Legal Hysteria Spreads as the Court Revisits Roe

3 min

It is hard to keep a straight face while reading the hysteria over the United States Supreme Court agreeing to hear Dobson v. Jackson Women's Health Organization, the Mississippi case challenging the state statute prohibiting nearly all abortions after the 15th week of pregnancy. For those in the legal establishment, the greatest fear seems to be that this case will sound the death knell for stare decisis, the judiciary’s duty to follow legal precedent. Nothing could be further from the truth.

In this case from Mississippi, the court will decide whether all restrictions on abortion before the fetus is viable (able to live outside the womb, albeit with technology—now about 22 weeks at the earliest) are unconstitutional. The Fifth Circuit Court of Appeals, reading the U.S Supreme Court’s rulings on this matter, concluded the restrictions clearly violate the U.S. Constitution based on the court’s 1973 Roe v. Wade ruling and its subsequent tweaks, which declared abortion a fundamental constitutional right.

It should be noted that Roe v. Wade was greeted with raspberries by much of the legal establishment in 1973, most famously by Yale law professor John Hart Ely in the Yale Law Journal five months after the decision. A few years later, my constitutional law professor taught Roe as an abuse of judicial power. Curiously, while Roe invalidated the abortion laws of every state and resulted in many deaths, no progressive today calls it an assault on democracy. Instead, criticism of Roe is now seen as disqualifying for a judicial position, though not because of the decision’s intellectual heft.

Thus, it’s no surprise that the court’s acceptance of this appeal threw the American legal world into a frenzy, concerned it will mean the death of stare decisisStare decisis affords stability, giving the public faith that the law is based on solid legal tenets and not on the whims of judges. Reaffirming bad rulings is often seen as preferable to overruling them for this reason. Even now-Associate Justice Brett Kavanaugh during his 2018 confirmation hearing declared Roe “settled law.”

Yet, to put it mildly, critics of the current court embrace stare decisis inconsistently. When federal appellate judges considered same-sex marriage cases—before the Supreme Court declared such marriages a constitutional right in Obergefell v. Hodges in 2015—only a Sixth Circuit Court of Appeals panel followed the 1972 Supreme Court holding of Baker v. Nelson, in which the court dismissed an appeal from a Minnesota homosexual couple who claimed their ability to marry was protected by the Constitution. The court dismissed it “for want of substantial federal question.” In other words, the court ruled on the merits of the case that defining marriage was not an area of federal power. To reach its decision in Obergefell, however, the Supreme Court abandoned stare decisis, holding that “Baker vNelson must be and now is overruled.” And Baker v. Nelson is even older than Roe v. Wade!

Only about 5 percent of mothers—excuse me, aborting parents—seeking to terminate pregnancies do so after 15 weeks. Thus, the Mississippi law does not have much effect on the practice of abortion. No, the gravitas of the Supreme Court taking the Mississippi case is the stability of a nonsensical, but by now sacrosanct, ruling from 1973. But as the court’s current critics have taught us, maybe the stability of bad laws isn’t very important.


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Image Credit: 

Supreme Court of the United States-Fred Schilling, public domain

Betsy Clarke

Betsy Clarke is a retired law clerk who lives in Columbus, Ohio.

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SCOTUS is a compromised failure under Justice Roberts, so Team Infanticide has nothing to fear just now. It would be nice, however, if a compromise could be reached that states a woman has until the end of the first trimester of her pregnancy to make a decision about whether or not she'll bring it to term. Considering that a decision about wanting to be a mother should have been decided waaay before she engaged in sex, 90 days seems a fair length of time to pressure the irresponsible and immature into making a choice. Anytime after, and the zygote begins to develop major organs and is capable of feeling sensations and pain. If the mother can't make a decision by then, she should be denied an abortion and monitored by midwives or other medical staff until her baby is born and can be adopted by parents who desperately want to raise and love a child.


Lost Dutchman Mind
The doctrine of stare decisis has been promoted to the point that any ruling by any judge at any level becomes law unless or until it is overturned. This is nonsense. The doctrine is meant only to limit frivolous lawsuits and to streamline the docket process. A court ruling should apply only to parties to the case being judged. Subsequent cases must be free of prejudgement if there is to be any chance for justice under a judicial system. There can be no fair hearing of any case unless the two major entities of a judicial system ; The petit jury and the Supreme Court remain unbound by the pernicious doctrine of stare decisis. The author makes a solid point about the uneven application of the doctrine, especially by the Supreme Court. The doctrine is applied or ignored based upon an arbitrary decision made by the court for political purposes. The doctrine is what empowers judges to legislate from the bench. Elevating "case law" to a superior status above statutory law is unconstitutional, since the US Constitution assigns the power to legislate to legislative bodies exclusively, without establishing any exception for the judiciary.