By John McClaughry

The debate is raging over the U.S. Supreme Court’s leaked draft opinion overturning the 1973 abortion rights decision, Roe v. Wade, and its follow on opinions in Doe v. Bolton (1973) and Planned Parenthood v. Casey (1992). The advocates for a constitutional right to abortion have never quite agreed just where this right can be found in the Constitution. But they do agree and have strongly argued that the judicial rule of stare decisis – a presumption of the validity of longstanding earlier decisions – should be invoked to keep the right declared in Roe v. Wade in force 49 years ago.

What follows here is not a discussion of the merits of the case for or against a right to abortion, but only the stare decisis argument for leaving Roe v. Wade in effect. Additionally, although I have studied constitutional law in graduate school, I am not a lawyer and cannot be cited as such.

The men who crafted the U.S. Constitution were well aware of the specter of rogue judges overturning years of accepted law embodied in years of judicial decisions. Alexander Hamilton, in Federalist No. 78, wrote that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.”

That principle of respect for precedent has been honored throughout our judicial history. But that respect is founded on the strength of the case that established the precedent. Justice Alito’s draft opinion catalogs 29 examples of Supreme Court decisions that overruled precedent, sometimes precedent that had existed for many decades, sometimes precedents of as few as three years, and often precedents that overturned decisions that liberals in particular found unacceptable.

Justice Alito noted especially, among the cases overturned, the notorious Plessy v. Ferguson decision (1896) that upheld racial segregation on railroad coaches. Another was Adkins v. Children’s Hospital (1923), that repealed minimum wage requirements for women in the District of Columbia until overturned in 1937; and Minersville School District v. Gobitis (1940), upholding an expulsion of a Jehovah’s Witness child for refusing to salute the flag and say the pledge of allegiance. The latter case was decided 8 to 1 in 1940, but overturned by a vote of 6-3 a mere three years later.

Those 29 examples raise the question: when should stare decisis justify continuing a ruling in force, and when should a questionable case be overturned in light of changing facts , arguments  and consequences? The Justices signing on to Justice Alito’s draft opinion have concluded, as have many legal scholars over the years, that Roe v. Wade fell well short of meeting any coherent Constitutional standard. That standard, endorsed in numerous other cases, is that declaring a previously unenumerated right must be “deeply rooted in the Nation’s history and tradition”, and “implicit in the concept of ordered liberty.”

That overriding precedent was adopted to circumscribe the creation of new “rights” by a majority vote of judges playing the role of unelected legislators. This is particularly apposite when pondering the 9th Amendment that states “The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

During a half century of litigation, the advocates of abortion as a constitutional right have adopted, first, a right of privacy derived, in the words of its author (liberal Justice William O. Douglas in Griswold v. Connecticut, 1965) as a “penumbra” of “emanations” from five different Amendments; and then, in Casey (1993), a rejection of Roe v. Wade’s trimester distinction in favor of prohibiting an “undue burden” on a pregnant woman. Many scholars have found this profusion to be a weak foundation for establishing a new and previously unenumerated constitutional right and elevating it into a precedent for all time.

Adam J. White is a lawyer at the American Enterprise Institute who served on President Biden’s Commission on the Supreme Court. He writes in a recent article, speaking of Roe v. Wade, “no modern Supreme Court precedent has less connection to the Constitution’s text; none stirs greater moral and political disagreement.”

White’s conclusion, examining the collection of disparate rationales offered in support of abortion rights, is that “Roe was a bad precedent, but precedent itself is a constitutional good. Abandoning the former will do justice to the latter.”

Vermont’s legislature and governor, by enacting Act 47 in 2019, have created a right to abortion that goes beyond the right declared in Roe v. Wade. So the overturning of Roe v. Wade, if it occurs, will have no practical effect here.

John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org)