COLUMN: Think Again – Roe v. Wade should be overturned

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Hey there, time traveller!
This article was published 10/05/2022 (210 days ago), so information in it may no longer be current.

Stare decisis is an important legal principle. This Latin phrase, which means “to stand by things decided,” means that judges are expected to follow legal precedents.

In other words, judges are not free to make things up. If they did, rulings would become wildly unpredictable, and people would lose respect for the legal system.

Roe v. Wade is one of the most famous Supreme Court rulings in the United States. This decision was handed down nearly 50 years ago and it constitutionally enshrined the right of women to an abortion. While states were still permitted to regulate abortion access, they could not prohibit it outright until a woman’s third trimester.

Given how many years ago Roe v. Wade was first decided, stare decisis would seem to apply. This is why it was such a huge shock when a leaked Supreme Court decision indicated that Roe v. Wade is on the cusp of being overturned.

Abortion rights activists were horrified. Pro-choice politicians in both Canada and the United States rushed to announce their absolute commitment to abortion rights. A Bloc Quebecois MP even tried to introduce a motion calling on the House of Commons to uphold a woman’s right to choose.

However, while stare decisis is an important principle, it is not absolute. In 1954, the U.S. Supreme Court handed down its anti-segregation decision in Brown v. Board of Education. This decision amounted to the total repudiation of a previous court ruling.

Plessy v. Ferguson, which was decided in 1896, upheld segregation laws as constitutional. The Supreme Court at the time decreed that segregation was legal so long as the separate facilities were equal. Even though it remained an established precedent for many decades, Plessy v. Ferguson was eventually overturned.

Simply put, the principle of stare decisis cannot be used to justify obviously wrong decisions. Like Plessy v. Ferguson, Roe v. Wade fails to withstand moral or legal scrutiny. As William Rehnquist, one of the dissenting judges, said at the time, “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment, a right that was apparently completely unknown to the drafters of the Amendment.”

Supporters of Roe v. Wade are trying to paint a dire picture of what will happen if this decision is overturned. They claim that women’s rights are under threat and that women must have the right to full, free, and unfettered access to abortion.

However, overturning Roe v. Wade simply means that abortion regulations in the United States will be up to elected officials rather than unelected judges. States will not be forced to pass abortion laws but will be able to decide what they believe is best for their constituents. If their constituents don’t like it, they can vote for someone else at the next election.

In other words, the United States will be in a similar situation to what Canada is in now. Contrary to popular belief, the 1988 Morgentaler decision did not entrench an absolute right to abortion. Rather, the Supreme Court struck down the abortion law of the time because it limited abortions to accredited hospitals, which resulted in unequal access to abortion across the country.

Interestingly, the Supreme Court explicitly stated that the federal government has the right to regulate abortion and invited Parliament to pass a new law. The Mulroney government tried to do so but it was defeated in a tie vote in the Senate. Since that time, there have been no Criminal Code restrictions on abortion.

In the end, elected officials, not unelected judges, should have the final say over abortion. That is why Roe v. Wade should be overturned.

Michael Zwaagstra is a high school teacher and a Steinbach city councillor. He can be reached at mzwaagstra@shaw.ca.

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