Special to The Desert Sun, July 2022
by Richard Leslie Brock
The demise of Roe v. Wade was based in part on the argument that the term “abortion” (or other terms describing abortion) is not explicitly mentioned as a protected individual right in the U.S. Constitution. That is true.
However, the individual right to privacy, to marry, procreate, divorce, or annul a marriage, (among others) are not explicit in the U.S. Constitution either. Instead, those historical rights have been adjudicated by the U.S. Supreme Court in hundreds of cases to be implicitly supported as fundamental rights. These constitutionally guaranteed rights are only sustained as individual rights under the principle of stare decisis, which essentially means that once a legal principle has been decided in a case, it becomes the law from that time forward. Honoring stare decisis is one of the cornerstones of our legal system and is fundamental in providing stability in our legal system. Sadly, the current Supreme Court sacrificed this principle by overruling the law of the land on abortion, which had stood for more than 50 years.
The right to abortion was also rejected on a companion argument that “abortion” was not a historically supported right early in the founding of the nation. In the words of the court, abortion was not “deeply rooted in this nation’s history and tradition,” and therefore, not worthy of federal constitutional protection. The court then proceeded to present historical findings that supported this lack of deep roots.
However, the court ignored historical facts that defied their conclusion about the history of abortion. For example, the British colonies, which became the United States in 1776, limited but did not prohibit abortion. Abortion was legal so long as it was performed prior to “quickening,” i.e., before movement could be detected in the womb. In other words, it was a right like other rights. Yes, it could be regulated (like marriage is regulated) and thus limited to “pre-quickening” situations. But still, it was a historical right during our colonial period. Notably, this was the same period from which we adopted the common law of England as the law of the United States.
The outsized dependence by the court on historical tradition rather than legal tradition (stare decisis) is dangerous. Consider, for example, that slavery was deeply rooted in the nation’s history until it was abolished by the 13th Amendment. So too was miscegenation, i.e., marriage between persons of different races. In Loving v. Virginia, the Court adjudicated it to be unlawful for a state to prohibit such marriages. Ironically, that ruling now survives only because of the steadying principle of stare decisis, which the current court just showed that it was willing to ignore to reach an ideological conclusion.
Stare decisis has been severely weakened by the demise of Roe v. Wade. In addition, the current court has shown hostility to any putative right that is not explicitly mentioned in the U.S. Constitution. Thus, we should not be surprised to see other non-explicit rights such as the right to homosexual marriage, or the right to interracial marriage, as targets based on this court’s emphasis on historical tradition or on its select interpretation of “history.”
Richard Leslie Brock of Indio is a retired attorney who teaches law at the University of California, Riverside, and is the author of books including Laguna Diary, The House of Ilya, and The Sins of the Fathers. He is now working on his fourth book: In the Shadow of Aizkorri.