The common law basis of our system embodied in the principle of stare decisis and the just requirements of consistency in applying the law demand a respect for precedent. To this objection I offer two replies. First, there was a federal court precedent for the unborn person reading of Fourteenth Amendment before Roe v. Wade, though this fact was virtually ignored by Justice Harry Blackmun and the Roe Court.
In Steinberg v. Brown (1970) a three-judge federal district court upheld an anti-abortion statute, stating that privacy rights "must inevitably fall in conflict with express provisions of the Fifth and Fourteenth Amendments that no person shall be deprived of life without due process of law."
After relating the biological facts of fetal development, the court stated that "those decisions which strike down state abortion statutes by equating contraception and abortion pay no attention to the facts of biology."
"Once new life has commenced," the court wrote, "the constitutional protections found in the Fifth and Fourteenth Amendments impose upon the state the duty of safeguarding it."
Yet in commenting on the unborn person argument in Roe, Justice Blackmun wrote that "the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment." He did so despite the fact that he had cited the case just five paragraphs earlier!
The failure of both appellees and the Court to treat this case is both unfortunate and inexplicable. Second, while our system is based upon a reasonable and healthy respect for precedent, this has never prevented the Court from revisiting and modifying precedent when the erroneous foundation and unjust results of that precedent become manifest. Such is the case with respect to abortion and the Fourteenth Amendment.
In fact, the Supreme Court would not itself 'recriminalize' abortion. If Roe were overturned, as it should be, then the matter would return to the states. It would be state legislatures and Governors who would be doing the banning or permitting of abortions. And that is as it should be.