It has been 46 years since the Roe vs. Wade Supreme Court decision decriminalized abortion throughout all nine months of pregnancy.
Roe has been reaffirmed by the Supreme Court in numerous other decisions about abortion. It is “precedent,” or, as was said in the Kavanaugh hearings, “precedent upon precedent.”
So can the day come when the Court issues a ruling reversing its holding in Roe vs. Wade?
The answer is yes.
The Supreme Court has the authority to reverse its own decisions. Legal experts and Supreme Court justices themselves have laid out the various circumstances. Sometimes history teaches us that a decision is unworkable, or that the people the Supreme Court thought it was helping were actually hurt by what it decided.
That’s why, in 1954, the Supreme Court, in Brown vs. Board of Education, overturned nearly 60 years of precedent set by the same court’s 1896 Plessy vs. Ferguson decision which established the doctrine of “separate but equal” when it came to segregation. Time proved, however, that separate meant unequal.
It hasn’t been that long since Roe vs. Wade, but the evidence continues to mount that the women the Court thought it was helping by legalizing abortion have in fact been deeply damaged by abortion. Whether by scientific studies, or the personal testimonies of those who have had abortions, the evidence cannot be ignored.
Moreover, perhaps no Supreme Court decision has been more widely criticized by federal judges. A lower court cannot overturn Supreme Court precedent, but it can certainly criticize it, and that has been done repeatedly, right up to our day, to Roe vs. Wade.
Books like “The Law of Judicial Precedent,” co-authored, among others, by Brett Kavanaugh and Neil Gorsuch, describe conditions under which the Supreme Court can reverse even longstanding precedent. Many of those conditions, including sustained public dissatisfaction and severe criticism of the decision, and the creation of general injustice, are undeniably present when it comes to the Roe vs. Wade abortion decision.
But recently, Justice Clarence Thomas, in a concurring opinion in a case not even dealing with abortion, laid further groundwork for the eventual reversal of Roe, and in fact simplified the argument.
In the Gamble vs. US decision, issued just last month, Justice Thomas agrees with the majority not to overturn precedent regarding the doctrine of dual sovereignty.
But then he takes the opportunity to explain, in a 17-page opinion, that the Supreme Court certainly can overturn its own precedent, and that such a step does not even have to wait for the various criteria that other judges and legal authors have established.
It is, he says, sufficient for the Court to conclude that the original case was wrongly decided. If the Court was wrong in its judgment about what the Constitution requires, then reaffirming that wrong decision multiple times cannot make it right and should not let it stand.
There is certainly a role for precedent — that is, the doctrine of “stare decisis” (a Latin term meaning “to stand with the things that have been decided”) — but not when it simply becomes another way for the Court to invent new rights that do not exist in the Constitution, or to express its own preference about public policy.
Justice Thomas reviews a history of stare decisis, and points out that in the English common-law system from which we inherited it, stare decisis had more force because “judges were expected to adhere to precedents because they embodied the very law the judges were bound to apply.”
But today, he goes on to explain, “Federal courts…look to different sources of law…the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system.”
Justice Thomas’ opinion gives crystal clarity to the proper role of the Court, saying, “The Judiciary lacks 'force' (the power to execute the law) and 'will' (the power to legislate).” Therefore, he says, “We should restore our stare decisis jurisprudence to ensure that we exercise “mere judgment,” which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying.”
And if the law, or the Constitution, was wrongly applied in a past decision, stare decisis, he asserts, should not be used to reaffirm it.
He references, in his opinion, two abortion-related cases — one that reaffirmed Roe based on stare decisis (the 1992 Casey decision) and another that, for the same reason, led to what he calls “disastrous ends” in affirming partial-birth abortion (Stenberg vs. Carhart, 2000).
In another opinion just back in May of this year (Box vs. Planned Parenthood) he declared, “The Constitution itself is silent on abortion.” And in an opinion on June 28, regarding the Court’s decision not to hear a case on the Alabama law protecting children from dismemberment abortion, Justice Thomas said, “The notion that anything in the Constitution prevents states from passing laws prohibiting the dismembering of a living child is implausible.”
Justice Thomas is sending some clear signals here, which judges everywhere should heed.
Fr. Frank Pavone is one of the most prominent pro-life leaders in the world. He became a Catholic priest in 1988 under Cardinal John O’Connor in New York. In 1993 he became National Director of Priests for Life. He is also the President of the National Pro-life Religious Council, and the National Pastoral Director of the Silent No More Campaign and of Rachel’s Vineyard, the world’s largest ministry of healing after abortion. He travels to about four states every week, preaching and teaching against abortion. He broadcasts regularly on television, radio, and internet. He was asked by Mother Teresa to speak in India on abortion, and was asked by then-candidate Donald Trump to serve on his Pro-life and Catholic advisory councils. He has served at the Vatican as an official of the Pontifical Council for the Family, which coordinates the pro-life activities of the Catholic Church. To read more of his reports — Click Here Now.
© 2022 Newsmax. All rights reserved.