Overturning ‘Roe’ Is Radical, Not Conservative

Bret Stephens: “A half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.”

“It would be a radical, not conservative, choice.”

“What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.”

“This is partly a matter of stare decisis, but not just that. As conservatives, you are philosophically bound to give considerable weight to judicial precedents, especially when they have been ratified and refined — as Roe was by the 1992 Planned Parenthood v. Casey decision — over a long period. The fact that Casey somewhat altered the original scheme of Roe, a point Justice Alito makes much of in his draft opinion, doesn’t change the fact that the court broadly upheld the right to an abortion. ‘Casey is precedent on precedent,’ as Justice Kavanaugh aptly put it in his confirmation hearing.”