it deserves respect, and I would respect it and follow it.”

Such a statement is the worst kind of publicly-perpetrated con. On its face, it sounds reasonable, respectable, and righteous. But the damage it inflicts is subtle and stealthy.  What Sessions has really said is that he will choose to follow the law. Such a promise hinges on the unspoken assumption that such a choice would be Sessions’ to make. It may sound gracious and even noble for Sessions to vow to uphold a legal precedent he finds so detestable and erroneous; but so characterizing himself makes the implicit point that Sessions could have chosen not to do so. Our next Attorney General might have convinced some starry-eyed onlookers that his choice to respect Roe v. Wade is a practical one, borne of a deference to the concept of stare decisis and four decades of well-settled law, but we should look past the well-orchestrated play-acting going on before the Senate. Instead of characterizing Roe v. Wade as a weighty burden cast upon his noble shoulders by witless liberals who devalue everything from babies to Jesus, Sessions would earn my respect by clarifying that Roe isn’t the issue, and that the decision to respect Supreme Court precedent isn’t his to make.


[image via C-SPAN screengrab]


This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos