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Forty-eight years after the Supreme Court’s decision in Roe v. Wade, expectations seem to be rising that the Court could overturn it sooner or later. At the vice-presidential debate on October 7, the moderator asked the candidates what the states should do if Roe were to be overturned. An abortion-rights litigator told NPR at year-end, “Everybody thinks that we might be on the cusp of [Roe] being overturned.”
When asked at her Senate confirmation hearings whether Roe was “super-precedent” like Brown v. Board of Education, Justice Barrett forthrightly replied: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category.” Though obvious, this is more than any previous Supreme Court nominee since 1973 has been willing to admit: Roe isn’t settled law.
Settlement is the essence of the rule that judges apply to precedent; indeed, stare decisis et non quieta movere translates as “to stand by decisions and not disturb what is settled.” If unsettled, a prior decision is due less respect, because there are evident problems with it. If settled, judges ought to have a compelling reason to reexamine it.
If this important decision has been made by a unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true . . . it then might be . . . factious . . . to not acquiesce in it as a precedent. But, when . . . we find it wanting in all these claims to the public confidence . . . it is not even disrespectful to treat it as not having . . . established a settled doctrine for the country.
When has Roe ever been settled? After two original dissents, Congress proposed and debated numerous constitutional amendments to overturn it between 1973 and 1983. Judicial and scholarly criticism continues to this day. Twenty-five to 30 states constantly test the limits of Roe with legislation, sparking test cases in the Supreme Courts every few years. Today, there are 50–60 abortion cases in the federal courts. Roe created a constitutional crisis that has never died but only expanded from one forum to another.
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