Abortion's opponents were still represented by the dissenting justices. They too, used stare decisis in their opinion, but in a quite opposite fashion, laying open another path to those who might still hope to have abortion removed as a legitimate constitutional right.
Indeed, Justices Rehnquist and Scalia attacked the very basis of the plurality's opinion. Rehnquist wrote that, "any theory on the proper scope of stare decisis in constitutional adjudication is bound to be indeterminate," a principle that, followed to its logical conclusion meant that, "virtually any overruling can be attacked or defended on the basis of the [chosen] criteria."
Rehnquist et al. believed that Roe had been wrongly decided in the first place, and should be overruled. Planned Parenthood v. Casey offered an opportunity to revisit the principles of the previous case. Planned Parenthood could have served as a means of reinvestigating the fundamental arguments that had led to the establishment of abortion as a constitutional right, but instead the issue had been avoided entirely. In essence, the Pennsylvania statutes had been struck down based not on their real applicability to the abortion issue, but rather based on their relevance to a prior case, that is, to Roe v. Wade. Rehnquist and his associates wished to view the argument of the state of Pennsylvania as one that spoke to the merits and purpose of the laws concerned. By avoiding these considerations, the other justices were merely delaying a final resolution on the underlying matter of abortion's long-term legality. The use of stare decisis as a form of justification signaled an ability to twist prior precedent to fit current circumstance, or even worse, current desire. The liberal justices had no wish to overturn, or even to re-visit, Roe v. Wade. Stare decisis was but an excuse. Prior decisions did not need to be explained if they could be attributed to precedent. The deeper soul-searching that the Rehnquist approach would have required, together with the necessary intensive exploration of the full range of legal ramifications, would be left to a future court - or to members of Congress.
Works Cited
Dunn, Pintip Hompluem. "How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis." Yale Law Journal 113.2 (2003): 493+.
Peters, Christopher J. "Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis." Yale Law Journal 105.8 (1996): 2031-2115. http://www.questia.com/PM.qst?a=o&d=5000367432
Christopher J. Peters, "Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis," Yale Law Journal 105.8 (1996).
Pintip Hompluem Dunn, "How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis," Yale Law Journal 113.2 (2003)
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