As matters look now President Biden and Democrats more generally will run on abortion as their lead issue. That has worked well in the elections since Dobbs v. Jackson Women’s Health Organization. I have a question.
There are two distinct issues: the policy and the law. My question is not about the policy. It is about the law. I am not a lawyer so bear with me.
My understanding of the joint dissent in Dobbs was that the primary legal argument made by the dissenters was stare decisis, i.e. the legal concept that decided law should remain decided. I had made that point myself. Dobbs overturned roughly 50 years of precedent.
What I missed in the dissent was any test for when stare decisis should or should not apply. Clearly, they did not intend for stare decisis to be unequivocally binding. When Brown v. Board of Education was rendered in 1954 it overturned Plessy v. Ferguson which had permitted state-mandated racial segregation for 57 years. Do the dissenters believe that Brown was wrongly decided? It is my understanding that the majority in Dobbs believed that Roe v. Wade had been wrongly decided and constituted considerable judicial overreach.
I think the legal argument was that a contorted, dubious and piecemeal derivation from 2-3 different Amendments was required for Roe. Stare decisis was trumped by correction of an obvious overreach, a product of the fevers of the day.
As one who can see and empathize with both sides of the issue, it seems to me the ruling was correct. I’m sympathetic to the notion that a small group of zealots might now ban abortion based upon legislated geography, although I find the notion that it is unavailable dubious.
We talk about compromise a lot. But we don’t practice it. The world seems to have coalesced around a 16-20 week limit on aborting. That seems reasonable. But I understand that the absolutists on each side will reject it. And I understand their views. But, again, we were saying something about compromise…………?
My understanding is that was the argument of the majority. My question is about the dissent’s legal argument other than stare decisis.
Ah. I distinctly recall the wails and moans. But I don’t recall (and that doesn’t mean there wasn’t one) anything other than the stacatto of “a woman’s right to choose.” Which is only part of the total deliberation.
Abortion is not specifically mentioned in the Constitution so that necessarily entails some level of moral judgment and relies upon extra-constitutional beliefs. So loss of individual liberty was, I believe one of the arguments made. The majority seems to rely upon Glucksberg ie history and tradition. If you do that then you have to decide whose version of history and tradition you prefer/believe. The minority can make the argument that abortion has been widely practiced for hundreds of years, that men largely didnt know about it. The majority could argue that men kept trying to limit and outlaw abortion.
So if you believe that based upon tradition abortion is an individual liberty right, it should be legal everywhere. If you believe that abortion is really murder and men kept trying to outlaw abortion because it is murder then you want to outlaw it everywhere.
I was hoping you were asking when it is actually permissible to overturn longstanding law, ie when stare decisis should not apply.
Steve
The short answer is no. That is not the way our legal system works. If it’s not in the law, the law doesn’t cover it. You’re describing a civil code system.
The defenders of Roe really only had Stare Decisis to stand on, which is mostly all they ever argued. It’s why Democratic Senators would always grill prospective SCOTUS nominees on how strongly they felt about this doctrine. The arguments are about why its bad to take away a 50 year right, but don’t have much to say about the fundamental basis for the right in the first place. That just says the defenders of Roe knew the case was weak on the merits, and to me, that means it would have fallen sooner or later.
I think, in time, the end result will be better for the country. We are already seeing how the pro-life movement is the dog that caught the car and now they will have to defend the implications of their position and sell it to a public that does not like what they are selling. The public generally seems to want to draw the line roughly where it was drawn in Casey, and I think, eventually, that is about where things will settle as an average. Although SCOTUS appointments are not going to become less contentious, at least they will not be dominated by this issue anymore.
I have a different impression which is that all of the justices talked about stare decisis a lot, more so than in ordinary cases. In Brown v. Board of Education, the Court characterized Plessy as a “transportation” case that didn’t address education, was not informed by modern psychological knowledge (which turned out to be dubious), and rejected only those parts of Plessy inconsistent with its decision. This is closer to a minimize and ignore move than an overturn.
In 1992, there were six or seven justices that thought Roe v. Wade was wrongly decided, but three (O’Connor, Souter and Kennedy) decided to overturn only parts of Roe v. Wade while preserving a reduced abortion right for the sake of stare decisis. The Casey decision contains a long treatment of when SCOTUS opinions should be overturned which I’ve never read, but gets cited when this topic arises. Rehnquist argued this discussion was mere dictum because the three justices were themselves overruling parts of Roe v. Wade and at least two other SCOTUS opinions.
In Dobbs, the majority challenged and applied the Casey analysis on overturning precedent, pointing out factors the three justices had ignored as well as subsequent changes over the years. The dissent responded, but I recall a lot of slippery slope type arguments threatening that the decision undermines precedent governing interracial marriage, sodomy, contraception, etc. Roberts’ opinion would have applied Casey in such a fashion that it further minimized the abortion rights protected by the Constitution without expressly overturning Casey.
I think most justices over the years don’t have much problem overturning precedent. Their concerns tend to be about whether it’s worth adding uncertainty and costs (added litigation) to the judicial system if precedent is overturned. I believe a lot of them probably find the Senate confirmation hearings to be an embarrassing circus because of the abortion issue, which could have led some to be more cautious and others to cut the Gordian knot.
Thank you, PD. That clears things up a lot for me.
One of the many things I find frustrating in the public discourse on this situation is how greatly abortion supporters are misrepresenting the law prior to Dobbs.