Should an ‘Egregiously Wrong’ Decision Stand? ‘Stare Decisis’ and the ‘Dobbs’ Oral Argument

On Wednesday, December 1, 2021, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization. In the Dobbs case, the Court has been asked to decide whether all pre-viability prohibitions on elective abortions are unconstitutional. This question is presented in a challenge to a Mississippi law that Mississippi argues protects the health of mothers, the dignity of unborn children, and the integrity of the medical profession and society by permitting abortions after the gestational age of 15 weeks only in medical emergencies or for severe fetal abnormality.

In considering this challenge, the Court in Dobbs is confronted with the legal question whether it should overrule Roe v. Wade and Planned Parenthood v. Casey. In Roe, the Court found that the United States Constitution protects a qualified right of a woman to terminate her pregnancy, and it employed a trimester scheme to govern the permissibility of state regulation. In the first trimester, the abortion decision was to be left entirely to a woman and her physician. After the first trimester, a state, in the interest of promoting the mother’s health, could regulate the abortion procedure in ways reasonably related to maternal health. After viability, a state, in the interest of promoting “the potentiality of human life,” could regulate and even proscribe abortion except when an abortion is necessary to preserve the mother’s life or health.[1]

In Casey, the Court rejected Roe’s trimester scheme but reaffirmed its “essential holding.” It held that a woman has a right to choose to have an abortion before fetal viability without undue interference from a state and that a state may restrict abortions after viability if it allows exceptions for pregnancies endangering a woman’s life or health. It also concluded that a state has legitimate interests in protecting both a woman’s health and a fetus’s life that extend from the outset of pregnancy.[2]

Those who have listened to the oral argument in Dobbs or read or heard press accounts certainly took note of the frequent mention of the term stare decisis by the attorneys and the justices. In fact, the transcript of the argument reveals that the term was used forty-eight times in the nearly two hours of argument. The emphasis on stare decisis in the oral argument warrants some reflection, which this essay does by introducing the doctrine, considering its invocation by the justices during oral argument, and concluding with some reflections.

A Brief Introduction to the Doctrine

The doctrine of stare decisis is an important concern for American courts. The Latin term means “to stand by things decided.” The doctrine teaches that courts, as a matter of policy, should generally adhere to decided cases, follow judicial precedents, and not disturb settled points of law. Among the rationales supporting this doctrine are respect for prior judgments, stability of the law, and security for those relying on established legal principles. When a court decides to depart from this general policy and overrule its own precedent, it must justify this departure.

The Supreme Court has, however, recognized that the doctrine is not an “inexorable command” and that it is applied less rigidly in constitutional cases.[3] Although the doctrine does not mandate following a past decision when its rationale no longer withstands “careful analysis,”[4] the Court has instructed that a constitutional precedent should be followed unless a “special justification” exists for departing from that precedent.[5] The Court’s decisions in Roe and Casey are constitutional precedents.

Additionally, the Court has highlighted factors that it considers in deciding whether special justification exists for departing from constitutional precedent. For instance, it considers whether the precedent has engendered reliance and whether an important change in circumstances has developed. It also evaluates whether the precedent has proven to be unworkable and whether the precedent has been undermined by later decisions. Furthermore, it assesses whether the earlier decision was badly reasoned.

The Emphasis on Stare Decisis in the Oral Argument

In the oral argument, both the advocates and the justices emphasized stare decisis, but the invocations of the doctrine by the justices may provide a sense as to where individual justices are in their thinking. Justice Breyer emphasized stare decisis in his discussion of Casey’s reaffirmation of Roe and the Casey Court’s recognition of the special precedential status of Roe. This special status, he urged, should cause the Court to be less willing to overrule Roe and Casey and to be concerned that overruling these precedents would cause the Court to lose some of its power. He later referenced “watershed” cases and suggested that the Court should be concerned about losing credibility and looking political if it overrules not just one but two constitutional precedents. While referencing the stare decisis factors, he emphasized the need to read carefully Casey’s stare decisis discussion.

Justice Sotomayor emphasized the doctrine of stare decisis when she urged that Casey drew a viability line that has not been challenged since. She asserted that Casey is a “watershed” decision that created entrenched expectations, and she questioned whether the Court as an institution could “survive the stench” that overruling Casey would create. She later sought to distinguish cases that overruled precedents in order to give freedom to individuals and limit government from cases that overruled precedents to give government power.

Justice Kagan urged that there are 50 years of decisions making Roe and Casey and the viability line “part of the fabric of women’s existence.” She later asked about the reliance interests at stake with the Court’s abortion precedents.

Although Chief Justice Roberts acknowledged that viability was at issue in Casey, he questioned whether it was at issue in Roe. He also questioned whether there is a doctrine of “super stare decisis” or just a doctrine of “normal stare decisis” and what impact such a difference in the doctrine would make for an unpopular decision in the super category. He later asked whether the reliance argument would be the same whether the line was drawn at 15 weeks or at viability (currently around 24 weeks).

Justice Alito had the doctrine in mind when he questioned whether the only options are to reaffirm Roe and Casey or overrule them entirely, whether a woman’s interest to be free from the burdens of pregnancy is the same before and after viability, and whether an unborn child’s interest in having a life is the same before and after viability. He also questioned whether the Court could overrule a precedent simply because it was egregiously wrong at the moment when it was decided.

Justice Gorsuch emphasized stare decisis when he observed that the Casey Court rejected Roe’s trimester framework and replaced it with an undue burden standard, which has proven difficult to administer. Justice Kavanaugh questioned why the Court, if it thinks Roe and Casey are seriously wrong, should not do what it had done in many other cases and overrule the wrongly decided precedents. Justice Barrett suggested that Casey seemed to have a conception of stare decisis that differed from the traditional understanding because it explicitly took into account public reaction to the Court’s decisions.

Some Reflections on the Emphasis

The ruling of the Court in the Boggs case, which is expected in June 2022, cannot be predicted based upon the questions the justices asked during the oral argument. However, the emphasis on the doctrine of stare decisis is revealing.

The emphasis on stare decisis shined a spotlight on a key question presented by this case: Does the doctrine of stare decisis alone have enough force to save from overruling two of the Court’s most beleaguered precedents? The doctrine afforded the Court’s three liberal members the opportunity to focus attention on preserving these problem-plagued precedents and ringing alarm bells about the potential impact on the Court’s legitimacy, rather than making a decision that is grounded in the constitutional text, history, and tradition about the qualified right that was created in Roe and refashioned in Casey. The implication of their invocations of stare decisis was that the Court’s conservative members, who may be inclined to overrule Roe and Casey because of the well-documented deficiencies of those decisions and because of the constitutional text and history, should let political and institutional concerns determine the outcome of the case rather than the rule of law. Nevertheless, the Court has before it extensive briefing (including amicus briefs filed in support of Mississippi) giving it what it needs to make a principled constitutional decision.[6]

Additionally, the emphasis on stare decisis served to deflect attention from the unborn child. Presentations focused on the unborn child could have highlighted the following sorts of considerations: how medical science allows parents to learn their baby’s sex several months before viability and see clear images of their babies doing such things as sucking their thumbs and yawning several weeks before the current viability line; how the viability line continues to move forward as technology improves and more babies born before 24 weeks survive; and how human embryology demonstrably shows that the human fetus is a living, growing organism from the moment of conception and not a sub-human form. These sorts of considerations are also addressed in the briefing, including amicus briefs supporting Mississippi.

Many Court watchers believe that the Court in Boggs will either overrule or narrow the Roe and Casey precedents. If the Court does so, a new legal regime for abortion will begin in the United States, and the people of the various states, through their elected representatives, will have greater latitude to regulate on abortion. Likely then, more state restrictions on abortion will lead to fewer abortions and more births, which is an unqualified good. However, followers of Jesus Christ must prepare for this new legal regime and for the various needs that women, children, families, and communities will experience. Over the next six months, as we wait for the ruling, let’s make the time count.

[1] Roe v. Wade, 410 U.S. 113 (1973).
[2] Planned Parenthood v. Casey, 505 U.S. 833 (1992).
[3] Payne v. Tennessee, 501 U.S. 808 (1991).
[4] Lawrence v. Texas, 539 U.S. 558 (2003).
[5] Dickerson v. United States, 530 U.S. 428 (2000).
[6] The Ethics & Religious Liberty Commission of the Southern Baptist Convention filed an amicus brief in Dobbs.