Is Roe Overturn Possible?
New Court Ruling Is an Encouraging Sign
BY Carlos Briceño
February 14-27, 2010 Issue | Posted 2/8/10 at 2:02 AM
WASHINGTON — A Jan. 21 U.S. Supreme Court ruling on campaign finance legislation was seen as encouraging for the pro-life movement.
Though the case had nothing to do with abortion, Citizens United v. Federal Election Commission was a victory for organizations such as the National Right to Life Committee in that it affirmed the right to advertise on issues right before an election.
The ruling also contained a tantalizing nugget that reminded observers that precedents in the court’s history are not set in stone.
The ruling struck down a provision of the McCain-Feingold Act limiting corporate political ads. The pro-life community has been buzzing with chatter that Citizens United might open a path to striking down Roe v. Wade, the 1973 case that found most restrictions against abortion unconstitutional.
In his concurring opinion, Chief Justice John Roberts wrote about the possibility that a “precedent’s underlying reasoning” could “become so discredited that the court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”
The opinion brought to mind Roberts’ 2005 Senate confirmation hearings, when he seemed to affirm Roe. “It’s settled as a precedent of the court, entitled to respect under principles of stare decisis,” he said at the time. “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents. ... I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.”
Stare decisis (from the Latin phrase Stare decisis et non quieta movere, “Maintain what has been decided and do not alter what has been established”) is a basic legal principle that prior applicable precedent usually must be followed even though the case, if considered anew, might be decided differently by the current justices. This principle is based on the assumption that certainty, predictability and stability in the law are major objectives of the legal system, because parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.
Though Roberts’ opinion in Citizens United seemed to suggest that judges need not necessarily be “bound down by rules and precedents,” should a challenge to Roe someday reach the high court, some prominent pro-life legal experts said it is still highly unlikely the comments could open a path to Roe’s demise in the near future.
“I don’t think there is anything here that gives us any signal about any imminent overruling of Roe v. Wade,” said Hadley Arkes, a professor of jurisprudence at Amherst College in Massachusetts.
The court was considering a case involving a conservative nonprofit corporation, Citizens United, that wanted to promote its film Hillary: The Movie, critical of then-presidential candidate Hillary Clinton, before the 2008 Democratic primaries. But the Federal Election Commission declared it “electioneering communication,” making it subject to restrictions of McCain-Feingold. These restrictions prohibit for-profit and nonprofit corporations from broadcasting speech that advocates the election or defeat of a candidate within 30 days of a primary election and 60 days before the general election.
In essence, the court ruled that the government could not regulate political speech, thus preserving the First Amendment’s free speech principle.
‘Don’t Hold Your Breath’
But other comments by Roberts also inspired hope that some on the court might consider overruling a past court decision, such as Roe.
“This case is another example where the court overrules itself when the court realizes it made a mistake,” said Deirdre McQuade, spokeswoman for the U.S. Conference of Catholic Bishops’ Pro-Life Secretariat. “We know that Roe was a mistake and hope and pray that the court will recognize that as soon as possible.”
In his written opinion endorsing the court’s ruling and enlarging on the principles of judicial restraint and stare decisis, Roberts rebutted Justice John Paul Stevens’ comments that the majority’s opinion was not “serious about judicial restraint.”
Roberts also made clear that the court’s majority was not disrespecting the court’s past decisions in also overruling several other federal and state laws that have been on the books for more than 50 years.
“This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law,” Roberts wrote. “It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”
He added that stare decisis cannot be seen as “an inexorable command” because, in references to past court decisions, “if it were, segregation would be legal, minimum wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants.”
Charles Rice, professor emeritus of law at Notre Dame Law School, said the basic principle at stake in truly overruling Roe is for a majority of justices to view the unborn child as a person. But that is not the case now, he added.
“Everyone is excited about Roberts’ opinion,” Rice said. “I don’t think it means anything in terms of really eliminating abortion, unless you’re talking about restoring personhood to the unborn child. And one practical reason for that is that the abortion of the future and increasingly of the present is the early abortion, which legally isn’t treated as an abortion but as contraception — what we call emergency contraception, which is really abortion.”
He referred to the idea of the court one day overturning Roe as “a fool’s paradise” because the matter of abortion will then be up to each of the states to regulate. So abortion would then be still legal in those states that sanction it. In other words, what is needed is for the Supreme Court to decide if the unborn child is a person, he said.
“Don’t hold your breath waiting for that,” Rice said.
But having the matter in the hands of the states — as opposed to it being the law of the land, as it is right now — is better than the current situation, said Helen Alvare, an associate professor of law at George Mason University in Arlington, Va.
“I would rather be in a situation where we at least have a chance to win in some places than a situation where we’re banned from winning,” she said, adding that better technology, such as ultrasound, and advances in genetics have made it easier for pro-lifers to make the case that the unborn child is a person.
Free to Speak
Meanwhile, abortion activists have been using Roberts’ comments to raise awareness that the court might be on the path to overturning Roe, which Alvare viewed as the pro-abortion advocates’ way of rallying the base and raising money for their cause.
The Register tried unsuccessfully to get a comment from the Center for Reproductive Rights.
The group’s Nancy Northup said Jan. 22: “Yesterday’s Roberts court decision, which exhibited a stunning disregard for settled law of decades’ standing, is terrifying to those of us who care deeply about the constitutional protections the court put in place for women’s access to abortion.”
The law at the heart of the recent court case, the McCain-Feingold Act, which was passed in 2002, has been in the crosshairs of nonprofit groups such as National Right to Life, which considered the law to be unconstitutional.
“It’s a tremendous victory for free speech and a victory for the pro-life movement,” said David O’Steen, executive director of National Right to Life. “All pro-life groups were affected by these prohibitions of speech, and I think it will benefit the pro-life movement, and it will benefit the American political process.”
He mentioned how the National Right to Life Committee’s daily radio program, “Pro-Life Perspective,” could not mention Barack Obama’s name on the air in the 60 days leading up to the 2008 presidential election since such activity was banned to nonprofit corporations as “electioneering communication” at the time under McCain-Feingold.
“We couldn’t even say, ‘Here is his position on abortion, or here is what he said about abortion,’” O’Steen said. “This frees us to speak.”
Carlos Briceño writes from Naperville, Illinois.
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