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Kagan, abortion, and the Supreme Court’s coming moment of truth on Roe v. Wade

A new Nebraska abortion law could make its way to the Supreme Court. Instead of using evolving medical science to redefine when life begins, the court must hold that the due process clause’s primary guarantee of life make abortion unconstitutional.

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Abortion, as always, will be one of the most contentious issues in the upcoming confirmation hearings over President Obama’s nomination of Solicitor General Elena Kagan for a position on the US Supreme Court.

The hearings come just weeks after the Nebraska legislature passed the strictest abortion laws in the country when it prohibited abortions after 20 weeks of pregnancy. This new law will probably be challenged in court, and proponents of the measure hope that the Supreme Court will eventually agree to take the case and use the opportunity to redefine life.

However, instead of simply redefining life once again, the court should consider what happened with segregation as a model for acting on the abortion debate.

In Roe v. Wade (1973), the Supreme Court ruled that states could ban some abortions because they “have an important and legitimate interest in preserving and protecting the health of the pregnant woman [and] still another important and legitimate interest in protecting the potentiality of human life.”

The court claimed modestly that, “[we need not resolve the difficult question of when life begins” because “the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

Despite this disclaimer, however, the court in Roe decreed when life, or at least the “potentiality of human life,” was important enough for the state to protect by developing a trimester formula.

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