The landmark Roe v. Wade Supreme Court decision establishing the right to abortion arrived in January 1973. It happened during a month of milestones in a long season of American convulsions. Former president Lyndon B. Johnson died the same day Roe was handed down, two days after Richard M. Nixon was sworn in as president for a second term, and a day before Nixon would announce the Paris Peace Accords ending the Vietnam War — or so the country believed.
For five-plus years, riots and protests, assassinations and cultural upheaval had divided the United States as it had not been divided since the Civil War. The hope that the announcement of peace in the Vietnam War would restore calm to the country was misplaced; the Roe decision guaranteed that the country’s divisions would deepen.
Now, nearly half a century later, the Supreme Court has agreed to take up a case that could finally undo Roe’s vast expansion of the judiciary’s power. But such hopes have been disappointed in the past.
President Ronald Reagan — whose 1980 election was aided by a pro-life movement responding to Roe — appointed Supreme Court Justices Sandra Day O’Connor, Antonin G. Scalia and Anthony M. Kennedy, raising expectations that the court would repudiate its overreach. Those hopes rose higher when another Republican president and Reagan’s successor, George H.W. Bush, appointed Justices David H. Souter and Clarence Thomas.
Then came the stunning Planned Parenthood v. Casey ruling in 1992. Far from going back to judging instead of legislating, the court — led by a “joint opinion” from O’Connor, Kennedy and Souter — invented from whole cloth a risible new “test” for abortion legislation and whether it would place an “undue burden” on women seeking abortions. Roe had been the first breach of the court’s banks of appropriate authority; this ruling was a second, even greater assertion of judicial power. And it set a pattern for decades to come.
The court’s steady gathering of ultimate authority across those years was described in 2015 by Scalia as “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty.” Scalia spoke for tens of millions of Americans when he also wrote that “the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
The court’s expeditions into areas long reserved to legislatures were as unnecessary as they were fraught, no matter an individual’s beliefs. In 1973, many states were already moving, through legislative action, toward revisions of laws governing reproductive rights, just as they were on same-sex marriage in 2015. (It was the court’s ruling on this subject that prompted Scalia’s thundering appraisal, above, of the justices’ undoing of constitutional order generally.) The dissension and acidity in the court’s opinions in these cases are reflected throughout the politics of the period since Roe. If the Supreme Court has become the supreme legislature and executive as well as judiciary, what point is there in state politics and much of congressional deliberation as well? To simply tax and spend?
Now perhaps the court will finally come to grips with the consequences of that unconstitutional ambition to be the “decider in chief” of all divisive issues. In deciding to hear a case next fall involving a Mississippi law that bans most abortions after 15 weeks of pregnancy (Roe drew the line at six months), the court will, in effect, weigh the right of states to establish their own abortion laws without regard for Roe and Casey.
Defenders of Roe and Casey praise stare decisis — ruling according to precedent — but as Chief Justice John G. Roberts Jr. explained in his concurring opinion in Citizens United in 2010, the “greatest purpose” of this doctrine “is to serve a constitutional ideal — the rule of law.” He continued: “It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”
Roberts pointed to, among other examples, the ruling of Brown v. Board of Education in 1954 overruling the holding of Plessy v. Ferguson in 1896 that “separate could be equal.” Terrible decisions must be struck from the books even if they have set the law for more than 50 years. Immense damage has been done by Roe and Casey to the ideas of self-government, federalism and the rule of law. The debate over abortion, unlike that around same-sex marriage, was not widely and quickly settled, but has only grown deeper and more divisive.
Roe and Casey should be overturned, and the issues of abortion rights returned to the states from which they were ripped in 1973. The repudiation of those cases should be accompanied by an admission of human error and the limits of the court’s power to adjudicate every or even most debates. The sunk costs of five decades of judicial misadventure do not oblige the court to continue in error.