Overrule in part, affirm in part

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The United States Supreme Court should grant review of South Dakota's prohibition of abortion except to save the mother's life. It should then overrule in part and affirm in part its landmark Roe v. Wade (1973) precedent.

The court should declare Roe was wretchedly reasoned and wrongly decided. Its right to privacy rationale pivoting on penumbras, emanations, mysteries of the universe, and the meaning of existence should be renounced. But Roe's core holding of a constitutional right to an abortion during the first trimester of pregnancy should be left undisturbed.

Political prudence -- not law -- determines when a Supreme Court error should be overruled. Time, individual reliance and expectation interests, broad public support for a right to choose during early stages of pregnancy, and the conspicuous neglect of pro-life Republican Congresses and presidents to champion an anti-Roe constitutional amendment all militate in favor of retaining its core. So does the strong interest in legal finality. That would leave the vast majority of abortion decisions subject to the prevailing constitutional framework.

On the other hand, the court should overrule the broader dimensions of Roe and sequel rulings concerning partial-birth abortion, the rights of minors and regulations after the first trimester of pregnancy.

Roe is an intellectual embarrassment. The Constitution nowhere hints in its text, or history or purpose at a right to an abortion. The majority opinion was cobbled together by Justice Harry Blackman. The lion's share of research and reasoning was devoted to the medical aspects of abortion with the Constitution and intent of its makers begrudged but a cameo appearance. A consensus among constitutional scholars of all political persuasions and philosophies concurs that Roe invented abortion rights in lieu of interpreting the Constitution.

But whether the precedent should be overruled in whole or in part presents a different question. Constancy in the law fortified by the doctrine of stare decisis protects reasonable reliance, planning and expectation interests and avoids re-litigation of questions previously settled.

On the other hand, leaving ill-conceived precedents uncorrected distorts the Constitution and tends to breed more misinterpretations. As Justice Louis D. Brandeis sermonized, the process of trial and error so productive in the quest for scientific knowledge has a role also in the judicial function. Thus, the Supreme Court has overruled hundreds of cases. But no coherent standards have emerged for determining whether an overruling is justified.

Longevity is not decisive. A 96-year-old precedent was overruled by Erie Railroad v. Tompkins (1938), and Brown v. Board of Education (1954) overruled the 58-year-old decision in Plessy v, Ferguson (1896). On the other hand, the court barely let the ink turn dry before overruling precedents concerning legal tender and freedom of religion in Knox v. Lee (1870), and Murdock v. Pennsylvania (1943), respectively.

Roe was decided 33 years ago. Its basic holding was reaffirmed in Planned Parenthood v. Casey (1992) by a 6-3 margin. Reaffirming a wrong decision does not make it less wrong, but it strengthens reliance and expectation interests by signaling the continuing vitality of the precedent.

The court overruled Lochner v. New York (1905), nevertheless in West Coast Hotel v. Parrish (1937), despite more than three decades of "freedom of contract" decisions resting on the Lochner philosophy.