Previously, I wrote a blog entitled: Let Women Decide What to Do with Their Bodies, where I explained the rationale for my being on the pro-Choice side of this highly contentious issue. Little over a year ago I told my wife, Lisa, that the Supreme Court would never do away with the Roe v. Wade decision that legalized abortions throughout the country. I had believed the right to an abortion had become embedded in the American mind such that it was a law here to stay. However, I was mistaken insofar as the recent vote of 6 to 3 by the Supreme Court overturned the earlier decision in 1973 made by the Supreme Court that legalized abortion.
As Bret Stephens, columnist for the New York Times, pointed out: The original decision came from the Supreme Court, the least democratic branch of government rather than the more appropriate law-making Congress or state legislatures. Furthermore, the Court has become more of a political instrument rather than a body where decisions would be made free of any political leanings or bias. When Robert Bork, a legal scholar, in 1987 was rejected by the Senate because of the expression of his views (that later became known as “being Borked” when one did not get approved for a promotion etc.), subsequent Presidential appointees have learned how to negotiate the Hearing Process by skirting major issues and reciting bromides.
During the Confirmation Hearing of Brett Kavanaugh in 2018, he was asked by the democrats whether or not he would be in favor of overturning the decision made in Roe v. Wade. His response was that he would not be inclined to change what had become precedent and had been reconfirmed with the 1992 decision of Planned Parenthood v. Casey in which the court upheld the right to have an abortion. Accordingly, he appeared to support stare decisis, the doctrine that courts will adhere to precedent in making their decisions. During his Hearing, Judge Kavanaugh remarked that the Casey ruling hadmade a precedent on a precedent. However, in the recent Dobbs v. Jackson Women’s Health Organization, he was one of the six Supreme Court Judges to overrule both Roe v. Wade and Planned Parenthood v. Casey by stating that the Constitution of the United States does not confer a right to abortion. Since Bork was “Borked,” Senate Confirmation Hearings reveal little to us about how potential judges think and how they might rule on certain issues.
Many conservatives. who applauded the court’s decision of Dobbs, have commented that the notion of stare decisis is not written in stone. That is to say, all court decisions do not have to necessarily follow stare decisis. Here, I am in agreement with them. An example where precedent was not followed is the ruling of Plessy v. Ferguson rendered by the Supreme Court in 1896. This decision upheld the constitutionality of racial segregation under the “separate but equal” doctrine. As we know, a more accurate reading of that decision would have been: separate but unequal. The doctrine supported what was to become Jim Crow legislation and separate public accommodations.
In 1954, the Supreme Court went against stare decisis in the Brown v. Board of Education, where it ruled that the doctrine of separate but equal had no place in public education calling segregated schools “inherently unequal.” Furthermore, the plaintiffs in the Brown case were found to have been “deprived of the equal protection of the law provided by the 14th Amendment.”
In the case of Roe v. Wade, however, I would argue that stare decisis is relevant when one considers what the polls reflect regarding the national sentiment of that court decision. Thus, polls have repeatedly shown that over 60 % of Americans favor the legalization of abortion with only 19% saying that abortion should be illegal in all circumstances. Moreover, conservatives who favor minimal government interference are now claiming the right for government to interfere with a woman’s body. Dobbs will not end abortion but will more likely result in the unintended consequences of forcing women, many of whom with limited financial means, to travel long distances to states that still allow legal abortion. This will add unnecessary stress on the lives of these women. I’m afraid to say, with the overturning of Roe v. Wade, the solution has become the problem.
10 replies on “Roe versus Wade Revisited”
I like your last sentence, “the solution has become the problem”. Too few people realize the truth and significance of your statement. History has proven that the most common source of new problems is solutions to old problems.
Chuck, U think we should discuss your point in our meeting this Thursday: That is, how solutions can become problems!
Hi Bernard and readers, The blog express a very basic perspective on the impact of the court decision, a perspective shared not only by me but apparently also by the great majority of Americans. Namely, the court decision will in practice create more rather than fewer problems, because it permits increase in the already adverse interference of some state governments against the health and choice of pregnant women and professional practice of their physicians. But more should be noted and discussed. Namely, even were Roe v Wade left in place, the states have still been free to interfere (and some indeed have interfered) with women’s health and choice – after the first three months of a pregnancy – including potentially punitive action against women and physicians for the ‘crime’ of having to deliver still births in that period. By becoming pregnant does a woman thereby automatically contract with the state to be first and foremost (at all costs including potentially death) an incubation machine for a parasitic growth? Essentially that what the abortion prohiibitionists, ‘conservative’ or otherwise, believe and demand. In interests of consistency, they should be working to outlaw tumor surgery and other cancer treatments. Maybe that’s what they will now do!
Let/s indeed hope not!
Well, Joe, you tend to view things as an extremist but nevertheless I consider your comments thoughtful and provocative (not in a pejorative sense).
Ok I’m ready to comment.
1. The Court’s decisions and the nomination process have always been political and probably always will be. More so in contentious times.
2. Translating to modern times the principles of a centuries-old document as amended is critical to dawning understanding of rights way beyond what was known or considered in 1787.
3. If the problem to which you refer (for which you note the solution is worse) is that legislation by elected reps reflecting the Will of the majority justifies prohibiting the Court’s obligation to defend women’s rights to informed decisions about their own bodies, that is totally incorrect. Here, in Roe v Wade the court was really protecting women’s rights from a minority. In the current case reversing Roe, the court effectively enacted the Will of the minority. Critical rights should NEVER be subject to legislative will, whether of majority or minority. That’s partly what basic rights are: protection from any interference if it hurts no one.
4. Stare decesis has been ignored in many cases over the generations when circumstances warrant it, correctly or otherwise.
5. There is an evil campaign in this country to break down the separation between church and state. That’s a looming evil as frightful as depriving women of control over their own bodies.
6. States’ rights have always been used (among even correct causes) to deprive people of rights.
Rich, on this issue (not to pun) we really are not on opposing sides as it would seem by your response. I believe you missed the thrust of my essay that was pointing to Dobbs “being the solution that becomes the problem,” and not the original decision by the courts. In that case, i would argue for stasis decisis, though as you point out and I in my essay, stasis decisis can rightfully be broken. I wrote an earlier blog alluding to my support of Roe v Wade as I also believe in individual freedom over any coercion by governing bodies. However, you point to the minority being correct on this point and here I might take issue with you as I agree, in substance with your point, I am not so sure Courts should be making these decisions. This, however, needs further elaboration that I am not prepared to give at this point so, for now, I will cede to your point!!!
Recalling how Kavanaugh handled the very credible sexual assault charges against him, it’s no surprise that he backpedaled from his confirmation-hearing stance on abortion–nay, downright lied. Hey, Dr. N., did you know that politicians are one of four professions displaying (via fMRIs) the most sociopathy? Need I say more!
No, Nancy, I did not know that. Does that include all stripes of politicians from those on the right to those on the left?
The study didn’t distinguish. Good question, though!