|VOL. 8, NO. 1||Jan. 19, 2006|
Roe Still Must Go!
By Virginia Armstrong, Ph.D., National Chairman
Furthermore, the Court has just voted unanimously in the Ayotte decision concerning parental notification in minor abortion cases. The Court sent the case back to the First Circuit Court of Appeals, which had invalidated the entire New Hampshire law. The Supremes have given the Appellate Court the opportunity to consider whether a more narrow decision upholding part of the law is proper.
No issue in the abortion law debates is more controversial than the argument that Roe is precedent/"stare decisis" settled law and must be followed. This argument is made with particular fervor in Casey v. Planned Parenthood of Pennsylvania (1992) and Stenberg v. Carhart (the partial-birth abortion decision of 2000). But a number of compelling reasons exist for overturning Roe.
David O'Brien reports the following statistics for the Warren Court: 236 over-turned acts (including 45 Supreme Court decisions); the Burger Court: 293 overturned acts (including 52 Supreme Court decisions); the Rehnquist Court through 1998: 134 overturned acts (including 30 Supreme Court decisions). For the current Court to overturn a prominent case such a Roe would not be inconsistent with the Court's history.
Stare decisis is not the ultimate governing principle in American law, especially at the level of constitutional decision-making. The Constitution is the ultimate precedent; and all court decisions must be measured against our basic organic law. The Court's over-emphasis on precedent and meager reference to the Constitution per se in both Casey and Stenberg provide no solid foundation for arguing the continued application of Roe.
Furthermore, the age of a court decision is not necessarily an indicator of its constitutional quality, or its legitimacy. For example, Plessy v. Ferguson (1896) survived for fifty-eight years before being overturned by Brown v. Topeka Board of Education (1954). Roe's life-time of thirty-three years is substantially less than Plessy's.
Casey and Stenberg, especially Casey's plurality, express the deepest concern about overturning Roe. Roe, however, had no precedent. Furthermore, several of Roe's important features have already been changed. These include abandonment of the trimester framework, alteration in the classification of the right to an abortion as a "fundamental right" and an elevation in the importance of the unborn child's interests.
Despite these changes, the Casey plurality avers that a major reason for clinging to Roe is because of the "reliance" placed upon it as a precedent. But the "reliance" concept is deficient. Whose reliance is the ultimate standard? How much must a party rely on a precedent for the precedent to outweigh other values and interests? What kind of reliance is worthy of judicial notice economic, psychological, social, physiological, all of the above, some of the above, or other forms? And how can the Court justify upholding Roe's right to an abortion because of "reliance" when the Court has overruled so many other decisions (and portions of Roe) without any mention of "reliance." The "reliance" idea is unclear, uncertain, and inconsistent with other abortion precedents as well as the Constitution.
The limits on stare decisis have been aptly described by the high-ranking British Judge, Alfred Lord Denning, who reminded us in 1959, that "If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling around them." In the United States, the "fundamental principles of truth and justice" which protect us are found in the correct interpretation of the Constitution. Court decisions to the contrary are not valid. American judges in future abortion cases should certainly reflect on the truth and justice of the fact that pregnancy is for nine months; abortion is forever.