The end of "Stare Decisis" and abortion rulings

In Gonzalez v. Carhart, the US Supreme Court upheld the 2003 ban on the procedure known as Partial-Birth Abortion. Until this ruling, lower courts had been compelled to follow the precedent established in 2000, and had stricken state laws banning the brutal act as unconstitutional. The reason? There was no exception that would permit the woman and “doctor” to choose PBA if the “health” of the woman were at stake. Unfortunately, “life” and “health” are two very different things. When one takes into consideration such all-encompassing terms as “mental health,” one can see that a ban on partial-birth abortion except where the health of the woman is concerned would end up banning exactly 0 abortions. This is why, of course, someone like Senate Majority leader Harry Reid (D-Nev.) could vote in favor of the ban when it came before the senate in 2003, and yet speak vehemently against the Supreme Court’s decision this week. Reid figured that he could vote for a piece of legislation that would never be enforced, and continue the charade to his fellow Mormons that he was pro-life.

Much of the response from the Democratic side of the aisle was predictable. Hillary Clinton decried the decision as rolling back a woman’s right to choose. How dare the Supreme Court ignore established precedent? Funny how these politicians never want to actually describe what happens in a partial-birth abortion, preferring to call it a surgical procedure left to the private decision of a woman and her doctor. It’s not easy to defend the delivery of a viable unborn baby, leaving only the head inside the birth canal, while the abortionist proceeds to extract the brain, crush the skull, and then pull the remains out of the woman’s body and say, “Well, it was never ‘born,’ so the ‘fetus’ had no constitutional right to life.”

So what changed? The Supreme Court did. Justice Sandra Day O’Connor, a so-called “moderate,” had provided a reliable 5th vote in abortion cases that threw out laws without the “health exception.” She retired and was replaced by President Bush’s nominee Samuel Alito. Now there were 5 votes in favor of upholding the ban enacted by Congress and signed into law by the President. Hillary Clinton was hopefully accurate in her analysis that if the Court refused the right of Supreme Court Precedent (also known as “stare decisis,” it basically means that if the Court has ruled on an issue it has reviewed, then that decision has the force of some kind of eternal sovereign decree) in this case, then who’s to say that they would ultimately respect the “established law” of Roe v. Wade itself?

This is why it’s important that we average citizens without law degrees actually learn something about Supreme Court cases in US History. Plessy v. Ferguson was established law. Under the doctrine of stare decisis, Jim Crow-type segregation laws were constitutional, and had the force of perpetuity. But in Brown v. Board of Education (1954), the Court reversed itself, and a half-century of segregation no longer had the support of Supreme Court precedent. Whenever you hear the argument that Roe v. Wade is the law of the land, and that it has decades of precedence behind it, and that once the Supreme Court has decided something, that’s the way it is forever, just respond like this. If that were true, then blacks would either still be considered property with no rights as citizens (Dred Scott) or they would be still going to segregated schools and be forced to ride in “coloreds only” busses and train cars (Plessy). Bad Supreme Court decisions that deny personhood to a class of individuals (whether blacks or the unborn) not only can but they ought to be overturned.

When you consider the pool of candidates for president in 2008, check out what their response to Gonzales v. Carhart was. Did they defend the right to practice grisly infanticide? Or did they commend the Court for its resistance to “stare decisis” and rule properly? I believe that all it would take for the overturning of Roe v. Wade would be the replacement of 1 more liberal judge (John Paul Stevens at age 89 is a good candidate to meet his maker soon) with someone like President Bush’s appointees. How important it is to elect a President who will nominate justices who know that the ultimate purpose of a justice system is to protect the life of the innocent!