For nearly 50 years, Americans have labored under the false notion that abortion was a right guaranteed by the U.S. Constitution.  But nowhere in the text, structure, or meaning can the right to an abortion be found in that document; nor is the right to abortion either explicit or implicit.  So, as a practical matter, in its 1973 decision on Roe v. Wade, the Supreme Court invented a “right” that does not exist.

But it’s never too late to correct a wrong, so last week, when the Supreme Court reversed the wrongful ruling and returned the decision-making authority to the states it constituted a restoration of the democratic process where the people, through their elected representatives, will decide the matter state-by-state.  Meanwhile, those who disagreed with the ruling lament that, “the Court failed to follow precedent!”  So, what is precedent and exactly how does it, or did it impact the Court’s recent decision?

Precedent is a legal principle that is created by a court decision. This decision becomes an example, or authority, for judges deciding similar issues later.  Meanwhile, “Stare Decisis” is a legal doctrine that encourages the courts to follow historical cases when making a ruling on a similar case, and in theory, ensures that cases with similar scenarios and facts are approached in the same way.  Simply put, stare decisis strongly encourages but does not demand that courts follow legal precedents set by previous decisions.

Suppose a court’s decision on a matter is incorrect, as it was in Roe v. Wade, what then?  Fortunately, even though the doctrine to follow precedent is well-established in our legal system, as noted previously, there is no legal obligation to follow it.

Back in the early 70’s before the court found a virtually unlimited right to abortion in the Constitution, many state legislatures, i.e., the nation’s “laboratories of democracy,” were already doing what legislatures are supposed to do: They were debating and revising laws to reflect changing community thinking on the matter of abortion.   But in its 1973 ruling the high court ripped the matter from the hands of the individual states, inflamed the issue, and embittered our politics when by judicial fiat it abruptly ended what had been a democratic process of accommodation and compromise on abortion policy.

Even Ruth Bader Ginsburg wasn’t a fan of the reasoning behind Roe v. Wade.  Ginsburg, who died in 2020, criticized the 7-to-2 decision both before and after she joined the high court.  She argued that it would have been better to take a more incremental approach to legalizing abortion rather than the nationwide ruling in Roe that invalidated dozens of state antiabortion laws.  She suggested a ruling protecting abortion rights would have been more durable if it had been based on the Equal Protection Clause of the Constitution — in other words, if it had focused on gender equality rather than the right to privacy that the justices highlighted. Perhaps so, but that too misses the point.

Ginsburg was correct to criticize a decision based on the right to privacy but acceding to the breadth of the equal protection clause was still ‘liberally’ stretching the interpretation of the Constitution.  So, what occurred last Friday was not a change in Constitutional law but rather the Supreme Court, redressing a mistake.

As Justice Anton Scalia opined, “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.”  And this court got it right, the U.S. Constitution makes no mention of abortion, and those familiar with the Bill of Rights and the Tenth Amendment understand that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

In other words, states may permit abortion on demand, forbid it entirely, or implement some regulatory regime between the two.  The bottom line is that abortion is not a constitutional question and the judicial edict on Roe has always been a usurpation of authority under the guise of law, not an authoritative explication of the law.  As Abraham Lincoln admonished, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

Quote of the day: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”—John Adams

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