The Dobbs case now before the Supreme Court, which challenges Roe v. Wade and related precedents, presents complex and difficult issues. Yet many abortion proponents insist that retaining these current precedents in full is the only legally plausible and valid outcome. Any decision adverse to Roe, they maintain, would amount to a “political” act by an “illegitimate” Court. Nonsense. There are principled grounds for concluding that Roe was (and is) seriously wrong as a matter of constitutional law and that it is not entitled to stare decisis deference. From this perspective, abortion opponents could just as well argue that adhering to Roe would be a political outcome implicating the Court’s legitimacy—as many surely will if the decision goes against them. Everyone would be better served if the abortion war combatants eschewed the demagoguery and stuck to honest, substantive arguments on the merits. Hopefully, the justices will do the same in their decision.
Current public discourse is poisoned by our inability to subject major societal issues to good faith, civil debate. Instead, we regularly split into polarized factions that largely demonize and talk past each other, preferring hyperbole and name-calling to rational, substantive debate. Dobbs v. Jackson Women’s Health Organization is the latest example.
It has become almost routine for politicians, the media, and academics (particularly on the left) to maintain that any politically charged Supreme Court decision that rejects their preferred outcome is not just wrong but cause to question the “legitimacy” of the Court. This approach carries over to attacks on individual justices; many on the left regard one or more Trump appointees as “illegitimate.” Alarmingly, several justices are picking up on these themes. During the oral argument in Dobbs, the three liberal-leaning justices suggested that a decision adverse to Roe and Planned Parenthood v. Casey would be perceived as nothing more than a political act enabled by their recently-appointed colleagues. Justice Sotomayor was the most extreme, asserting that such a decision would create a “stench” on the Court that it could not survive.
Reasonable (and unreasonable) minds differ strenuously on where the Court should come out on Dobbs. However, it is absurd to contend that a decision retrenching the Court’s current abortion jurisprudence could only be an “illegitimate” political exercise.
For one thing, Roe rests on a precarious legal foundation. It was decided at a time when the Court was much more freewheeling than it is now in adjudicating constitutional law cases. The difference between a majority of today’s justices and those who decided Roe and Casey is not political; rather it reflects fundamentally different approaches to judging. Opponents of Roe have long maintained that the right to abortion it found was created from whole cloth and lacked any firm grounding in the Constitution. They consider the decision not just erroneous but egregiously flawed as a matter of constitutional law. It’s likely that all six of the Court’s conservative-leaning justices sincerely hold this view. Even many proponents of abortion rights recognize Roe’s weakness from a strictly legal viewpoint. Indeed, a fractured bare majority of the Court had to substantially rework Roe to save it in the 1992 Casey decision. Notably, neither advocates nor justices offered much in defense of the substantive merits of Roe during the Dobbs oral argument. Instead, its supporters leaned heavily on stare decisis.
But Roe is not necessarily a strong candidate for stare decisis treatment. The doctrine of stare decisis embodies the sensible notion that courts should generally adhere to their own precedents in order to promote stability and predictability in the law. However, it imposes no hard and fast rules. The doctrine applies most readily to decisions that may be legally dubious but have become widely accepted over the years. For example, many decisions from the Warren Court era dealing with criminal procedure were highly controversial when issued but are now thoroughly ingrained into law enforcement practice. By contrast, Roe remains as fiercely controversial and divisive today as it was in 1973, both legally and in the eyes of the public. It has been subject to repeated legal challenges and judicial refinement. Public opinion regarding abortion has moved very little over the years and remains sharply divided.
One reason for the continual churn in abortion jurisprudence and the persistent divisiveness in public sentiment–as well as another impediment to applying stare decisis–is that abortion presents a mix of complex and nuanced legal, medical, scientific, religious, moral, ethical, and philosophical issues that do not easily lend themselves to definitive judicial resolution. Attempts by the justices in Roe and subsequent decisions to treat abortion as exclusively a legal issue subject to bright-line judicial solutions have been largely unsuccessful. What they have done is fuel political attacks on the Court and its credibility.
It is the height of arrogance for either side to claim that it possesses the only objective truth concerning the host of issues abortion poses and that any contrary viewpoints are not only wrong but unworthy of serious consideration. Nevertheless, it’s probably inevitable that the losing side in Dobbs will indeed challenge the “legitimacy” of the decision and the Court itself, claiming that the decision is based on politics not law. Since the Court will be damned either way, the best course for the justices is to focus exclusively on the legal merits and not obsess over how its decision will be received.