Bench Memos

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Partial Birth Abortion and Stare Decisis: What Would Lincoln Do?


Here is an opinion piece, “What Would Lincoln Do?,” from the current issue of The Weekly Standard, which is adapted from the amicus curiae brief that Mike Paulsen (Minnesota) and I filed in the upcoming partial-birth-abortion cases.  Here is a bit:

For as long as Americans have known about the several thousand partial-birth abortions performed each year, they have–by comfortable and consistent margins–agreed with the late senator Daniel Patrick Moy nihan that “[the procedure] is infanticide, and one would be too many.” Nevertheless, the Supreme Court declared six years ago in Stenberg v. Carhart that Nebraska’s effort to ban this particular late-term abortion method violated the right to abortion that was manufactured in the 1973 Roe v. Wade case.

Congress responded with a ban of its own, one that was designed to satisfy the standards set out in Carhart. But this effort, the federal Partial-Birth Abortion Ban Act of 2003, has now been rejected by lower federal courts. The question before the Court now, in Gonzales v. Carhart and Gonzales v. Planned Parenthood, is whether the justices will permit us to regulate this procedure, which revolts Red and Blue America alike. . . .

In fact, the justices could probably uphold the federal ban without reversing the Stenberg decision. But they shouldn’t. The Court’s time and constitutional powers would be better spent, and the rule of law better served, if Stenberg were simply abandoned.

What about stare decisis, though? Don’t the editors at the Times have a point when they urge deference to precedent? Of course they do. It is eminently sensible for courts to stick with settled decisions, absent special and strong justification. But the doctrine of stare decisis, properly understood, is not an inexorable command of blind, unquestioning adherence to the most recently decided case. It is not, as Justice Frankfurter once put it, the “imprisonment of reason.” It is, instead, a principle of judicial policy, a flexible, practical idea that leaves plenty of room for discretion as to how it should be applied in any given set of circumstances. . . .

Contrary to the ruling in Stenberg, nothing in our constitutional text, history, tradition, or structure supports, let alone compels, the conclusion that the American people may not affirm our commitment to decency and human dignity by rejecting partial-birth abortion. Nor does the judicial policy of stare decisis shackle the Court to such a horribly wrong precedent–be it Stenberg or Dred Scott.

Tags: Garnett


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