With Justice Kennedy’s retirement, the question on everyone’s mind is whether or not a conservative-controlled Supreme Court will have the legal precedent to overturn the infamous Roe v. Wade, which made abortion legal across all 50 states based on a preposterous reading of the Constitution’s so-called “right to privacy.”
For Roe to be overturned, or, at the very least, chipped away at until being rendered void (the likely outcome), it needs to overcome a major hurdle: stare decisis, which directs the court to look at legal precedent when making decisions. As stated by Justice Gorsuch during his confirmation hearings in reference to Roe, before a judge can rule on any case, they must take a serious look at precedent and go from there. Unfortunately, thanks to Planned Parenthood v. Casey, it is fair to say that the infamous Roe has solid precedent, no matter how flimsy the reasoning.
Though stare decisis should not be the only barometer by which a justice decides a case, it does serve an important purpose; otherwise, the Supreme Court would be a constant game of tug-of-war in which laws are enacted and then thrown out before they can take hold.
With all that said, however, the Supreme Court can overturn precedent if they conclude a past decision was either ill-informed or egregious to the point of requiring special scrutiny, as in the case of Dred Scott, which determined that black people were not persons and had no rights. This is one of the few narrow ways by which Roe v. Wade will finally go into its rightful place in the ash-heap of history. It’s a bleak scenario, for sure, but there is a silver lining, which was ironically provided by Justice Blackmun in the majority opinion for Roe when he pondered what could happen if fetuses were ever deemed “persons” according to the Fourteenth Amendment.
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