Overturning Roe v. Wade ‘wrong result,’ upsets Supreme Court precedent, former WA AG says

May 5, 2022, 11:28 AM | Updated: May 6, 2022, 6:37 am
(U.S. Supreme Court a previous night, on May 5, 2022 (Getty Images)
(U.S. Supreme Court a previous night, on May 5, 2022 (Getty Images)

The U.S. Supreme Court is poised to make a ruling on Roe v. Wade, potentially upturning the constitutional right to abortion and leaving the issue up to the states.

In the Dobbs v. Jackson Women’s Health Organization draft opinion, Associate Justice Alito points to two exceptional examples in the Supreme Court’s history wherein it was deemed necessary to upset landmark rulings: Plessy v. Ferguson, the separate but equal ruling later overturned by Brown v. Board of Education; Korematsu v. the United States, used to justify the internment of Japanese Americans during WWII.

Neither example is an appropriate comparison to draw with Roe v. Wade, according to former Washington Attorney General Rob McKenna.

Report: Supreme Court draft suggests Roe could be overturned

“Those cases are notorious, and the Supreme Court’s history illustrates why you don’t lightly ever overturn a case. You only do it in the most extreme … circumstances. I don’t see how Roe can be viewed as egregious when it clearly reflects the views of a significant majority of Americans who believe that abortion should be legal, at least in some circumstances,” McKenna told KIRO Newsradio.

McKenna views the potential to overturn Roe within the lens of preserving the integrity of the court within the context of maintaining stare decisis — stand by your decision.

“If the majority overturns Roe v. Wade — which I think is a bad idea for a number of reasons, partly having to do with the importance of precedent in our system of jurisprudence — they return the decision of how to regulate, allow, or prohibit abortion to the states,” McKenna added.

“Without Roe, you don’t have a constitutional right to an abortion. That’s a very dramatic result. It’s the wrong result in my view because Roe has been on the books, as modified by Casey v. Planned Parenthood, for almost 50 years now.”

The former attorney general noted that the leaked draft opinion is far from indicative of the court’s final ruling, and draft opinions often change before becoming the final word.

Inslee: We are going to fight to keep Washington a pro-choice state

“I don’t think it’s likely to change in the final result, which is to overturn Roe v. Wade. But we don’t know that,” McKenna offered.

“All we know is that, after the court heard the argument in the Dobbs case … five members of the court, at least, decided they were going to rule in favor of the state of Mississippi … Of course, the state did invite the court to overturn Roe v. Wade, but it isn’t necessary for the court to overturn Roe v. Wade to change the law.”

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Overturning Roe v. Wade ‘wrong result,’ upsets Supreme Court precedent, former WA AG says