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Cato and the Court

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If you’re like me, you will have enjoyed reading the legal commentary that’s been published ahead of the Supreme Court’s oral arguments in Dobbs v. Jackson Women’s Health Organization on December 1. At issue in the case is Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks of pregnancy, with exceptions for medical emergencies and severe fetal abnormality. The scholarship on the issue — both in formal amicus briefs and in longer-form essays — has been richly educational. That so many constitutional-law professors, advocacy groups, and nonprofits have decided to submit their thoughts for consideration isn’t surprising, given that this is perhaps the most consequential case the Court has decided to take up in decades. Mississippi’s law — although modest and broadly popular — is self-evidently incompatible with the Court’s prior rulings, and therefore threatens the abortion regime that’s been constructed over the past half century.

I was surprised, then, when I learned that the Cato Institute — the prominent libertarian think tank in Washington, D.C., which boasts a center dedicated to the study of constitutional law — has decided not to file with the Court in this case. Surprise quickly turned to confusion when I read Ilya Shapiro, the center’s director, on its justification for not doing so.

Cato hasn’t and won’t be filing in Dobbs, as we haven’t in any abortion case, for three reasons: (1) libertarians in good standing span the gamut from the staunchest pro-choice to the staunchest pro-life, (2) we have nothing unique to add about what an “undue burden” is or how it may apply to any particular abortion regulation, and........

© National Review

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