Alan Dershowitz to Newsmax: Supreme Court Won’t Overrule or Affirm Roe v. Wade

Alan Dershowitz to Newsmax: Supreme Court Won't Overrule or Affirm Roe v. Wade (Newsmax's "Saturday Report")

By Sandy Fitzgerald | Saturday, 02 October 2021 01:15 PM

The Supreme Court, while ruling on the restrictive abortion laws coming from states like Texas and Mississippi, will most likely "split the difference" rather than either wholly affirming Roe v. Wade precedent or completely overruling it, legal expert Alan Dershowitz told Newsmax.

"I think they'll give the states some discretion to decide when viability occurs, but they won't accept the Texas approach of just six weeks, which is before many women even know they're pregnant," Dershowitz told "Saturday Report" host Carl Higbie. "They won't accept that, and they probably won't accept the Mississippi case conclusion either. Probably it will be somewhere in between Mississippi and where we are now."

Dershowitz's comments come as thousands of protesters gathered Saturday in Washington, D.C., and in cities across the country in support of Roe v. Wade.

This year, the marchers are speaking out against the Texas ban on abortions after six weeks of pregnancy and are warning that the conservative majority on the Supreme Court could cause further restrictions to be issued in upcoming months, The Washington Post reported.

However, Dershowitz said nobody knows how the court will end up ruling in the states' cases.

"One or two justices we know who will vote for the right to choose," Dershowitz said. "We know who will vote for the right to life and we don't know how [Brett] Kavanaugh will vote. We don't know how some of the new justices will vote. We just don't know. I think they'll split the difference."

The decision is "very pragmatic," but meanwhile, there is "nothing in the Constitution that indicates when an abortion can occur and when it can't occur. It's really up to the justices to decide."

Meanwhile, Dershowitz also commented on a significant Second Amendment case this coming up this fall that challenges New York State's concealed carry laws.

In it, the New York State Rifle & Pistol Association is seeking to overturn a policy that requires people who apply for handgun laws to show they have a pressing need to have firearms in public, according to The Trace.

It will mark the first major case on gun rights since the 2008 District of Columbia v. Heller ruling, which established the Second Amendment includes the right to bear arms within a private home, but did not settle if that right extends to having arms in public.

Dershowitz on Saturday said the case is "very important" and will be "influenced by the rising crime rate around the United States."

"I do think that the justices will take into account the fact that people really need more protection than they used to need," he said. "Crime is going up dramatically, particularly in inner cities. And I do think that the need for self-defense will probably be recognized by enough justices of the Supreme Court to warrant extending Heller to open carry and concealed weapons again."

Dershowitz also noted the Second Amendment is a work in progress and deals with having a militia.

"You want to have a cannon," he told Higbie. "Well, according to the Constitution, if want to have a cannon, you should join the militia. The Second Amendment says, you know, it's about a militia. It doesn't give you the right to have a cannon or nuclear weapon. It may give you the right to have a handgun or a hunting weapon. These are debatable issues. But, you know, the Second Amendment is not as clear as it could have been."

Higbie argued the phrase "and the right to keep and bear arms" means a right separate from having a militia and Dershowitz said he does not disagree with that.

"We don't have militias anymore," he said. "We have National Guards. But the Second Amendment does declare after the comma, the right to bear arms shall not be abridged.

"I probably wouldn't have voted for it if I had been at the Constitutional Convention. I would have had a more limited right."

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