4 ms·
(1) Stare decisis should not be followed blindly. "Wrong" and "egregiously wrong" are subjective gradations. Recall that Dred Scott or Plessy weren't considered
by Dracophoenix 4y ago
(1) Stare decisis should not be followed blindly. "Wrong" and "egregiously wrong" are subjective gradations. Recall that Dred Scott or Plessy weren't considered wrong or even "egregiously" wrong for decades after their decision until they were. Also, Casey vs Planned Parenthood did partially overturn Roe vs Wade. So to say that courts found Roe "fine" is misleading.
(2) Roe vs Wade is not premised on the 9th amendment (as much as I would have liked that) or cases involving substantive due process (Lochner vs New York), but on Griswold vs Connecticut, which relied an unsubstantiated argument of "penumbras" and "emanations", as though rights can be "found" in the same way that one summons Captain Planet. Roe vs Wade does not make a protestation to the defense of bodily autonomy as a fundamental right. In fact, Roe explicitly rejects such arguments.
- Dracophoenix 4y agoA mistake on my part: Griswold was partially predicated on the 14th amendment as one of the "emanations" but, unlike Lochner, not given a first-principles argument for substantive due process under the 14th amendment.