Roe v. Wade Has Never Been a Settled Precedent | Opinion

Must Roe v. Wade stay because it is precedent? That is the steady drumbeat that we will hear from pro-abortion lawyers and activists for the next year. But that claim turns the principle of the rule of law upside down. Court decisions—precedent—only deserve respect if they are settled. Year after year, Roe v. Wade leads to new legal disputes, demonstrating its own unsettledness and its failure to settle the abortion issue in America.

When asked at her Senate confirmation hearings whether Roe qualified as a "super-precedent" like Brown v. Board of Education, Justice Amy Coney Barrett bluntly replied: "I'm answering a lot of questions about Roe, which I think indicates that Roe doesn't fall into that category." Though obvious, this simple statement is more than any previous Supreme Court nominee since 1973 has been willing to admit: Roe isn't settled law.

The extent to which a precedent is settled determines the respect it is due by the courts. Settlement is the essence of the maxim stare decisis: "to stand by decisions and not disturb what is settled." An unsettled prior decision is due less respect, because there are problems with it. If it is settled, judges should only reexamine it if they have a compelling reason.

Abraham Lincoln, as a lawyer, made this point in 1857 about the infamous Dred Scott v. Sandford:

If this important decision had been made by a unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true...it then might be, perhaps would be, factious...to not acquiesce in it as a precedent. But when...we find it wanting in all these claims to the public confidence...it is not even disrespectful to treat it as not having...established a settled doctrine for the country.

When has Roe ever been settled? After two original dissenting opinions, numerous constitutional amendments to overturn the decision were debated in Congress between 1973 and 1983. Judicial and scholarly criticism of it continues to this day. Half or more of the states constantly test the limits of Roe, sparking test cases in the courts every few years. Today, there are more than 40 cases on abortion in the lower federal courts. Roe created a constitutional crisis that has never died but only moved from one forum to another.

Roe is unsettled because of its inherent defects. It was poorly put together with no evidentiary record, based on hunches, assumptions and prejudices.

As Yale Law School professor John Hart Ely emphasized in his influential legal critique of the Roe decision, "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure." Ely called Roe "a very bad decision.... It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

Then there is the extremely broad sweep of Roe. As Ely described the Court's decree, "even after viability the mother's life or health" which is "defined very broadly indeed, so as to include what many might regard as the mother's convenience...must, as a matter of constitutional law, take precedence over...the fetus's life." Ely noted that "the Court does not see fit to defend this aspect of its decision at all."

United States Supreme Court
WASHINGTON, DC - JULY 24: Visitors walk along the plaza and steps to the U.S. Supreme Court on July 24, 2021 in Washington, DC. Samuel Corum/Getty Images

Because of Roe, the U.S. is one of only seven nations—of almost 200 across the globe—that allow abortion for any reason after five months of pregnancy. By contrast, 31 U.S. states have, since 1973, passed fetal homicide laws which treat the killing of a prenatal child (outside the context of abortion) as homicide from conception.

There has been no consistency, coherence or predictability in the application of Roe, as the Court's decision last summer in June Medical v. Russo showed once again. The Court keeps flip-flopping from case to case in defining the standards it imposes on states when they regulate abortion.

The abortion decision has been subject to unrelenting criticism inside the Court. Justices Byron White, Sandra Day O'Connor and Clarence Thomas have each highlighted the unprecedented role the Court adopted in Roe: "the country's ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States," as Thomas put it. That role is beyond the Court's capacity, and it has failed.

Scientific and social changes have thrown into question the basis of Roe. The Justices were fairly blindsided by obstetrical ultrasounds when they came on the medical market a few years after Roe, and ultrasound has permanently changed public understanding of prenatal development. What's more, the abortion rate—and citizens' "reliance" on abortion—have dropped dramatically since 1992. If women and men in America rely on anything, it's contraception, not abortion.

Then there are the unanticipated consequences of a decision that was poorly informed. The Roe decision centralized the abortion issue in the Court and thereby made the Court the focus of abortion politics. It has since sparked vicious campaigns of personal animus against Supreme Court nominees. Unless the justices clearly return the issue to the people at the state level, these calamities will continue. Can the Court afford that?

Finally, public opinion keeps Roe unsettled. Polls that ask whether Americans "support Roe" are all but worthless because polls show that Americans can't say what Roe did. Much more reliable are polls asking about abortion policy. When asked specifically, a large majority of Americans say abortion should be illegal after the first trimester.

The age of a Supreme Court precedent is a factor, but a minor one, in determining the respect that it is due. Age may simply mean there is more time to see the negative impact of the Court's judge-made rule. Plessy v. Ferguson, which endorsed Jim Crow, was 58 years old when it was overturned in 1954. Roe, by contrast, is only 48.

To protect the rule of law, to prevent venomous campaigns of personal destruction against Supreme Court nominees and to restore constitutional balance, the Court can do nothing better than to overturn Roe and return the abortion issue to the states, where public policy and public opinion can be better aligned. Once again, the justices will have an appropriate opportunity to do just that this fall in the case out of Mississippi.

Clarke Forsythe is senior counsel at Americans united for life (AUL) and author of Abuse of Discretion: The Inside Story of Roe v Wade. He filed a brief for AUL in the Supreme Court this week in the Mississippi (Dobbs) case.

The views expressed in this article are the writer's own.