In her opening statement on day one of the Supreme Court confirmation hearings for Judge Neil Gorsuch, Senator Dianne Feinstein (D-CA) singled out Roe v. Wade—the Supreme Court’s 1973 decision that legalized abortion for any reason, at any time, in every state—as the most important Supreme Court decision that she wanted the judge to keep, saying it was “super precedent” because it had been affirmed in 39 cases.
That false claim cobbles together cases in which Roe was merely cited or applied, not reaffirmed on the merits. (The actual number of decisions in which Roe was “reaffirmed” is 3, not 39.) More importantly, Senator Feinstein’s claim ignores many other factors that show that Roe is the most unsettled constitutional decision of the past 50 years.
Roe is unsettled by the Justices’ own inconsistency in their application of Roe’s abortion doctrine, and its detailed standards, over the past 44 years. That, in turn, has sown inconsistency and confusion among the lower federal courts.
In fact, Roe 1.0—the original opinion including the original rationale for Roe—is defunct, discarded in the Casey decision of 1992. The historical rationale for Roe—the legal justification for its connection to the Constitution—was replaced by a new sociological rationale created in Casey—the assumption that women have come to rely on abortion as a back-up to failed contraception.
Roe is unsettled because the original opinion and rationale have never been persuasive. The Court abandoned the original rationale by 1989. Abortion-rights activists have spent the past 44 years looking for a new constitutional hook for Roe—the equal protection clause? The Nineteenth Amendment that gave women the vote in 1920? Or (my favorite) the cruel and unusual punishment clause?
~ Clarke Forsythe, The Daily Caller, April 5, 2017