"Speaking in the same year that Casey was decided, Justice Ruth Bader Ginsburg observed that the Supreme Court has a “will for self-preservation and the knowledge that they are not a bevy of Platonic Guardians, and the Justices generally follow, they do not lead, changes taking place elsewhere in society.” Roe was an egregious and glaring exception; the Supreme Court attempted to lead the country in a different direction on abortion, but the country has not followed. Roe v. Wade remains one of the most controversial judicial decisions in American history. Even after 50 years, dozens of additional abortion decisions, and an ongoing vigorous national debate, most Americans oppose most of the abortions that Roe made legal. Even the most creative legal scholars have failed to find a reasonable constitutional justification for Roe, and most have stopped trying. Roe’s abortion regime is far more permissive than the common law or statutes, in England or America, have ever provided. Lower courts have never been able consistently to discern and apply the subjective holdings in the Court’s abortion cases. And even the Court’s chosen basis for creating the right to abortion—the detriment that prohibiting abortion would impose—has been significantly undermined by dramatic economic, legal, and social changes in society and culture. From changing public sentiment on abortion to advances in medical technology that reveal the mysteries of fetal development to expanding opportunities for women, the redefinition of their societal roles, and a wanting connection between abortion and women’s economic and social progress, it is appropriate for the Court to—as Justice Ginsburg rightly noted—follow the changes that have occurred elsewhere in society and put a halt to its misguided leadership on the issue of abortion. The only solution to this crisis is for the Supreme Court to correct its grave error and acknowledge that the Constitution does not protect a right to abortion. Roe and Casey went beyond distorting or incorrectly interpreting the Constitution; they ignored the Constitution altogether, exceeding the judiciary’s proper authority in the process. Dobbs v. Jackson Women’s Health Organization provides an opportunity for the Court to correct this grave error."
January 1, 1970