This commentary is from John McClaughry, Vice President of the Ethan Allen Institute.
Debate rages over the US Supreme Court’s leaked draft opinion reversing the 1973 abortion rights decision, Roe v. Wade, and his follow-up notices in Doe v. Bolton (1973) and Planned Parenthood v. Casey (1992).
Advocates of a constitutional right to abortion have never quite agreed on where that right can be found in the Constitution. But they agree and strongly argued that the judicial rule of stare decisis – a presumption of validity of long-standing prior decisions – should be invoked to uphold the law declared in Roe v. Wade effective 49 years ago.
What follows here is not a discussion of the merits of the case for or against an abortion right, but only the stare decisis argument to let Roe v. Wade in force. Also, although I studied constitutional law in graduate school, I am not a lawyer and cannot be quoted as such.
The men who crafted the US Constitution were well aware of the specter of rogue judges overturning years of accepted law embodied in years of judicial decisions. Alexander Hamilton, in Federalist No. 78, wrote that “to avoid arbitrary discretion of the courts, it is indispensable that they be bound by strict rules and precedents”.
This principle of respect for precedent has been respected throughout our judicial history. But that respect is based on the strength of the case that set the precedent. Justice Alito’s draft opinion lists 29 examples of Supreme Court decisions that have overturned precedents, sometimes precedents that have existed for many decades, sometimes precedents as little as three years old, and often precedents that have reversed decisions that the Liberals in particular found unacceptable.
Justice Alito noted in particular, among the overturned cases, the infamous Plessy v. Ferguson (1896) who confirmed racial segregation in railroad cars. Another was Adkins v. Children’s Hospital (1923) which repealed minimum wage requirements for women in the District of Columbia until rescinded in 1937; and Minersville School District v. Gobitis (1940), confirming the expulsion of a Jehovah’s Witness child for refusing to salute the flag and take the oath of allegiance. The latter case was decided 8 to 1 in 1940, but overturned by a 6 to 3 vote just three years later.
These 29 examples beg the question: when should stare decisis justify keeping a ruling in place, and when should a dubious case be quashed in light of changing facts, arguments and consequences? ?
The judges who signed Judge Alito’s draft opinion concluded, as have many jurists over the years, that Roe v. Wade fell far short of a consistent constitutional standard. This standard, endorsed in many other cases, is that the declaration of a previously unenumerated right must be “deeply rooted in the history and tradition of the Nation” and “implicit in the concept of ordered freedom”.
This overarching precedent was adopted to circumscribe the creation of new “rights” by a majority vote of judges playing the role of unelected legislators. This is especially relevant when reflecting on the Ninth Amendment, which states that “the enumeration in this Constitution of certain rights shall not be construed to deny or denigrate others held by the people.”
Over half a century of litigation, proponents of abortion as a constitutional right have embraced, first, a derivative right to privacy, in the words of its author (liberal Justice William O. Douglas in Griswold v. Connecticut, 1965) as a “penumbra” of “emanations” from five different amendments; then, in Casey (1993), a rejection of Roe v. Wade in favor of prohibiting “excessive demand” for a pregnant woman.
Many scholars have found this profusion to be a weak basis for establishing a new and previously unenumerated constitutional right and elevating it to precedent forever.
Adam J. White is an attorney at the American Enterprise Institute and served on President Biden’s Commission to the Supreme Court. He writes in a recent article, talking about Roe v. Wade, “no modern Supreme Court precedent has less connection to the text of the Constitution; none arouses greater moral and political disagreements.
White’s conclusion, examining all of the disparate justifications offered in support of abortion rights, is that “Roe was a bad precedent, but the precedent itself is constitutional good. Abandoning the first will do justice to the second.
the Legislative Assembly and Governor of Vermont, by promulgating Law 47 in 2019, created a right to abortion that goes beyond the right declared in Roe v. Wade. Thus, the reversal of Roe v. Wade, if it occurs, will have no practical effect here.