ANDREW MCCARTHY: The Supreme Court’s integrity demands its leaker be prosecuted — and the decision released now.

It was entirely appropriate for the court to confirm that Justice Samuel Alito’s draft opinion in the Mississippi abortion case, Dobbs v. Jackson Women’s Health, is not at this point an authoritative ruling of the court. There could understandably be public confusion on that point, so it was incumbent on the court to clarify.

But there are unwelcome consequences to even appropriate actions. The obvious one here is that with the court having assured everyone that there is a draft opinion but it is not yet a final ruling, radicals prone to intimidation tactics know that now is the time to act.

Moreover, they have targets. Besides Alito, four conservative justices have been reported as members of a majority that favors overruling Roe v. Wade and Planned Parenthood v. Casey — Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

This is why the opinion must be formally issued forthwith. The viability of the court as a deliberative judicial institution is at stake. If the opinion or the vote tabulation were to change in any meaningful way, it would appear that the justices caved to intimidation tactics — which would simply breed more intimidation tactics. We’d have not the rule of law but the law of the jungle.

To be fair, that’s what the Democrats want. Or think that they do.

9th CIRCUIT INVALIDATES IDAHO’S 20-WEEK ABORTION BAN:  The court determined, in McCormack v. Herzog, that banning abortions at 20 weeks violates the viability line drawn by the Supreme Court in Planned Parenthood v. Casey. The Ninth Circuit panel concluded:

The Supreme Court reaffirmed in Casey that an undue burden exists if the purpose or effect of a provision of law places a substantial obstacle in the path of a woman seeking an abortion before the fetus obtains viability. Casey, 505 U.S. at 846. In Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 64 (1976), the Court further explained that “it is not the proper function of the legislature or the courts to place viability, which essentially is a medical concept, at a specific point in the gestation period.” Because § 18-505 places an arbitrary time limit on when women can obtain abortions, the statute is unconstitutional.

As I noted in an earlier post, the Ninth Circuit similarly ruled Arizona’s 20-week abortion law unconstitutional in Horne v. Isaacson, so this decision isn’t all that surprising.  What is interesting, however, is that the House of Representatives recently passed a similar 20-week ban, which has its own unique constitutional problems, since it is questionable whether Congress has the power, through the Commerce Clause, to regulate abortions.

To avoid the Casey viability issue, States should simply ban abortions after 24 weeks instead. Congress should stay out of it.

ABORTION SCIENCE DENIERS:  Jonathan Tobin has a piece in Commentary pointing out the obvious anti-science position of defenders of late-term abortions.

[A] new study published in the New England Journal of Medicine illustrates that those decrying the effort to oppose late term abortions as a right-wing “war on women” are not only on questionable moral ground but also disregarding scientific facts about premature babies. According to the Journal, it is now clear that babies born at 22 or 23 weeks into pregnancy have a decent chance to survive if given treatment. Those born at 23 weeks are even more likely to live with half doing so without significant problems. This is good news for families but as even the New York Times tacitly admitted in its story about the report, it is bad news for those on the left who have been fighting efforts in state legislatures to ban late term abortions.

Toobin doesn’t discuss it, but advances in care for very premature babies has pushed back the point of “viability”–survival outside the mother’s womb–that the Supreme Court has designated as its Maginot Line in its abortion jurisprudence since Planned Parenthood v. Casey.  As the point of viability moves backward–now around 22 weeks’ gestation–the States’ ability to ban abortions expands. It has not expanded so far, however, as to sustain laws that ban all abortions after 20 weeks’ gestation, as the Ninth Circuit recently held in Horne v. Isaacson, with the Supreme Court denying review.

IN THE WEEKLY STANDARD, JOHN MCCORMACK CALLS FOR a federal ban on late-term abortions. But while such a ban wouldn’t violate the Roe/Casey framework, it would nonetheless violate the Constitution because it is outside Congress’s enumerated powers. As Dave Kopel and I argued in Taking Federalism Seriously: Lopez And The Partial-Birth Abortion Act, back in 1997, regulating abortion doesn’t fall within Congress’s commerce power — a conclusion that is strongly supported by the commerce-clause discussion in the Sebelius decision. It is conceivable that Congress could regulate post-viability abortions under its 14th Amendment Section 5 powers, but that seems quite iffy to me in light of recent Supreme Court caselaw.

One thing that Congress clearly could do, however — even more strongly supported by the Supreme Court’s ObamaCare decision — would be to put a tax on late-term abortion, and there’s no constitutional reason why that tax would have to be a small one.