Friday, January 13, 2006

Stare Decisis

By Lady Guinevere
Snoop Zone Guest Writer

It’s being talked about more then is usual on TV these days, in connection with Judge Alito’s nomination to the Supreme Court. Those wanting to nuke his chances are playing the “A” card - they point to his statements, decisions, and personal view points on Abortion. And he’s made no secret that he believes abortion is wrong. So, the abortion on demand (oh - excuse me - the abortion is a right) folks are gearing up for the fight of their lives. They believe, or they want others to believe that they believe, that with Alito’s appointment would come a return to back room or alley abortions. A vote for Alito would be a vote against women, so they say.

But can one judge, or a majority of judges, on the Supreme Court overturn Roe v. Wade? Well, it depends. It depends upon whether the judge(s) in question are willing to ignore one of the oldest legal principles around. In lay-person’s terms, it means that any court reaching a decision has GOT TO FOLLOW THE LAW. There are two sources of laws - Legislatures and Courts. The Lawmakers pass codes, statutes, regulations, etc. The Courts interpret those things, in light of the specific facts in front of them in a particular case. Overriding any legislature (state or federal) or any court (state or federal) are the principles of the Constitution (state or federal). The Constitution represents the framework. The overriding principles by which everyone, but especially, the government must “play”.

The Court in Roe v Wade decided that women have a Constitutional Right to Privacy (so far so good) that included the right to decide if/when to abort a fetus (say what?). So, like it or hate it, the Roe v. Wade case was based upon the interpretation of the US Constitution by the highest court in the country.

If the Neo-con judges are a majority, the liberals rant and rave, then they’ll throw Roe v. Wade out like yesterdays’ rotten garbage, and truth to tell lots of ultra-right wing types are hoping that is what will indeed happen. And both are going to be disappointed.

Stare Decesis requires that ALL COURTS including the US Supreme Court follow legal precedent. They cannot simply ignore prior case law. They can distinguish it from the older cases, if the laws on which it was based have changed. They can find differences in facts that make the laws not apply in the newer cases. They can even look for loopholes in the older case, and provide wiggle room for changes.

But unless they ignore stare decisis entirely, the same court cannot simply say “the prior court was wrong in how they read the law”. Since the Roe v. Wade case was based on the Constitution, and last time I looked it had not been recently amended, they can’t find that the laws have changed. The courts can (and have been) finding ways to make abortion less easy to obtain, without completely banning it. In order to overturn Roe v. Wade. they’ll have to say that the other court was wrong. Flat wrong. And that is not going to happen any time soon. It may happen, but not in my lifetime. Plessy v. Ferguson was a famous US Supreme Court case. It’s the one from the 1800's where the court decided that slaves could in fact be owned because they were property. A century later, it was overturned by another bunch of US Supreme Court judges. But it took a long time.

So while all of the nut cases on both side froth at the mouth over Alito and his pals trying to end legalized abortion in this country, those who are calmer and saner realize that stare decisis will block any overt attempts to completely reverse case law. You can stop worrying about it, either way. I suggest that instead of stirring up mud and throwing around stupid epitaphs, those who really care about the women rights AND the poor little unborn babies do something positive to improve the situations and lives of those who are in such dire straights! Educate your young women, and men, about reproductive responsibility (and morality) and cram job training and education into these women and their children. And for God sake people, can someone get girls to stop equating having sex with getting love? Either that, or start passing out birth control pills with the milk at nap time.....