Why Did Texas Enact S.B. 8?
After I completed my Newsweek column on S.B. 8, I started work on a follow-up piece to lead into Dobbs. In short, the fact that Texas enacted a law like S.B. 8 is proof that Casey‘s stare decisis analysis failed on its own terms: Roe in no way settled the never-ending debate about abortion. Roe did not, as the Casey plurality boasted, “call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Far from it.
Rather, Roe and its progeny have led states to resort to an never-ending array of abortion restrictions that have invariably been enjoined by district court judges with vast discretion, leading to even more circuitous restrictions that were also enjoined. S.B. 8 is a manifestation of what Justice Scalia described as “an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to th
Article from Latest – Reason.com