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.