by Lincoln Institute | June 30, 2022

By Colin Hanna, Let Freedom Ring

The Supreme Court’s recent Dobbs v. Jackson decision overturning Roe v. Wade is one of the most consequential decisions we will see in our lifetimes, just as the original Roe decision was. A similarly consequential Supreme Court decision was the Brown v. Board of Education decision in 1954 that overturned the Plessy v. Ferguson that created the separate but equal policy for education. The ruling in Brown led to the desegregation of public schools.

Note that each reversed a precedent decision. In criticizing the Dobbs decision, the Left presents the doctrine of stare decisis as if it were a Constitutional golden rule. Stare decisis is the doctrine that courts should adhere to precedent in making their decisions. The words means “to stand by things decided” in Latin, or, in even plainer English, that decisions of the Court should “stay decided.”

Yet you’ll never find anyone on the Left, and maybe even on the Right, arguing that violating stare decisis was wrong in the Brown decision. The proper application of stare decisis is to respect precedent but not be inextricably bound by it when the Court finds that an earlier precedent was wrongly decided. That’s a high standard, but it can be met, and I would argue that, in the case of Dobbs, it was met, and that therefore Roe should be reversed.

As in the case of many of the most consequential Supreme Court decisions, Roe and Dobbs are both about a right. There are many different kinds of rights, some of which are guaranteed by the Constitution, and many more that are not but are codified in legislation or limited by legislation. Constitutional rights, on the other hand. have a unique and narrow purpose: they are “shielded” from legislative prohibition in the United States. In other words, no legislation can be enacted in this country that would have the effect of denying that right. The Dobbs case was about whether or not a state could enact a law prohibiting abortion after a certain number of weeks of fetal gestation.

While it may be perfectly understandable that people who believe that they have been given a right may become upset if that right is later taken away from them, the Constitutional matter at issue is less emotional and more logical: whether a Constitutional right to abortion was properly established by Roe.

The emotional outrage that opponents of Dobbs are now expressing has given rise to a rhetorical term coined in the last week called “Roe Rage.” I want to suggest to the listeners to American Radio Journal that the decision isn’t worth the hysteria that dominates most of the media coverage of it. The Supreme Court simply restored the principle that abortion can be codified and legally protected or limited or prohibited altogether on a state-by-state basis. States in which public opinion favors permitting the practice can enact laws that protect it. States in which it is not supported by public opinion can enact laws to ban or limit it now, and they can repeal the ban or limitation sometime later if public opinion shifts in favor of permitting the practice.

All that the Dobbs decision did was to state the obvious, that abortion is not an enumerated right in the Constitution, and further that it cannot be honestly deduced as an implied right. Roe’s claim that it is an implied right deduced from another implied but not enumerated right, a broad right to privacy, was always a shaky proposition at best, and the Court concluded that it was erroneous.

Abortion rights supporters should now turn their attention to creating permissive and protective state legislation, but I doubt that they will pass up the opportunity to demagogue the issue into concerted vilification of all Republicans as anti-woman. That’s probably irresistible as a strategy as we approach the 2022 midterm elections that will determine the makeup of the House and Senate for the next two years, and it is the last thing our already-divided nation needs at this time.