Op-Ed: Kavanaugh's Road Map to Overturning Roe
There is little virtue in sticking stubbornly to any mistake that continues to harm others in our power and under our care. Deep in the human heart is a thirst for what’s right and true, an ache for true justice, an irrepressible will to the good. We try to right what we all know is wrong.
This month, Supreme Court Justice Brett Kavanaugh, concurring in part with the court’s recent Ramos v. Louisiana decision, set out with brilliant clarity a “road map” for overruling an erroneous constitutional precedent.
His directions may prove invaluable in overturning the tragic errors of Roe v. Wade (1973).
Justice Kavanaugh started with a concise history of stare decisis, the principle that courts should “stand by” decided cases and “not disturb the calm.” As Justice Neil Gorsuch warned in his majority opinion: “Stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.”
Indeed, to date, more than 200 Supreme Court decisions have been overturned, their grave errors corrected. Justice Kavanaugh cited some 30 of these decisions. He presented three broad questions used over the years as a “stare decisis calculus” to determine what constitutes a “special justification” or “strong grounds” to overrule a prior constitutional decision.
“First, is the prior decision not just wrong, but grievously or egregiously wrong?”
This question, Justice Kavanaugh wrote, seeks to assess “how wrong the precedent is as a matter of law.”
The now-infamous Roe decision committed the error of denying personhood to children in their mothers’ wombs. Roe removed from the rule of law rightful recognition of the constitutional duty to protect members of “our Posterity” targeted for prenatal killing.
Denying that children in their mothers’ wombs are “persons” was never a justifiable legal basis for aborting the lives of “the unwanted” as argued in Roe.
Curiously enough, the possibility that this error might be overturned was presaged by its author, Supreme Court Justice Harry Blackmun, even at the time of writing the decision. He admitted in the opinion itself: “If this … personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment.”
In the throes of the sexual revolution, Justice Blackmun failed to uphold the integrity of the American legal system which had since its inauguration provided legal protection for what the Founders and the Framers of the Constitution had recognized as infants “stirring” in their mothers’ wombs.
So was Roe’s denial of personhood a grievously and egregiously wrong precedent? Certainly the sheer scale of the subsequent killings would say so — more than 61 million American children aborted in their mothers’ wombs since Roe.
“Second, has the prior decision caused significant negative jurisprudential or real-world consequences?”
Here, the road map forks. Along one path, the court may consider “jurisprudential consequences … such as workability, as well as consistency and coherence with other decisions.”
Along another path, importantly, Justice Kavanaugh wrote, the court “may also scrutinize the precedent’s real-world effects on the citizenry, not just its effects on the law and the legal system.”
The workability of the Roe precedent was never realistically assessed at the time — very quickly abortion practice got out of hand. Because abortion was misrepresented in Roe as a “freedom” for women, constraints based on the trimester system and legalization of abortion up until “viability” were soon loosened and then abandoned.
In some states now, the “right to abortion” has been extended through the entire pregnancy — and even when the child is born, state law need no longer provide legal protection from “completing” a botched lethal treatment postnatally.
There can be few more negative jurisprudential consequences than that.
As for consistency and coherence, Roe v. Wade remains irreconcilable with the historical evidence of the Founders’ understanding that there is a natural law duty to protect what James Wilson, one of the Framers of the Constitution, recognized as “when the infant is first able to stir in the womb.”
Roe does not respect historical facts that the unborn are recognized as persons protected for hereditary purposes by the Constitution (McArthur v. Scott, 1885; Weber v. Aetna Casualty & Surety Co., 1972)
Why did Roe ignore the longstanding constitutional recognition of unborn children as (separate) legal persons to be protected from capital punishment “in order to guard against the taking of the life of an unborn child for the crime of the mother”? (Union Pacific Railway Co. v. Botsford, 1891)
Regarding the real-world effects, we live with the monumental inconsistency that when it comes to prenatal health care, in some rooms and in some wombs, medics strive valiantly to keep these smallest human beings alive and make them well, while in other rooms and other wombs, other little ones at their mothers’ “choice” are being deliberately and efficiently killed.
Roe’s “lawful” killing precedent cannot mesh with the advances in fetal care and surgery in saving the lives of these smallest human beings.
Through four-dimensional ultrasounds together with pain sensors and heartbeat monitors, we now see, hear and recognize the lively targets of the abortionist all too clearly as the tiny vulnerable human beings they in fact are.
Objective, meticulous scientific examination of embryos and fetuses in situ has established beyond doubt that these tiny daughters and sons exist as unique and distinctly human beings, not as merely generic unidentifiable instances of “the potentiality of human life.” This feeble phrase — “the potentiality of human life” — was employed five times by Justice Blackmun in Roe to obfuscate the biological reality of a vibrant new human life, of a daughter or son in her or his mother’s womb.
One of the most negative real-world consequences of Roe v. Wade is surely the emergence of large-scale eugenic abortion.
In a 2019 concurring opinion in Box v. Planned Parenthood of Indiana and Kentucky, Justice Clarence Thomas signaled the growing necessity for the Supreme Court to recognize each state’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.
Among Roe’s largely unforeseen negative real-world consequences are coerced abortion for women and girls in abusive relationships, a disproportionate targeting of black American children for abortion, eugenic abortions of children with disabilities such as Down syndrome and sex-selective abortion of girls.
“Third, would overruling the prior decision unduly upset reliance interests?
The court’s third task here is to focus on “the legitimate expectations of those who have reasonably relied on the precedent.”
The blunt truth is that it was never “reasonable” to rely on Roe’s errors in discounting the victims of abortion as their mothers’ property rather than as persons, as human beings like ourselves.
The expectation of pregnant mothers that they may continue ad infinitum to commission the “lawful” killing of “unwanted” daughters and sons while in their mothers’ wombs was never plausible.
It was no more plausible than slave owners’ expectation in earlier times that “lawful” ownership rights over selected human beings in their power was an economic and social necessity and would never be overruled.
In Planned Parenthood v. Casey (1992), the court claimed as a successful outcome of Roe that the “ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control [through abortion] their reproductive lives.”
The progressive majority refused to overturn Roe v. Wade on the grounds that “for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.”
On this line of reasoning, precedents set through pro-slavery laws could not have been overturned. Slave owners could have argued that for more than a century of economic and social developments, people had organized relationships and made choices that defined their views of themselves and their places in society, in reliance on the availability of slaves.
It is indefensible to maintain unjust laws on the grounds that we have become reliant upon them.
As Thomas Aquinas wrote in his “Summa Theologica,” “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”
The Way Forward
Justice Kavanaugh noted that the court typically does not overrule a precedent unless a party requests overruling, or at least unless the court receives briefing and argument on the stare decisis question.
Fortunately, the Supreme Court will have no shortage of requests for overruling Roe. Pro-life states are rearing to go.
Neither is there any dearth of briefing and argument on the stare decisis question regarding abortion.
Indeed, the Supreme Court needs only to return to the sterling arguments against stare decisis as set out by Chief Justice William Rehnquist, together with Justices White, Scalia and Thomas, in their dissent in Planned Parenthood v. Casey.
These four eminent justices denounced Casey’s “newly minted variation on stare decisis” and argued cogently “that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” They saw the hollowness of the Roe decision and its faulty derivatives.
“Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.”
Their condemnation of the Roe precedent was scathing:
“Roe v. Wade stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion. Neither stare decisis nor ‘legitimacy’ are truly served by such an effort.”
Self-Correction by the Supreme Court: The Honorable Option
So the question must be asked: Quis custodiet ipsos custodes? Who guards the guards? Who is monitoring Supreme Court decisions like Roe v. Wade, decisions that themselves are contrary to original constitutional principles?
Self-correction by the Supreme Court is the most honorable option for dealing with its erroneous decisions. It is by far the best way to restore the people’s trust in the integrity of these appointed guardians of constitutional law.
To this end, Roe’s errors must be set out one last time. The current Supreme Court justices must find the courage and integrity to correct those errors.
There is no merit in putting off the necessary correction any longer. Even a further 47 years of delay, obfuscation and malpractice cannot turn erroneous law into settled law.
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