Perspectives: Ramos ruling reflects Roe v. Wade reversal route.

Byline: Marshall H. Tanick

The decision of the U.S. Supreme Court in a recent murder case out of Louisiana may hold the key to the vexing issue of the vitality of the doctrine of abortion rights stemming from the decision of the United States Supreme Court inRoe v. Wade,410 U.S. 113 (1973).

Both in the majority decision and in a significant concurring opinion late last month inRamos v. Louisiana, 2020 WL 1906545No. 18-5924 (April 20, 2020), the justices, both collectively and individually, provided a road map for possible reversal of the Roe, and there are a number of Minnesota sign posts along the route.

RamosRuling

TheRamos casehad been pending before the court since it heard oral argument on the first day of its 2019-2020 term last October. It was an appeal by a Louisiana man of a state second-degree murder conviction by a 10-2 split jury under Louisiana's unusual law, emulated in only one other state, Oregon, which allows non-unanimous jury verdicts in felony cases. The Oregon law in had been upheld on a narrow ground by a 5-4 ruling of the court nearly 50 years ago inApodaca v. Oregon, 406 U.S. 404 (1972) with the decision turning on the concurrence by Justice Louis Powell that grudgingly joined the majority upholding the measure against constitutional challenge under the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury for criminal trials, a counterpart of the Seventh Amendment provision forjury trials in most civil cases.

The high court inRamos, by a 6-3 ruling, deemed the Louisiana law an unconstitutional deprivation of the right to a jury trial, which the Framers understood to mean unanimity. The majority decision, written by Justice Neil Gorsuch, pointedly noted the origins of the law, which were grounded in racial prejudice in the late 19thcentury, comparable to the anti-Semitism which sparked the Oregon law decades later during the midst of the depression in the 1930s. That taint provided a foundation for the majority decision invalidating the Cajun State law, which, incidentally, had already been repealed by the time Ramosreached the high court.

Ramos was notable in several respects. First, in applying the Sixth Amendment right to the states, it extended the doctrine of incorporation, which extends provisions of the Bill of Rights to the states through the vehicle of the Due Process clause of the FourteenthAmendment. That process began, incidentally, in a Minnesota lawsuit, the famous prior restraint case barring censorship of the press inNear v. Minnesota,283 U.S. 697 (1931) and has been applied to nearly all of the constitutional provisions of the Bill of Rights since that time.

There is another Minnesota...