Scourge or plot? - Abortion: Law & Politics

National Review, August 4, 1989 by Grover Joseph Rees

burdensome on the right of a woman, "in consultation with her doctor," to choose abortion. This was jurisprudence by vignette: the evocation of Norman Rockwell obscured the reality that tbe doctor was often a professional abortionist who had little or no contact with the woman prior to the procedure. In any event, it was fair to read the rule of Roe, as construed and applied by later cases, as prohibiting virtually all state regulation of abortion.

Moreover, as Justice Scalia pointed out, Roe itself had gone far beyond deciding the particular questions before it, not only announcing a right that effectively overruled the abortion laws of all fifty states but also erecting a structure of rules and caveats and corollaries designed to cover all abortion cases. For the Court to require protracted appellate litigation on each such question rather than simply to admit that it made one big mistake in 1973 would be an ironic application of the idea of judicial restraint. Scalia admitted that reasonable people could disagree about whether Roe should be overruled at all, but urged that "we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment."

THE COURT is likely to be run into a corner soon, or into several corners. It has agreed to hear three abortion cases later this year; while none requires a reconsideration of Roe any more clearly than Webster did, all three together might convince the Court of the wisdom of formulating a clear rule for the guidance of lower courts in the post- Webster era. Moreover, it seems possible that one or more states may enact new laws that do clearly present the core questions addressed by Roe, or simply interpretWebster as an invitation to begin enforcing strict anti-abortion statutes enacted prior to 1973 and never repealed.

Should this happen, and assuming that at least five Justices believe Roe to have been wrongly decided, the Court will be compelled to address the question it narrowly avoided in Webster: under what circumstances it should overrule one of its own constitutional cases.

The short answer to this question, as a matter of history and of theory, is that judicial constructions of the Constitution are far less entitled to the protection of the rule of stare decisis than other judicial decisions. The distinction is most often justified on the ground that an incorrect or obsolete judicial decision in a non-constitutional area can be corrected by legislation. If the legislature has not chosen to overrule the decision by passing a contrary statute, then courts may be justified in assuming the decision has "stood the test of time." An interpretation of the Constitution, however, can only be overruled in one of two ways: by the arduous process of constitutional amendment (usually impossible if even a small minority opposes the change) and by judicial willingness to reconsider judge-made law.

This answer overlooks a more fundamental distinction between constitutional law and other kinds of law. As described in Marbury v. Madison, the power of judges to declare statutes unconstitutional is not so much a power as a duty. It flows from the proposition that the written and enacted Constitution has meaning, and that the meaning binds judges even when some other important consideration-such as the respect due to a co-ordinate branch of government-is at stake. A judge confronted with a statute that says one thing and a constitutional provision that in his best judgment says the opposite is bound by his oath to uphold the Constitution. Much the same dilemma faces a Supreme Court Justice forced to choose between a prior decision of the Court and what he takes to be the meaning of the Constitution itself

To resolve this dilemma by characterizing the decision as "the law of the land" is circular reasoning that would result in no constitutional decision ever being overturned. This is not to say that there is no place at all for stare decisis in constitutional law. Humility requires deference to the considered judgment of one's predecessors unless error seems quite clear; and even some clear errors have been so widely accepted over time that it is not unreasonable to regard the Constitution as having been amended sub silentio not by the Court but by a consensus of the people.

On abortion there is no such consensus. Although Justice Blackmun's dissent points out that millions of people have come to regard abortion as a constitutional right during the last 16 years, other millions have never ceased to regard it as something very different.

If the Court should reconsider Roe and conclude that the Constitution contains a right to abortion that was put there by somebody other than judges, then it is bound to protect that right no matter how many people disagree. But if Roe was simply an attempt by the Court to substitute its members' own vision of a humane and practical solution to a difficult problem for the less humane and less practical solutions chosen by legislatures, then Webster must be regarded as a tentative reaffirmation not just of democracy but of the rule of law.