The pro-life movement has been hopeful since the fierce confirmation of Justice Brett Kavanaugh — hopeful that his confirmation would get us one step closer to overturning the egregious decision in Roe v. Wade which has led to the unfortunate loss of over 60 million innocent lives.
Justice Kavanaugh showed promise of a future Roe decision in his concurring opinion in Monday’s case, Ramos v. Louisiana. Ramos overturned a precedent set in 1972 regarding unanimous jury verdicts for criminal cases. The dissent mainly argued in favor of stare decisis, or the doctrine of strictly adhering to precedent. Justice Kavanaugh argued in his concurring opinion that “erroneous precedent” can and should be overturned by the Court. One such precedent he cited was Roe v. Wade.
He explained that more often than not, the Court does overturn erroneous precedent, as they did in Planned Parenthood v. Casey, which overturned certain parts of Roe v. Wade. He explains;
“In Casey, the Court reaffirmed what it described as the ‘central holding’ of Roe v. Wade, the Court expressly rejected Roe’s trimester framework, and the Court expressly overruled two other important abortion precedents.”
On stare decisis, Justice Kavanaugh made the argument that, while it should be respected, it should not mean “that the Court should never overrule erroneous precedents.” The doctrine is a constitutional ideal to preserve legal principles rather than individual inclinations. However, as Kavanaugh explained, “it is sometimes appropriate for the Court to overrule erroneous decisions.”
On “erroneous decisions,” Kavanaugh lays out three questions to decide the matter. First, is the prior decision “grievously or egregiously wrong?” Within this question, justices should consider the reasoning behind the precedent, consistency and coherence, changed law, changed facts, and workability. One could easily make the case that Roe is egregious with respect to such considerations. Since 1973, fetal development study, improved medical techniques, and other scientific advancements have occurred which undeniably would be considered “changed facts” and favor the pro-life cause.
Second, “has the prior decision caused significant negative jurisprudential or real-world consequences?” Consider the several articles on this site alone of the negative real-world consequences of legalizing abortion, including sexual assault coverups, abortion quotas, helpless fathers, eugenics, etc.
Finally, “would overruling the prior decision unduly upset reliance interests?” This consideration gives respect to the reliance on the precedent and how overturning it will affect that reliance. The key word here is “unduly.” Reliance on Roe falls mainly in the realm of money for abortion providers like Planned Parenthood. However, considering the death toll, one could, and should, make the case that overturning Roe would not unduly upset the reliance.
Considering Justice Kavanaugh’s three step methodological approach to overturning precedent, the pro-life movement has cause for hope. In a future decision on Roe, Kavanaugh would be well within his own logic when deciding to overturn such “erroneous precedent.”