Saturday, November 7, 2015

Richard Epstein on the rational basis test and abortion jurisprudence

Newsweek (Nov. 5, 2015): Abortion Goes on Trial Again Before the Supreme Court, by Richard Epstein:

Noted libertarian, Richard Epstein has authored an opinion piece on Whole Women’s Health v. Cole and Jackson Women's Health Organization v. Currier, the two abortion cases the Supreme Court is considering for review.  Although Prof. Epstein criticized Roe v. Wade in 1973, he argues that the Supreme Court should strike down abortion restrictions in both cases.  Noting that the evidence before the district court in Whole Women's Health showed that "that the Texas restrictions were far more likely to increase the risk of abortions" rather than further the state's purported interest to promote the safety of abortion facilities, Prof. Epstein argues that "the rational basis test should not be allowed to eviscerate the painful compromises wrought in Casey. The commonly used test gives undue credit to legislative wisdom on this highly charged political issue."

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