Abortion: A "Jurisprudential Black Hole" Distorting the Law for Four Decades

In the separate concurrence in McCullen v. Coakley, Justice Scalia joined by Justices Kennedy and Thomas, wrote:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.

As many commentators, both here on the Mirror of Justice and elsewhere have written, the political divide on the Hobby Lobby case illustrates what Paul Horwitz calls “the collapse of a national consensus on a key element of religious liberty: accommodation.”  Here too, abortion or “reproductive rights” have been central to creating that fault line between progressives and conservatives on religious liberty.

All of this can be traced back to the horrific error made in Roe v. Wade more than forty years ago.

In words parallel to the McCullen concurrence, I had this to say several years ago about Justice Blackmun’s jurisprudence:

Nor was the distorting effect of Justice Blackmun’s preoccupation with abortion and the Roe decision manifested only on the subject of the basis, definition, scope, and precedential preservation of the abortion right. As a jurisprudential black hole that drew in and deformed everything that came near its wandering path through spacetime, Roe’s gravitational pull collapsed Justice Blackmun’s approach to every area of law into a pro-abortion singularity including questions of standing to sue, standards of appellate review, and freedom of expression. Justice Blackmun decided every question on the periphery of the abortion controversy in the manner that most aggressively promoted ever-expanding abortion rights while simultaneously contracting the rights of those who protested abortion and the power of the states to restrain the abortion license.

Sadly, the reckless and destructive path of Roe v. Wade through the American legal landscape is likely to continue.