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A thoughtful critique that explains why respect for precedent demands that the Supreme Court overturns Roe

by | May 24, 2022

By Dave Andrusko

Imagine flipping the argument that we must retain Roe because of precedent (stare decisis) on its head. That’s exactly what Adam J. White does in Monday’s Wall Street Journal.

White assures us that “precedent, or stare decisis, is fundamental to our constitutional system.”  Which is why a decision as poorly reasoned as is Roe is a thin reed on which to support the “right” to abortion.

The Roberts’ court “aren’t the first justices to doubt the wisdom or propriety of the precedents they inherited. Liberal courts from the New Deal era through the 1960s overturned many 19th-century precedents based on new understandings of the Constitution,” he writes.

White summarizes all the precedents critics (mistakenly) say would fall if Roe is axed.

White’s key paragraph is

Yet Roe v. Wade is in a class by itself. No modern Supreme Court precedent has less connection to the Constitution’s text; none stir greater moral and political disagreement. And if some take Roe as the epitome of precedent, that is one more reason to overturn it. The doctrine of precedent is too important to be defined by such a poorly reasoned and divisive case. 

White  carefully goes through Justice Alito’s draft opinion in  Dobbs v. Jackson Women’s Health, which was leaked to Politico, to determine whether this holds water. Justice Alito’s draft opinion in Dobbs 

exemplifies a Constitution-focused approach to reading text and weighing precedent. First it analyzes the Constitution’s text, to determine if Roe was rightly decided. Then, on the question of stare decisis, it considers reasons why even a mistaken precedent might be left intact.

Only Roe is a mistaken precedent that fairly begs to be overturned. And it is qualitatively different than other precedents.

Because abortion involves the interests not only of the mother but also of the unborn child (and the government’s interest in both), the court’s abortion jurisprudence has always been a mess of contrived categories and multifactor tests, resembling legislative logrolling more than judicial reasoning. 

White argues 

Abandoning Roe would improve this part of our constitutional discourse. Precedents in other areas of law will be evaluated and debated in much more nuanced and open-minded terms without lawyers, judges and citizens looking over their shoulders at what Sen. Arlen Specter once called the “super precedent” of Roe. Cases would be taken more seriously on their own terms, and not as a proxy war for a court-made right to abortion.

“Roe v. Wade Must Go for Precedent’s Sake” is very much worth reading.

Categories: Roe v. Wade