The Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization (2022) not only overturned Roe v. Wade (1973), but it also uprooted the decision in Planned Parenthood v. Casey (1992). In Casey, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter cobbled together a decision for the Court that dodged the invitation to overturn Roe and instead shifted the discussion from the arguably dubious constitutional basis of Roe to the dangers of overturning it.
Noting that “Liberty finds no refuge in a jurisprudence of doubt,” this plurality found the right to an abortion in substantive due process, a right less grounded in specific provisions within the Constitution than in a developing body of case law that typically involved “marriage, procreation, contraception, family relationships, child rearing, and education.”
Recognizing that “the rule of stare decisis [adherence to precedent] is not an ‘inexorable command,’” that applied across the board, the opinion examined the workability of Roe by asking:
whether the rule’s limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by it; whether the law’s growth in the intervening years has left Roe’s central rule a doctrinal anachronism discounted by society; and whether Roe’s premises of fact have so far changed in the ensuring two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.
The Casey decision sought to justify continuing the Roe precedent by distinguishing it from Lochner v. New York (1905), a decision striking down health and welfare regulations that subsequent laws and precedents had eroded, and from Plessy v. Ferguson (1896), which had legitimized the system of racial desegregation before Brown v. Board of Education (1954) overturned it. The Casey Court might further have mentioned that the decision in Dred Scott v. Sandford (1857), which excluded Blacks from citizenship, had been fairly quickly repudiated by the adoption of the Thirteenth (1865) and Fourteenth (1868) Amendments in the aftermath of the U.S. Civil War. It is clear that some precedents had greater staying power than others, but perhaps the argument that a precedent should stand because it remains in place will always have a certain circular quality to it.
In Dobbs, Justice Alito reasoned that the doctrinal foundations of Roe had been based on the mistaken belief that legal abortion was widespread when the Fourteenth Amendment was adopted and on an unconvincing extraconstitutional distinction between pre-viability and viability.
Although Alito, unlike his critics, devoted little attention to public opinion, he might have mentioned that however “workable” the Casey Justices thought Roe had been, even after Casey, Roe v. Wade continued to meet popular resistance in a way that Dred Scott, the regulations on behalf of workers, and the elimination of racial segregation had not, at least over the long term.
When the Supreme Court decided Brown, 17 states required racially segregated schools, and four states permitted them. Some subsequently engaged in a policy of massive resistance. Although Brown fell far short of resolving all the issues connected to race, I doubt that, 49 years after Brown, any of these states would have filed a brief asking to return to de jure segregation.
By contrast, when the Court decided Roe, only six states and the District of Columbia had legalized abortion. Forty-nine years after Roe, 24 states joined briefs in Dobbs criticizing the decision; 228 members of Congress supported briefs asking that the question of abortion be returned to the states (236 wanted the decision in Roe to be left in place); and, fed by increasingly strident rhetoric on both sides, opinion was arguably even more divided over abortion than when the Court decided Roe.
The hope that a single Supreme Court decision like Roe v. Wade could resolve such a controversial issue on the basis of such scant historical and constitutional foundations was a pipe dream that, like arguments like in Casey that the Court needed to keep it in place to secure its reputation, ultimately failed.
In the aftermath of Dobbs, it is likely that rigid state legislation on the subject—especially laws that fail to make exceptions for rape, incest, and the lives of mothers, or that attempt to restrict interstate movement—will face similar evasion and backlash. Abortion opponents may ultimately find that persuasion and the provision of maternal benefits and services are better tools than coercion.