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Opinion | Is Roe in Danger? Liberal Justices Seem to Think So



The Supreme Court made clear on Monday that Roe v. Wade may soon no longer be the law of the land. The decision, Franchise Tax Board of California v. Hyatt, actually has nothing to do with abortion; it concerns when one state may be sued in another state’s courts.

But Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bills about Roe, particularly as states enact draconian restrictions on abortion.

In Hyatt, the justices were asked to overrule the court’s 1979 decision in Nevada v. Hall, which held that an individual could sue a state in the courts of a different state.

The doctrine of stare decisis directs judges, including Supreme Court justices, to adhere to prior decisions even when they think those prior decisions are wrong. Under the doctrine, justices shouldn’t overrule an earlier ruling unless several things are true: The decision is unworkable and has generated inconsistent results; it rests on outdated facts; and it represents an outdated mode of legal thinking. The court is also not supposed to overrule precedent where parties have relied on the decision to structure their lives.

Many legal scholars have identified stare decisis as a substantial obstacle to the overturning of Roe, since women have relied on Roe and it is not unworkable. Roe is also not an aberration — it is part of a long line of cases protecting rights that are not specifically enumerated in the Constitution. Nor does Roe rest on outdated facts; medical advances have made abortion safer, whereas maternal mortality rates in the United States have climbed.

Senator Susan Collins, Republican of Maine, who says she is pro-choice, invoked stare decisis to explain her votes to confirm the nominations of Neil Gorsuch and Brett Kavanaugh to the court. She pointed to the nominees’ promises to adhere to stare decisis in their confirmation hearings to ward off the suggestion that they would overturn Roe. People sometimes likewise suggest that Chief Justice John Roberts, who has a reputation for being an institutionalist, will display a strong commitment to stare decisis.

In Hyatt, however, the five conservative justices based their decision to overrule the earlier decision almost exclusively on their belief that it was an “erroneous precedent” that “is contrary to our constitutional design.” The justices’ lack of respect for precedent was evident in the amount of space the majority opinion devoted to stare decisis — a mere three paragraphs — and in what the court said about it.

Everything the court said about stare decisis in Hyatt could be part of a decision that overrules Roe v. Wade. For example, the court’s first paragraph on stare decisis declared that stare decisis is weakest — and it is easier to overrule a decision — when the decision interpreted the constitution rather than a federal statute. The second paragraph focused on how the earlier decision was wrong and “stands as an outlier.” You can imagine the conservative justices saying the same about Roe as they overrule it.

In the third and final paragraph on stare decisis, the justices said that the reliance of some parties on the prior decision was insufficient to “persuade us to adhere to an incorrect resolution of an important constitutional question.” Women who have structured their lives around being able to decide when and whether to have a child should take note.

Hyatt’s implications for Roe were not lost on the dissenters. In contrast to the majority’s mere three paragraphs on stare decisis, Justice Stephen Breyer’s dissent devotes over three pages to it. The dissent analyzed the stare decisis factors and found that few supported overruling the decision.

Justice Breyer is not one for over-the-top prose, but his dissent is full of alarm bells. He wrote that the majority had “surrendered to the temptation to overrule” a “well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” And he accused the majority of taking the “dangerous” path of overruling a decision “only because five members of a later court come to agree with earlier dissenters.” He too seems to have prewritten an opinion — a dissent — for when the court overturns Roe.

The court will soon have the opportunity to do just that, as states scramble to impose increasingly draconian restrictions on abortion. Georgia, for example, just enacted a law that prohibits abortion after a fetal heartbeat is detected, roughly six weeks after pregnancy.

In Hyatt, Justice Breyer concluded his dissent with this pointed warning: “Today’s decision can only cause one to wonder which cases the court will overrule next.” If that statement was not enough, Justice Breyer cited Planned Parenthood v. Casey in that same paragraph. Casey is the 1992 decision in which a bare majority of the court opted not to overrule Roe.

The guardrails of stare decisis have fallen. Roe v. Wade may very well be next.

Leah Litman is an assistant professor of law at the University of California, Irvine.

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