Supreme Court Ruling Sets Up Attack on Precedent for Pro-Abortion Roe Case

National   |   Steven Ertelt   |   Jan 25, 2010   |   9:00AM   |   WASHINGTON, DC

Supreme Court Ruling Sets Up Attack on Precedent for Pro-Abortion Roe Case

by Steven Ertelt Editor
January 25
, 2010

Washington, DC ( — Supreme Court observers are focusing on an aspect of last Thursday’s decision to overturn a national campaign finance reform law that shows the high court could establish a legal basis for overturning the Roe v. Wade decision that has resulted in 52 million abortions.

The high court also overturned a law that had been on the books for more than a century.

During his confirmations hearing Chief Justice John Roberts talked about the importance of precedent and members of the Senate asked him if he respected the supposed precedent of Roe.

“It’s settled as a precedent of the court, entitled to respect under principles of stare decisis,” Roberts said at the time.

But, in last Thursday’s 5-to-4 Citizens United v. Federal Election Commission ruling dismantling the McCain-Feingold campaign law, Roberts joined fellow Bush appointee Justice Samuel Alito to issue a separate concurrence “to address the important principles of judicial restraint and stare decisis implicated in this case.”

The language of the Roberts-Alito concurrence has an important bearing on abortion.

While Roberts conceded that “departures from precedent are inappropriate in the absence of a ‘special justification,’” he gave pro-life advocates hope for the future.

“At the same time, stare decisis is neither an ‘inexorable command’… nor ‘a mechanical formula of adherence to the latest decision’ … especially in constitutional cases," he wrote. “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.”

“When considering whether to re-examine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right," he added, saying “stare decisis is not an end in itself.”

Roberts mentions a need to “curtail the precedent’s disruptive effects” and imagines instances in which a “precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases."

Chief Justice Roberts also said precedent could be reversed if its “rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

Abortion advocates immediately seized on the Roberts-Alito concurrence and said they worried it was a next step towards overturning Roe if they can get another justice to join them and pro-life Justices Clarence Thomas and Antonin Scalia.

Nancy Northup of the Center for Reproductive Rights, one of the top pro-abortion law firms that frequently challenges pro-life laws, complained: “Yesterday’s Roberts court decision, which exhibited a stunning disregard for settled law of decades’ standing, is terrifying to those of us who care deeply about the constitutional protections the court put in place for women’s access to abortion."

“We are deeply concerned. … Yesterday’s decision shows the court will reach out to take an opportunity to wholesale reverse a precedent the hard right has never liked," she added.

American Center for Law and Justice’s Jay Sekulow, one of the leading pro-life attorneys in the nation, told Politico he is excited about the groundwork the decision laid for potentially overturning Roe.

“Where they disagree with the precedent and they think it’s wrong constitutionally, they’re not afraid to say it,” he said. “Where they think the court got it wrong, they’re trying to correct that, and from my perspective that’s a good thing.”

Justice Anthony Kennedy wrote the majority opinion on Thursday and he is the middle ground judge between the four pro-life-friendly jurists and the four abortion advocates.

Kennedy supports the constitutionality of state laws limiting abortions but he does not support overturning Roe.

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