Ohio State University law professor Marc Spindelman took to Twitter on Thursday after hearing about the latest attempt to tighten abortion laws in Ohio.
“Unless the new Ohio Heartbeat Bill being reported on now differs from earlier versions, it’s still just as unconstitutional,” Mr. Spindelman wrote.
Whether legislation that would ban abortions after a fetal heartbeat is detected is constitutional is a pivotal part of some supporters’ desire to enact such a law. They would like to prompt a legal challenge that could lead to the potential overturning of Roe vs. Wade, the 1973 Supreme Court decision that said women had a right to abortion before viability.
“In theory, it could. It could be used as a vehicle for overturning or cutting back on Roe against Wade, but the odds seem strongly against it,” Mr. Spindleman said. “Given existing precedence, a ban on post-heartbeat but pre-viability abortions is inconsistent with existing Supreme Court precedent. Therefore, in order for a post-heartbeat but pre-viability abortion ban to stand, the precedence would have to be modified or overturned.”
He is referring to a legal concept known as stare decisis — a Latin term that means “let the decision stand.” Essentially, stare decisis is the doctrine of precedent, the idea that a court generally adheres to previous rulings.
Justice Anthony Kennedy referred to stare decisis when he wrote the Supreme Court’s 1992 decision upholding Roe vs. Wade in Planned Parenthood vs. Casey. That decision, in part, upheld a woman’s right to have an abortion before the fetus is viable or able to live outside the womb.
Ruth Colker, a distinguished university professor at OSU’s Moritz College of Law, said she does not see the Supreme Court overturning Roe vs. Wade in large part because of Justice Kennedy and his opinion in Planned Parenthood vs. Casey. He said “in the strongest terms that stare decisis should be respected,” Ms. Colker said.
“In the Casey decision, the court reaffirmed Roe vs. Wade, and a pivotal member of that court was Justice Kennedy and Justice Kennedy is still on the court,” she said.
“I think we can all agree there are four liberals on the court who would be inclined to reaffirm. Kennedy is No. 5, and he has not done anything to lead a reasonable person to doubt he would still reaffirm Roe.”
Not everyone opposed to abortion rights has historically supported a heartbeat bill because they fear it will lead to a legal challenge that will prompt the Supreme Court to reaffirm — and reinforce — Roe vs. Wade.
“Each time the Supreme Court affirms a decision, the more entrenched it becomes,” Ms. Colker said.
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