This week the US Supreme Court heard oral arguments in the most controversial case of the year, pitting the state of Mississippi against an abortion clinic. In Dobbs vs. Jackson Women’s Health, the state argues that a 2018 state law banning abortions after the first 15 weeks of pregnancy is constitutional.

This bold assertion is a challenge for the Court to strike down Roe v Wade, the 1973 case which made abortion a constitutional right.

It may be difficult for non-lawyers to appreciate this, but the biggest obstacle to striking down Roe v Wade is precedent: simply the fact that it happened. In principle the Court respects the decisions made by previous courts – and in this case, it even reaffirmed it in another landmark case, Planned Parenthood v. Casey, in 1992.

This is the legal doctrine called stare decisis, or “let the decision stand”. Justice Amy Coney Barrett described it this week as “obviously the core of this case”.

In the oral arguments Justice Sonya Sotomayor even suggested that the right to abortion was so deeply entrenched in American society that overturning Roe v Wade would threaten the authority of the Court. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Many pro-choice advocates agree with her that the doctrine of stare decisis means that Roe v. Wade must not be overturned. Some politicians have argued that Roe v. Wade is a “super-precedent”, a case that has become established as part of the national ethos.  

So a few words from Justice Brett Kavanaugh during the oral argument might be helpful in considering this position. (They have been lightly edited from the transcript.)

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JUSTICE KAVANAUGH: I want to ask a question about stare decisis and to think about how to approach that here ….

History helps us think about stare decisis, as I’ve looked at it. The history of how the Court has applied stare decisis … tells a somewhat different story, I think, than is sometimes assumed.

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent.

Brown v. Board of Education (1954) outlawed separate but equal. Baker v. Carr (1962), which set the stage for one person/one vote. West Coast Hotel (1937), which recognized the states’ authority to regulate business. Miranda v. Arizona (1966), which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas (2003), which said that the state may not prohibit same-sex conduct. Mapp v. Ohio (1961), which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon v. Wainwright (1963), which guaranteed the right to counsel in criminal cases. Obergefell v. Hodges (2015), which recognized a constitutional right to same-sex marriage.

In each of those cases — and that’s a list of some of the most consequential and important in the Court’s history — the Court overruled precedent.

And it turns out, if the Court in those cases had listened to arguments in those cases, to adhere to precedent in Brown v. Board, adhere to Plessy v. Ferguson (1896), adhere to West Coast Hotel, adhere to Atkins v. Virginia (2003) and adhere to Lochner v. New York (1905) — if the Court had done that in those cases, this country would be a much different place.

I assume you agree with most, if not all, the cases I listed there, where the Court overruled the precedent.

So the question on stare decisis is why, if — and I know you disagree with what about I’m about to say in the “if” — if we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?

Michael Cook

Michael Cook is the editor of MercatorNet.