Roe v. Wade has been the law of the earth for nearly 50 years. Is that important?
Breyer’s about to find out.
Front and center of oral arguments will be Mississippi law banning abortions after 15 weeks of pregnancy, during which courts consider whether women have a constitutional right to terminate a pregnancy.
But behind the law is another question of the stability of the court as an institution. The judges will also consider how seriously they should take the fact that Roe has been in the books for nearly half a century.
To put it another way: if courts use cases as building blocks to build the rule of law, what happens when a block – introduced in 1973 – is snatched away?
As much as some judges might wish they were writing on a blank slate, they can’t pretend that they haven’t dealt with Roe in many cases over the years. Equally important, a number of judges have at various times laid out the factors they consider when voting to overturn the precedent.
How the court grapples with that question could illuminate the way forward for the court and its aggressive right wing as it grapples with other divisive topics in the future.
Staring decisively
In law, the doctrine that the judge will consider on Wednesday is called a stare decision. It comes from the Latin “stareentiis et non silenta movere” which means roughly, to stand by what has been decided and not to disturb the calm.
Wednesday’s case will heat the debate as the court considers the federal appeals court’s decision to violate Mississippi law. The US 5th Circuit Court of Appeals – one of the most conservative in the country – overturned the Mississippi law, arguing that it was in stark contrast to Roe.
“In an unbroken line dating from Roe v. Wade, the Supreme Court’s abortion cases established (and reaffirmed and reaffirmed) the right of women to choose to have an abortion prior to its ability to have an abortion. exam”, organized by the court.
Mississippi appealed the decision to the Supreme Court. After the judges agreed to take over the dispute, the state attorney general made a grand request: “This court should deal with Roe,” because the decision proved to be “hopefully unenforceable.” Okay.” Roe, and another case called Planned Parenthood v. Casey decided in 1992 “caused profound harm,” the state said.
“Subsequent interests do not favor their retention,” the state argued. “And nothing more than a complete break from those instances could have prevented the harm they’ve already caused.”
Abortion rights advocates, were quick to react, emphasizing from the outset how the country relied on Roe.
Julie Rikelman, an attorney with the Jackson Women’s Health Foundation, said: “Two generations – spanning nearly five decades – have depended on the availability of legal abortion and this decision-making power as much as possible. recognized as important for gender equality. said in the summary.
And she took aim at the new conservative majority. She said that if the court suddenly dropped Roe, after about 50 years the new court would turn its back on its institutional legitimacy.
“Unless the Court is found to be unrepresentative of the preferences of existing members, it is important that the judicial defense body is absent from the most dramatic and unexpected changes in legislation or reality,” writes Rikelman.
But O. Carter Snead, a professor at Notre Dame Law School, believes the courts will fix the institutional legitimacy by disposing of Roe. “The Court’s abortion legislation is completely free from the text, history, and traditions of the Constitution,” he said in a pro-Mississippi amicus brief. “It has imposed an extreme, incoherent, unenforceable and anti-democratic legal regime on abortion across the country for several decades.”
What liberals and conservatives say
Judges are not always consistent when it comes to decisions.
Breyer brought up the 2019 legal doctrine dissent case where a court held that a state cannot be sued by a private party in the courts of another state.
Breyer added: “The people of this Country rely on the stability of the law. “Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives,” he said. “Every time the Court deals with a case, the Court creates increased uncertainty.”
Last year, the court dealt a blow to unions in the public sector, repealing an Illinois law requiring non-union workers to pay collective bargaining fees. In doing so it overturned a 1977 case.
Alito outlined factors that he believes should be considered in deciding whether to let go of a past decision.
These include the “quality” of the reasoning of the decision, the feasibility of the rule established by the case, its consistency with other relevant decisions, developments since the decision was made. and confidence in the decision.
Justice Elena Kagan disagreed in that case, which was joined by Liberal Judges Ruth Bader Ginsburg, Breyer and Sonia Sotomayor. Kagan opposed the majority, writing that there was no particular reason to settle the case and that the decision “proved to be doable.”
She called the 1977 decision “deeply significant in both the law and the real world.”
The precedent in question is not wrong, Kagan writes, “but even if it is, it is not enough.”
Kavanaugh said one factor the court should consider is whether an earlier decision was “not just wrong, but gravely or gravely wrong.”
Roberts says the doctrine should not be a “mechanical formula for compliance with the latest decisions.”
“When considering whether to reconsider prior malpractice holdings, we must balance the importance of asking constitutional questions against the importance of having them addressed,” he said. right decision.
Its greatest purpose is to serve the constitutional ideal – the rule of law. “Accordingly, in the unusual case where allegiance to any particular precedent harms this constitutional ideal rather than promoting it, we must be more willing to move away from that precedent.”
In 2013, Thomas was asked about this doctrine in an interview sponsored by the Federal Association with Judge Diane Sykes, who sits on the 2nd US Circuit Court of Appeals.
“The decision staring isn’t going to do much for you,” Sykes says.
“Not enough to keep me from going to the Constitution,” he replied.
