Abortion's opponents were still represented by the dissenting justices. They too, used stare decisis in their opinion, but in a quite opposite fashion, laying open another path to those who might still hope to have abortion removed as a legitimate constitutional right.
Indeed, Justices Rehnquist and Scalia attacked the very basis of the plurality's opinion. Rehnquist wrote that, "any theory on the proper scope of stare decisis in constitutional adjudication is bound to be indeterminate," a principle that, followed to its logical conclusion meant that, "virtually any overruling can be attacked or defended on the basis of the [chosen] criteria."
Rehnquist et al. believed that Roe had been wrongly decided in the first place, and should be overruled. Planned Parenthood v. Casey offered an opportunity to revisit the principles of the previous case. Planned Parenthood could have served as a means of reinvestigating the fundamental arguments that had led to the establishment of abortion as a constitutional right, but instead the issue had been avoided entirely. In essence, the Pennsylvania statutes had been struck down based not on their real applicability to the abortion issue, but rather based on their relevance to a prior case, that is, to Roe v. Wade. Rehnquist and his associates wished to view the argument of the state of Pennsylvania as one that spoke to the merits and purpose of the laws concerned. By avoiding these considerations, the other justices were merely delaying a final resolution on the underlying matter of abortion's long-term legality. The use of stare decisis as a form of justification signaled an ability to twist prior precedent to fit current circumstance, or even worse, current desire. The liberal justices had no wish to overturn, or even to re-visit, Roe v. Wade. Stare decisis was but an excuse. Prior decisions did not need to be explained if they could be attributed to precedent. The deeper soul-searching that the Rehnquist approach would have required, together with the necessary intensive exploration of the full range of legal ramifications, would be left to a future court - or to members of Congress.
Precedent, as established by the plurality opinion in Planned Parenthood v. Casey, is indeed frequently a means of fixing or solidifying the law. Precedent can be used to clarify cloudy issues, or move legislation further along already established lines. Nonetheless, stare decisis cannot be used as a shelter to avoid making difficult decisions or laying down firmer principles of action. Ro v. Wade created the idea that abortion is a constitutional right. It based this notion largely on the Equal Protection Clause of the Fourteenth Amendment. Abortion may or may not be a right encapsulated in that amendment's definition of "liberty." Assuredly, Planned Parenthood v. Casey further entrenched the basic constitutionality of abortion, but it left open other avenues for either definitely affirming, or definitely removing this right. Abortion has never been defined as a right in anything but highly technical terms. It is certainly more than just a matter of equal protection. Abortion speaks to fundamental ideas about the definition of life. Neither Roe nor Planned Parenthood appears to have fully adjudicated these matters. The decision in Planned Parenthood v. Casey based on stare decisis was a useful legal maneuver in maintaining abortion's legality, but it has not ended the controversy. The courts must rule firmly one way or the other, either on the basis of current legislation and constitutional law, or in according with laws and amendments yet to be passed. Abortion's standing must be unambiguous.
Works Cited
Dunn, Pintip Hompluem. "How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis." Yale Law Journal 113.2 (2003): 493+.
Peters, Christopher J. "Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis." Yale Law Journal 105.8 (1996): 2031-2115. http://www.questia.com/PM.qst?a=o&d=5000367432
Christopher J. Peters, "Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis," Yale Law Journal 105.8 (1996).
Pintip Hompluem Dunn, "How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis," Yale Law Journal 113.2 (2003)
