The Supreme Court of the United States has gone through a noticeable transformation and ideological shift during the recent years. The appointments of three conservative judges by the President Donald Trump radically changed the composition of the Court shifting its approach towards more traditional and obsolescent interpretation of the law. On the 24th of June 2022 the Court overruled two important precedents protecting people’s right to abortion, declaring that the Constitution does not confer the right. The ruling had a major impact on the American society and soon after the decision many states regulated laws that were to restrict or ban abortion. The decision was considered widely controversial and questioned by many legal scholars and professionals.
In Dobbs v. Jackson Women’s Health Organization, the Court overturned two precedents protecting people’s right to abortion: Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. Both decisions recognized a federal constitutional right to abortion before fetal viability giving the states the power to regulate, but not to ban, abortions (New York Law Journal, Sept 6th, 2022). Beforementioned case law was the most significant legal instrument protecting the right to abortion on the federal level, as the right as such is not included in the US Constitution or in its Amendments. In addition to the societal significance of overturning the previous case law in question, what made the Dobbs decision also exceptional was its contradiction with one of the important principles of the US legal system, the doctrine of stare decisis.
According to the stare decisis principle, the Supreme Court should follow “the principles, rules, and standards of its prior decisions when deciding a case with arguably similar facts” (Black’s law dictionary 1626, 10th ed. 2014). The Court had already concluded in both Roe and Casey that the Constitution, and more particularly its 14th Amendment, conferred the right of an individual to have an abortion. The Roe decision, in which the right to abortion was first established, goes back to 1973. Thus, the right has been recognised in US case law for almost 50 years giving it a seemingly strong foundation. Nevertheless, as the right was never made a part of the written federal law it was vulnerable to occurring changes in the Court’s views. It was often a topic of public discussion how the legal protection around the right was too weak and how it should be made stronger. This public concern around abortions rights did not make stare decisis seem like a particularly strong principle as the legal protection established in the Court’s previous decisions was obviously not trusted.
In the Dobbs Case the Court’s reasoning to go round stare decisis and overturn its previous precedents relied mostly on the constitutional nature of abortion rights. The Court noted that stare decisis “is not an inexorable command” and “is at its weakest when we interpret the Constitution” referring to the previous case law concerning stare decisis (Dobbs p.4). In addition, the Court emphasised how “some of the Court’s most important decision have overruled prior decisions” (Dobbs, p. 4). Furthermore, the Court noted how in certain circumstances the constitutional decisions must be reconsidered. All in all, when taking on the account the significance of this decision, the reasoning of the Court was left quite vague and lacking. To overturn such important precedents and circumvent stare decisis it would be reasonable to expect the Court to deliver more specific and convincing set of facts and justifications for its ruling.
The Court’s actions can be considered problematic not only from the point of view of women’s rights but civil rights in general. One of the main purposes of stare decisis principle is to make law and legislation coherent and consistent, to establish a pattern of case law that follows and reflects the society and its development. Even though it must be made possible for the Court to overrule its previous precedents to stay up to date, when talking about the deprivation of abortion rights, the decision to overlook stare decisis should not be made without proper consideration. Overturning previous case law regarding people’s fundamental rights has obviously other consequences. It is now made possible for the Court to also challenge other unwritten rights derived from the 14th Amendment and granted by the previous case law, such as the right to contraception or the right to gay marriage (Ronli Sifris, Monash University website). This jeopardizes the entire fundamental and civil rights progress achieved in the United States in recent decades.
As stated above, the Court’s decision marked a new era in the US judicial system. In terms of the rule of law, the Dobbs case also raises several questions. In a democracy, the purpose of the legal department should be to interpret the laws regulated by the parliament with as much legal accuracy and neutrality as possible. According to many collected surveys, most of the Americans opposed the ruling in the Dobbs case and wanted to retain people’s right to abortion on the federal level. It can be considered strange and very alarming that the Court, which is not elected through parliamentary vote, is able to circumvent stare decisis and make such major controversial decisions concerning the rights of the half of the US population without majority support.
Mississippi Too