I originally invited Clark Neily to join me to discuss his essay on what libertarians should think about the overturning of Roe v. Wade. Of course, it’s nearly impossible to make everyone happy with a discussion of such a controversial issue. And yet Clark and his co-essayist Jay Schweikert do an excellent job threading the needle on what they call “the hard problem of abortion.” They write:
Libertarianism tolerates a wide range of views on the policy question of abortion access
But the policy question is only the beginning. The Constitutional question is what was taken up recently by the Supreme Court, and while the outcome may be disappointing to those who support abortion as a policy matter, Clark and Schweikert note that “there are still many valid grounds to criticize how the Court has constitutionalized abortion rights in particular.”
What makes abortion different from other “unenumerated rights” discovered by the court in the modern era, like contraception, parental rights over their child’s education, or the right to privacy in the bedroom? The Dobbs decision reconsiders Roes classification of abortion among these rights, and holds that question of individual liberty is not so straightforward where unborn life is concerned.
To be sure, we got to these delicate questions, but we also talked about an area where the Court has refused to reconsider a prior decision that appears to be in error.
The doctrine of qualified immunity, which the Cato Institute characterizes as an “Unlawful Shield,” protects prosecutors, police officers and other government officials from civil liability.
While pundits endlessly argue about the legal reasoning Roe, Clark and I will be talking about the 1982 case of Harlow v. Fitzgerald, in which the Supreme Court made it harder to prosecute violations of individual rights perpetrated by members of the protected class known as government employees.
Although I covered the topic in 2020, and Clark has been continuing the fight to “#AbolishQI,” it still doesn't get nearly enough attention.
The Hard Problem of Abortion Rights
Surprising no one in the wake of the leaked draft opinion, the Supreme Court today overturned and Planned Parenthood v. Casey and held that there is no constitutional right to elective abortion access.
Supreme Court Reaffirms Unwillingness To Reconsider Qualified Immunity Jay Schweikert | October 22, 2021 Earlier this week, the Supreme Court issued two unsigned opinions in Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond , both of which summarily reversed lower-court opinions that had denied qualified immunity to police officers.
- @ConLawWarrior - follow Clark on Twitter
- To Make Police Accountable, End Qualified Immunity - The Bulwark May 31
- Is Qualified Immunity Unlawful? by William Baude
- Unlawfulshield.com - Cato Institute project dedicated to abolishing Qualified Immunity.