The Influence of Stare Decisis

Updated 5/22/22

While few people have heard of it, Dobbs v. Jackson has the power to impact the bodily autonomy of women across the country. Not only will this case decide the constitutional right to abortion but it may very well put all cases decided on the right to privacy in jeopardy. Understanding this comes back to “stare decisis” and its influence on the leaked SCOTUS draft.

What is Dobbs v. Jackson? In 2018, the Mississippi legislature voted to pass a law called the “Gestational Age Act,” which would prohibit all abortions–with exceptions–after 15 weeks of gestational age. Following the vote, Jackson Women’s Health Organization–currently the only liscenced abortion facility in Mississippi—sued in federal district court. This lawsuit challenged the constitutionality of the law under the precedent of Roe v. Wade and Planned Parenthood v. Casey, and requested an emergency temporary restraining order (TRO) of the law. Jackson was granted the TRO following a district court hearing, allowing the organization to continue providing abortions after 15 weeks while the litigation proceeded. Following decisions of the federal district court and the U.S. Court of Appeals for the Fifth Circuit, the Supreme Court granted a Writ of Certiorari–a declaration that it is willing to hear and rule on the case. The case of Dobbs v. Jackson’s Women’s Health Organization is currently undecided but will answer the question of whether Mississippi’s law banning nearly all abortions after 15 weeks’ gestational age is unconstitutional. Although current Supreme Court precedent prohibits states from banning abortions prior to viability (15 weeks is prior to viability), a leaked Supreme Court draft on Politico, shows that there is potential for this precedent to be overturned.

What is Stare Decisis? Stare decisis is the practice of deciding litigation with respect to former case precedent. This principle comes from the Latin phrase "stare decisis et non quieta movere", meaning to stand by your decisions and not disturb the peace. A simple way of remembering this is stare decisis–stands decided. The practice of stare decisis compels the Court to follow established precedent when ruling on cases of similar circumstances. The United States is a common law country. This means that the legal precedent set by the Supreme Court essentially becomes law. These decisions represent the accumulated wisdom of judges for centuries and heavily impact future Court decisions. The current precedent of the Supreme Court (Roe and Casey) would hold Mississippi’s 15-week law to be unconstitutional under the right to privacy and the 14th Amendment. The right to privacy is not explicitly written in the constitution but is a collection of implicitly interpreted precedents collected from the Bill of Rights. The Fourth Amendment states “the right of the people to be secure in their persons, houses, papers, and effects,” and the First and Fifth Amendments suggest zones of belief, activity, and information that are closed to government intrusion.

What does this mean for Dobbs v. Jackson? The state of Mississippi claims its law is constitutional because the constitution does not explicitly protect the right to abortion. Mississippi claims its interest in protecting potential life and women’s health is equivalent before and after viability and therefore passes the rationality test. Jackson claims that there is no basis for overruling the viability line, ​​Mississippi’s argument on state interest “was raised in Casey, and the Court gave careful regard to the state’s asserted interests, including in fetal life. Having considered each of the state’s arguments, the Court reaffirmed that the viability line strikes a principled and workable balance between individual liberty and any countervailing government interests.” Under the legal principle of stare decisis, the Court must uphold precedents when there is no factual or legal basis to overrule them. Mississippi’s state attorney general has asked the Court to overrule the precedent of Roe v. Wade.

How does Abortion fall under the Right to Privacy? For decades the Court has believed that the Bill of Rights collectively creates a penumbra–or zone–of privacy protected from government intrusion. This concept of privacy is used quite notably in the case of Loving v. Virginia, which dealt with the right to interracial marriage. In 1967 this case depicted that there were “personal realms of liberty” into which the government should not enter. Supreme Court cases dating back to the late nineteenth century have established an implied right to privacy in the Constitution. In 1890, Louis Brandeis defined this right as “the right to be let alone.” Following court decisions, providing that people have a fundamental privacy right to decide for themselves whom to marry (Loving v. Virginia), and whether or not to beget children (Griswold v. Connecticut, Eisenstadt v. Baird), it is simple to conclude that the right to privacy is “broad enough to encompass a woman's decision of whether or not to terminate her pregnancy” (Roe v. Wade).

What does the leaked SCOTUS draft say about Stare Decisis and the Right to Privacy?

The SCOTUS draft roughly states that if the Court were to rule in favor of Mississippi, it would essentially be overturning Roe and Casey entirely–exactly what it intends to do. The majority draft written by Justice Alito holds that “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’” (Washington v. Glucksberg, 1997)

The Court's main argument in favor of Mississippi is that Roe and Casey were wrongly decided. Therefore, it is in the interest of the United States for SCOTUS to remain neutral, leaving the issue of abortion up to the legislative branch. Stare decisis played a role in the decision process, as well as the Glucksberg Standard established in Washington v. Glucksberg (1997)–which relies on a nation's history and tradition. According to the draft, the Court does not believe that abortion meets this standard because abortion rights were not recognized in American law until the latter part of the 20th century. Abortion rights are not established in our nation’s history and tradition (and are therefore not covered by the 9th Amendment, nor the 14th Amendment). When it comes to stare decisis the Court states that “We have long recognized…that stare decisis is not an inexorable command and it is at its weakest when we interpret the Constitution”. “When it comes to the interpretation of the constitution —the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ (Martin v. Hunter's Lessee, 1816)—we place a high value on having the matter ‘settled right.’” The Court believes it is more valuable to overturn incorrectly set precedent than to rely on it. As precedent is meant to endure, an incorrect precedent will expectedly be overturned at some point in time. When constitutional decisions are incorrect, the country is stuck with those decisions until the Court fixes its own mistakes. The Court explains that it believes Roe was wrongly decided, and Casey followed suit under stare decisis purely to keep respect for the Court and the rule of law and not because abortion is a constitutional right. The Court goes on to name three landmark constitutional decisions which have overruled prior precedents, namely Brown v. Board of Education, which “repudiated the ‘separate but equal’ doctrine” of Plessy v. Ferguson. The draft lists two additional cases that overruled strong precedent decisions, adding additional reasoning to not rely solely on precedent.

What happens if Roe v. Wade is overturned? For almost five decades women have benefited from the availability of legal abortion guaranteed by the precedent of Roe v. Wade. If Roe is overturned abortion will no longer be a guaranteed right prior to viability, and abortion policies will be left open to each state to decide–turning back 50 years of institutional legitimacy. A decision overturning Roe would strip women of their ability to control their own destiny and aspire to the full agency, autonomy, privacy, and equality as citizens. Roe’s being overturned would also put additional landmark privacy cases in jeopardy. Trigger laws following a decision in favor of Mississippi would immediately ban abortion in 13 states including; Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming.

The removal of the right to abortion does not prevent abortion. The removal of the right to abortion only prevents access to safe abortion. Planned Parenthood v. Casey established the undue burden standard of abortion, establishing that the legislature cannot make a law that is too burdensome or restrictive of one’s right to abortion. Without this standard, a large portion of women will need to cross state lines to receive healthcare–an extremely burdensome task for all women, but especially for those living in poverty.

Not only would the overturning of Roe and Casey put women in a disadvantaged position, but it may also put women at risk of being incarcerated. Women may be tried and convicted of manslaughter or homicide following miscarriages of unwanted and wanted pregnancies. Often miscarriage is an unpredictable, and unpreventable occurrence. Miscarriage is excruciatingly painful both physically and mentally. Imagine a world where women are suffering the loss of their fetus while simultaneously being prosecuted for an event they had no control over. If these women are convicted of felony homicide they will be barred from voting for some period of time–depending on their state.

Women will be prosecuted, convicted, barred from voting, and will also be denied proper healthcare following the event of a miscarriage. In some states, Texas, for example, healthcare following a miscarriage will be extremely difficult to receive. An ectopic pregnancy occurs when a pregnancy develops outside of the womb. The embryo in this circumstance will not survive the pregnancy and will miscarry, these circumstances can be life-threatening. The treatment for an ectopic miscarriage is a procedure known as a surgical uterine evacuation and uses the same approach as abortion. Texas law following Dobbs v. Jackson would ban this procedure (after 7 weeks gestational age), similar procedures (D&E, Etc.), and several medications deemed as “abortion-inducing drugs” widely used in the treatment of patients following an early pregnancy loss. Additional forms of healthcare may all be denied to women under the guise of abortion law. IUDs, Plan B, and other forms of early birth control will all be considered in upcoming state legislation.

The overturning of Roe v. Wade and Planned Parenthood v. Casey will have devastating effects on women and their rights in more aspects than one. Roe and Casey represent the bodily autonomy, agency, privacy, and equality of women as citizens in all aspects of life. This decision is not an easy one and must be taken seriously.