The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Dobbs, Abortion, and Stare Decisis

Both majority and dissenting opinions include extensive discussions of stare decisis. But the truth is whether you think Roe v. Wade should have been preserved on that basis is heavily correlated with whether you think it was wrong in the first place.



Friday's ruling in Dobbs v. Jackson Women's Health Organization includes a wide-ranging debate over whether the majority's decision to reverse Roe v. Wade and other precedents supporting abortion rights violated the principle of stare decisis. Both sides make their case well. But at the end of the day, I am left with the impression that much of the debate ultimately comes down to how bad (if at all) you think Roe was in the first place.

I have previously suggested that "Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm"—a point I believe applies to both liberal and conservative jurists. Nothing in yesterday's opinions leads me to change that view. This point can be recast in terms of the Supreme Court's doctrinal standards for reversing previous decisions: its "precedent on precedent." The doctrine requires the Court to consider such factors as the quality of the earlier precedent's reasoning, the extent to which changing circumstances have undermined its utility, the "workability" of the precedent, and whether it has generated significant reliance interests. But much of this just a fancier and more sophisticated way of saying that courts must consider 1) how bad was the precedent, and 2) how much harm it causes, which perhaps should be weighed against the potential harm of upsetting settled expectations.

If you think, as the conservative majority obviously does, that Roe v. Wade wasn't just a mistake in legal reasoning, but "egregiously wrong and deeply damaging," you are going to want to overrule it. As most conservative jurists see it, Roe combines terrible reasoning with horrific real-world consequences comparable to sanctioning the murder of innocent people. If that's what you think, it's easy enough to justify reversing Roe under the Court's standards for overturning precedent, or under almost any theory of stare decisis, short of near-absolute deference to prior decisions, which would also require preservation of such monstrosities as Plessy v. Ferguson and Korematsu. In his majority opinion, Justice Alito compares Roe to Plessy and other notorious "anti-canon" cases.

The conservatives' reasons for overruling Roe are actually similar to liberals' own justifications for junking precedents they believe to be especially awful, like the reversal of Bowers v. Hardwick, the 1986 case upholding the constitutionality of anti-sodomy laws in Lawrence v. Texas (2003), the reversal of numerous pre-New Deal cases protecting economic liberties and property rights, and the reversal of Baker v. Nelson (1972), in Obergefell v. Hodges (2015) (thereby striking down laws banning same-sex marriage). Each of these situations ultimately came down to a liberal or liberal-leaning Supreme Court majority concluding that the precedents in question should be gotten rid of because they were badly wrong and caused profound harm. I think the liberals were right about Bowers and Baker. But that doesn't change the reality of how the reversal of those precedents came about.

The joint Dobbs dissent by the three liberal justices at times seems to suggest precedent must never be reversed unless there is some change in intervening circumstances. In response, Alito rightly points out that this theory implies Plessy could not have been justifiably reversed until some kind of social change occurred relative to the situation in 1896. One can say the same thing about Lawrence's reversal of Bowers. It's hard to think of a reason why Bowers was more wrong or more harmful in 2003 than it was in 1986. If anything, the reverse may have been true, as anti-sodomy laws caused more harm in an era when the authorities were more likely to try to actually enforce them.

Ultimately, the liberal justices concede that "we are not saying that a decision can never be overruled just because it is terribly wrong." If so, then much depends on just how wrong the decision in question actually is.

I do think the majority mishandles one aspect of the Court's standard for overruling: the problem of reliance interests. Justice Alito dismisses the idea that Roe has engendered significant reliance interests because "[t]raditional reliance interests arise 'where advance planning of great precision is most obviously a necessity.' Casey, 505 U. S., at 856…. In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated 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." 505 U. S., at 856. For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here."

I agree that contraception and "reproductive planning" are often effective substitutes for abortion. But these tools don't work in cases where the pregnancy is the result of rape, or where the need for abortion arises from a medical problem that only became evident after the pregnancy began. Alito says that only "concrete" reliance interests deserve consideration, not "intangible form[s] of reliance" that are difficult to for courts to assess. But the examples above strike me as both concrete and tangible. Indeed, it's hard to think of many interests that are more concrete than those of a woman facing an unwanted pregnancy caused by rape, or one that poses a serious danger to her health. The dissent offers some additional examples of reliance interests overlooked by Alito, though I don't fully agree with its analysis of these points.

Even very extensive reliance interests aren't always enough to preclude reversal of a precedent. Few prominent Supreme Court cases engendered as much reliance as Plessy v. Ferguson and other decisions upholding racial segregation. Segregationists weren't entirely wrong when they asserted that the entire southern "way of life" was bound up with Jim Crow. Yet, today, almost everyone agrees the Court was right to gut Plessy, regardless. Pro-segregation decisions were so profoundly wrong and harmful that the case for getting rid of them outweighed even very large reliance interests. If you think abortion is the moral equivalent of murder, you could reasonably say the same of Roe.

I myself do not believe Roe was anywhere near as awful Plessy. But that's in large part because I'm pro-choice with respect to the vast majority of abortions, and certainly do not believe they are the moral equivalent of murder, or anything like it. I also think that, while there are indeed significant analytical errors in Roe, they are no more egregious than those in lots of other Supreme Court rulings. But I have to admit I would be far more supportive of overruling Roe if I thought abortion was a great evil, and Roe's reasoning placed it among the worst-reasoned cases of all time.

Regardless, the reliance interests underpinning Roe are more substantial than the Dobbs majority recognizes. That at least should raise the threshold of awfulness great enough to justify reversal.

Some have argued that Dobbs' reversal of Roe is especially bad because it reverses a decision expanding constitutional rights, rather than contracting them. But, as I explained at length in a previous post, the Court has an extensive history of reversing rights-protecting precedents, including many whose demise was cheered by the political left.

I think most of these reversals were actually misguided, and that it might be wise to establish an especially strong presumption against reversing precedents that protect individual rights.  I would have been happy if the Supreme Court had adopted such a rule, and declined to reverse Roe on that basis. But that's not an approach you can embrace if—like many progressives—you applaud the Supreme Court's 20th century gutting of precedents protecting contract and property rights, and would be happy to see it overrule Citizens United v. FEC (2010) or various cases protecting gun rights.

In sum, despite the impressive intellectual effort both sides devote to the stare decisis question, I think the debate over the overruling of Roe mostly comes down to how bad it was in the first place. That's not to say that stare decisis never matters. Far from it. It matters a great deal in the many situations where judges think a precedent was only modestly erroneous, the mistaken precedent doesn't cause much harm, or—even better—some combination of both. Nearly all judges—yes, even Clarence Thomas—tolerate numerous precedents they think are wrong, but ultimately not all that bad.

But such tolerance wilts when it comes to decisions jurists think are horrendously awful in both their reasoning and their effects. Liberals and conservatives, originalists and living constitutionalists, all behave that way—for good reason, in my view. All are willing to reverse precedents that are "egregiously wrong and deeply damaging," as Alito puts it. The big disagreement is over which cases fall into that category.