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Introduction Roe v. Wade under Attack THE SUPREME COURT DECISIONS in Roe v. Wadel (1973) and its companion case, Doe v. Bolton,z increased enormously the availability in the United States of legal abortions. Since those decisions , people on opposite sides of the abortion issue have often focused on Roe v. Wade. Those (generally) opposed to abortions have called for the reversal of that decision, whether through constitutional amendment , congressional action, or judicial overturn. In contrast, people favorable to legal abortions have tended to rally round the Roe v. Wade decision as a judicial precedent that should remain in force. An examination of the rationale and decision in that case is thus a good place to begin a discussion of the constitutional status of abortion. An understanding of the constitutional status of abortion requires a reexamination of Roe v. Wade also because the majority that decided the case has been eroded by retirement.3 Some of their replacements have openly (:riticized the decision. One example is Justice O'Connor's dissent in City of Akron v. Akron Center for Reproductive Health (1983). She writes, "There is no justification in law or logic for the trimester framework adopted in Roe and employed by the Court today on the basis of stare decisis."4 Stare decisis is the principle that present and future decisions should follow the precedents established by prior judicial decisions. No one doubts that stare decisis should be adhered to most of the time, as it enables people to use past judicial opinions to predict the Court's response in similar cases. Without stare decisis, it would often be impossible for people to predict accurately how the 1 2 Introduction Court might interpret a statute or constitutional clause. People would then lack the information necessary to assure their compliance with statutory and constitutional legal requirements. So general adherence to stare decisis is a precondition of the security that comes from knowing that one's behavior is law abiding. For these reasons, a judge rarely finds a prior decision so repugnant that she is willing to sacrifice stare decisis. Yet O'Connor is willing to make an exception where Roe v. Wade is concerned. Joining O'Connor in this negative attitude toward Roe v. Wade is Justice Antonin Scalia, another member who joined the Court in the 1980s. He writes in Webster v. Reproductive Health Services (1989) concerning Justice Blackmun's worry that Roe v. Wade may be overruled : "I think that should be done."s The two justices who originally dissented from the 7 to 2 decision in Roe v. Wade, Justices Rehnquist and White, show no signs of having changed their minds about the propriety of that decision. In Thornburgh v. American College of Obstetricians and Gynecologists6 (1986) Justice White seconded O'Connor's willingness to depart from the Roe v. Wade precedent. Rehnquist, now chief justice, maintained in his Webster opinion that "the rigid Roe framework is hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does."7 He, too, referred in this context to the limits of stare decisis. Since the votes of only four justices are needed for a writ of certiorari , which brings a case before the Supreme Court, it seems almost certain that Justices Rehnquist, White, O'Connor and Scalia will mandate consideration of one or more cases that provide the opportunity for a major revision or wholesale reversal of Roe v. Wade. So an examination of the constitutionality of abortion rights cannot reasonably be premised on Roe as a precedent that the Court will continue to follow. Instead, the rationale behind Roe must be explored and, if it is found wanting, a constitutionally acceptable substitute must be developed if the Constitution is to continue protecting abortion rights. Developing a substitute rationale is a major goal of the present work. Individual Rights and Majority Rule The present work concentrates on issues of constitutional law. Embodied in our Constitution is the democratic ideal of majority rule. Through their representatives, people are supposed to be able to govern Introduction 3 themselves by passing legislation. This is representative democracy, which is also called "indirect democracy" and "a republican form of government." The majority does not (usually) govern directly by passing legislation, but indirectly by electing those who are thereby authorized to legislate. In addition to the indirectness of the majority rule that it institutes, the Constitution further limits majority rule so as...