My Turn: Will Roe survive?

  • BILL NEWMAN

Published: 12/6/2021 7:15:56 AM
Modified: 12/6/2021 7:15:27 AM

By Bill Newman

“This case calls upon us to reconsider a precedent decision, as the Court, throughout its history, often has been required to do.”

These words from the Supreme Court’s 1943 decision in West Virginia Board of Education v. Barnette resonated ominously this week as the Court seemed poised to overrule Roe v.Wade.

The Court should be able to reconsider a previous decision. And many times it has. In Brown v. Board of Education, for example, the Court overruled the 1896 decision of Plessy v. Ferguson, which sanctioned separate but equal as the law of the land. And in Gideon v. Wainwright, the Court held that criminal defendants are entitled to a lawyer and overruled a decision that held that only people rich enough to afford one actually had that right.

These are examples of the Court affirming a constitutional right that it previously had circumscribed or denied. In contrast, eviscerating the long-recognized personal constitutional right to abortion would, in the words of U.S. Solicitor General Elizabeth Prelogar, constitute “an unprecedented contraction of individual rights.…”

On Wednesday, the Court heard oral argument in Dobbs v. Jackson Women’s Health Organization, where the issue is the constitutionality of a Mississippi statute that outlaws all abortions after 15 weeks with no exception for rape or incest. The law intentionally contravenes Roe, which allows abortions until viability, usually 24 weeks, which brings us back to the Supreme Court quote with which this column began.

In 1973, Roe recognized a woman’s right to choose as a fundamental constitutional guarantee. Republicans and conservatives, who claim to be advocates of individual liberty, could have applauded the decision. But they didn’t. Instead they entered into a marriage of political convenience with evangelical Christians and others and embarked on a half-century political, religious and legal crusade to deliver women’s bodies to the callous hands of the government.

The present six justice, so-called conservative, majority has been installed at the Supreme Court with the expectation that they generally would rule in favor of corporations and against employees, labor unions and environmental protections; allow states to prevent Black and Brown citizens from voting; enshrine gerrymandering as a political right for those in power (mostly Republicans); grant the police immunity for unlawful violent acts; undermine laws intended to ameliorate discrimination against marginalized groups; and, perhaps more than anything else, overrule Roe v. Wade. This week the moment of payoff for political obeisance arrived.

The Supreme Court in previous decisions has articulated criteria to guide it when it has been called upon to reverse a previous ruling. Those considerations include whether the earlier case was wrongly decided or badly reasoned; whether lower federal courts have found the decision confusing to apply; whether the facts underlying a decision have changed; and on the other side of the ledger, whether people have relied and continue to rely on that decision.

These factors, malleable and not weighted or prioritized, allow the Court to reach any result it wants. Notably, in 1991 in Planned Parenthood v. Casey the same arguments for overruling Roe were presented to the Supreme Court as were made this time around. Casey affirmed Roe. If the Court overrules Roe this year, it thus necessarily will overrule not only the abortion precedents, but also its own rules for overruling. Justice Stephen Breyer made this point at the argument.

Which brings us consideration of words bandied about this week — stare decisis — Latin for standing by a thing decided — and precedent, which pretty much means the same thing. In our legal system these concepts are foundational. They prevent judges from deciding cases willynilly, guided only by their own personal and political predilections. Conservative jurists traditionally have been strong proponents of stare decisis.

But this Supreme Court is not a conservative court. It is a political court. Justice Sonia Sotomayor at argument asked how the Court institutionally would “survive the stench” of making the essentially political, not judicial, decision of overruling Roe. No clear answer was offered.

Chief Justice John Roberts, most Court observers agree, would prefer an incremental approach that would allow him ostensibly to follow precedent while accommodating the anti-choice justices. The Court could accomplish this sleight-of-hand by striking down the viability standard in Roe and upholding Mississippi’s 15-week prohibition and later approve prohibitions at 12, then six weeks, and then no weeks. Either way, immediately or more gradually, the right would be destroyed.

Which brings us to the most frightening part of this already chilling story. A right definitionally is something that can’t be taken away. Or so we thought — apparently incorrectly because the Supreme Court is acting as if it is entitled to gut established personal rights. This is not judicial decision-making. It is judicial authoritarianism .

Such a break with precedent would fit into place the final piece of the puzzle of what is necessary for legislatures and government officials going to undermine constitutional rights and to target traditionally marginalized communities. The missing piece has been a judicial imprimatur. That piece will no longer be missing. The sound you hear is the death knell of liberty and democracy.

Bill Newman, a Northampton-based attorney and radio show host, writes a monthly column.

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