It's Stare Decisis not "Castin Cementum"

“No man can be a competent legislator who does not add to an upright intention and a sound judgment a certain degree of knowledge of the subjects on which he is to legislate.” James Madison, Federalist 58

I watched with dismay the appalling behavior of certain Senators recently during the confirmation hearings for Judge Alito. In the past I have commented how their infantile antics remind me of how many high-school class president elections are run. Indeed, after last week's showing, many other articles have been written expressing substantially this same opinion. Worse, however, was the main stream media's portrayal of these Senator's actions as heroic attempts to curtail the “obvious” racist and sexist beliefs of Judge Alito. I note both of these facts only in passing, as I believe that all parties involved missed an opportunity to educate the American public on a very misunderstood Supreme Court ruling.

Let's get one indisputable fact on the table as a starting point: Roe v. Wade did not legalize abortion. No honest reading of the Majority Opinion of the Court, or the Dissent can lead to this conclusion. The central issue in the case was a right of privacy. The substantial discussion on the history of abortion and the meaning of the word “people” (i.e., the intent) of the 14^th Amendment in Blackmun's Opinion was an ancillary topic undertaken for the express purpose of defining when the State's compelling interest in protecting life took precedence over a doctor-patient privilege. That right to privacy was what Plaintiff had sued to restore. Rehnquist's Dissent did not seek to criminalize abortion, nor does it even take a stand on whether it ought to be criminalized. Rather, the Dissent focuses on technical aspects of the case – standing and interpretation.

Quoting at length the Majority Opinion,

“With respect to the State's important and legitimate interest in the health of the mother, the 'compelling' point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

"This means, on the other hand, that, for the period of pregnancy prior to this 'compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

"With respect to the State's important and legitimate interest in potential life, the 'compelling' point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” (Blackmun, Roe v. Wade 1973, Majority Opinion)

This is a lot to digest, so Blackmun helpfully added the following:

“To summarize and to repeat:

"1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” (ibid)

Blackmun noted that there was no indication that common law ever considered abortion before “quickening” as any type of offense. Indeed, even Christian theology up until the 19^th Century did not recognize the fetus as being distinct from the mother prior to 40 days for males and 80 days for females after conception. Thus, any law which made abortion prior to some “compelling point” would be unconstitutional, as it would deny a woman a “fundamental right to privacy” (Blackmun) governed by doctor-patient privilege. He further observed that “throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, [which] persuades us that the word 'person,' as used in the Fourteenth Amendment, does not include the unborn.” (ibid)

In continuing his historical analysis, Blackmun observed that the earliest laws governing abortion were done for the stated purpose of protecting the life of the mother. This is a key point which led him to his complete ruling on the subject of laws regarding abortion. This is also the point that neither side in the debate ever bothers to acknowledge.

Blackmun reasoned that at some point in the due course of a pregnancy, the State might have some compelling interest that could outweigh even a fundamental right to privacy. He affirmed the prior common law of regulating certain aspects of the procedure for the express purpose of protecting the mother's life. He then went even further to argue that there was in fact a point where the fetus' right to life had priority over the mother's right to privacy, thus granting the State a right to regulate the performance of the procedure itself.

It is further interesting to note that in writing his Dissent, far from being the affirmation of a pro-life stance as the Right would like us to believe, Rehnquist actually makes no claims as the the legality of the procedure or the law. Instead, the Dissent raises issues which could be characterized as technical in nature – namely, that the plaintiff lacked standing, there is no privacy issue, and the 14^th Amendment didn't apply.

Rehnquist argued that in order to have standing to bring suit, the plaintiff had to be suffering actual harm. Since she was not currently pregnant, the Court could not provide injunctive relief, and therefore she was not entitled to a hearing. The Majority Opinion effectively dealt with this by noting that pregnancy was one of those things “capable of repetition, yet avoiding review,” a principle the court recognized as requiring an exception to the rules governing standing.

Further, Rehnquist noted that “privacy is not involved insofar as the resulting transaction would not be private 'in the ordinary usage of that word'.” (Rehnquist, Roe v. Wade, Dissent) By this he meant simply that to qualify as a privacy issue, in the absence of a proscription against the act, the fact that it had occurred would not become otherwise known. Logically, if a woman used to be pregnant and no longer was, this would be known and thus pregnancy was not a privacy issue. Of course, the cause would not be known, but the Texas statute did not deal with causes, only effects.

Finally, Rehnquist concluded that the Majority Opinion smacked more of “judicial legislation than determination of intent” as “the Texas statute struck down today was, as the majority notes, first enacted in 1857 and 'has remained substantially unchanged to the present time.' There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.” (ibid)

The net result of both opinions was that had the Texas law been narrowly construed to support, after some appropriate compelling point, either protecting the mother's health or the State's interest in promoting life, the law would have passed Constitutional muster. Further, Roe actually upheld the State's right to regulate abortion, including it's outright banning under specifically defined circumstances. Roe does not legalize nor criminalize abortion – it merely delineates the point at which privacy is no longer a compelling interest.

Which brings us back to Judge Alito and stare decisis. Sen. Kennedy, et. al. repeatedly tried to get Alito to put forth the opinion that Roe was the “settled” law of the land. This is not what the principle of stare decisis says. The courts have long recognized the importance of precedents, and have given due deference to them. However, SCOTUS has also recognized that in certain situations, and with good reason, precedents can and must be set aside. Thus, even if Roe said what the liberals think it says, it is not exempt from future review given the right set of circumstances.

It is rather ironic that the Senate 'Dems were trying to confer some sort of cloak of immunity on this one ruling given that at one point in our nation's history, Plessy v. Fergusson was also the “settled” law of the land. And lest the revisionist historians forget, Plessy was decided in favor of Southern Democrats and made segregation legal. If SCOTUS had applied the desired standard of immunity to this case, Brown v. Board of Education of Topeka could never have been decided in favor of the plaintiff.

It's not rocket science, Senators. You cannot have the principle of stare decisis apply absolutely in cases which favor your position, and (effectively) not at all when the political mood suits you. Due to the system of checks and balances in our Constitution, no legal opinion can ever be considered as cast in concrete. That is the brilliance of our American system.