Abortion Settled Law, Not Settled Politics

On the heels of the Alito hearings, I have read several posts, like this one from The Lonely Centrist arguing that abortion law is not settled law.

Centerman writes:

But my question is this: Does anyone seriously think that Roe v. Wade is "settled law?" Is there a major constitutional question which is more unsettled? I mean, the whole reason this is such an issue is because the law is so unsettled, isn't it? The Democrats, for example, have tried to question Alito about some 20 year old comments in which he expressed some skepticism about the Court's one person/one vote cases (see my earlier post on that subject). But those get no traction. Why? Because that is settled law.

However, I would argue that abortion law is relatively settled, it is abortion politics that is far from settled.

Let us take a look at the development of abortion law. The last major abortion case was the Stenberg case out of Nebraska, which (and I am working from memory) dealt with the outlawing of certain types of abortion, procedures, including partial birth abortion. This case, and others between the decision in Planned Parenthood v. Casey dealt with largely minor issues, such as whether a certain state action was a burden on women seeking abortions or procedural issues. But at no time was there ever really a question about whether abortion would be declared unconstitutional or whether Roe would be completely overturned. Planned Parenthood v. Casey was the last case to even have that as a question and it was a tangential at best.

No, abortion law is pretty settled and right now, I know of no case that is going to threaten the current state of the law in any meaningful way. Centerman argues that because abortion as an issues is so divisive, that it must not be settled law.

Yet abortion politics continues to be at the forefront of many people's minds and it really dominates judicial matters. But here is the funny part, the politics of abortion is one of the few issues where everyone treats it like it is the most important issue in the world, but it largely doesn't matter.

If one were to look at the statistics of abortion since 1975, you would find that the number of abortions performed each year fluctuates with the number of women of child bearing age. Thus, when there are more women of child-bearing age, there are more abortions and the converse is true as well. Why then the all the rhetoric about abortion--because it is an easy issue to be emotional on and one that few people are actually consistent about in the application of their stance with other issues involving human life, like the death penalty, genetic research, other reproductive rights, etc.

Centerman, whom I respect a great deal, has made a common mistake when dealing with big issues, forgetting to separate the politics from the law. He so rarely makes such mistakes, that it is easy to forgive.