“…Roe v. Wade and Planned Parenthood v. Casey haunt our country, they have no basis in the constitution, they have no home in our history and traditions, they have damaged the democratic process, they have poisoned the law. For fifty years they have kept this court at the center of a political battle, which it can never resolve…”
The cracks are showing in Roe v. Wade
“…rather than painting an ideological argument framed around complex philosophical, ethical and moral considerations, Stewart argued the court should itself simply be neutral. Abortion, he said, should be outside of the court’s jurisdiction entirely, because the constitution places responsibility for these types of issues, which represent the intersection of changing science, theology, morality and medicine, not with judicial fiat, but with the democratic process.
“On hard issue, after hard issue, the people make this country work,” he said. “Abortion is a hard issue. It demands the best from all of us, not a judgment by just a few of us.”
For an issue often wrapped in emotional appeals and laden with the language of values, Stewart’s argument for Mississippi was notably focused on the standing of the law and a cerebral discussion of the legal matters at play.
At one point, an animated and at times impatient Justice Sonia Sotomayor attempted to unmask a hidden ideological agenda. “How is your interest anything more than a religious view?” she asked Stewart. Stewart acknowledged that many of the issues surrounding abortion are, indeed, philosophical — which is why these questions should be subject to the democratic process, allowing states to decide their own answers rather than the court imposing one view onto the country.
Justice Sotomayor returned with a different tact, centering on the court’s doctrine of stare decisis — a reliance on the court’s prior decisions when making subsequent legal judgments. “Won’t overturning Roe and Casey also put other major cases at risk?” she asked, referencing Obergefell v. Hodges, the case that established a right to same-sex marriage, and Griswold v. Connecticut, which protects the right of married couples to buy and use contraception, among others.
And again, Stewart was quick to distinguish the issues that make Roe and Casey unique. The other cases would not be at risk, he flatly declared, because they promulgate clear rules, which are easily upheld, unlike the muddy legal morass that Roe and Casey are widely agreed upon to represent. Moreover, he finished, neither of the referenced cases involve the purposeful termination of a human life.
Ultimately, Stewart’s appeal to state sovereignty and deft handling of stare decisis concerns appeared to compel most of the court’s conservative justices, which now constitute a 6-3 majority. Of the six, only Justice Clarence Thomas has gone on record about his desire to overturn Roe, joining an opinion by then-Chief Justice William Rehnquist arguing “Roe was wrongly decided and that it can and should be overruled,” and declaring last year in June Medical Services, LLC v. Russo that the right to abortion was one created “out of whole cloth, without a shred of support from the constitution’s text.”…”