Either you advocate judicial activism or you don't. If you support judicial activism re the causes and rights you favor, and decry judicial activism re the causes and rights you don't, then you're a hypocrite.
Yes, Roe was an example of judicial activism that extended rights where none had clearly existed before. BUT SO WAS HELLER. Now forget for a moment whether you agreed or disagreed with those cases when they were decided. The reality is that millions now rely on the Heller decision which found an individual RKBA. Millions now rely on Roe which found a woman's individual right to decide for herself whether to bear a child.
A conservative jurist respects precedent and allows BOTH those decisions to stand because so many rely on them.
Reliance in the constitutional context is different than that, and frankly, it doesn't apply to either
Roe or
Heller.
Reliance that may justify
stare decisis exists when you have a decision that upon which other laws/practices are based, that would be disrupted if you overruled that decision. And the disruption has to be of a kind different from if the decision had never been rendered at all. An example of that would be reversing decisions like
National Labor Relations Board v. Jones & Laughlin Steel Corporation, and essentially eliminating more than 20,000 pages of regulations overnight -- regulations upon which Congress and businesses have relied for decades. There, you could say that Congress didn't make laws because it relied on the existence of those regulations, and you'd end up with a chaos that nobody would have intended.
Roe and
Heller both could be reversed without impacting that at all because they are singular issues that aren't tied to any others. The only "reliance" in
Roe would be for women who became pregnant while it was valid law, under the expectation that they could get an abortion. But you could address that easily by saying in the reversal that state anti-abortion laws cannot apply to someone who is already pregnant. If you only apply it to pregnancies that occur after you toss
Roe, reliance isn't an issue. Because anyone who has not yet gotten pregnant will know the law has changed, and therefore won't rely on it in making their decisions.
And the same is really true for Heller. Nobody really changed their behavior in reliance on Heller in a way that could not be remedied.
