Stare Decisis
Pro-abortion Justices and the challengers to Mississippi's 15-week abortion ban argued their position from the point of view that abortion precedent should stand under the principle of stare decisis. This principle means “to stand by things already decided.” The actual constitutionality of abortion was not a major topic of discussion.
One statement by Justice Sonia Sotomayor is an example of this. "The right of the woman to choose, the right to control her own body, has been fairly set since Casey and never challenged. You want us to reject that line of viability and adopt something different," she said. "Thirty (justices) since Casey have reaffirmed the basic viability line. Four have said no, two of them members of this court. But 15 have said yes, of varying political backgrounds."
Justice Stephen Breyer also argued that it was not correct for the court to reexamine its precedent, saying, "To overrule under fire, in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the court's legitimacy beyond any serious question."
Justice Samuel Alito, on the other hand, challenged the idea that abortion precedent can't be touched by the court. He questioned US Solicitor General Elizabeth Prelogar, who argued on the pro-abortion side of the issue, by using the example of Brown v. Board of Education. That decision overruled the Plessy v. Fergusson precedent of "separate but equal."
After Prelogar initially did not give a direct answer, Alito said,
"I still don’t have your answer clearly. Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the Court is called upon to consider whether it should be overruled? Yes or no? Can you give me a yes or no answer on that?"
Prelogar did eventually concede that she believed it was correct for the court to overrule its precedent in that case, but she added many qualifiers to her answer.
Justice Kavanaugh also challenged Prelogar, and argued that the Constitution does not make any statements on abortion whatsoever.
"The Constitution is neither pro-life nor pro-choice on abortion. If we think that the prior precedents are seriously wrong, why don't we return to neutrality?" Kavanaugh asked. "Why should this court be the arbiter rather than Congress?"
"There'll be different answers in Mississippi in New York, different answers and Alabama than California because they're two different interests at stake and the people in those states might value those interests somewhat differently."
Prelogar responded that abortion is a "fundamental right" and that without it women would be unable to "participate fully and equally in society." She described abortion as a "central component of women's liberty." With this as her basis, she argued that the states did not have the right to protect the lives of the unborn through abortion restrictions.
Liberty does not give one human being the right to end the life another completely innocent human being. Prelogar's statements stretch the concept of liberty past their reasonable limits, and suggest that women are incapable of participating equally in society if they don't end the lives of their unborn children through abortion. Her description of Supreme Court precedent clearly shows why pro-life advocates so strongly oppose it. In our next post, we will examine the "liberty" to which Prelogar is referring more closely.
