GERBER: The Supreme Court’s Latest Abortion Case Could Have Major Consequences For A Longstanding Legal Principle

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Scott Gerber Contributor
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On December 1 the Supreme Court of the United States will hear oral arguments in the most significant abortion case in thirty years, Dobbs v. Jackson Women’s Health Organization. At issue is whether a Mississippi statute that bans abortion after fifteen weeks of pregnancy is constitutional or unconstitutional. The Petitioners, the Respondents, and the United States all argue in their merits briefs that to decide the case the Court must either reaffirm or overturn Roe v. Wade and Planned Parenthood v. Casey.

The Supreme Court’s abortion jurisprudence is complicated. In 1973 the Court ruled in Roe that a state could not ban or regulate abortion in the first trimester of pregnancy; it could not ban but could regulate abortion in the second trimester; and it could ban or regulate abortion in the third trimester. Roe has been expressly reaffirmed three times: in Akron v. Akron Center for Reproductive Health (1983), Thornburgh v. American College of Obstetricians & Gynecologists (1986), and Casey (1992).

Casey is the key post-Roe precedent because Casey overruled Akron and Thornburgh, and modified Roe. In Casey, the Court, in a plurality decision, upheld the “central premise” of Roe — that women have a constitutional right to abortion — but replaced Roe’s trimester framework with a more flexible viability standard: a state cannot ban pre-viability abortions, although it may regulate pre-viability abortion access as long as the regulation does not create an “undue burden” on the woman seeking an abortion. The decisions in the Court’s abortion precedents were accompanied by vigorous dissents.

More recently, in 2016’s Whole Women’s Health v. Hellerstedt the Court modified Casey (which had modified Roe), and held that when determining whether a state regulation creates an undue burden on abortion access, the Court must weigh the regulation’s benefits against the burden it imposes. In 2020’s June Medical Services v. Russo, the Court invalidated a set of Louisiana abortion restrictions that were nearly identical to those from Texas invalidated in Hellerstedt, but the controlling opinion was a concurrence by Chief Justice John Roberts in which the Chief Justice explained that stare decisis compelled him to void Louisiana’s abortion restrictions while he simultaneously disputed Hellerstedt’s interpretation of Casey (and, seemingly, Casey’s interpretation of Roe).

Abortion divides the Left and Right like no other subject in constitutional law, and it should come as no surprise that the Left maintains that the Mississippi law at issue in this Term’s Dobbs case is unquestionably unconstitutional and the Right insists that it is unquestionably constitutional. What is surprising is that both sides invoke stare decisis to justify their positions.

Stare decisis, which is Latin for “let the decision stand,” is a judicial doctrine that instructs judges not to overrule a prior decision they now believe was wrongly decided unless there is a really good reason to do so. In determining whether to strip a precedent of its binding authority, courts balance a number of factors, including the workability of the precedent, the reliance interests at stake, whether the precedent has been dissipated by subsequent legal developments and whether overturning the precedent would threaten the legitimacy of the judiciary.

The Left presents a conventional account of stare decisis in support of its claim that the Mississippi law is unconstitutional. For example, the ACLU’s David Cole wrote in the November issue of The New York Review of Books that “Every argument against Roe was squarely rejected in the Supreme Court’s 1992 Casey decision, and nothing has changed since then except the composition of the Court.” The title to Cole’s essay could not have been clearer about what Cole thinks the Court should do with Roe (and Casey) in this Term’s Mississippi case: “Let the Decision Stand.”

A friend-of-the-Court brief filed by 236 Democratic Members of Congress, including House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, likewise insists that stare decisis requires the nation’s highest court to void the Mississippi law at issue in Dobbs: “Adherence to Roe and Casey is important … to reaffirm this court’s commitment to stare decisis and the rule of law, … and preserving respect for the rule of law is an elemental judicial task.”

The Right maintains, in contrast, that stare decisis mandates that Roe and Casey be overruled because both were “egregiously” wrong and the Constitution’s text trumps judicial decisions that are inconsistent with the Constitution. Conservative law professor Michael Stokes Paulsen wrote in Public Discourse that “The doctrine of stare decisis cannot properly be understood or applied in such fashion as to permit the justices deliberately to render a decision contrary to the correct reading of the Constitution.” Paulsen declared that “if the Court overrules Roe and Casey, the [Mississippi] Dobbs case would rank among the most magnificent decisions in the Court’s history.”

Harvard’s Mary Ann Glendon and Notre Dame’s O. Carter Snead published a lengthy article in the fall issue of National Affairs entitled “The Case for Overturning Roe” that made an argument similar to that of Paulsen. They noted that “the Court’s abortion jurisprudence is untethered from the text, history and tradition of the Constitution,” and that it “elevates a particular vision of human identity and flourishing that is both constitutionally unjustified and morally pernicious.” With respect to stare decisis specifically, Glendon and Snead advised that “The decisions that compose the Supreme Court’s abortion jurisprudence were … not merely wrongly decided, but uniquely, historically, and notoriously badly reasoned. Principles of stare decisis counsel their reversal.”

Swedish economist and sociologist Gunnar Myrdal, winner of the Nobel Prize in 1974, famously observed in the mid-twentieth century that race has always been the “American dilemma.” The same may now be said about abortion. And I do not merely mean as a point of contention in the culture wars. Rather, abortion is an “American dilemma” — a world dilemma, frankly — because it directly impacts two fundamental rights, life and liberty. What has been lost in the sound and fury surrounding the abortion debate, including the recent disagreement involving stare decisis, is the most basic point of all: it cannot be decided whether a woman has a constitutional right to abortion until it is established when life begins. If the unborn child is a life, then there cannot be a constitutional right to abortion because the fundamental law of nature is the preservation of life. But if the unborn child is not a life, then there is a constitutional right to abortion because a woman’s fundamental right to liberty — to freely direct the course of her life — surely includes the childbearing decision.

The Supreme Court has repeatedly ducked the question of when life begins in its prior abortion decisions. Will it finally address that dispositive question in Dobbs? Clearly, stare decisis cannot resolve the case.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press).