Does Stare Decisis Preclude Reconsideration of Roe v. Wade? A Critique of Planned Parenthood v. Casey.

AuthorLintorf, Paul Benjamin

Abstract

Will the Supreme Court overrule its landmark decision in Roe v. Wade? Recent judicial confirmation battles, political campaigns, and state legislation seem to be driven by this question. In Planned Parenthood v. Casey, however, a majority of the Court held that the doctrine of stare decisis--the legal principle that courts should adhere to their prior precedents--precludes any reexamination of Roe. Based on stare decisis, Casey reaffirmed what it described as the central holding of Roe--that abortion could not be prohibited prior to viability, the stage in pregnancy when the unborn child could survive if born prematurely.

This Article examines the stare decisis analysis set forth in Casey and concludes that the Court's analysis does not withstand scrutiny. Casey asserted that Roe's selection of viability was well reasoned and "elaborated with great care," but nothing in the Roe opinion itself supports that assertion. Indeed, Justice Blackmun's own papers show that the choice of viability was completely arbitrary, an apparent afterthought. Casey also claimed that the viability rule must be followed because four stare decisis factors had been met: the rule was "workable," people had come to "rely" on the availability of abortion, and no "changes in law" or "change of facts" undermined the choice of viability.

As this Article demonstrates, Casey's stare decisis analysis is deficient on all four grounds. First, it is quite difficult to make an accurate determination of viability and there is no current medical consensus even as to what constitutes viability. Thus, the viability rule is unworkable because it is incapable of being applied and enforced in a principled, consistent fashion. Second, given the widespread availability of many highly effective forms of contraception, there is no plausible reliance interest in unrestricted abortion up until viability. Moreover, the social and economic progress that women have achieved cannot fairly be attributed to the availability of abortion on demand. Third, there have been substantial changes in criminal, tort, and healthcare law that now protect unborn children throughout pregnancy; changes that have discarded viability as an outmoded relic of legal analysis. This undermines Roe's suggestion that the unborn need not be protected until after viability because they are not protected in other areas of law. Finally, many scientific and medical developments--most significantly ultrasound and fetal surgery--vividly demonstrate that unborn children are actually alive, thereby undermining Roe's claim that the unborn represent only "potential" life.

Another case requesting that Roe be overruled is virtually certain to reach the Supreme Court. When that happens, the doctrine of stare decisis should not prevent the Court from reconsidering and overruling Roe.

CONTENTS INTRODUCTION I. THE DOCTRINE OF STARE DECISIS II. WHAT THE JOINT OPINION IN CASEY LEFT BEHIND ON THE SIDE OF THE ROAD III. CRITIQUE OF THE STARE DECISIS FACTORS IDENTIFIED IN CASEY THE FOUR STARE DECISIS FACTORS A. Workability 1. Viability is Not a "Simple Limitation" 2. Factors Affecting Viability 3. Probabilities of Survival Vary Greatly 4. There is No Consensus Regarding What Statistical Probability Determines Viability 5. Evaluating Predictions of Viability Does Not Fall Within Judicial Competence 6. There Are Other Lines That Would Be More Workable Than Viability B. Reliance C. Change in Law 1. Constitutional Law 2. Criminal Law 3. Tort Law 4. Health Care Law 5. Summary D. Changes of Fact 1. Evidence of "Changes of Fact" is Not a Prerequisite to Reconsidering a Precedent 2. Significant Changes in Medical Technology Have Greatly Enhanced Our Understanding of Unborn Human Life IV. DOES VIABILITY MATTER? CONCLUSION INTRODUCTION

Will the Supreme Court overrule Roe v. Wade, the 1973 decision that legalized abortion throughout the United States? (1) The election of Donald Trump as president on November 8, 2016, has fueled speculation that he would have the opportunity to appoint enough justices to create a majority on the Court that would reconsider and overrule Roe. (2) Whether President Trump's appointments, along with the other justices on the Court who are (or who are believed to be) opposed to the landmark decision, would actually vote to overrule Roe remains to be seen. But even if a majority of Supreme Court justices were convinced that Roe v. Wade was wrongly decided as an original matter, should the Court overrule Roe? Or, as in Planned Parenthood of Southeastern Pennsylvania v. Casey, (3) should the justices feel bound to reaffirm Roe on the basis of stare decisis, the legal principle that courts should not disturb their own precedents? That is the subject of this Article.

  1. THE DOCTRINE OF STARE DECISIS

    The term stare decisis is part of a longer Latin phrase, stare decisis et non quieta movere, which means "to adhere to precedents, and not to unsettle things that are established." (4) As a general principle, stare decisis "is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." (5) The Court will not overturn a past decision unless there are strong reasons for doing so. (6) But, as the Court has frequently recognized, stare decisis is "not an inexorable command." (7) Rather, it "is a principle of policy and not a mechanical formula of adherence to the latest decision." (8) And stare decisis "is at its weakest when [the Court] interpret [s] the Constitution because [its] interpretation can be altered only by constitutional amendment or by overruling [its] prior decisions." (9)

    The Supreme Court considers different factors in deciding whether to overrule a past precedent. (10) Obviously, the Court does not need to consider those factors unless it has come to the conclusion that the precedent under review was wrongly decided. For purposes of this Article, we shall assume that a majority of the Supreme Court (the present Court or a future Court) has concluded that Roe v. Wade was wrongly decided as an original matter of constitutional interpretation.

    Before examining Casey's analysis of the factors that need to be considered in deciding whether a precedent should be overruled, however, it is important to note the significant respects in which Casey1 s joint opinion (hereinafter Joint Opinion) departed from the reasoning and holdings of Roe. And there are many. That, in turn, suggests that the Court's resort to stare decisis as the critical justification for "reaffirming" Roe was, at best, pretextual. (11)

  2. WHAT THE JOINT OPINION IN CASEY LEFT BEHIND ON THE

    Side of the Road

    While purporting to rely on the doctrine of stare decisis to reaffirm Roe, the Joint Opinion abandoned major aspects of Roe and Roe's progeny. Very briefly, the most significant discarded aspects of Roe are as follows.

    First, Roe divided pregnancy into trimesters and determined to what extent the State may regulate or prohibit abortion at each stage. (12) The Joint Opinion rejected Roe's trimester framework and divided pregnancy into two stages for purposes of its analysis--pre- and postviability. (13)

    Second, Roe effectively employed the "strict scrutiny" standard of judicial review, under which only the least restrictive means of promoting a compelling state interest would support interference with a woman's right to choose abortion. (14) The Joint Opinion rejected this standard, and substituted an "undue burden" standard of review in place of Roe's strict-scrutiny standard. (15) Under the new Casey standard, regulations that do not prohibit abortion or impose an "undue burden" on a woman's ability to obtain an abortion before viability need only be "reasonably related" to the State's legitimate interests in protecting maternal health or prenatal life. (16) And a regulation would not be considered to impose an undue burden unless it had the "purpose" or "effect" of placing a "substantial obstacle" in the path of a woman seeking an abortion before viability. (17)

    Third, the Joint Opinion expressly overruled, in part, two of the Court's prior decisions that had applied the Roe standard of review to state regulations governing all abortions, regardless of the stage of pregnancy. (18) In those decisions, the Court had found the regulations invalid under Roe's trimester framework. According to the Joint Opinion, portions of those two decisions needed to be overruled because the trimester framework was no longer applicable and they were incompatible with the Court's newly minted undue-burden standard of review. (19)

    Given the Joint Opinion's wholesale abandonment of major aspects of Roe, it is difficult to take seriously its pronouncements on the importance of adhering to precedent. (20) The authors of the Joint Opinion, however, tried to finesse this difficulty by repeatedly referring to the viability rule as the "central" (21) or "essential" (22) holding of Roe, and "reject[ing] the trimester framework, which we do not consider to be part of the essential holding of Roe." (23) By characterizing the viability rule as "central" and "essential," the Joint Opinion in effect dismissed the rest of the trimester structure as "peripheral" and "superfluous." But the centrality of the trimester framework to Roe's analysis cannot be so easily dismissed.

    In summarizing its holdings in Roe, the Court specifically reiterated the trimester framework, (24) thereby reinforcing its importance. There is no reason, then, to believe that the Roe Court regarded any one element of that trimester framework as more important than any other. (25) Moreover, to the extent that an undue-burden standard of review previously had been suggested to replace the Roe strict scrutiny standard, it was the undue-burden standard that Justice O'Connor first articulated in her...

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