Objective:
Warm-up:
U.S. Supreme Court
Justice O’Connor, Justice Kennedy, and Justice Souter delivered the opinion of the Court with respect to Parts I, II, and III, concluding that:
1. Consideration of the fundamental constitutional question resolved by Roe v. Wade, 410 U.S. 113, principles of institutional integrity, and the rule of stare decisis require that Roe’s essential holding be retained and reaffirmed as to each of its three parts:
(1) a recognition of a woman’s right to choose to have an abortion before fetal viability
and to obtain it without undue interference from the State, whose previability
interests are not strong enough to support an abortion prohibition or the imposition
of substantial obstacles to the woman’s effective right to elect the procedure;
(2) a confirmation of the State’s power to restrict abortions after viability, if the law
contains exceptions for pregnancies endangering a woman’s life or health; and
(3) the principle that the State has legitimate interests from the outset of the pregnancy
in protecting the health of the woman and the life of the fetus that may become a
child. . . .
(b) Roe determined that a woman’s decision to terminate her pregnancy is a “liberty”
protected against state interference by the substantive component of the Due
Process Clause of the Fourteenth Amendment. Neither the Bill of Rights nor the
specific practices of States at the time of the Fourteenth Amendment’s adoption
marks the outer limits of the substantive sphere of such “liberty.” Rather, the
adjudication of substantive due process claims may require this Court to exercise its
reasoned judgment in determining the boundaries between the individual’s liberty
and the demands of organized society.
a. Stare decisis refers to the Court’s tradition of following past precedent when possible.
Explain how the decision above reflects the principle of stare decisis.
b. The decision above also represents an activist court that is adapting constitutional principles to modern circumstances. Explain how the Court’s view of civil liberties has evolved in terms of abortion law.
c. Can the state limit a woman’s right to an abortion? Why or why not?