Supreme Court Justice Clarence Thomas has issued a call for his colleagues to overturn “demonstrably erroneous decisions” even if they have been upheld for decades, prompting legal observers to say Thomas was laying the groundwork to overturn the 1973 case of Roe v. Wade, which established a constitutional right to abortion. Thomas’ opinion came in a case concerning the so-called “double-jeopardy” doctrine, which prohibits an individual from being charged twice for the same crime. Both pro-life and pro-choice advocates quickly noted the implications of his reasoning for a potential revisiting of Roe v Wade.
“When faced with a demonstrably erroneous precedent, we should not follow it,” Thomas wrote, noting that lower federal courts should also disregard poor precedents. “We would eliminate a significant amount of uncertainty and provide the very stability sought if we replaced our malleable balancing test with a clear, principled rule grounded in the meaning of the text,” Thomas countered. Thomas concluded: “In my view, if the Court encounters a decision that is demonstrably erroneous, the Court should correct the error, regardless of whether other factors support overruling the precedent.
A demonstrably incorrect judicial decision is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.” Thomas’ opinion was the second in as many months to hearten pro-life advocates. In May, Thomas wrote a concurring opinion in a separate case that the Supreme Court would soon have to address the constitutionality of pro-life abortion laws head-on. The justices, by a 7-2 vote upheld an Indiana law requiring the cremation or burial of fetal remains, but they declined to take up the constitutionality of a law that would have barred abortion based on disability, sex, or race.
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