Rick Garnett of ND and Michael Stokes Paulsen of the U. of Minnesota in the Weekly Standard on the application of stare decisis to the partial-birth abortion ban:

The application of Lincoln’s views to Stenberg, and to the Court’s upcoming partial-birth-abortion cases, is clear. Stenberg did not reflect "the unanimous concurrence of the judges," but was a hotly contested 5-4 decision from which even Justice Kennedy–who continues to believe that the Constitution protects a right to abortion–vigorously dissented. In addition, and to put it mildly, Stenberg is not "in accordance with legal public expectation" and "the steady practice of the departments throughout our history." Rather, it is a still-recent and tendentious departure from prior decisions of the Court. It certainly has not received the approbation of the other departments of government. And this six-year-old decision has not–again quoting Lincoln–been "before the court more than once" or "affirmed and re-affirmed through a course of years."

Contrary to the ruling in Stenberg, nothing in our constitutional text, history, tradition, or structure supports, let alone compels, the conclusion that the American people may not affirm our commitment to decency and human dignity by rejecting partial-birth abortion. Nor does the judicial policy of stare decisis shackle the Court to such a horribly wrong precedent–be it Stenberg or Dred Scott.