On the second day of Supreme Court nominee John Roberts’s Senate Judiciary Committee hearings in September 2005, pro-choice Republican committee chairman Arlen Specter of Pennsylvania introduced the subject of stare decisis, a Latin term meaning “to stand by that which is decided.”
A Grim Attachment
It’s a maxim that abortion supporters, like Specter, cling to dearly because most constitutional scholars are well aware that the Roe decision is merely what the late Supreme Court Justice Byron White described as nothing more than an “exercise of raw judicial power.”
No doubt aware how important stare decisis is to the continued viability of Roe, Specter presented at the confirmation hearing a chart that showed “38 cases where the court had taken up Roe,” written in small print and not readable by the viewing audience. He then went on to ask the nominee if he thought that “Roe might be a super-duper (emphasis added) precedent in light of 38 occasions to overrule it?”
Well aware that the term “super-duper” had not yet been written into the legal lexicon, the gracious nominee refrained from laughing at the remark, but did say this: “Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question.”
When Specter used the same chart at Judge Samuel Alito’s nomination hearings and started again referring to Roe as a “super-duper” precedent I began searching the Internet for the Specter list of 38 Supreme Court decisions that re-affirmed Roe — with little luck. So I began putting together my own list and found in various Internet sites about 35 decisions related to the abortion issue. Eventually, I stumbled across the Specter List on a Website belonging to the Life Legal Defense Fund (LLDF) and compared that list with the one I had already created. Except for a handful of decisions where no opinions were written, the two lists were nearly identical. The commentary below is based on the LLDF’s Specter list.
Since the Roe and Doe decisions, the Supreme Court has “taken up” the central holding of the Roe decision, the right to abortion, three times, not 38. It did so in Akron v. Akron Center for Reproductive Health, in 1983; Thornburgh v. American College of Obstetricians and Gynecologists, in 1986; and Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992.
If the Print Is Small Enough They Won’t Notice
None of these three cases actually reconsidered the constitutional merits of the original Roe decision. The Akron and Casey decisions rely solely on stare decisis and face-saving (which, along with “super-duper” is not yet a legal term) to justify the affirmation of Roe, while hinting that the constitutional merit of that awful decision might be doubtful. Here’s a sample from the Casey decision:
Application of the doctrine of stare decisis confirms that Roe's essential holding should be reaffirmed…. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy and to the Nation's commitment to the rule of law.
Faint praise for a super-duper precedent. Only the Thornburgh decision, written by Roe’s author, Harry Blackmun, managed to avoid implication that there might be something constitutionally flawed in that decision. None of the three aforementioned decisions were even close to being unanimous decisions. The Akron and Thornburgh decisions each garnered only six votes from the nine justices, and the most recent “affirmation” of Roe, the Casey decision, was split five to four.
Of the remaining 35 cases cited in the Specter list, 30 dealt with government-imposed restrictions on the abortion industry — e.g. funding restrictions, parental notification, procedural requirements (where abortions can be performed, who can perform them, etc.). Of that number, eight merited no opinion from the Court. These cases were affirmed on the basis of the briefs filed, without oral argument.
Five of the 35 abortion-related cases on Specter’s list that did not consider or affirm the Roe decision were First Amendment cases, four of them filed by anti-abortionists who had been blocked from picketing at abortion clinics. The fifth case was filed by the managing editor of a weekly newspaper in Virginia who had run afoul of a Virginia statute that made it illegal to advertise abortion services.
Please Don’t Confuse Us With the Facts
Driven either by arrogance or embarrassment, the Supreme Court has been unwilling to consider direct challenges to the notion that there actually is a constitutional right to abortion and that abortion is somehow a good thing for women. Consequently, the court has until recently dodged tough challenges to Roe that demonstrate the opposite — like the Donna Santa Marie case about women who were coerced into having abortions they didn’t want, or Norma McCorvey’s challenge to the validity of the Roe decision.
McCorvey was the original plaintiff in Roe v. Wade — Jane Roe. Her participation in that landmark decision was something that she now regrets. She regrets it so much, in fact, that in 2003 she filed a Rule 60 motion asking that the judgment in the Roe case be set aside.
The Justice Foundation, which initiated the Rule 60 motion for McCorvey, in a statement posted May 2004, explained that a Rule 60 “can only be filed by an original party.” McCorvey’s Rule 60 motion was “based on changes in law and factual conditions since the U.S. Supreme Court handed down the decision.”
The motion included “affidavits attesting to the devastating emotional, physical, and psychological trauma of abortion” signed by over 1000 women, as well as scientific evidence documenting that human life, treated as an unanswerable philosophical question in the Roe decision, begins at conception.
The Supreme Court refused to consider the motion in February 2005. No comment was offered as to why.
Ken Concannon is a freelance writer from All Saints Parish in Manassas, Virginia.
(This article courtesy of the Arlington Catholic Herald.)
