The Supreme Court and the Future of Abortion Rights

October 4, is the first Monday in October.  It is the start of the  new US Supreme Court term.  It may also be  the last  term where Roe v. Wade is the law of the land  and abortion rights are constitutionally protected. This coming term the Supreme Court will review a Mississippi law that effectively bans all abortions after fifteen weeks.  It may also review a Texas law banning abortions as early as six weeks into a pregnancy.  With a Court split six to three in terms of conservatives versus liberals, many fear that Roe’s days are numbered and the Court will overturn it.  If that happens it will be the culmination of a nearly fifty-year effort by conservative presidents and Supreme Court Justices to fashion the legal arguments to overturn Roe as legal precedent.

Roe v. Wade is the famous US Supreme Court decision declaring that women have a constitutional right to terminate their pregnancies.  The 1991 Planned Parenthood v. Casey decision modified Roe, but a majority of Justices in the latter including Sandra Day O’Connor, Anthony Kennedy, and David Souter ruled that under most circumstances women still had a right to an abortion under most circumstances. Roe and Casey are constitutional precedents but remain controversial. Many would like to see Roe overturned.

Roe v. Wade is legal precedent.  All things being equal, it should be followed.  Yet over the last 50 years since Roe was decided  presidents such as Ronald Reagan, George H.W. Bush, George Bush, and Donald Trump appointed Supreme Court Justices with the aim in part to overturn Roeand abortion rights.  Moreover, the Rehnquist and Roberts Courts have crafted the legal argument for rejecting Roe  as precedent.  How has this happened?

First, why do lawyers use precedent and why are judges supposed to follow  it?  There are many reasons why the law encourages judges and courts to decide factually similar cases the same.

One justification is efficiency—judges should not approach each issue or set of facts uniquely.  If there is a previous decision that is similar, use it as a guide.

Another justification is fairness.  Our notion of fairness suggests if two things are identical or similar, they should be treated the same.

A third justification is an appeal to uniformity and consistency—we do not want one court or judge deciding cases one way, versus another deciding differently.  Following precedent also promotes predictability and stability in the law.

Finally, following precedent respects reliance interests.  People acquire a vested interest in the law and conform their behavior to it. Unexpectedly changing the law makes it harder for people to plan.  One reason the Court gave in Casey for upholding Roe is that women had a reliance interest in or planned their lives with the belief they could end unwanted pregnancies.

In examining precedents, The Supreme Court has said that precedents based on statutory grounds deserve more judicial deference than those based on constitutional grounds.  Why?  If Congress disagrees with the Court’s statutory reasoning it merely needs to pass a law to overturn the decision.  Effectively, the Court has said that constitutional decisions such as Roe deserve less precedential respect because it is so hard to overturn them.  It would require a constitutional amendment.  Thus, the Court should be freer to overturn its own constitutional precedents than its statutory ones.

Some have argued there are “super-precedents.” These are decisions so important to the structure or operation of our political system that they cannot ever be overturned.  Some argue Roe should be considered a super-precedent, but there is really no such concept in American law.  Amy Coney Barrett during her Supreme Court nomination hearings rejected Roe as a super-precedent.

How often does the Supreme Court overturn its own precedents?  Based on my research from 1789 to 2020 the Supreme Court has issued 26,544 judgements and opinions with oral arguments.  It has only overturned its own constitutional precedents 145 times—this is barely one-half of one-percent of all its decisions.

Some Courts under different Chief Justices have reversed more constitutional precedents than others. From 1789 until 1930 various Supreme Courts under different Chief Justices overturned a total of 10 of its prior decisions.  Since the New Deal we have seen more precedents overturned.  The Supreme Court under Chief Justices Earl Warren, Warren Burger, and William Rehnquist overturned respectively 32, 32, and 30 precedents.  For each Court the precedent reversal has been exceedingly low and rare.  Through 2020, the Roberts Court has overturned 15 precedents, again quite low.

When can a Court overturn precedent and why?  The classic answer is that precedents should be overturned if they no longer prove workable or the real-world conditions under which they were decided no longer exist or prove to be tenable.   A classic example here  are cases such as Erie Railroad v. Tompkins, a  decision overturning an old Supreme  Court decision regarding what law to apply in federal diversity jurisdiction cases. The Court concluded that the older decision no longer worked.

The subject matter of constitutional precedent reversal has changed over time.  During the New Deal there were cases on economic regulation such as in West Coast Hotel  v. Parrish. During the Warren and Burger Courts issues of criminal due process, free speech, race, and gender discrimination were the targets of reversal.   In cases such as Mapp v. Ohio and Baker v. Carr the Court said that the old precedents on the exclusionary rule or  regarding  redistricting simply did not work anymore or that subsequent decisions of theirs had essentially rendered it hard to apply them.  In Brown v Board of Education the  Warren Court overturned  Plessy v. Ferguson and the separate but equal doctrine  by use of social science evidence.

Until William Rehnquist became Chief Justice, the Supreme Court generally followed the classic reasons for overturning precedent.  But a change occurred in Payne v. Tennessee  in a decision where the Court overturned precedent in order to permit victim impact statements to be considered in criminal trials.  There Rehnquist  declared following precedent was not an “inexorable command”  but simply a matter of judicial policy and that there were many factors that could be considered when making decisions to reject it.  He cited the quality  of the  reasoning in the original decision, reliance interests,  and other policy considerations.  Payne opened up a legal floodgate.

Since then, many Justices have built on Rehnquist’s  argument in Payne.  Chief Justice  Roberts in cases such as Citizens United v FEC and McCutcheon  v FEC has indicated that precedent may be overturned when previous decisions were not reasoned well.  Justice Thomas contends Roewas wrong and not well reasoned. Justices Neil Gorsuch and Brett Kavanaugh have gone into extensive detail to explain when precedent may be overturned.  So has Samuel Alito.  All of them have indicated that following  constitutional precedent is merely judicial policy, and that it can be overturned if wrong, badly decided, or poorly reasoned.  Collectively, there are  six Justices on the Supreme Court who have prepared the legal case for rejecting constitutional precedents, including Roe.

Will Roe be Overturned this term?  We do not know.  Sometimes the Court surprises and it opts not to reverse.  Everyone thought Roe would be reversed in Casey but it was not.  But this time it may be different—the numbers and votes on the Court as well as the legal-ideological arguments point to a different result this time.

David Schultz, Professor in the Department of Political Science at Hamline University and editor of the Journal of Public Affairs Education (JPAE). His latest book is Presidential Swing States:  Why Only Ten Matter.