In 1973 one of the landmark cases regarding abortion, Roe v. Wade, 410 U.S. 113 (1973), was established. In Roe v. Wade, a pregnant woman brought a class action challenging the constitutionality of the Texas criminal abortion laws. A majority of the Court decided that the Texas abortion laws indeed were unconstitutional. The outcome was that a state couldn’t regulate abortion during the first trimester. During the second trimester regulating was possible if regulations were related to the health of the pregnant person and during the third trimester a state could prohibit abortion unless it was necessary to save the life of the pregnant person. In this case, the Court stated that abortion was a part of the constitutional rights of privacy and decision to dividing pregnancy into three trimesters were to balance state’s interest, protecting the potential human life, with privacy rights.
The legal system in the U.S. builds on a case law system; norms and principles are established in previous cases, precedents. Stare decisis is a doctrine which means that lower courts are bound to follow the Supreme Court precedents but also that the Supreme Court should follow its own precedents. It is however possible to overrule previous precedents if there is a special reason for overruling and the precedent was wrongly decided. The Supreme Court has developed four criteria to consider when overruling a precedent: workability of the standard established, the antiquity of the precedent, the reliance interest at stake and how well the precedent was reasoned.
As you might already know, Roe v. Wade was overruled by Dobbs v. Jackson Women’s Health Organization. Opinion of the Court on the Dobbs focuses broadly on why Roe v. Wade should be overruled and considers the criteria mentioned above. In Dobbs case Court’s majority decided that “the Constitution does not confer a right to an abortion” and “the authority to regulate abortion is returned to the people and their elected representatives”. They argue that firstly, Roe v. Wade was “egregiously wrong and on a collision course with the Constitution from the day it was decided”. They also argue that the reasonings were faulty, the rule it imposes is unworkable (focusing more on Planned Parenthood v. Casey), Roe v. Wade has led to the distortion of many important but unrelated legal doctrines and overruling will not upend concrete reliance interest. One of the main arguments on overruling are that the Constitution makes no reference to abortion and the Due Process Clause of the Fourteenth Amendment, which guarantees some rights that are not mentioned in the Constitution, does not apply because the right to abortion is not “deeply rooted in this Nation’s history and tradition”.
Before Dobbs, Roe v. Wade was affirmed by the Supreme Court in Casey, and it maintained its stare decisis position. Also, in Whole Woman’s Health v. Hellerstedt and June Medical Services, LLC v. Russo the Court didn’t overrule Roe v. Wade and Chief Justice Roberts even emphasized in concurring opinion that stare decisis must be followed.
I find it intriguing that in Payne v. Tennessee Justice Marshall’s dissenting opinion he states that “the majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination”. He then suggests that there are some “endangered precedents” under a weak stare decisis framework. Roe v. Wade is one of these cases Justice Marshall thinks is a liberal constitutional decision potentially threatened by the new conservative majority. By the time this Justice Marshall’s dissenting opinion was written, Roe v. Wade had survived overruling challenges, but this opinion shows that there was a political change in the Court even in that time.
In Dobbs’s reasonings the Court discussed the criteria for overruling a precedent and in that way ostensibly followed the rules of procedure. Still, was there the ground to overrule a fifty-year-old precedent or should the Court have followed stare decisis? It has been presented that some precedents regarding personal liberties might be endangered if there is a conservative majority in the Court. It seems interesting to me that change in political environment can affect in the Supreme Courts line of decisions in this quantity. Is this kind of jurisdiction just?
Mississippi Too