Every Supreme Court nominee for decades has been asked his or her opinion on Roe v. Wade, 410 U.S. 113 (1973), the decision legalizing abortion in the United States.
Many of them have noted that the decision was a precedent and thus probably untouchable.
During his contentious confirmation hearings in 2018, Justice Brett Kavanaugh described Roe as "precedent on precedent." Justice Neil Gorsuch during his confirmation called legal abortion "settled law." Then-nominee Amy Coney Barrett did not agree that Roe v. Wade constituted a "super precedent," but conceded that legal experts did not agree it should be overturned.
This concept of precedent is also known as stare decisis, a Latin phrase meaning to stand by things which have already been decided. In other words, the court already ruled on this issue so let’s stick with what it said. But sometimes it's clearly necessary to cast aside those decisions.
A case in point is Plessy v. Ferguson, 163 U.S. 537 (1896), in which the Supreme Court ruled 7-1 that separate but equal accommodations for Blacks and whites did not violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
Seen another way, Plessy vs. Ferguson upheld discrimination as constitutional.
Different drinking fountains and lunch counters, segregation in schools. The Court reversed itself in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
The Court changed its mind, some 58 years later.
Like all of us, Supreme Court justices make mistakes.
They misjudge things, and realize later the decision they thought was upholding someone’s rights was actually inflicting damage. "Separate but equal" caused damage to those who were separated — namely, Black Americans.
This writer doesn't think you would find anyone today asserting that because of stare decisis, we should still adhere to a separate but equal policy.
In Justice Samuel Alito’s draft decision on Roe, and in the arguments in Dobbs vs. Jackson Women’s Health on which it was based, we see many other examples of how the Supreme Court had to make a mid-course correction, even after decades of precedent.
Stare decisis is not an inexorable command. It’s not an absolute.
The court can change its opinions, and must be especially willing to do that in questions regarding interpretation of the Constitution.
The goal of stare decisis is to facilitate a consistent development and application of the law. But when it comes to abortion, that has not been the case because the guidance given by Roe v. Wade, and in the case Planned Parenthood vs. Casey, 505 U.S. 833 (1992) was confusing.
The justices on the Supreme Court disagreed as to what makes an abortion law constitutional or unconstitutional and the lower courts also have had conflicting opinions.
In other words, nearly 50 years of this so-called precedent, and 30 years under Planned Parenthood vs. Casey, has not led to any consistency or predictability. If a state passes an abortion law tomorrow, it’s unpredictable how a court is going to rule on it.
Planned Parenthood vs. Casey introduced a new standard called "undue burden," which held that an abortion law passed by a states or by Congress cannot impose an undue burden, or place a substantial obstacle, in the way of a woman seeking an abortion:
- What does that mean?
- What constitutes undue?
- What’s a burden?
- What’s substantial?
- What’s necessary or unnecessary?
- What’s a benefit?
All these things the justices are juggling around in their minds are a matter of opinion.
Of course it’s going to differ from judge to judge, from court to court, even from law to law. So the landscape of abortion jurisprudence is filled with massive — and well documented — confusion.
This writer has no problem with stare decisis, or sticking to the decisions that have already been made; if those decisions, and the standards articulated in those decisions, lead to a consistent and predictable development of law based in the Constitution.
But in the context of abortion, that has not been the case.
They’ve led to confusion and are untethered to the Constitution.
As an example, in Stenberg v. Carhart, 530 U.S. 914 (2000), the high court struck down a law in Nebraska that protected babies from partial-birth abortion, in which the birth process itself is used as a mechanism of killing.
Then-Justice Sandra Day O’Connor, who articulated this undue burden standard in Casey, and then-Justice David Souter struck down the Nebraska law based on that standard.
But based on his interpretation of the same standard, which he also helped create in Casey, then-Justice Anthony Kennedy upheld the very same law.
So here you have the three people who had a hand in crafting this undue standard burden disagreeing on how it applied.
The same thing happened seven years later when the highest court in the land upheld the federal ban on partial-birth abortion. That decision came to a different conclusion about basically the same kind of law, with Kennedy and Souter again disagreeing on how the undue burden test applied in that case.
This is the point, and the one Justice Alito makes in his draft opinion: If the standard does not lead to consistency and predictability, there’s no reason for us to have to adhere to it, and therefore to Roe and Casey.
When it comes to interpretation of the Constitution, stare decisis is at its weakest point.
The court has to be especially ready to change its mind in this arena, because the only other option for changing constitutional interpretation is a constitutional amendment, and that’s a process the Founders deliberately made quite challenging.
It requires the agreement of two-thirds of the House and Senate and three-quarters of the states. That’s a lot of consensus and it’s not going to happen frequently.
It’s hard to imagine it happening at all in this moment when our nation is so divided.
So we must rely on the court to be ready to clarify the Constitution and to do what it must to make sure the Constitution is not abused. That’s exactly what Justice Alito has done in his decision in the Dobbs case: Roe and Casey must go.
Fr. Frank Pavone is one of the most prominent anti-abortion leaders globally. Read Fr. Frank Pavone Reports — More Here.
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