Father Pavone: Supreme Court Precedent on Abortion Not Irreversible

WASHINGTON, DC - NOVEMBER 30: United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel Alito, Jr., (Back L-R) Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice …
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Abortion was not the focus of a Supreme Court case decided last week, but for many it was the elephant in the (virtual) living room.

On the face of it, the case of Ramos vs. Louisiana asked justices whether Louisiana and Oregon could legally convict defendants of serious crimes when a jury did not vote unanimously for conviction. The case relied on a 1972 case, Apodaca vs. Oregon, in which a divided Court ruled that the Sixth Amendment does indeed make room for non-unanimous verdicts in state criminal trials.

Writing for the majority in a decision that overturned the ruling in the 1972 case, however, Justice Neil Gorsuch took exception to Apodaca and waded into the issue of stare decisis, the legal theory that suggests established precedents might be better left alone.

“No one on the Court today is prepared to say it was rightly decided,” he wrote of the Apdocaca case, “and stare decisis is not supposed to be the art of methodically ignoring what everyone knows to be true.”

While agreeing that justices should respect the views of their predecessors on the Supreme Court before upending a precedent, Justice Gorsuch noted that it is also vital to consider “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”

I can’t speculate on whether Justice Gorsuch was thinking beyond the Ramos case but it’s almost impossible to discuss precedent these days without the conversation turning to Roe v. Wade, the 1973 decision that legalized abortion in the United States.

Justice Brett Kavanaugh made his thinking clear when he spoke about abortion explicitly in his opinion, which concurred with some of Justice Gorsuch’s decision.

Pointing out that parts of Roe v. Wade – which, together with Doe v. Bolton established a precedent legalizing abortion — were upheld and others overturned by the 1992 decision in Planned Parenthood v. Casey, Justice Kavanaugh said the doctrine of stare decisis is not “an inexorable command.”

Before Justice Kavanaugh’s confirmation process devolved into national hysteria, he described Roe v. Wade as precedent, and Planned Parenthood v. Casey as “precedent upon precedent.” Many pro-lifers were concerned by these statements and felt that he would be unlikely to ever vote to repeal legal abortion if he viewed precedents as inviolable.

But he has not viewed it that way in the past, and his opinion last week in Ramos confirmed that. In fact, Justice Kavanaugh outlined a path to upsetting the stare decisis apple cart.

When deciding whether or not to overturn a precedent, he said, justices should determine that it was “not just wrong, but grievously or egregiously wrong”; whether it “caused significant negative jurisprudential or real-world consequences” for both the legal system and the citizenry; and whether overturning it would “unduly upset” society’s reliance on it.

These words are reminiscent of a chapter in the recent book The Law of Judicial Precedent, which outlines under what kinds of conditions the Court could overturn longstanding precedent. Not coincidentally, the book was co-authored by Neil Gorsuch and Brett Kavanaugh.

And the pro-life movement has been outlining how not just some but all of these conditions prevail in the case of Roe v. Wade.

For example, the “negative real-world consequences” have been suffered not only by the 61 million tiny victims of abortion since 1973, but also by the tens of millions of moms, dads, grandparents, siblings, and others impacted by the documented negative effects of abortion.

As for society’s “reliance” on abortion, the Court already made this claim (with no factual backing) in Planned Parenthood v. Casey. We see, in fact, the abortion rate falling to its lowest level since Roe v. Wade.

And on the question of whether Roe v. Wade was wrongly decided, there is no shortage of opinion.

In his “Draft Opinion Overturning Roe v. Wade,” Clarke Forsythe, senior counsel for Americans United for Life, wrote that “Ever since Roe, scholars and academics have been looking for an alternative rationale. Very few, if any, scholars will defend Roe as originally decided. Various scholars have proposed the Eighth Amendment, the Ninth Amendment, the Nineteenth Amendment, or the First Amendment’s Free Exercise Clause. None of these alternative sources for a right to abortion is any more rooted in the Constitution than the rationale offered in Roe.”

In her dissent to an abortion case from 1986, Thornburgh v. American College of Obstetricians and Gynecologist, Justice Sandra Day O’Connor wrote:

“This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence.”

Though not referring solely to Roe, she continued that the decision in Thornburgh “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.”

Even Justice Ruth Bader Ginsburg, who is venerated by abortion advocates, has taken issue with the way Roe was decided. Writing for the North Carolina Law Review in 1985, she said: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.”

These certainly qualify as “negative jurisprudential consequences,” to use Justice Kavanaugh’s words. In fact, no Supreme Court decision has received more judicial criticism in the federal courts than Roe.

This term the Court will decide an important abortion case out of Louisiana, June Medical Services v. Russo. It could determine whether or not abortion providers have legal standing to challenge laws aimed at regulating their industry, and it also could overturn a precedent set in 2016 that said requiring abortion facilities to meet the standards of other ambulatory surgery center presents an “undue burden” on women seeking abortion.

Seeing another pro-abortion precedent fall is not outside the realm of possibility. And that outcome would continue to build the case that the precedent of Roe itself is simply unworkable and should be abandoned. It would seem that for at least some of the current Supreme Court Justices, that is not out of the question.

Father Frank Pavone is National Director of Priests for Life

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