Yes, that's true, and unfortunate. BUT - the right has been relied on by four generations of American women. Indeed, as I've said before, there is no woman of child bearing age who hasn't had the right for her entire adult life. That alone should create the conditions for a responsible conservative jurist to respect stare decisis.
There is a absolutely zero reliance interest on Roe in a
stare decisis sense, unless you were to attempt to apply an abortion restriction to women protected by Roe when they became pregnant. Since there would be a long warning period of Roe being repealed, and state's enacting anti-abortion laws, that's not a reasonable concern. And the Court could always limit even that by delaying implementation of the decision for 9 months.
Stare decisis reliance would apply if, for example, the Court were to considering the Administrative Procedures Act to be unconstitutional, thereby invalidating overnight hundreds of thousands of regulations overnight, and leaving a lot of companies (and Congress) out there hanging.
Don't underestimate the importance of the choice right to a young woman. To her, it the basic right of her own self-determination. Is abortion morally wrong? Sure it is - but the better road is persuasion and support for women in crisis who do the right thing. After forty years, women are entitled to an expectation that their liberty will not be taken away by unelected judges,
That's a fine argument as a matter of public policy, but one that should be made to elected representatives. Again, all reversing Roe would do is take away the
federal guarantee of a right to an abortion. The right itself would have to be taken away by elected representatives.
Sgt. Bill, we obviously disagree on this, and that's fine. But to me, the key element of a conservative jurist is his/her respect for stare decisis.
Well, if that's your "key element", then that's not really conservative jurisprudence at all, because it has absolutely nothing to do with the Constitution. And of course by your logic,
Brown v. Board of Education was wrongly decided because
Plessy v. Ferguson was even older than Roe is now at the time of
Brown.
To that I say two wrongs don't make a right. Conservative jurists can and should be constrained by a healthy respect for the BOUNDARIES of their authority. Because otherwise the sovereignty of the people and their elected representatives is infringed.
I don't think what you're advocating has anything to do with sovereignty of the people, or respect for rights. A court that
reverses prior judicial excesses is what protects the sovereignty of the people. The Amendment process is an incredibly high hurdle, and you are advocating a process that will
inevitably result in a legal bias towards progressivism.
Further, assigning pre-eminence to
stare decises is no more likely to protect rights than it is to deprive people of them. Suppose
Heller had gone the wrong way, depriving citizens of the right to keep and bear arms. Your judicial philosophy would protect that decision, and prevent a future court from reconsidering and restoring that right.
No thanks.
