Roe should be overruled. Almost no one believes it was rightly decided. Instead, the parties defending the case rely almost entirely on stare decisis, the judicial doctrine holding that judicial constancy is better than judicial correctness.

Yet Roe and later abortion cases are not just wrong, but egregiously so. Roe has thwarted the democratic process and made blood sport of judicial confirmations. It has proven hopelessly unworkable. Fifty years of legal and factual development have further demonstrated how wrong Roe is. Stare decisis should be no barrier to overruling Roe. //

Rather than deferring to the “bank and capital” of prior judicial reasoning, Burke identified five criteria needed for precedent “to have the qualities fit to render them of full authority in law”: [1] numerous; [2] concurrent and not contradictory and mutually destructive; [3] made in good and constitutional times; [4] not made to serve an occasion; and [5] agreeable to the general tenor of legal principles. //

Roe flunks at least three of Burke’s five-part test. First, American abortion law is contradictory. Roe relied on a trimester framework. Casey overruled this framework (along with several other of the Supreme Court’s abortion cases) and substituted the novel undue burden standard. Then, the Supreme Court came to opposite results in two nearly identical partial-birth abortion cases. Today, the lower courts cannot agree on what the undue burden standard even is.

Second, Roe was not decided in “good and constitutional times.” For 50 years, the Supreme Court has flitted from one constitutional rationale to another, unable to find the right to an abortion anywhere in the Constitution. Justice Ruth Bader Ginsburg called the decision “difficult to justify” and Justice Elena Kagan describes such former judicial endeavors as “policy-oriented” with judges “pretending to be congressmen.”

Third, Roe is not “agreeable to the general tenor of legal principles,” but departs from those principles at every turn. It is flatly inconsistent with the Supreme Court’s substantive due process precedents. It arrogates the judicial over the legislative. And it makes a mess of every area of law it touches.

The Supreme Court has limited its ability to discover extra-constitutional rights since the days of Roe. For a liberty interest to be protected by the Fourteenth Amendment, it must be “deeply rooted” in our nation’s “history and tradition.” No such right to abortion exists.