Over its history, the Supreme Court has repeatedly looked to judicial dissent from its decisions and insightful criticism from the legal profession and scholars in considering the respect due precedent. Is a prior decision settled? If not, what factors have kept it unsettled? If settled, is there a compelling reason to reconsider it?
Roe’s abortion right is an unenumerated right not derived from text, structure, history, or tradition. The Anglo-American legal heritage, based in the common law quickening and born alive rules, directly and powerfully refutes it. And the states, through prenatal injury, wrongful death, and fetal homicide laws, have heightened the conflict year by year since Roe, and the conflict has not subsided even after Casey. The Court’s abortion doctrine consists of numerous judge-made rules. The construction of the right and its application through more than thirty Supreme Court decisions over forty-eight years have produced enduring criticism from Justices, judges, and scholars that shows no sign of abating. In fact, the changes in the standard of review and legal doctrines, case by case, and continuing conflict with more than half the states, ensure unremitting criticism.
An extensive catalog of the legal and scholarly criticism of Roe can be found here.
Make sure also to read part 1 and part 2 of this blog series.
Clarke Forsythe is senior counsel with Americans United for Life and author of Abuse of Discretion: The Inside Story of Roe v. Wade. This post first appeared on AUL’s website.