News-Record.com

Doug, when Roe Vs. Wade is tossed aside, it won't be as a result of enlightenment. It will be as a result of religious right dogmatic control of the republican party.

I'm not trying to anticipate what will or won't happen. I'm suggesting the society's values change over time. Judicial interpretations often reflect that. Those who expect the courts to re-evaluate constitutional principles in light of new understanding should be the last to demand that a prospective justice adhere to the status quo.

The only thing that's been settled in many judicial rulings, is there is no "Settled Law."

Roe v Wade might be overturned in the SC in a future ruling, but the issue of abortion won't go away. If overturned, the issue will probably return to the individual States to determine if it will continue to be a medical choice in their State, will be restricted in some form, or completely be set aside. The decision to let the States determine the legality of this procedure has been championed at least by Thomas & Scalia, two of the more conservative justices.

Of course, there can be an amendment made to the Constitution either for or against the procedure, but I don't think that will ever happen.

I campaigned very hard as a Christian Registered Nurse to get the Roe vs Wade passed into law particularly in cases of rape and incest. I now feel abortion should not be performed in the second and third trimester except to save the life of the pregnant female. To revoke Roe vs Wade (which I doubt will be done) would only cause women to resort to "back alley" or "coat hanger" abortions. There will always be unwanted pregnancies even using birth control methods - non of which are 100% reliable.

Doug, great points on the nature and history of "settled law". Lochner v. New York (1906) is a fine example of judicial overreaching that led to bad results, and that was eventually overturned. The cases you cite are also great examples.

The true constitutionalist looks to the text of the constitution to reach an opinion, not just stare decisis. You are right to point out the apparent hypocrisy of the "living constitution" crowd when it comes to Roe. The truth is that the constitution was designed with the ability to evolve. We have a process to change the constitution to conform to changes in society. It's called an amendment. Unfortunately, activist courts have taken it upon themselves to circumvent the amendment process and change the constitution through case law.

If the Roe crowd believes so strongly that the values expressed in that decision are well settled in society, perhaps they wouldn't object to putting it to the test the right way- by an amendment.

The constitution is designed to be changed only by amendment, not by judicial rulings. Otherwise, the Courts become a super legislature. The function of the court is to say what the law is, not what it should be.

The recent Kelo decision is another example of a decision that in all likelihood will eventually be reversed by another court in the future. We shouldn't stick with a bad decision simply because we have gotten used to it. All the major civil rights changes would have never occurred if we relied solely on precedent. Further, many of the civil rights gains were the result of the amendment process (voting rights, equal protection) which is the last resort to overturn a bad decision by an activist court.

It is a little crazy to believe that 9 people (and sometimes less way back when) got it exactly right for all eternity. Even the Catholic Church doesn't make such a claim (e.g. Council of Nicea, Vatican I, Vatican II, and all the other councils that modified and reconsidered doctrine). The Pope may be infallible when he is alive, but frequently subsequent actions of the Catholic Church suggest otherwise.