Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), recognized a federal constitutional right to abortion before fetal viability, i.e., the “capability of meaningful life outside the mother’s womb.” See Roe, 410 U.S. at 163; Casey, 505 U.S. at 846. Read together, Roe and Casey held that states may regulate (but not ban) abortions before viability to protect maternal or fetal health so long as such regulations do not impose an “undue burden” on a woman seeking an abortion of a nonviable fetus. See Casey, 505 U.S. at 877-78 (plurality opinion).
In Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228 (June 24, 2022), a five-justice majority of the U.S. Supreme Court sustained a Mississippi law that bans (with exceptions for life and health) abortion after 15 weeks’ gestation, which is before the point at which a fetus is now generally regarded as “viable” outside the womb. The court overruled Roe and Casey, holding that abortion is not among those individual rights protected by the federal Constitution and returning the issue of abortion policy to state legislatures: “[T]he Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.” Id. at 2279.
Dobbs has precipitated fierce political debate over access to abortion. We leave that debate to others, and focus instead on Dobbs’ analysis of the doctrine of stare decisis, by which courts normally adhere to precedent. We discuss the reasons why the majority in Dobbs concluded that this doctrine did not require continued acceptance of Roe and Casey.
Deep Divisions Within the Court
By way of background, Ramos v. Louisiana, 590 U.S. ___, 140 S. Ct. 1390 (2020), spelled trouble for the future of Roe and Casey. By a 6-3 vote in Ramos, the court held that the Sixth Amendment right to trial by jury, as incorporated against the states by way of the Fourteenth Amendment, requires a unanimous verdict to convict a defendant of a serious offense in state criminal trials. Ramos overruled Apodaca v. Oregon, 406 U.S. 404 (1972), in which a plurality of the court held that the Sixth Amendment required jury unanimity in federal trials but not state trials.
Ramos provided valuable insights into the individual Justices’ views on the doctrine of stare decisis. See Newman and Ahmuty, “U.S. Supreme Court Debates Stare Decisis Principles,” NYLJ, May 5, 2020 (“While Ramos resolves the unanimous verdict requirement once and for all, its true importance lies in the Justices’ remarks about stare decisis—an issue that looms large as prior abortion-rights and other constitutional precedents face new challenges in federal and state courts.”).
Writing for the majority in Ramos, Justice Neil Gorsuch observed that stare decisis has never been treated as an “inexorable command,” particularly on constitutional issues. See 140 S. Ct. at 1405. The majority concluded that the traditional considerations in deciding whether to revisit a precedent—namely, “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision” (id.)—all militated against following Apodaca on the basis of stare decisis since it was a “mistaken decision, on a constitutional issue, an outlier on the day it was decided, and one that’s become lonelier with time.” See id. at 1408.
Ironically, Justice Samuel Alito, who authored the majority opinion in Dobbs, filed a dissent in Ramos, stating that “[t]he doctrine of stare decisis gets rough treatment in today’s [Ramos] decision.” 140 S. Ct. at 1425. Further, “[l]owering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.” Id.
Stare Decisis Principles
We now turn to Dobbs. At the outset, Justice Alito, writing for the majority (joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett), observed that rights that are neither explicit nor implicit in the Constitution’s text and history require strong roots in the mores and practices of the American people. In accordance with these principles, and contrary to Roe and Casey, the majority held that the Constitution does not confer a right to abortion: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including *** the Due Process Clause of the Fourteenth Amendment” since abortion rights are not “deeply rooted in this Nation’s history and tradition.” 142 S. Ct. at 2242; see also id. at 2244-57 (finding no constitutional right to abortion).
Next, the court considered whether the doctrine of stare decisis warranted continued acceptance of Roe and Casey. Starting with the proposition that stare decisis “is not an inexorable command” and “is at its weakest when we interpret the Constitution,” the court noted that in matters of constitutional interpretation “we place a high value on having the matter settled right,” such that “in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.” 142 S. Ct. at 2262 (citations and internal quotations omitted).
The court further noted that some of its most important constitutional decisions had overruled prior precedents. Among several examples, the court cited Brown v. Board of Education, 347 U.S. 483 (1954), which overruled Plessy v. Ferguson, 163 U.S. 537 (1896), and its specious “separate but equal” doctrine. Brown held that the Constitution promises racial equality, and racial segregation was not equal. Without decisions such as Brown, the court observed, “American constitutional law as we know it would be unrecognizable, and this would be a different country.” 142 S. Ct. at 2263-64.
Recognizing that “overruling a precedent is a serious matter,” and employing the analytical framework from Ramos, Dobbs identified five factors that, in the majority’s view, weighed strongly in favor of overruling Roe and Casey: “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” 142 S. Ct. at 2265, citing Ramos, 140 S. Ct. 1414-16 (Kavanaugh, J., concurring in part). To place the court’s analysis of these stare decisis factors in context, it would be useful to summarize the holdings of the Roe and Casey.
Roe held that a woman’s right to abortion before fetal viability is a “liberty” interest protected against state interference by the substantive component of the Due Process Clause of the Fourteenth Amendment. See 410 U.S. 152-54. Viability was the point at which state interests, including “its interest in protecting the potentiality of human life,” were sufficient to “override the rights of the pregnant woman.” Id. at 162. Roe evaluated state restrictions or bans on abortion within a trimester (pregnancy stage) framework: (1) states had no authority to regulate or ban abortions during the first trimester; (2) during the second semester, states could regulate abortion procedures to “preserve and protect the health of the pregnant woman,” but not the fetus; and (3) in the third trimester, when the fetus is viable (as generally understood in 1973), states could restrict, and even ban, abortions provided the pregnant woman’s life or health is not at stake. Id. at 164-65 (material in brackets omitted).
Casey held that the doctrine of stare decisis required reaffirmance of Roe’s “essential holding” that women have a constitutional right to abortion before fetal viability. See 505 U.S. at 846, 871 (plurality opinion). But Casey rejected the trimester framework, viewing it as a nonessential holding of Roe. Id. at 873. The court substituted an “undue burden” test, under which states were allowed to regulate (but not ban) abortion before viability to protect maternal or fetal health so long as such regulations did not have “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Id. at 505 U.S. at 877-78.
Addressing the nature of the court’s error in Roe and Casey (the first stare decisis factor under Ramos), Justice Alito wrote that Roe was “egregiously wrong and deeply damaging” from the start since its “constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” 142 S. Ct. at 2265; cf. id. at 2244-57 (explaining why Roe was incorrectly decided). Likewise, “Casey perpetuated [Roe’s] errors,” and usurped the power of state legislatures “to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Id. (citation omitted).
Next, Justice Alito addressed the quality of the reasoning in Roe and Casey (the second stare decisis factor), which the majority found to be “exceptionally weak.” 142 S. Ct. at 2266. First, Roe’s finding that the Constitution implicitly conferred a right to obtain an abortion was not grounded in its text, history, or precedent. Id. Without such grounding, “[Roe] imposed on the entire country a detailed set of rules [the trimester framework] much like those that one might expect to find in a statute or regulation.” Id. (material in brackets added). Second, “[a]n even more glaring deficiency was Roe’s failure to justify the critical distinction it drew between pre- and post-viability abortions” because “viability is heavily dependent on factors that have nothing to do with the characteristics of a fetus,” such as the state of neonatal care at a particular point in time and the quality of the available medical facilities. 142 S. Ct. at 2268-69.
The quality of Casey’s reasoning fared no better in the majority’s view. Specifically, Casey “either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new and problematic [“undue burden”] test with no firm grounding in constitutional text, history, or precedent.” 142 S. Ct. at 2272 (material in brackets added).
Turning to the third stare decisis factor, Justice Alito wrote that “Casey’s ‘undue burden’ test has scored poorly on the workability scale” because, as Justice Scalia noted in his Casey partial dissent, “determining whether a burden is ‘due’ or ‘undue’ is ‘inherently standardless.’” 142 S. Ct. at 2272, citing 505 U.S. at 992. This ambiguity has spawned a mass of litigation. Since no one really knows what an “undue burden” is, states have brought case after case to challenge it. Id. at 2274-75.
Next, Justice Alito wrote that Roe’s and Casey’s detrimental effect on other areas of the law (the fourth stare decisis factor) further militated against adhering to these decisions on the basis of stare decisis. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, including the strict standard for facial constitutional challenges and the court’s third-party standing doctrine—just to name two of several examples given in the Dobbs decision. 142 S. Ct. at 2275-76.
Finally, the majority concluded that overruling Roe and Casey would not upend any conventional, concrete reliance interests (the fifth stare decisis factor). Indeed, the controlling opinion in Casey conceded as much “because getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.’” 142 S. Ct. at 2275-76, citing Casey, 505 U.S. at 856 (plurality opinion). Courts are ill-equipped to assess the novel and intangible reliance interest endorsed in Casey, “namely the effect of the abortion right on the lives of women.” Id. at 2277.
Justice John Roberts’ concurring opinion agreed that the viability timing rule established in Roe and Casey should be discarded in line with the majority’s stare decisis analysis. In his view, the core right at issue is a woman’s right to choose to terminate her pregnancy. He would uphold the Mississippi law banning abortions after 15 weeks on the narrow ground that it provides an adequate opportunity to exercise this right to choose, and would “leave for another day whether to reject any right to an abortion at all.” 142 S. Ct. at 2310-11, 2314.
The dissenters (Justices Breyer, Sotomayor and Kagan) argued that the majority opinion had “abandon[ed]” stare decisis. 142 S. Ct. at 2333. While “not saying that a decision can never be overruled just because it is terribly wrong,” see id. at 2342 (emphasis in original), they posited that “[w]hen overruling constitutional precedent, the Court has almost always pointed to major legal or factual changes undermining a decision’s original basis.” Id. at 2337. They argued that the majority’s reexamination and rejection of Roe and Casey was unjustified because no discernable legal or factual changes undermined those cases recognition of a federal constitutional right to abortion.
Next up are Students for Fair Admissions v. President & Fellows of Harvard College, 980 F.3d 157 (1st Cir. 2020), cert. granted, ___ U.S. ___, 142 S. Ct. 895 (Jan. 24, 2022), and its companion case, Students for Fair Admissions v. University of North Carolina, which come before the U.S. Supreme Court urging it to overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions. Both cases have been scheduled for argument on Oct. 31, 2022.
Thomas R. Newman is of counsel to Duane Morris and author of ‘New York Appellate Practice’ (Matthew Bender). Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.