Supreme Court nominee Elena Kagan reportedly “considers abortion rights to be settled law” (USA Today, May 21, p. 5A). And we can expect during her confirmation process to hear a number of Senators echo that assertion. Yet America’s courts and legislatures have a proud history of changing “settled law.”
America has, on various occasions, recovered the recognition of the equal dignity of those who were deprived of their rights and suffered violence which was given legal cover under a different name. This legal cover was often mistakenly recognized by the Supreme Court for a while, but then such decisions were overturned.
Dred Scott v. Sandford (1856) is the most commonly cited instance. The slaveholder's right to property eclipsed and subsumed the slave's right to freedom. But the Constitution was eventually amended to correct the error.
Decisions like Lochner v. New York (1905) show us another error: employers' right to contract eclipsed and subsumed the workers' rights to humane conditions and hours. These abuses were corrected by subsequent Supreme Court decisions like Muller v. Oregon and Bunting v. Oregon.
The "Separate but equal" doctrine of Plessy v. Ferguson (1896) sanctioning segregation was overturned by Brown v. Board of Education some 58 years later.
Erroneous decisions like Hammer v. Dagenhart (1918) institutionalized child labor. But this was overturned 23 years later by United States v. Darby. A new development -- a "pedagogical moment" -- occurred here in Constitutional law. The question was whether constitutional rights applied to children too. The answer was yes.
Many reversals of Supreme Court cases came about when new evidence was brought forward that made it clear that someone's rights, not previously recognized, were being violated. Thus, Louis Brandeis brought forward the facts about how workers were being harmed.
We are now witnessing the same trend regarding the children in the womb. Evidence that has been around for quite some time demonstrating their humanity is finding its way into legislatures and courts. One of the most striking instances comes out of South Dakota.
Federal courts have upheld South Dakota’s law requiring that abortion providers tell women that the procedure destroys a “whole, separate, unique, living human being.” This came about because of the evidence presented to the court regarding the humanity of the unborn child.
With hundreds of embryological sciences, and massive evidence of the harm abortion does to women, such evidence, combined with new legal concepts, can challenge Roe vs. Wade in the same way its erroneous ancestral decisions were challenged.
The day after Roe vs. Wade was decided, the New York Times headline read, “Supreme Court Settles Abortion.” Yet it has remained the most unsettled issue on our national landscape.
The facts above should shape the way that senators, Supreme Court nominees, and all the rest of us speak about Roe vs. Wade and the so-called “right” to choose an abortion. History should shape our language, and should strengthen our hope that abortion policy can change again just as radically as it did in 1973.