As they confront the most serious challenge to Roe vs. Wade in decades, abortion rights supporters are relying heavily on the legal principle known as stare decisis, which says that long-standing precedents must be followed and should not be overruled except under the most extraordinary circumstances.
After all, the argument goes, the case was decided in 1973, nearly half a century ago — so let’s just leave it alone, OK? It’s settled law, not to be tampered with.
In her defense of Roe before the Supreme Court in December, Julie Rikelman, the litigation director of the Center for Reproductive Rights, stated flatly that it would be wrong for the justices to overrule the decision even if they believed it had been improperly decided.
“The view that a previous precedent is wrong, Your Honor, has never been enough [reason] for this court to overrule,” she said in reply to a question from Justice Brett M. Kavanaugh. “And it certainly shouldn’t be enough here when there’s 50 years of precedent.”
That strikes me as ridiculous and a little disingenuous.
Of course precedents should be overturned if they’re wrong.
They shouldn’t be overturned cavalierly, or often; no one wants the law to be unpredictable or inconsistent or to shift every time the makeup of the court changes. Deference is certainly due to previous decisions.
But to argue that a bad precedent should remain in place just because it has been around for long time is simplistic and defies common sense.
Consider Plessy vs. Ferguson, the notorious 1896 decision that authorized racial segregation under the doctrine of “separate but equal.” It too was a 50-year-old precedent when, thank goodness, the court overruled it in 1954 in Brown vs. Board of Education.
Or Bowers vs. Hardwick, a 1986 decision upholding Georgia’s anti-sodomy laws. The court overruled it in 2003 in Lawrence vs. Texas, holding that criminalizing consensual adult homosexual sex violated the Constitution.
You didn’t hear liberals and progressives screaming about the sanctity of precedent when it came to undoing those awful decisions. They were wrong and needed to be overturned.
Despite stare decisis — which roughly means “to stand by that which is decided” — the reality is that the Supreme Court has reversed itself well over 100 times. In its famous Lochner decision in 1905, for instance, the court held that a law setting maximum daily and weekly working hours was unconstitutional; it rightly overruled itself 32 years later. In Schenck vs. U.S. in 1919, the court agreed that urging people to resist the draft could be a crime — but later effectively overturned such restrictions on free speech.
What’s more, I suspect many left-of-center Americans who support Roe vs. Wade would be all too happy to see the court overrule District of Columbia vs. Heller — the 2008 decision in which it found that the 2nd Amendment protects the right of individuals to possess handguns.
So let’s not get too sanctimonious about precedents.
Just to be clear, I’m 100% pro-choice. I’m also pro-Roe vs. Wade (and pro-Planned Parenthood vs. Casey, the important decision that reaffirmed Roe’s essential holding 19 years later). Those decisions together lay out the court’s argument that the Constitution protects a woman’s right to an abortion until “viability,” when the fetus can live outside the womb.
It’s terribly depressing to think that a new, Donald Trump-stuffed conservative Supreme Court majority might revoke a woman’s right to an abortion in this year’s Dobbs vs. Jackson Women’s Health Organization — which involves a Mississippi law that bans abortion after only 15 weeks.
But though I support the Roe and Casey decisions, it’s not because they’re inviolable precedents — or “super duper” precedents, as Sen. Arlen Specter (R-Pa.) once called Roe.
As the court has acknowledged, there’s an inherent tension between the deference owed to past rulings and the occasional necessity to undo bad decisions. Stare decisis is flexible; it’s not, as the court once put it, an “inexorable command.”
Over the years, the justices have tried to identify the factors that should be considered in deciding whether to overrule a precedent. Here are some they’ve come up with: The quality of its reasoning. Its consistency with previous or subsequent decisions. Whether there have been changes in the law or the facts. It’s “workability.” The degree to which people have come to rely on it.
In my opinion, the reason to reaffirm Roe and Casey is that these cases were correctly decided in the first place. They fit squarely with a long line of decisions protecting Americans from government interference in decisions involving physical autonomy and bodily integrity, family relationships, child rearing, procreation and other intimate issues. Even though the 14th Amendment doesn’t specifically mention abortion or contraception or gay sex, the court has found that it protects them.
Furthermore, the viability cutoff set out in Roe, which some see as arbitrary is, in fact, both workable and sensible.
And many millions of women have come to rely on their constitutional right to an abortion. One in four women will terminate a pregnancy during her life — and her ability to take part in the nation’s economic and social life depends on her right to do so.
“The Court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society,” said Solicitor General Elizabeth Prelogar during oral arguments in the Mississippi abortion case. Agreed Rikelman: “Allowing a state to take control of a woman’s body and force her to undergo the physical demands, risks, and life-altering consequences of pregnancy is a fundamental deprivation of her liberty.”
Plessy vs. Ferguson and Bowers vs. Hardwick turned out to be out of line with American values; they relied on factual inaccuracies and societal misunderstandings; they were shamefully, unfairly and wrongly decided. They needed to be overruled.
But Roe and Casey deserve our support. Not just because they’ve been around for half a century — and certainly not because they’re untouchable “super duper” precedents — but because they work, they make sense, and they defend one of America’s fundamental liberties.