Sen. Lindsey Graham said the other day that a Justice Kavanaugh could reverse Roe v. Wade, like any other precedent:
“Here’s what I hope [Kavanuagh] will do: If there’s a case before him that challenges Roe v. Wade that he would listen to both sides of the story, apply a test to overturn precedent,” Graham said on CNN’s “State of the Union.”“The bottom line here is there’s a process to overturn a precedent, and I think he understands that process, he will apply it,” he continued. “If it were up to me, states would make these decisions ― not the Supreme Court. But it is a long-held precedent of the court. It will be challenged over time, and I hope he will give it a fair hearing.”
I find Graham’s framing to be very useful and it reminds me of the argument that I raised in a prior diary, Two provocative questions for Kavanaugh, namely that there is no precedent for reversing a decision like Roe v. Wade that recognizes a personal liberty right protected by the Constitution. People and the press act like this is something normal and accepted to be debated on such terms, but in fact nothing like the reversal of Roe has ever occurred in our history.
To be clear, the Supreme Court has overturned prior decisions, including decisions that interpreted the Constitution. But there has never been a case when one Supreme Court has recognized a personal liberty right under the Constitution, and then a subsequent Supreme Court took that right away.
The case for Roe is even stronger because it was decided 7-2, has stood for some 45 years and has had its core holding — a woman’s constitutional right to obtain an abortion — repeatedly reaffirmed by multiple Supreme Courts over the years.
At this point, the only constitutional way to change the Constitution on this point is through an amendment. (See Const. Art. V)
In short, there is no precedent for reversing the Roe precedent. It would be a further tragedy if we let that truth slip away silently and without a fight.