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Friday, March 10, 2006

Abortion, Stare Decisis, and Settled Expectations

Of course, I am completely thrilled by the actions of the South Dakota legislature to ban all abortions except where the life of mother is threatened. I am also thrilled by the momentum that is building in states like Missouri, Mississippi, and Tennessee who are moving towards abortion bans.

The significance of these decisions is not just an opportunity to overturn Roe; nor it is not just the fallback position should Roe be overturned the decisions left to the states. The real significance is found here: The decisions by state legislatures may be critical in overturning Roe. Here's why...

Chief Justice John Roberts, in his testimony before Congress, said this about overturning precedent:
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It...is not enough that you may think the prior decision was wrongly decided....

And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
All other 'factors' aside, when state legislature pass laws banning abortion they are proving to the Supreme Court Justices that Roe is not a "settled expectation" in the minds of Americans. State legislatures are showing that over 33 years later, Roe is not a settled expectation. Comparatively, Brown v. Board of Education (decided in 1954) was well accepted by 1987.

So, what are we to do? Well, this morning I wrote my governor and state representatives this letter:

As momentum is building nationwide for tighter restrictions on abortion, I ask that you propose legislation banning all abortions except where the life in the mother is threatened. South Dakota lawmakers have passed such an abortion ban; Mississippi, Missouri, and now Tennessee, are proposing similar restrictions. Why not [**my state**]?

In the 33 years since the Roe decision, our understanding of life's beginnings have increased while the respect for life of all ages has eroded. You have the opportunity to communicate to the nation that [**my state**] values life.

In the event that Roe be overturned by the Supreme Court, it is important to know where our elected representatives stand. I ask that you propose legislation making our state the next to ride this wave of momentum banning abortions in all cases except for the where the life of the mother is threatened.

Please use this letter (or your own) to contact your state representatives and governor. The best way to find their contact information is using Google and type: Contact (state) governor/legislator.

Trackbacked: Stop the ACLU

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