A history of the Roe decision
I was in law school when Roe v. Wade was decided. Pretty much everyone was shocked because it was such a terrible decision. Someone took a poll of law professors and, as I recall, 85% said they thought the decision was wrong.
Roe has had a negative impact on both the Supreme Court and on American politics. It set the precedent for regarding the Constitution not as a document, but as a distillation of liberal opinion. Thus we have seen a series of bogus “constitutional rights” created out of whole cloth, and the Court has come to be regarded as a political body, a kind of super-legislature.
At this point, the main argument for preserving Roe was stare decisis, fidelity to precedent; in particular, the idea that it and its successors were so firmly embedded in our law that it would be impractical to remove them. But this was never right. It is true, as Justice Brandeis memorably said, that there are some issues where it is more important that they be settled, than that they be settled right. The main reason for this is the reliance interest: when the courts announce a rule of law, private parties often make important arrangements in reliance on it. Thus, reversing the rule can cause injustice, even if the new rule is theoretically superior to the old.
But in the case of Roe, there is essentially no reliance interest. A young woman might engage in sexual activity without taking precautions to prevent pregnancy, relying on the easy availability of abortion. But that reliance, by its nature, is of short duration. Sexually active women have plenty of notice that laws relating to abortion may change in the jurisdiction where they live, and they can take precautions accordingly.
In the end, Roe is like Dred Scott: an appallingly bad decision that represents an affront to the Court and to this country until it is finally overturned. Assuming that happens when the case is actually decided, it will be an important step toward restoring the Constitution and the rule of law.
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My law professors had similar reactions to the decision as did Hinderaker's. It was a poorly reasoned decision based on an attempt to rationalize a bad decision. Overturning the case will not make abortion illegal. That decision will be up to the state legislatures. That is how democracy works, much to the dismay of the leftists in this country.
See, also:
People Are Pointing Fingers At A Certain SCOTUS Justice And Her Clerk In Relation To SCOTUS Leak – This Is An Act Of Treason
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