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Why “precedent” is no obstacle to overturning Roe v. Wade

by | Jan 4, 2022

By Dave Andrusko

It’s important to remember that when thinking about Mississippi’s  “Gestational Age Act” that while observing “precedent” (stare decisis) ordinarily is important, the Supreme Court has reversed itself when it has made egregious errors.

Welcome to “Precedents Are No Obstacle to Overturning Roe v. Wade,“ an op-ed by Robert P. George and Christopher Kaczor. If there is a textbook case for overturning precedent, Roe—and its 63 million victims—qualifies.

George and Kaczor write

In Roe v. Wade seven members of the Supreme Court of the United States imposed their moral belief that women have a right to abortion on the American people. Most jurists and constitutional scholars recognize that the decision lacked any basis in the text, logic, structure or original understanding of the Constitution. Nevertheless, Roe has been in place for nearly 49 years and the Court reaffirmed its basic holding in the 1992 case of Planned Parenthood v. Casey.

They list prominent instances where the Court has reversed itself. They quote the very liberal Erwin Chemerinsky who summarized several key reversals:

The power of these examples is that they are non-partisan. Liberals and conservatives alike can agree that the court was wrong in Dred Scott v. Sanford in holding that slaves are property and not citizens, in Plessy v. Ferguson in upholding separate but equal and in Korematsu v. United States in ruling in favor of the authority of the government to evacuate Japanese-Americans from the west coast during World War II

They add “Overturning a Supreme Court ruling is scarcely unheard of or even particularly novel. The Court has done it nearly 150 times.”

Having disposed of the canard that reversal is all but unprecedented, George and Kaczor further make the case that the High Court’s abortion ruling are “not merely mistaken interpretations of the Constitution; they can scarcely be described as interpretations at all. They represent the sheer imposition of judicial will—the ‘exercise of raw judicial power,’ as liberal Justice Byron White said in his dissent in Roe.”

One other of the many compelling arguments they make: Roe is as contentious and divisive today as it was in 1973, perhaps more so. 

Roe supporters would have you believe the decision “settled” the issue. In fact, “The Court’s unwarranted exercise of raw power did nothing to temper the division and much to enflame it. In that respect, as in others, it profoundly resembles Dred Scott v. Sandford, and deserves to join that infamous ruling on the ash heap of history.” A very solid contribution to the case for overturning Roe.