Paragraph 4 of 5
Sentence 2 of 6
This sentence raises several points that will require support that isn’t immediately apparent. As the paragraph develops I’ll probably have to come back to revise what I’ve written here. That’s true of the whole decision generally, though. What is undetermined in the moment could very well be established true or false a sentence or a paragraph or a section later. Here’s the second sentence:
Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. Also, this sentence references “this theory,” which is the idea presented in the mystery amicus briefs from the previous sentence. Once I’ve identified those briefs these might be cleared up a bit.
As I see it, this makes four separate claims:
- “Neither Roe nor Casey saw fit to invoke this theory.”
- “[T]his theory [. . .] is squarely foreclosed by our precedents.”
- [O]ur precedents [. . .] establish that a State’s regulation of abortion is not a sex-based classification.”
- Only “sex-based classification[s are]subject to the “heightened scrutiny” that applies to such classifications.
All of these claims are going to have to wait:
“Neither Roe nor Casey saw fit to invoke this theory.”
I have no trouble believing that this is true, but I’m not going to take the time right now to scour those two decisions to confirm it. The second claim has more substance:
“[T]his theory [. . .] is squarely foreclosed by our precedents.”
Footnote 17, which is indicated at the end of this sentence, refers us to another decision, Sessions v. Morales-Santana. The relevant discussion begins on page 7, and the culminating passage on page 9 of that decision reads:
“Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an “exceedingly persuasive justification.” Virginia, 518 U. S., at 531 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U. S. 455, 461 (1981) (internal quotation marks omitted).”
The citation only addresses the “heightened scrutiny” part of the claim at the end of the sentence—nothing more. It appears that the rest of the sentence is claimed without support. The next claim is unsupported here.
[O]ur precedents [. . .] establish that a State’s regulation of abortion is not a sex-based classification.”
This is also unsupported here. If it’s true, it needs to be demonstrated.
Only “sex-based classification[s are]subject to the “heightened scrutiny” that applies to such classifications.
If the way I’ve reconfigured the words of this claim is accurate, even this is not supported by the cited passage in Sessions. That passage establishes that sex-based classifications require heightened scrutiny, but doesn’t establish that other classifications don’t merit heightened scrutiny.
Side question: Of the two hundred or so amicus briefs, why did the Court pick this one out to address if it can be dismissed in a sentence? Seems weird.
Maybe something later in this paragraph will compel me to revise this, but all four of these claims are undetermined for now:
“[T]his theory [. . .] is squarely foreclosed by our precedents.”
Cynical Jason 