Why legal abortion is bad precedent: Roe v. Wade critics make the case to Supreme Court

Denver Newsroom, Oct 22, 2021 / 16:38 pm (CNA).

Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.

As the Supreme Court considers whether to overturn its precedents mandating legal abortion nationwide, critics of legal abortion have argued that precedent by itself is no reason to preserve flawed decisions — especially rulings that treat taking a human life as a constitutional right.

“The Supreme Court has, in fact, overruled many of its own erroneous precedents, such as Dred Scott and Plessy v. Ferguson, upholding slavery and segregation laws,” said Ligia Castaldi, a law professor at Ave Maria School of Law in Naples, Florida. 

“Roe v. Wade and Doe v. Bolton are exactly this kind of erroneous precedent,” she told CNA, “with their creation of a non-existent fundamental right to abortion, and their judicial regulation of abortion on the basis of a viability standard and an overbroad definition of the health exception.”

The court’s rulings in Roe v. Wade and companion case Doe v. Bolton legalized abortion nationwide in 1973, while the court’s 1992 decision in Planned Parenthood v. Casey reaffirmed legal abortion.

Castaldi said the principle of stare decisis, a Latin phrase roughly meaning “to stand by things that have been decided,” is a principle that “generally binds the U.S. Supreme Court to its own precedent, its own decisions.”

Sharply different interpretations of that principle as it relates to abortion will be on display Dec. 1 when the nation’s highest court is set to hear oral arguments in Dobbs v. Jackson Women’s Health Organization, the highly charged Mississippi case viewed as a decisive test of Roe and the legal reasoning that has sustained it as the law of the land for the past 48 years.

Three key justices — Chief Justice John Roberts, Justice Brett Kavanaugh, and Justice Amy Coney, all nominees of Republican presidents — have each demonstrated deference for stare decisis. A recent analysis in Slate said the legal team for abortion proponents will try to persuade at least two of those justices that the court’s prior abortion decisions should not be set aside, with Roberts considered the most persuadable and Barrett the least persuadable. Mississippi and many of its supporters in the Dobbs case also address precedent prominently in their briefs.

The principle of stare decisis “protects expectations of people subject to the law,” explained Teresa Collett, a law professor at the University of St. Thomas School of Law in Minneapolis, Minnesota. 

“It promotes societal stability, thereby shaping people’s behavior. This is particularly true in the area of economic activity,” Collett told CNA. “Stare decisis does not prevent courts from making mistakes. It keeps them from reinventing the wheel every time a similar, but slightly different, set of facts comes before it.”.

Castaldi of Ave Maria Law said legal principles regarding precedent are “intended to promote consistency and predictability of Supreme Court decisions.”

“They are generally a good idea, but just as in every other legal rule, there may be legitimate exceptions,” she said. “They certainly do not prevent the Supreme Court from correcting erroneous decisions, such as Roe v. Wade.”

At issue in the Dobbs case is the constitutionality of Mississippi’s 2018 ban on most abortions after 15 weeks of pregnancy.

As Castaldi explained, the state law directly contradicts Roe, Doe, and Casey. Roe prohibited states from banning abortion prior to fetal viability, or the capacity of the fetus to survive outside the woman’s body (now considered to be at approximately 24 weeks gestation) while Casey barred states from adopting regulations that pose an “undue burden” for a woman exercising her legal right to obtain an abortion.

“It also challenges Doe’s health exception, since Mississippi defines health to mean only physical, not mental health of the mother,” Castaldi said.

“Thus, it begs the question of whether the court should invalidate Roe and the only way that the Court could do this is by departing from stare decisis,” she continued. “That will not be easy to do since Roe has been reaffirmed in the past, such as in Casey, and again in June Medical, where Chief Justice Roberts shocked fellow Catholics by declaring that Roe was binding precedent under stare decisis.”

The 2020 decision June Medical Services, LLC v. Russo concerned a Louisiana law that held abortion clinics to the same standards as other surgical centers, such as requiring doctors to have admitting privileges at a local hospital. The court ruled this posed substantial obstacles to a woman’s access to abortion.

Roberts’ concurring opinion in the 5-4 case said the law was “just as severe” as a similar Texas law struck down in a 2016 Supreme Court decision. Though he had dissented from that 2016 ruling, he said the principle of stare decisis meant that Louisiana’s law could not stand.

However, Castaldi noted, the Supreme Court has already “chipped away” at its precedent in Roe. Casey affirmed a right to abortion based on personal liberty, rather than Roe’s privacy finding, she said, while also dispensing with Roe’s trimester-based system for evaluating state abortion laws.

For Castaldi, such developments allow grounds for further change.

 “Therefore, the court can rely on its own precedent to either undermine or entirely abolish Roe,” she said.

‘Precedent on top of precedent’?

The principal brief against the Mississippi law was filed by attorneys from the pro-abortion rights group Center for Reproductive Rights, on behalf of the Mississippi abortion clinic Jackson Women’s Health Organization. This brief cites principles of precedent, like stare decisis, to argue that all pre-viability bans on elective abortion are unconstitutional. The viability standard is “well grounded in the constitution and the court’s broader jurisprudence.”

The brief also faults backers of the Mississippi law for failing to establish an alternative precedent. If a state seeks to overrule a repeatedly affirmed precedent, the brief argues, it “should at least propose and seriously develop an alternative legal framework.”

The pro-abortion rights brief depicts Casey as “precedent on top of precedent,” saying the decision backed up the correctness of the viability line.

“Even if contested, constitutional rights that have ‘become embedded’ in ‘our national culture’ are entitled to heightened stare decisis effect,” the brief states. It argues that the right to an abortion is grounded in precedents guaranteeing bodily autonomy, family decision-making, and access to contraception. The brief also depicts the viability line as “a principled point” at which to strike the balance of “the individual’s interests against the state’s interests.”

“(T)ime and again, the Court has reaffirmed that it is ‘imperative’ to retain a ‘woman’s right to terminate her pregnancy before viability’,” the brief states.

For Collett, however, the constitutional arguments are key to determining whether precedent should stand.

“Both Roe and Casey are cases that have no foundation in the text of the Constitution, nor are they consistent with the states’ history of outlawing abortion both to protect the unborn child and the mother,” the University of St. Thomas law professor said. “As several justices have noted, stare decisis has less weight in reviewing interpretations of constitutional text.”

The constitutional amendment process makes it “extremely difficult” to correct judicial mistakes. When it comes to the interpretation of the constitution “getting the answer right is more important than stability,” said Collett.

While abortion precedent has at times been described as “settled law,” in Castaldi’s view this perception is not accurate.

“A case is settled law when no serious challenge to its holdings sticks in state or federal courts and its essential tenets have been repeatedly reaffirmed by the U.S. Supreme Court,” she said. “Roe and Doe are quite the opposite. Roe is one of the most challenged Supreme Court cases of all time and continues to be incredibly divisive both among the justices and the general population.”

At least four Supreme Court justices have called for Roe to be overturned: Chief Justice William Rhenquist and Justice Byron White in the 1989 decision Webster v. Reproductive Health Services, and Justices Antonin Scalia and Clarence Thomas in the Casey decision.

“Roe has sometimes been partially reaffirmed but also undermined by subsequent cases, therefore it is not settled constitutional law,” Castaldi said.

Mississippi Attorney General Lynn Fitch and other leaders made their case for the state law, arguing in their brief that stare decisis is itself an “overwhelming” reason to overrule Roe and Casey.

“Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition,” the Mississippi brief states. Roe itself broke from precedent because it invoked “a general ‘right to privacy’ unmoored from the Constitution.”

“Abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, ‘the purposeful termination of a potential life,’” the brief continues. “Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.”

Clashing views on precedent

Arguments revolving around abortion precedent are integral to a number of other amicus briefs in the Dobbs case.

In an amicus brief filed at the Supreme Court last month, the Biden administration’s Justice Department argued that Mississippi is seeking to overturn nearly 50 years of court rulings that upheld legal abortion.

The administration’s brief asks the court to maintain its previous abortion precedents. Legal abortion “means that every American woman of reproductive age has grown up against the backdrop of the right secured by Roe and Casey, which has become even more deeply woven into the Nation’s social fabric,” the brief states. The brief characterizes abortion bans as “forcing a woman to continue a pregnancy against her will.”

On the other side of the Dobbs case, Collett was the lead counsel for an amicus brief of 240 women scholars and professionals and pro-life feminist organizations. In contrast to backers of legal abortion who claim it is necessary for women’s progress, this brief argues that the current abortion rights precedent disadvantages women.

The brief states that legal abortion changes sexual behavior and increases the rate of sexual relations outside of committed relationships, which in turn leads to more non-marital pregnancies, single parenthood and abortion.

Abortion access changes the point of view of the father and of the wider society to see single parenthood as “always the woman’s ‘free choice’.” Claims that unrestricted access to abortion is “a necessary and a major contributor to women’s economic and social advances” are claims that “simply cannot be demonstrated,” their brief said.