The Correction of Injustice: 4 Reasons Why Roe v. Wade is Not Settled Law

July 11

“Is Roe v. Wade settled law?”

This is a question we hear often, most notably during confirmation hearings for federal judges and Supreme Court Justice nominees. For some in the judiciary, the question is met with a simple, “Yes.” For others, however, the response is a bit more complicated.

Consider, for example, Chief Justice John Roberts’ response when asked to clarify his previous statement describing Roe as the “settled law of the land.” The Chief Justice stated, “…it’s settled as a precedent of the court, entitled to respect under principles of stare decisis.”

Justice Samuel Alito, meanwhile, made similar remarks during his confirmation hearing, but went a step further by questioning the meaning of “settled law.” When directly asked if Roe was the settled law of the land, Justice Alito responded, “…if settled means that it can’t be re-examined, then that’s one thing. If settled means that it is a precedent that is entitled to respect as stare decisis…then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.”

More recently, Roe was described by Justice Neil Gorsuch as “worthy of treatment as precedent, like any others,” and by Justice Brett Kavanaugh as “an important precedent of the Supreme Court that has been reaffirmed many times.”

What do these responses mean? They mean that Roe v. Wade is not settled law. This is why—

  1. Roe is not settled law because four of the nine Supreme Court Justices are likely open to reexamining the case. Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh all agree that Roe is settled law to the extent that it is a precedent and it should be treated as such. However, to Justice Alito’s point, this does not mean that Roe cannot be revisited.
  1. Roe is not settled law because at least one of the nine Supreme Court Justices, Clarence Thomas, believes that Roe was wrongly decided. In Planned Parenthood v. Casey, Justice Thomas joined the dissenting opinion which stated in part, “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” 
  1. Roe is not settled law because its permanent legality was left in question by the Justice who penned the majority opinion. As the author of the majority opinion in Roe, Justice Harry Blackmun made it clear that the Court was not in a position to determine when life began. He wrote, “We need not resolve the difficult question of when life begins….[T]he judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” Justice Blackmun went on to state that if “personhood” were to be established, the unborn child’s “right to life would them be guaranteed” by the Fourteenth Amendment.
  1. Roe is not settled law because the Supreme Court can overturn its own precedents. Contrary to what many believe, no Supreme Court decision is beyond further review or an overturning because the Court can overturn its own precedents. The principal of stare decisis—or simply put, the legal doctrine of respecting precedent—does not always confine our modern-day Supreme Court to the decisions of the past. Former Chief Justice William Rehnquist once opined, “Staredecisis is not an inexorable command” (Payne v. Tennessee). Meanwhile, Justice Thomas recently wrote, “When faced with a demonstrably erroneous precedent…We should not follow it” (Gamble v. U.S.). This understanding of the role of precedent is critical for the Judiciary because the Court has at times delivered irrefutably erroneous decisions. Consider, for example, the case of Plessy v. Ferguson, in which the Supreme Court upheld the constitutionality of racial segregation laws for public facilities. Surely the Court was right to overturn this dreadful decision.

The Judicial Oath, taken by all Justices of the Supreme Court, begins with this statement: ” I do solemnly swear or affirm that I will administer justice…” The administration of justice necessitates the correction of injustice. It took the Court almost 60 years to overturn Plessy. It has now been 46 years since Roe.

As the Supreme Court has appropriately done in years past, it should once again move to correct injustice by overturning Roe—one of its most fallacious and appalling decisions in history.


Vince Torres
President and Executive Director