Should Precedent Be Upheld?
Now that we have considered the sordid legacy of Roe v. Wade, we may wonder how and why it has taken the Court so long to revisit the Roe decision. In the past, when the Court has had such an opportunity, the Court has followed the doctrine of stare decisis. The Latin term means literally, “to stand by things decided.” The principle is that, when a legal question has been settled by the Court, the precedent should be respected. This principle is important because it provides stability in the law and credibility for the Court.
When it comes to the precedent set by Roe, many pro-abortion advocates have emphasized the importance of following stare decisis. In fact, they have made it a sort of litmus test for Supreme Court nominees that have been appointed by Republican presidents. For example, during her confirmation hearing in 2021, Amy Coney Barrett was asked whether she considered Roe v. Wade to be “a super precedent” (meaning a decision that is so undisputed that it cannot be overruled). Judge Barrett responded, “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category [super precedent].” Certainly, Roe has been a disputed decision since it was handed down in 1973. According to scholars at the Heritage Foundation, “Roe remains one of the most controversial judicial decisions in American history for both its result and the means the Court has used to reach it.” Considering this fact, it makes the liberal politicians’ clutching of stare decisis in this case appear even more strange.
So, let us consider why, in this case, the Court should not uphold precedent.
First, the Court should not uphold its own precedent because Roe is simply a shoddy legal decision. As we have looked at the legal trail that led to where we are today, we can see that the legality of Roe is extremely shaky. It has no constitutional basis! During oral arguments for Dobbs v. Jackson in December, Justice Clarence Thomas asked U.S. Solicitor General Elizabeth Prolegar, “What specifically is the right here that we’re talking about?” After throwing out words like “autonomy,” “liberty,” and “equality,” she could not clearly identify the right at issue in this case because abortion simply is not protected by the Constitution.
Even pro-abortion legal scholars admit that Roe v. Wade is bad law. According to pro-abortion Yale Law School professor John Hart Ely, “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . At times the inferences the Court has drawn from the values of the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so lacking.”[1] In other words, justification for the contrived right to abortion cannot be found in the text of the Constitution, the intent of the Framers, or even the principles in the amendments the Court used in its decision. The Fourteenth Amendment (which justices used to justify abortion) actually prohibits abortion because the government cannot deprive a person within its jurisdiction of life, liberty, or property. At the time the Fourteenth Amendment was written (1866), abortion was illegal in nearly every state. So, a woman’s right to kill her own child was not the intended outcome of the Fourteenth Amendment.
Beyond that, as Professor John Hart Ely noted, the Court overstepped the boundaries set by the U.S. government structure to come to its decision. While pro-abortion advocates may say that conservative justices would be overstepping their bounds to overturn precedent, the Supreme Court overstepped its bounds in setting the precedent. Rather than simply ruling based on what the Constitution actually said, the justices imposed their will on the Constitution and contrived a new right to privacy and, subsequently, abortion. In so doing, the Court violated the states’ rights to legislate in matters not explicitly given to the federal government to decide (Tenth Amendment). The Court did not provide a choice; rather it took away the choice of the people in their respective states to decide if and how abortion should be regulated. The Court’s job is to weigh conflicting rights in the balance of the United States Constitution. It failed to do that in Roe and Casey.
Another reason that the Court should not follow precedent in this case is that the Court can and has overturned precedent in the past when circumstances have changed to reveal just how wrong the precedent is. While following precedent is often preferred, it is not required. After all, the Court is not infallible, and it can and has set bad precedent. If the Court has made a bad decision, it can be reversed if the Court overrules its own precedent or an amendment overrules the Court’s decision.
For example, in Dred Scott v. Sanford, the Court ruled that the plaintiff, Dred Scott, as a descendant of Africans, was not an American citizen and, therefore, did not have standing to sue for his freedom. The Court applied the “substantive due process” doctrine (as it did later in Roe) to claim that the right of Scott’s “owner” to his property (Dred Scott) could not be infringed. As one OB/GYN noted, “No one alive today with a rational mind and any sense of right and wrong, would defend Dred Scott v. Sanford today on the grounds of stare decisis, or any other grounds. Yet Roe v. Wade, also decided in a 7-2 decision, used some of the same arguments to justify abortion that were used to justify slavery.”[2] The Dred Scott decision was then overruled by the Thirteenth and Fourteenth amendments.
Just as the Court failed to address the personhood of Black people in the Dred Scott case, so the Court failed to address the personhood of unborn people in Roe v. Wade. Justice Blackmun himself admitted, “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.” In this discussion, the personhood of the unborn, regardless of subjective standards such as viability, has been completely overlooked. With scientific and technological advancement, we can be confident about the personhood of the unborn. These new circumstances should be enough reason for the Court to revisit its decision in Roe and Casey.
Another example of the Court overturning its own precedent would be the case that Justice Kavanaugh brought up during the oral arguments in December. He brought up the Court’s decisions in Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) In Plessy v. Ferguson, the Court affirmed the “separate but equal” principle, saying that segregating accommodations based on race was not unconstitutional. Sixty years later, in Brown v. Board of Education, the Court ruled that the “separate but equal” principle was unconstitutional because it violated the Equal Protection Clause of the Fourteenth Amendment. The Court admitted that it got it wrong in Plessy, based on a proper understanding of the Constitution.
Some have argued that Roe and Casey should be upheld because an entire generation of women has come to rely on the Court’s decision. The argument is that overturning it now would take away that security. However, as Justice Alito pointed out during the oral arguments for Dobbs v. Jackson, the South had also come to rely on the Court’s decision in Plessy. He said, “It was an improper reliance. It was reliance based on an egregiously wrong understanding of what equal protection means.” It could be argued that modern women’s reliance on Roe is also an improper reliance on an egregiously wrong understanding of the due process protection of liberty. One American’s liberty ends where another American’s life and liberty begins. That’s what the Court demonstrated in overturning Plessy and that is what it could demonstrate if it were to overturn Roe and Casey.
The Plessy precedent was overturned and replaced with the Brown decision. In her confirmation hearing, Amy Coney Barrett said of Brown, “People consider it to be on that very small list of things that are so widely established and agreed upon by everyone calls for its overruling simply don’t exist.” In other words, the Court overruled its precedent in Plessy and set a new precedent in Brown that should be considered super precedent. The Court can and should follow stare decisis in that case because the decision is undisputed. However, as we have already discussed, Roe v. Wade does not fall into the same category as the Brown decision. Its legality and validity have been in question since the beginning. As it has done in the past, the Court should overrule its own precedent in this case because the legal and scientific circumstances justify it.
The Court is not bound to follow precedent when such a precedent was wrongly decided in the first place and has since been invalidated by legal and scientific understanding. As pro-life Christians, we have science, logic, and legality on our side. We do not need to give credence to the argument that the Court would be totalitarian in overturning Roe’s precedent. The inverse is true: The Court was totalitarian in setting such a precedent. And in our next article, we will discuss the options the Supreme Court is considering in this case.
References:
[1] John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” 82 Yale Law Journal, 920, 935-937 (1973), Accessed December 13, 2021. [emphasis added]
[2] Brent Boles, M.D. Supremely Wrong: The Injustice of Abortion, United States: NEWTYPE Publishing, 2019.