Exactly one year ago, the Federalist Society held its National Lawyers Convention. And exactly one year ago, the Supreme Court was enmeshed in the abortion debate on two fronts. First, Jonathan Mitchell, also known as "The Genius," foisted the impermeable fetal heartbeat law on the judiciary. Second, Mississippi's fifteen-week abortion ban was slated for oral argument. At the time, we were warned about the parade of horribles that would fall if the Supreme Court allowed either of these laws to go into effect.
One year later the story looks very different–especially after election day. In Kansas, voters rejected a ballot measure that would have reversed a state supreme court decision that protected abortion. And all the justices who joined that opinion, as well as several other justices appointed by the Democratic governor, were retained. Voters in several states also rejected efforts to scale back abortion rights. In Kentucky, 53% of voters rejected a referendum that would have stated there was no right to abortion under the state constitution. In Montana, 53% of voters rejected a "born alive" amendment to the state constitution. In Michigan, 56% of voters approved a referendum that protects a right to abortion, and wipes out a 1931 law that banned the procedure.
Justice Scalia's clarion call in Casey rings true three decades later:
