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Am J Law Med. 1989;15(2-3):204-10.

The role of stare decisis in the reconsideration of Roe v. Wade.



2 briefs representing separate groups of 54 Congressmen and Senators as "amici," were filed for the appellants in the Webster case. First, the writers wished to convince the Supreme Court that "Roe" had been mistakenly decided. Second, the defense of "Roe" should be overcome by "stare decisis." The outcome of "Webster" could affect Congressional authority in the funding of abortions. "State decisis" is usually a wise policy. But, where the Constitution is involved, the Supreme Court often overrules previous decisions. It is hard to amend the Constitution to correct a mistaken decision. "Roe" cannot be corrected by legislation. Public opinion polls show majority support for abortion restrictions. "Roe" is hard to apply consistently. "Roe" is "the judicial equivalent of a runaway freight train." 19 state legislatures have passed petitions to convene a Constitutional convention to propose a human life amendment to the constitution. The Supreme Court has a history of overturning decisions in the areas of individual rights, due process, and federalism. "Roe" should be reversed. It was "out of step with the legal system and public opinion" in 1973 and is still so today. If the Court does not reject "Roe," the controversy will continue. The Court is "ill-positioned" to resolve the abortion debate. Until the Court overturns "Roe," the other branches of government cannot act.

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