- The Washington Times - Monday, March 13, 2006

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.

Militating against an overruling is the opportunity for the political branches to reverse a precedent via a constitutional amendment requiring a two-thirds vote of Congress and ratification by three-fourths of the states. The amendment process has been employed to overrule decisions concerning state immunity, slavery, racial equality, citizenship, suffrage and the income tax. But if a wrong decision adversely affects a politically vulnerable group, the case for overruling is stronger because a cure through an amendment would be improbable.

Racial minorities, for example, could never have reversed the odious separate-but-equal doctrine of Plessy in 1954 when the case was overruled by marshalling supermajorities in Congress and a supermajority of the states, including the solid South.

In contrast, pro-choice organizations command impressive political clout. They are not handicapped in campaigning or advocating their views. If Roe were overruled, they would probably prevail in retaining most of Roe’s abortion rights by enacting pro-choice statutes in a substantial majority of states.

Even as early as 1967, then Gov. Ronald Reagan signed a statutory version of Roe passed by the California legislature. South Dakota’s recent enactment affecting but a tiny fraction of the national population is an aberration.

But the political landscape also militates against an overruling. Pro-life Republican-controlled Congresses have declined to push to an amendment that would overrule Roe. And President George W. Bush, soon after his first inauguration, announced the nation was not ready for such a wrench in abortion rights.

If the nation’s political branches representing all of the states are complacent with Roe, the need for the Supreme Court to correct the error seems less urgent.

On the other hand, Roe continues creating constitutional havoc because its right-to-privacy rationale commands no principled stopping point. That chaos militates in favor of an overruling. It has been instrumental in depriving parents of customary authority over minors, and overturning laws calculated to force women to give sober second thoughts about the ramifications of abortion. The precedent was summoned to justify a right to homosexual sodomy in Lawrence v. Texas (2003). It has been invoked to challenge laws against same-sex “marriage,” polygamy, obscenity and marijuana. Deciding how far to extend Roe has been an exercise in judicial whimsy unbefitting the rule of law.

Based on a totality of considerations, the Supreme Court should displease both pro-choice and pro-life exponents in re-examining Roe by overruling its rationale but affirming its first trimester holding. The result would be intellectually untidy but constitutionally defensible. Overruling an explosive precedent is inescapably politics by other means.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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