Interesting Roe perspective

How does Roberts decide whether to bow to precedent and uphold Roe or correct an error and strike it down? As it happens, seven justices faced this question in 1992. In Planned Parenthood v. Casey http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833 , three of them (Sandra Day O'Connor, Anthony Kennedy and David Souter) joined the two justices who thought Roe was correctly decided (Harry Blackmun and John Paul Stevens) to uphold "Roe's essential holding." Here is an excerpt from the O'Connor-Kennedy-Souter ruling, for which all three claimed authorship:

"Where, in the performance of its judicial duties, the [Supreme] Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . ., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown [v. Board of Education] and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."

Justice Antonin Scalia, dissenting from this part of the ruling, sharply disagreed:

"The Court's description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue--as it does over other issues, such as the death penalty--but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible."

That Scalia had the better of this argument is all the more clear given that we are still debating this matter 13 years later and 32 years after Roe. But note that this is an argument over politics, not law.