Monday, September 15, 2008
Cass Sunstein on the Election and the Fate of Roe v. Wade
Boston Globe op-ed: The fate of Roe v. Wade and choice, by Cass Sunstein:
THE RIGHT to reproductive freedom has played an occasional role in many presidential campaigns, but its fate is likely to turn on the 2008 election. Republican presidential candidate John McCain vows to "return the abortion question to the individual states" and then "to end abortion at the state level." The new president will probably be in a position to appoint at least one and perhaps as many as three new justices. With an excellent chance to reconfigure the Supreme Court, McCain, if elected, might well be able to get what the antiabortion movement wants - and more fundamentally, numerous changes in other areas of constitutional law as well.
Those who seek to preserve the right to choose ought to be prepared to make some distinctions. As it was written in 1973, Roe v. Wade was far from a model of legal reasoning, and conservatives have been correct to criticize it. The court failed to root the abortion right in either the text of the Constitution or its own precedents....
But it is one thing to object to Roe as written in 1973. It is another to suggest that it should be overruled in 2008. American constitutional law is stable only because of the principle of stare decisis, which means that in general, the Court should respect its own precedents.