Is the Stare Decisis Really the Obstacle to Reversing Roe v. Wade?
Jun 28, 2019 by David Fowler
Two United States Supreme Court decisions from last week bode well for the possibility the abortion precedents of Roe v. Wade and Planned Parenthood v. Casey could be overturned. They underscore why I believe a well-drawn and supported “fetal heartbeat bill” could do the trick, but only if fear of the unknowable is not the guiding principle in Tennessee’s state Senate.
On August 12 and 13, the Tennessee Senate’s Judiciary Committee will hear testimony for and against a “fetal heartbeat bill,” Senate Bill 1236, as rewritten by an amendment being offered by Sen. Mark Pody. Its primary obstacle among some in the pro-life community is the “not now” argument.
The prevailing view among many pro-life organizations and a number of otherwise pro-life state senators is that there are not enough conservative justices on the U.S. Supreme Court to ensure the five votes needed for reversing its prior abortion precedents. They think one more conservative jurist needs to be on the Court in order to provide a “margin for error,” so to speak.
I would have agreed with that analysis a few years ago based on the decidedly pro-abortion majority on the U.S. Supreme Court.
But pro-life advocates can’t ignore the current composition of the Court or last week’s rulings regarding stare decisis.
Twice last week, the more conservative-leaning Supreme Court considered claims that its constitutional jurisprudence interpreting the U.S. Constitution was wrong and that stare decisis needed to give way to getting its jurisprudence correct. In one case, the Court applied stare decisis and stuck with a 170-year-old precedent, and in the other, it rejected stare decisis and reversed a 34-year-old precedent.
What each had in common, however, and what was encouraging to me was the Court’s diligent search of history prior to the ratification of the U.S. Constitution to determine whether the prior precedent was correct.
This is a welcome return to an originalist approach to constitutional interpretation, a view that has too long been lacking on the Court. For example, the Kennedy-types on the Court too often rejected “history and tradition” to look for “new insights” as “we,” meaning the justices, not the people, “learn [liberty’s] meaning.” (All quotes are from Obergefell v. Hodges, a 2015 decision regarding marriage.)
Moreover, even in the decision last week that applied stare decisis to uphold a prior precedent, Justice Alito, writing for seven of the nine justices, said that it was “important” that the precedent “be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation.” Obviously, Roe and Casey are “constitutional matters” that “Congress cannot override . . . by ordinary legislation” as it could with only an erroneous interpretation of a federal statute.
There were a number of other encouraging statements made in the two cases that could be marshaled to make a credible argument that the Court may be ripe for reversing its abortion precedents, but doing so won’t overcome what I think is fundamentally at issue in trying to take a “fetal heartbeat bill” to the U.S. Supreme Court.
While there is nothing wrong with strategic thinking about the timing of one’s actions, Christians need to be careful that such thinking isn’t tantamount to thinking deep down that God needs us to make sure things are “lined up” for Him in order for Him to achieve His purposes or that He can’t be trusted to bring about the outcome that will achieve our purposes, as opposed to what His may be.
In the final analysis, when Christians say God is sovereign, this is what it means: “Whatever the LORD pleases He does, in heaven and in earth, in the seas and in all deep places” (Psalm 135:6, NKJV).
I don’t take this verse as license to “put God to the test” in the sense of a prideful arrogance (Exodus 17:7; Psalm 78:18) that puts forward arguments with no legal basis. But no one is saying that if we wait we might come up with better pro-life arguments.
Instead, I believe what is at the root of the opposition to even a well-drafted “fetal heartbeat bill” is a belief that a perceived contingency is fundamental for success: having only three liberal pro-abortion justices on the Court so that our odds of getting five votes are better.
However, this contingency is one over which the pro-life community will never have any control. It may never happen.
But here’s the good news: If pro-life Christian senators take Psalm 135:6 to heart, nothing is contingent to God.
Think, for example, of all the things that had to “fall into place” for Esther to be in a position to go to King Ahasuerus1 to save God’s people when her uncle Mordecai refused to bow down to the king’s advisor, Haman? If you’re not familiar with the story, it was a lot.
Similarly, if it is true that a sixth conservative justice is needed to find a fifth vote for reversing Roe, for all pro-life Christians know, God is already at work providing that sixth justice. Whether five or six justices lean our way in order to get the “win” we want is something I believe we need to leave up to God to determine and arrange.
We at least have five justices saying the right things about stare decisis and its limitations and looking at real history to determine whether prior rulings were correct.
And as for me personally, if the final results aren’t what I had hoped they would be, then Psalm 135:6 tells me to “check” my personal disappointment at the gates to God’s throne room; He has done as He pleased, and I will rest in that, knowing that all that He does is good and will lead to His glory.
If the U.S. Supreme Court can stop the God pro-life Christians worship from accomplishing what He pleases when we offer to Him by God-honoring means our best efforts to save the innocent unborn children of our country, then the real universal sovereign must be the U.S. Supreme Court. I’ll never be ready to concede that.
NOTES
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
On August 12 and 13, the Tennessee Senate’s Judiciary Committee will hear testimony for and against a “fetal heartbeat bill,” Senate Bill 1236, as rewritten by an amendment being offered by Sen. Mark Pody. Its primary obstacle among some in the pro-life community is the “not now” argument.
The ‘Not Now’ Argument Against ‘Fetal Heartbeat’ Legislation
The prevailing view among many pro-life organizations and a number of otherwise pro-life state senators is that there are not enough conservative justices on the U.S. Supreme Court to ensure the five votes needed for reversing its prior abortion precedents. They think one more conservative jurist needs to be on the Court in order to provide a “margin for error,” so to speak.
The legal point on which this particular argument against a “fetal heartbeat bill” rests is the judicially-created (not constitutionally mandated) doctrine of stare decisis, Latin for “stand decided.” The doctrine simply means that when a judicial decision has been made on a legal point, it should “stand decided” for all future cases that raise that same legal point.In this context, here is the argument: The Court has for so long held that there is a right to abortion that the Court will not reverse itself.
I would have agreed with that analysis a few years ago based on the decidedly pro-abortion majority on the U.S. Supreme Court.
But pro-life advocates can’t ignore the current composition of the Court or last week’s rulings regarding stare decisis.
Positive Signals From Last Week Can’t Be Ignored
Twice last week, the more conservative-leaning Supreme Court considered claims that its constitutional jurisprudence interpreting the U.S. Constitution was wrong and that stare decisis needed to give way to getting its jurisprudence correct. In one case, the Court applied stare decisis and stuck with a 170-year-old precedent, and in the other, it rejected stare decisis and reversed a 34-year-old precedent.What each had in common, however, and what was encouraging to me was the Court’s diligent search of history prior to the ratification of the U.S. Constitution to determine whether the prior precedent was correct.
This is a welcome return to an originalist approach to constitutional interpretation, a view that has too long been lacking on the Court. For example, the Kennedy-types on the Court too often rejected “history and tradition” to look for “new insights” as “we,” meaning the justices, not the people, “learn [liberty’s] meaning.” (All quotes are from Obergefell v. Hodges, a 2015 decision regarding marriage.)
Moreover, even in the decision last week that applied stare decisis to uphold a prior precedent, Justice Alito, writing for seven of the nine justices, said that it was “important” that the precedent “be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation.” Obviously, Roe and Casey are “constitutional matters” that “Congress cannot override . . . by ordinary legislation” as it could with only an erroneous interpretation of a federal statute.
There were a number of other encouraging statements made in the two cases that could be marshaled to make a credible argument that the Court may be ripe for reversing its abortion precedents, but doing so won’t overcome what I think is fundamentally at issue in trying to take a “fetal heartbeat bill” to the U.S. Supreme Court.
Getting to the ‘Heart’ of Opposition to the ‘Heartbeat Bill’
While there is nothing wrong with strategic thinking about the timing of one’s actions, Christians need to be careful that such thinking isn’t tantamount to thinking deep down that God needs us to make sure things are “lined up” for Him in order for Him to achieve His purposes or that He can’t be trusted to bring about the outcome that will achieve our purposes, as opposed to what His may be.In the final analysis, when Christians say God is sovereign, this is what it means: “Whatever the LORD pleases He does, in heaven and in earth, in the seas and in all deep places” (Psalm 135:6, NKJV).
I don’t take this verse as license to “put God to the test” in the sense of a prideful arrogance (Exodus 17:7; Psalm 78:18) that puts forward arguments with no legal basis. But no one is saying that if we wait we might come up with better pro-life arguments.
Instead, I believe what is at the root of the opposition to even a well-drafted “fetal heartbeat bill” is a belief that a perceived contingency is fundamental for success: having only three liberal pro-abortion justices on the Court so that our odds of getting five votes are better.
However, this contingency is one over which the pro-life community will never have any control. It may never happen.
But here’s the good news: If pro-life Christian senators take Psalm 135:6 to heart, nothing is contingent to God.
An Example From History
Think, for example, of all the things that had to “fall into place” for Esther to be in a position to go to King Ahasuerus1 to save God’s people when her uncle Mordecai refused to bow down to the king’s advisor, Haman? If you’re not familiar with the story, it was a lot.Similarly, if it is true that a sixth conservative justice is needed to find a fifth vote for reversing Roe, for all pro-life Christians know, God is already at work providing that sixth justice. Whether five or six justices lean our way in order to get the “win” we want is something I believe we need to leave up to God to determine and arrange.
We at least have five justices saying the right things about stare decisis and its limitations and looking at real history to determine whether prior rulings were correct.
Applying Judicial and Biblical Precedent
So, in this situation, I believe God’s people are called to do the right thing as best they know how and leave the results up to God.And as for me personally, if the final results aren’t what I had hoped they would be, then Psalm 135:6 tells me to “check” my personal disappointment at the gates to God’s throne room; He has done as He pleased, and I will rest in that, knowing that all that He does is good and will lead to His glory.
If the U.S. Supreme Court can stop the God pro-life Christians worship from accomplishing what He pleases when we offer to Him by God-honoring means our best efforts to save the innocent unborn children of our country, then the real universal sovereign must be the U.S. Supreme Court. I’ll never be ready to concede that.
NOTES
- In the Book of Esther, the king that Esther approached to save the Jews from the evil Haman is called King Ahasuerus in the ESV, HCSB, KJV, NASB, and NKJV versions of the Bible, a royal name or title used for Persian kings. The king is given the personal name, Xerxes, in the AMP, CEV, NIV, and NLT versions of the Bible.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
