Justice Alito draws a line on viability of fetus
In legalese, the doctrine the justices will consider on Wednesday is called stare decisis. It derives from the Latin “stare decisis et non quieta movere” meaning, roughly, to stand by things decided and not disturb the calm.
For some, stare decisis is critical because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles.
For others, like Justice Clarence Thomas, it is overrated at times, especially as he wrote in 2019, if it gives the “veneer of respectability” to what he called “demonstrably incorrect precedents.”
Wednesday’s case will bring the debate to a head as the court considers a federal appeals court decision that struck down the Mississippi law.
The 5th US Court of Appeals — one of the most conservative courts in the country — invalidated the Mississippi law, holding it was in in direct contravention of Roe.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” the court held.
Mississippi appealed the decision to the Supreme Court. After the justices agreed to take up the dispute, the state attorney general made the big ask: “This Court should overrule Roe,” because the decision has proven “hopelessly unworkable.” Roe, and another case called Planned Parenthood v. Casey decided in 1992 have “inflicted profound damage,” the state said.
“Reliance interests do not support retaining them,” the state argued. “And nothing but a full break from those cases can stem the harms they have caused.”
Supporters of abortion rights, were quick to respond, emphasizing from the start how the country has come to rely on Roe.
“Two generations — spanning almost five decades — have come to depend on the availability of legal abortion and the right to make this decision has been further cemented as critical to gender equality,” Julie Rikelman, a lawyer representing Jackson Women’s Health Organization, said in briefs.
And she took aim at the new conservative majority. She said that if the court were to suddenly overrule Roe, after some 50 years, the new court would be turning its back on its institutional legitimacy.
But O. Carter Snead, a Notre Dame Law School professor, believes the court would be repairing its institutional legitimacy by overruling Roe. “The Court’s abortion jurisprudence is completely untethered from the Constitution’s text, history and tradition,” he said in an amicus brief supporting Mississippi. “It has imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades.”
