Let the Decision Stand

Almost thirty years ago, in 1992, the Supreme Court appeared poised to overturn Roe v. Wade, its 1973 decision declaring that women have a constitutional right to have an abortion. Since 1985 the Reagan administration had been urging the Court to reverse Roe, and the George H.W. Bush administration had continued the campaign. Reagan had appointed three new conservative justices: Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy, all of whom were viewed as critics of Roe. Bush had added two more, Clarence Thomas and David Souter. Chief Justice William Rehnquist and Justice Byron White, both still on the Court in 1992, had dissented when Roe was decided. When the Court agreed to review Planned Parenthood of Southeastern Pennsylvania v. Casey, therefore, it looked as if there were more than enough votes to upend Roe.

So if you feel that we have been here before, it’s because we have. On December 1 the Supreme Court will again hear arguments in a case that asks it to abandon Roe: Dobbs v. Jackson Women’s Health Organization. At issue is a Mississippi law that bans abortions after fifteen weeks of pregnancy, with no exceptions for rape or incest. The Court includes three new members appointed by a Republican president who promised to name justices who would reverse Roe: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

In 1992, to the consternation of antiabortion activists, the Court, instead of reversing Roe, blinked and upheld it by a vote of 5–4. Justices O’Connor, Kennedy, and Souter wrote the controlling opinion, which reaffirmed “the essential holding of Roe” that states may not prohibit abortion before viability, the point at which the fetus can in theory survive independently outside the womb. (Viability generally occurs at about twenty-four weeks of pregnancy.) In justifying its decision, the Court in Casey reasoned that Roe was consistent with other precedents protecting bodily integrity and intimate decision-making regarding the family and child-rearing; that the right to abortion was critical to women’s equality; and that reaffirming it was supported by stare decisis, the doctrine that requires the Court to adhere to its own decisions in future cases.

At the same time, the Court in Casey diluted Roe’s protections, permitting states to regulate (but not prohibit) abortion prior to viability, as long as they did not impose an “undue burden” on a woman’s access to abortion. It upheld Pennsylvania’s requirement that doctors provide information to pregnant patients designed to encourage them to give birth and impose a waiting period before performing the abortion. But it insisted that the final decision to abort had to be left to the woman, and the Court struck down a requirement that women notify their husbands before obtaining an abortion. So Roe survived, albeit in a diminished form.

Will history repeat itself? The signs are not good. In what some fear might be a prelude to the Dobbs decision, the Supreme Court in September let stand a Texas law that bans abortions after just six weeks of pregnancy, before many women even realize they are pregnant. (Doctors measure pregnancy from the first day of a woman’s last period before conception, usually weeks before she conceives; six weeks of pregnancy is therefore just two weeks after a woman with a regular four-week menstrual cycle would first have an inkling that she was missing her period and might be pregnant.) Such a ban is patently unconstitutional under existing law, because it prohibits pre-viability abortions. Every similar pre-viability ban has been halted by the courts before it could take effect.

But the Texas law has a twist: in an effort to frustrate federal court review, Texas legislators directed that it should be enforceable not by state officials but by private citizens. This makes it less clear whom to sue in advance of the law’s actual enforcement. A group of clinics challenged it anyway, naming as defendants state judges, clerks, the Texas attorney general, and a private party who had threatened to enforce the law.¹ The case reached the Supreme Court on its “shadow docket,” that is, on an emergency motion that required swift resolution without full briefing or argument. Noting that the law raised peculiar and novel issues regarding the proper defendants, the Court, by a 5–4 vote, declined to block it from taking effect.

That decision likely stems from the law’s unusual form rather than from a settled view that states can in fact ban abortions at six weeks. But it’s not an encouraging omen. Had a southern state authorized private citizens to sue anyone attending an integrated school after Brown v. Board of Education declared segregated schools unconstitutional, there can be little doubt that the Court would have immediately blocked the law’s enforcement. The Court’s failure to do so in the Texas case means that abortions after six weeks of pregnancy have all but stopped in the state while the case proceeds. And if Mississippi gets its way in Dobbs, laws like Texas’s could well become constitutional. ²

Of at least equal concern, the Court seems to have six justices who would not have voted with the majority in Roe. In its last fully briefed and argued abortion case, June Medical Services v. Russo (2020), the Court struck down a Louisiana law imposing wholly unnecessary and burdensome restrictions on abortion clinics. The vote was 5–4, and Chief Justice John Roberts, ordinarily no champion of abortion rights, joined the four liberals then on the Court only because the Louisiana law was virtually identical to a Texas law the Court had struck down four years earlier. Roberts had dissented in the Texas case but in the Louisiana one felt compelled to abide by the Court’s prior ruling. Justices Samuel Alito, Thomas, Gorsuch, and Kavanaugh all dissented. And shortly thereafter, Justice Ruth Bader Ginsburg died, and Barrett, a conservative, took her place.

When Mississippi asked the Supreme Court to review its law in Dobbs, it identified the legal question as “whether all pre-viability prohibitions on elective abortions are unconstitutional,” and argued that the Court could rule for it without overturning Roe. But that was disingenuous, given Roe’s “essential holding” that states cannot prohibit abortion before viability. And once the Court agreed to hear the case, Mississippi shifted course and expressly urged it to reverse Roe outright.

In Mississippi’s view, the Constitution offers no protection for abortion. Accordingly, states should have the same broad leeway to regulate abortion as they have to enact routine laws that implicate no constitutional rights, such as traffic regulations. Adopting that view would give state legislatures the power to decide whether a woman can have an abortion. They could ban abortions at fifteen weeks, six weeks, or even at conception. In about half the states, eliminating Roe would likely mean that women would have no choice at all.

Will the new Court, with its three Trump appointees, go where the Court in 1992 dared not? Or will it once again leave Roe’s central premise intact? As Casey illustrates, the Court also has the option of preserving Roe while watering it down still further. It might move up the point when states can prohibit abortion or declare that state interests other than the potential life of the fetus and maternal health justify new limits on abortion. There is more than one way to chip away at a right.

But one thing is clear. Every argument Mississippi makes to reverse Roe was made—and squarely rejected—in Casey. The two principal arguments that led the Casey Court to reaffirm Roe thirty years ago apply equally, if not more forcefully, today. There is truly nothing new here—except the identity of the justices.

First, the Court in Casey reasoned that Roe was correctly decided. The Court has for more than a century, in a wide range of cases, ruled that the Fourteenth Amendment’s guarantee that no state may deprive any person of “liberty” without due process of law protects bodily integrity from unjustified state intrusion. Thus states cannot pump a suspect’s stomach to see if he has swallowed drugs, sterilize convicted criminals, or administer antipsychotic drugs to prisoners against their will absent a compelling need. Forcing a woman to continue a pregnancy she does not want interferes directly with her right to control her own body.

“Liberty” has also long encompassed certain intimate, personal decisions about private and family life. The Court has deemed constitutionally protected “the right of the individual to…establish a home and bring up children,”³ to use contraception, to choose whom to marry, and to engage in sexual relations with a consenting adult. These decisions, the Court explained in Casey, involve “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” Whether to continue a pregnancy and have a child has profound implications for a woman’s physical and emotional health, family, economic status, education, career, sense of self, and indeed entire life path. Few decisions are more consequential or personal.

Mississippi objects that abortion is categorically different because “no other right involves, as abortion does, ‘the purposeful termination of potential life.’” But the fact that a state seeks to protect important, even life-and-death, interests does not negate the existence of individual rights. Even though they are seeking to save lives, police investigating a kidnapping or a serial murderer must still honor a suspect’s Fourth Amendment right to privacy and Fifth Amendment privilege against self-incrimination. And where the government regulates conduct in the name of national security, public safety, or public health—all “compelling state interests” in protecting human life—its actions must still comply with constitutional rights. Rights do not disappear merely because there are important competing interests at stake. Rather, the courts’ job is to acknowledge the interests on both sides and strike a fair balance.

While you’d never know it from much of the antiabortion rhetoric, Roe and Casey did just that. They expressly recognized the state’s interest in protecting potential life. But they also acknowledged the fundamental interest of the woman making a decision about her own body and life. Roe and Casey do not afford women an unrestricted right to abortion. States can, throughout the pregnancy, impose rules designed to encourage women to continue their pregnancies, and can prohibit abortion altogether after viability, subject to exception only if continuing the pregnancy would threaten the woman’s life or health. This is a compromise that honors the important interests on both sides. But at its core is the principle that the state’s interests in potential life only become compelling enough to prohibit abortion when the fetus could survive outside the womb.

Mississippi criticizes the viability line as arbitrary, and the Court could in theory rule that states can prohibit abortion at an earlier stage of pregnancy without eliminating a woman’s right to choose abortion altogether. But Mississippi offers no alternative principle. It seeks to evade the difficult balancing judgment altogether by simply disregarding the woman’s interest. But once one acknowledges that both the pregnant woman and the state have important interests at stake, viability offers the only principled line, providing that the state cannot favor the fetus over the woman until it can survive outside the womb. Even so, that compromise allows the state to impose a substantial burden on a woman desiring an abortion after viability, who must undergo childbirth against her will. But before viability, the state’s interest in potential life does not justify forcing a woman to surrender her body to that interest.

As the philosopher Judith Jarvis Thomson argued, in no other circumstance do we require individuals to sacrifice their bodies to the survival of another. She hypothesized a situation in which you woke up in a hospital and found yourself attached to another human being, and learned that if you detached yourself, the other person would die. You might choose to remain, but no one could force you to do so.⁴ Similarly, parents cannot be forced to give up a kidney to their child, even if it would save the child’s life. Why should women be obligated to surrender their body for the benefit of another when no one else is?

The second important reason the Court gave in Casey for upholding Roe was stare decisis. Roe had been on the books for two decades and had been essential to securing women’s equal status in society during that time. By 1992, the Court noted, a generation of women had grown up knowing they could rely on the rights ensured by Roe. Stare decisis, which protects such settled expectations, is no mere technicality. As the Court has explained, it “permits society to presume that bedrock principles are founded in the law rather than in proclivities of individuals.”⁵ The Court’s legitimacy and authority rest on this principle.

At the same time, stare decisis is not an absolute command. Decisions are, on occasion, overturned. But it’s rare, and requires consideration of multiple factors. Have other cases developed legal principles that leave the precedent an outlier? Has experience proved the rule unworkable? Have the facts changed in a material way? And would important expectations be upset if the precedent were abandoned?

The Court considered all of these factors in Casey and concluded that they did not support overturning Roe. The very same conclusion holds today. Roe has been in place for nearly fifty years, and every woman of childbearing age has grown up with its assurance. Eliminating the right to abortion would force many women, especially those without means, and disproportionately women of color, to bear children against their will. A right that has been essential to achieving women’s equal place in society would be lost.

Roe’s central ruling that women must be free to terminate a pregnancy prior to viability has withstood the test of time. It is simple, clear, and easy to apply. While the Court has fractured on what sorts of regulations short of a prohibition impose an “undue burden” on pregnant women, there has been no difficulty in applying the clear rule that states cannot ban abortion before viability.

No subsequent legal developments have called the right into question. On the contrary, the extension of due process protections to other intimate personal decisions like same-sex marriage and sexual relations only reinforces Roe’s validity. And the facts have not changed in any significant way since 1973. (Advances in medical technology have pushed the point at which fetuses may be viable outside the womb from about twenty-eight weeks to about twenty-four weeks, but that was already so when Casey was decided.)

Because the Court in Casey already considered all these arguments and rejected an invitation to reverse Roe, and nothing of relevance has changed since, the right to abortion is a sort of super-precedent. The question whether it should be overturned has already been fully aired and adjudicated, and the Casey decision also has the force of stare decisis.

Constitutional doctrine sometimes evolves in response to changes in a community’s understandings of fundamental norms. Brown v. Board of Education reversed Plessy v. Ferguson in part because the Court and the country recognized by 1954 that separate was inherently unequal in a white-dominant society. The Court recognized the right to marriage equality in 2015 because the country’s understanding of the fundamental dignity and equality of lesbian and gay people had dramatically changed over the previous thirty years. But the country’s views about abortion have not materially changed since 1973 or 1992. Abortion remains a contentious issue. If anything, the principle that women have a right to decide whether to terminate a pregnancy is more widely accepted today than it was when Roe was announced. It is wholly unlike segregation or marriage equality.

The only thing that has changed, in short, is who sits on the Court. And if we are to be ruled by law, not men (or women for that matter), that cannot be a sufficient ground for reversal. As Justice Kavanaugh wrote two years ago, quoting the great eighteenth-century legal commentator William Blackstone, stare decisis ensures that “the scale of justice” does not “waver with every new judge’s opinion.”⁶ Even if Gorsuch, Kavanaugh, and Barrett might not have joined the Roe majority in 1973, they cannot simply ignore fifty years of precedent safeguarding a right that is central to women’s autonomy and equal standing. As the three then-recently Republican-appointed justices who reaffirmed Roe in Casey warned in 1992, overruling Roe would do “profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.” That is only more true today.

—October 7, 2021