Now that Roe v. Wade has been overturned, the Left professes to be outraged that the sacred principle of stare decisis (“let that which is decided stand,” i.e. respect for precedent) has been violated by the Supreme Court’s conservative majority.
This is a tell. Roe was a garbage decision, with seven politicians in judicial robes creating a fictional right to abortion. First they settled on the outcome they desired, then they made up a constitutional fairy tale to justify it. So now the pro-abortion gang has a problem. If Dobbs v. Jackson Women's Health Organization was wrongly decided—why was it wrongly decided? Well, because Roe v. Wade was a Supreme Court precedent of fifty years’ standing and therefore sacrosanct.
Now it’s true that stare decisis binds all lower courts to abide by rulings of the Supreme Court. But past rulings of the Supreme Court are not binding on the Court itself. Plessy v. Ferguson (1896), for instance, placed a legal imprinter on racial segregation by holding that “separate but equal” public accommodations were constitutionally permissible. And though Plessy was never explicitly overturned, a string of subsequent Supreme Court rulings, Brown v. Board of Education (1954) prominent among them, effectively emasculated it. Somehow I doubt that progressives have their knickers in a twist on behalf of Plessy.
In his concurring opinion on Dobbs, Justice Brett Kavanaugh noted:
Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft’s appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents.
The operative principle, then, is not that precedent is sacred, but that a bad precedent can and should be overturned.
And Roe v. Wade (along with Planned Parenthood of Southeastern Pa. v. Casey, in which the Court tried unsuccessfully to fix the problems with Roe) established a bad precedent by creating a constitutional right out of thin air. Abortion is never mentioned in the Constitution, nor is there a plausible route to the establishment of the right to abortion—say, via the Fourteenth Amendment. Progressives are affecting to be very concerned that the overturn of Roe endangers Obergefell v. Hodges (2015), which legalized same-sex marriage on the national level. This is baloney. In Obergefell the Court majority argued that the due process and equal-protection clauses of Section One of the Fourteenth Amendment were violated by laws prohibiting same-sex marriage. Not so with Roe. In that case the majority conjured up a “right to privacy” supposedly embodied in the Ninth and Fourteenth Amendments, and extended it to cover abortion.
The relevant texts of the two Amendments are as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Ninth Amendment)
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Fourteenth Amendment, Section One)
You can see that the equal protection clause of the Fourteenth Amendment may be interpreted to cover same-sex marriage. In that case, the question before the Court was whether the state’s interest in regulating marriage outweighed the right of same-sex couples to the benefits of legal marriage. But only if one regards the Constitution as a lump of Silly Putty, to be shaped as required, can one read into either amendment a constitutional right to abortion. Restricting or prohibiting access to abortion does not deny or disparage any right retained by the people; nor curtail or diminish the privileges and immunities of United States citizenship; nor deprive anyone of life, liberty or property; nor deny anyone the equal protection of the law. That was why the Roe v. Wade majority resorted to a specious privacy rights theory.
But all these arguments about stare decisis, respect for precedent etc. are beside the point, for progressives don’t really take them seriously. It seems fair to ask how much respect for precedent resides in the bosom of Senator Elizabeth Warren, who is squealing about the Supreme Court’s “illegitimacy” and demanding that it be packed with extra justices who will vote as she prefers. For if Warren ever has her way and the Supreme Court is stuffed full of progressives, many longstanding precedents will surely be tossed out, for example District of Columbia v. Heller (2008), which affirmed that the Second Amendment embodies an individual right to keep and bear arms. Warren & Co. would surely be glad to see that one go down.
And it gets worse. The Constitution itself may be regarded as a great body of precedent—one for which progressives demonstrate scant respect. Indeed, they revile many of its provisions as a threat to “our democracy,” a giant pothole in the middle of the road to the Radiant Future. By “our democracy” they mean “democracy our way,” and if the Constitution gets in the way, then the Constitution be damned.
Roe v. Wade wasn’t just about abortion. It represented a great victory for liberal and progressive advocates of a “living Constitution”—which is to say, a Constitution that could be twisted like a pretzel or simply disregarded whenever it seemed likely to block the latest experiment in social justice or human engineering. To some extent at least, the defense of “abortion rights” was a proxy for the defense of an illiberal democracy untrammeled by constitutional niceties like federalism and freedom of speech. No wonder then that Dobbs v. Jackson Women's Health Organization has sent the Left into such a rage.
Very true. The Constitution has never done anything but relegate healthcare to states.