Growing up in the 1960s, I knew little about birth control or abortion. In Massachusetts, where I went to college, it was illegal to sell or dispense contraception to unmarried women, and abortion was never discussed openly. What I did know was that my life as I knew it would come to an abrupt end if I got pregnant. Unless I were married, I would have to drop out of school and perhaps end up in a home for unwed mothers, where I would be forced to give up my baby. Alternatively, I could die or lose the ability to have future children after aborting the baby myself or seeking an equally unsafe back-alley abortion. Many women, like me, decided to end the constant fear of unintended pregnancy by marrying young.
When reading the leaked draft opinion overturning Roe v. Wade, I experienced a kind of post-traumatic stress disorder, taking me back to those terrifying days before it was possible to get a safe, legal abortion. Then another emotion kicked in. I was furious that Justice Samuel Alito and his conservative colleagues felt emboldened enough to flout both the precedent set in Roe and affirmed many times over the subsequent 50 years and the standards established by the court for deciding whether precedent should be overruled. In the long run, throwing out the standards required to overrule precedent might be the most damaging aspect of the opinion.
Our Founders wisely established that courts are bound by precedent under the doctrine of stare decisis, a Latin term meaning “to stand by things decided.” Under this doctrine, lower courts are not permitted to reject rulings made by higher courts. Even the U.S. Supreme Court is bound by its own prior rulings unless it can show that the old way of resolving a legal issue no longer serves society and a new direction must be taken. Such a departure from stare decisis occurred in Brown v. Board of Education, when the Supreme Court held that racial segregation, as embodied in the “separate but equal” principle adopted in Plessy v. Ferguson, was no longer acceptable in American society. In rejecting a legal principle that had stood for over half a century, the court went to great lengths to show that American society could no longer tolerate such harmful discrimination. For the court, the most important consideration was what was acceptable in modern American society, not what may have been believed in 1896 when Plessy was decided.
When the court was asked to overrule Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey, Justice Sandra Day O’Connor explained what the court must consider when deciding whether a case should be overruled: (1) whether the rule from the prior case had proved to be unworkable; (2) whether people had relied on the rule so much that overruling it would cause a special hardship; (3) whether the law had developed in such a way as to leave the old rule a mere remnant of an abandoned doctrine, and (4) whether circumstances had changed so much that the old law had no significant application or justification.
In overruling Roe v. Wade, Alito did not consider any of these factors. Had he done so, he would never have been able to justify his conclusion: (1) Under Roe, providing safe abortions has not proved to be unworkable; (2) Women have absolutely relied on the ruling over the past 50 years, and depriving them of safe, legal abortions would certainly cause hardship, especially for poor women; (3) The rule in Roe is as vital today as when the case was decided, and (4) Circumstances have changed only in the sense that abortion is now more acceptable than ever.
If Alito’s unjustified overruling of Roe becomes law, not only will women lose access to safe abortions, the court will lose all credibility. Both losses would be tragedies.
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