The National Pulse
roe v. wade

Justice Kavanaugh Cites Roe v. Wade as ‘Erroneous Precedent’, Paves Way for Legalized Abortion Challenge

Supreme Court Justice Brett Kavanaugh cited two major abortion-related decisions in a recent opinion explaining when “erroneous precedents” should be overturned. 

The U.S. Supreme Court’s ruling stated that jury verdicts require unanimity  to convict a defendant of a serious criminal offense, overturning the conviction of Evangelisto Ramos, who a Louisiana jury found guilty of second-degree murder by a 10-2 vote.

As part of the ruling, Justice Neil Gorsuch, author of the majority opinion of the Court, argued that stare decisis – the legal principle of determining cases according to precedent – is not supposed to be the “art of methodically ignoring what everyone knows to be true.”

He wrote that “although the precedents of the Court warrant deep respect, stare decisis has never been treated as “an inexorable command.”

Justice Brett Kavanaugh, in his concurring opinion, wrote that the Supreme Court has a long history of overturning previous rulings “the doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions.”

Kavanaugh mentioned two landmark abortion cases in his opinion, Roe v. Wade, the 1973 case which legalized abortion, and Planned Parenthood v. Casey, a 1992 ruling that upheld the essential holdings of Roe but overturned other parts of the ruling.

Justice Kavanaugh pointed out: “…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.”

Whether or not Kavanaugh’s comments mean anything beyond the case at hand is unknown. Regardless, it has touched off a firestorm of speculation that the groundwork is being set for an eventual overturning of Roe v. Wade.

Kavanaugh, whose Senate confirmation process revolved largely around his view of precedent – as liberals feared that his confirmation would provide the votes necessary for an eventual overruling of Roe v. Wade – is viewed as a conservative-leaning justice, though his opinion on overturning landmark abortion rulings remains to be seen.

Although this ruling provides us with little insight as to the future of legalized abortion in America, the fact that the conservative-leaning justices have signaled their willingness to overturn established but erroneous precedent is causing both liberals and conservatives to wonder about the future of the fallacious precedent set by Roe v. Wade and Planned Parenthood v. Casey.

Matthew Wearp

Matthew Wearp is a 2020 National Pulse Writing Fellow