The justices will make their decisions. Let the political chips fall where they may.
On Wednesday, the Supreme Court considered the validity of Mississippi’s 15-week abortion ban. Yet, there was surprisingly little discussion about whether the 14th Amendment of the Constitution, as it was originally understood, permits the states to prohibit pre-viability abortions. Rather, the bulk of the two-hour proceeding focused on whether the Court should stand by Roe v. Wade, the landmark 1973 precedent that conjured a constitutional right to abortion. Roe ’s defenders argue that overruling the precedent would be unpopular, so the Court should maintain this obviously erroneous decision to avoid weakening the Court’s public standing. But this position is paradoxical. The Court’s legitimacy depends on independent jurists who faithfully decide cases based upon written law. By contrast, judges who base their decisions on popular opinion subvert the Court’s legitimacy. Thankfully, the Roberts Court now seems poised to unravel Roe v. Wade ’s precedential paradox. After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong, regardless of how supporters of that decision will respond. The Court, in other words, appears set to decide the case based on the law—and the political chips will fall where they may. In 1973, the Supreme Court held in Roe that the Constitution guarantees a right to abortion during the first and second trimesters of pregnancy. Two decades later, in Planned Parenthood v. Casey, the Court purported to reaffirm Roe, but in reality rewrote the precedent. According to Casey, states could prohibit abortions after the point of fetal „viability“—a line that changes based on neonatal medicine—but could not impose an „undue burden“ on abortions prior to viability. The controlling opinion was written jointly by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter. Much of the opinion in Casey focused on a legal doctrine known as stare decisis, which is Latin for „stand by the things decided.
