Challenge to Roe v. Wade on Horizon?

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by Martina Moyski  •  ChurchMilitant.com  •  April 22, 2020   

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WASHINGTON (ChurchMilitant.com) -  Two conservative Supreme Court Justices made comments recently that are signaling to many observers that sooner or later a direct challenge to Roe v. Wade is going to be launched. 

Supreme Court Justice Brett Kavanaugh reminded his fellow justices that the principle of stare decisis, which means courts are bound to follow legal precedents, does not mean that "the Court should never overrule erroneous precedents." 

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Justice Brett Kavanaugh
(Doug Mills/The New York Times via AP, Pool)

Kavanaugh's reference to "erroneous precedents," immediately raised red flags for the stakeholders of Roe v. Wade, a case with an almost 50-year precedent but which could be overturned on the basis of what Kavanaugh said are "faulty interpretations." 

Kavanaugh made the comments in relation to a Supreme Court ruling on April 20 that stated juries must be unanimous to convict defendants in criminal trials. The ruling overturned the court's 1972 decision in Apodaca v. Oregon

Kavanaugh was among the justices who voted for the decision to overturn.

Justice Samuel Alito, Chief Justice John Roberts and Justice Elena Kagan voted against the decision, warning that the overruling of a long-standing precedent "marks an important turn," particularly "if the court's approach is not limited to this particular case."  

Kavanaugh countered by pointing out in a concurring argument that it is far from rare for the court to overturn a long-standing precedent.

"All justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions," he said. "Indeed, in just the last few terms, every current member of this Court has voted to overrule multiple constitutional precedents."

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Kavanaugh then listed relevant cases involving overruling, including

  • Planned Parenthood of Southeastern Pa. v. Casey (1992) 
  • Akron v. Akron Center for Reproductive Health, Inc. (1983) 
  • Thornburgh v. American College of Obstetricians and Gynecologists (1986)  

Supreme Court Justice Clarence Thomas also voted, along with Kavanaugh, to overturn the 1972 decision in Apodaca v. Oregon

Indeed, in just the last few terms, every current member of this Court has voted to overrule multiple constitutional precedents.

In his concurring opinion, he listed three Supreme Court decisions that used a faulty interpretation of the Fourteenth Amendment: Obergefell v. Hodges, which legalized same-sex marriage, Roe v. Wade, which legalized abortion, and Dred Scott v. Sandford, which ruled that African Americans, whether free or slaves, were not citizens of the United States.

Thomas, a long-time pro-life supporter, was poised to overturn Roe v. Wade in 1992 during the Planned Parenthood of Southeastern Pa. v. Casey case, which Kavanaugh noted in his argument had overturned elements of Roe.

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Justice Clarence Thomas (Mark Wilson/Getty)

The Planned Parenthood of Southeastern Pa. v. Casey case brought the issue of "reproductive rights" and abortion into the public eye and forced the courts to either reaffirm or overturn Roe v. Wade.

Church Militant has written extensively on Roe v. Wade. A recent report called "47 Years of Slaughter" reveals ironic details in the life of Norma McCorvey, the woman who was listed as Jane Roe in the 1973 Supreme Court Case. It reveals that McCorvey eventually became a pro-life advocate who converted to the Catholic faith and spent her days fighting against abortion. McCorvey died in 2017.

Almost 50 years after Roe v. Wade, abortion activists continue to claim in her name that the killing of millions of unborn babies is normal, moral and legal.

Whether there will be enough votes to overturn Roe v. Wade on the nine-member court is being keenly debated, but the support of Thomas and Kavanaugh would be necessary.

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