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Abortion Law

The Symbiosis of Abortion and Precedent

Judges have to have the humility to recognize that they operate within a system of precedent . . . .

— Then-Judge John G. Roberts, Jr.1×1. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of Judge John G. Roberts, Jr.) [hereinafter Roberts Confirmation Hearing].

[Stare decisis is] important because it reflect[s] the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.

— Then-Judge Samuel A. Alito, Jr.2×2. Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 318–19 (2006) (statement of Judge Samuel A. Alito, Jr.).

Introduction

During his 2016 presidential campaign, Donald Trump repeatedly described himself as “pro-life”3×3. See, e.g., Emily Crockett, Donald Trump Is Going All In on Banning Abortion, Vox (Sept. 20, 2016, 8:30 AM), https://www.vox.com/2016/9/20/12970076/donald-trump-ban-abortion-policy [https://perma.cc/3V2T-GFJK]; Dan Mangan, Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (Oct. 19, 2016, 10:00 PM), https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html [https://perma.cc/F9E3-3S5F]. and vowed, if elected, to appoint Supreme Court Justices who would be reliable votes to overturn Roe v. Wade,4×4. 410 U.S. 113 (1973). the 1973 decision that expanded on prior interpretations of the Fourteenth Amendment5×5. See id. at 152–53 (collecting cases). to conclude that the right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”6×6. Id. at 153.

When President Trump put forth two nominees to the United States Supreme Court, then-Judge Gorsuch and then-Judge Kavanaugh, the confirmation proceedings unsurprisingly unfolded in the shadow of the President’s pro-life promises. As has been the recent practice for nominees to the Court,7×7. Recent nominees have invoked the so-called “Ginsburg standard” to avoid discussing specific cases or controversial issues. See Abigail Simon, Why Ruth Bader Ginsburg’s Confirmation Fight Still Matters, 25 Years Later, Time (Aug. 3, 2018, 6:22 PM), https://time.com/5357068/ruth-bader-ginsburg-anniversary-confirmation-fight-standard [https://perma.cc/PB95-X2KM]. The informal rule refers to then-Judge Ginsburg’s remarks during her confirmation hearing stating that she would “offer no forecasts, no hints” as to her rulings on future cases that might come before the Court. See id. both then-Judge Gorsuch and then-Judge Kavanaugh avoided providing specific views about abortion rights and instead “made the customary noises”8×8. Jeffrey Toobin, The Abortion Fight and the Pretense of Precedent, New Yorker (May 19, 2019), https://www.newyorker.com/magazine/2019/05/27/the-abortion-fight-and-the-pretense-of-precedent [https://perma.cc/M4WP-LWUZ]. about stare decisis and respect for settled precedent.9×9. Then-Judge Gorsuch vowed to analyze cases with respect to the “law of precedent.” Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. 74, 76, 135 (2017) (statement of Judge Neil M. Gorsuch). Then-Judge Kavanaugh assured the Senate Judiciary Committee of his commitment to precedent, noting that the concept of stare decisis “comes from Article III itself.” Confirmation Hearing on the Nomination of Hon. Brett M. Kavanaugh to Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. (Sept. 5, 2018) (statement of Judge Brett M. Kavanaugh) (transcript available at https://edition.cnn.com/TRANSCRIPTS/1809/05/wolf.02.html [https://perma.cc/46RC-FFUL]). Although neither nominee specifically stated his views about the continued longevity of Roe v. Wade, discussion of respect for precedent and stare decisis has become a stand-in for a more fraught conversation about the future of abortion rights.10×10. See, e.g., Anna North, Brett Kavanaugh Won’t Oppose Roe v. Wade Outright. Here’s What He Might Say Instead, Vox (Aug. 31, 2018, 8:10 AM), https://www.vox.com/2018/8/31/17791858/brett-kavanaugh-judge-views-vote-abortion-roe [https://perma.cc/5K2V-C5WK] (noting that vague remarks about respecting precedent and “settled law” are used as substitutes for articulating clear positions on reproductive rights).

Latin for “to stand by what has been decided,” stare decisis is a cornerstone of the Anglo-American legal tradition.11×11. See Stare Decisis, Encyclopaedia Britannica, https://www.britannica.com/topic/stare-decisis [https://perma.cc/7TVD-HQXV]; see also Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States, 12 Nev. L.J. 787, 792 (2012) (noting that federal courts have employed stare decisis since the Founding). By its terms, stare decisis demands that lower courts follow the decisions of superior courts and that the United States Supreme Court defer to past decisions on the same, or similar, issues.12×12. See, e.g., Mead, supra note 11, at 790 (“Horizontal stare decisis is the practice of a court deferring to its own decisions, while vertical stare decisis is the practice of a lower court adhering to the decisions of courts with supervisory jurisdiction . . . .”); see also Frederick Schauer, Stare Decisis — Rhetoric and Reality in the Supreme Court, 2018 Sup. Ct. Rev. 121, 124–25 (“The idea of vertical precedent, as it is sometimes called, is a widely accepted feature of a judicial system in which lower courts are called ‘lower’ for a reason, and one of those reasons is that these lower courts are expected, to put it loosely and roughly, to treat higher court decisions on matters of legal interpretation and application as if they were law themselves.” Id. at 125 (footnote omitted).). And while a court may overturn its own precedent, the demands of stare decisis suggest that such a step should be taken only if strong reasons exist for doing so.13×13. See Mead, supra note 11, at 791 (“[T]he Supreme Court today is willing to revisit precedent only after considering several factors: ‘workability . . . [,] the antiquity of the precedent, the reliance interests at stake, and . . . whether the decision was well reasoned.’” (omissions in original) (footnote omitted) (quoting Montejo v. Louisiana, 556 U.S. 778, 792–93 (2009))).

For the last fifty years, the debate over what it means to observe the strictures of stare decisis and follow precedent has centered largely around a single decision: Roe v. Wade.14×14. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“[Nineteen] years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.” (citation omitted) (citing Roe v. Wade, 410 U.S. 113 (1973))); id. at 854–61 (discussing factors of stare decisis analysis and applying them to Roe). Not only is every Supreme Court nominee quizzed about her views on the role of precedent in decisionmaking and, indirectly, the continued vitality of Roe v. Wade, but each abortion case that comes before the Court is also framed in the context of whether it will provide the Court with the opportunity to overrule or uphold Roe.15×15. See, e.g., Henry J. Reske, Is This the End of Roe?, 78 A.B.A. J. 64, 66 (1992); Ian Millhiser & Anna North, The Supreme Court Case that Could Dismantle Roe v. Wade, Explained, Vox (Jan. 22, 2020, 10:53 AM), https://www.vox.com/2019/10/4/20874618/roe-wade-supreme-court-louisiana-abortion-gee [https://perma.cc/B7RT-886R].

In this regard, stare decisis is the alpha and the omega of the Supreme Court’s abortion jurisprudence. Because of stare decisis, Justices, regardless of their views as to whether Roe was correctly decided or properly reasoned, have been reluctant to jettison entirely the 1973 decision.16×16. See Leah Litman, Opinion, Supreme Court Liberals Raise Alarm Bells About Roe v. Wade, N.Y. Times (May 13, 2019), https://www.nytimes.com/2019/05/13/opinion/roe-supreme-court.html [https://perma.cc/UP27-WVZ8] (“[R]espect 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.”). And yet, the Court’s failure to formally overrule Roe has cemented the decision’s position as a precedent, legitimizing the abortion right to the dismay of abortion opponents. On this account, stare decisis is both the reason why Roe cannot be overturned and the reason why it must be.

But it is not simply that stare decisis principles are the alpha and the omega that shape the Court’s approach to abortion; it is also that the Court’s abortion jurisprudence, in turn, informs its approach to stare decisis. That is, conflicts over the scope and substance of the abortion right have shaped our understanding of what is precedential and what it means to follow precedent. Indeed, it has been in the context of the Court’s abortion jurisprudence itself that the Justices have sought to delineate when — and how — they adhere to, or depart from, past precedents. In this regard, the relationship between stare decisis and the law of abortion is not confined to disputes over the constitutionality of a particular abortion restriction or even whether the Constitution recognizes a fundamental right to choose an abortion. Instead, the relationship between the two informs every dispute in which the Court considers whether and how to defer to its past decisions.

The relationship between stare decisis and the Court’s abortion jurisprudence is evident in the Court’s disposition of June Medical Services L.L.C. v. Russo,17×17. 140 S. Ct. 2103 (2020). a challenge to Louisiana’s Act 620,18×18. Unsafe Abortion Protection Act, La. Stat. Ann. § 40:1061.10 (2020), invalidated by June Med. Servs., 140 S. Ct. 2103. which required physicians providing abortions to have admitting privileges at a local hospital.19×19. Id. § 40:1061.10(A)(2)(a). Although the Court voted 5–4 to invalidate the challenged law,20×20. June Med. Servs., 140 S. Ct. at 2133 (plurality opinion); id. at 2142 (Roberts, C.J., concurring in the judgment). the Justices were fractured in their reasoning and the guidance they provided to lower courts judging future abortion restrictions.21×21. Despite concurring in the judgment, Chief Justice Roberts seemed to invite a future opportunity to revisit Planned Parenthood of Southeastern Pennsylvania v. Casey’s, 505 U.S. 833 (1992), undue burden standard and echoed the dissenters’ disdain for Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016). See Gretchen Borchelt, Symposium: June Medical Services v. Russo: When a “Win” Is Not a Win, SCOTUSblog (June 30, 2020, 12:31 PM), https://www.scotusblog.com/2020/06/symposium-june-medical-services-v-russo-when-a-win-is-not-a-win [https://perma.cc/BD42-VXK7]. Indeed, one of the few points of agreement among all nine Justices was that principles of stare decisis dictated the outcome in the instant case.22×22. In his plurality opinion, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, noted the similarity of June Medical Services to Whole Woman’s Health and argued that in such nearly identical cases “the law must consequently reach a similar conclusion.” June Med. Servs., 140 S. Ct. at 2133 (plurality opinion). In his concurrence, Chief Justice Roberts noted that “[s]tare decisis instructs us to treat like cases alike,” id. at 2141 (Roberts, C.J., concurring in the judgment), and that the result in June Medical Services was dictated by past precedent, id. at 2141–42. In his dissent, Justice Alito, joined in full by Justice Gorsuch and in part by Justices Thomas and Kavanaugh, argued that the plurality and concurrence misapplied stare decisis and failed to consistently adhere to precedent. Id. at 2153 (Alito, J., dissenting).

It is perhaps unsurprising that all of the opinions in June Medical Services focused heavily on stare decisis and fidelity to precedent. After all, the case bore striking similarities to Whole Woman’s Health v. Hellerstedt,23×23. 136 S. Ct. 2292. a challenge to a virtually identical Texas admitting privileges law that the Court decided only four years earlier.24×24. Id. at 2300; see also June Med. Servs., 140 S. Ct. at 2112 (plurality opinion) (describing Louisiana’s Act 620 as “almost word-for-word identical to Texas’ admitting-privileges law”). But it was not just that, as a settled precedent squarely on point, Whole Woman’s Health obviously should have dictated the outcome in June Medical Services. Stare decisis dominated the Court’s disposition of June Medical Services in the same way that it has come to dominate almost every case that implicates the constitutional right to abortion.

Using June Medical Services as a point of entry, this Comment surfaces and examines the complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence. This Comment proceeds in four parts. Part I considers the relationship between stare decisis and the Court’s abortion jurisprudence. Focusing specifically on Planned Parenthood v. Casey25×25. 505 U.S. 833. and Gonzales v. Carhart,26×26. 550 U.S. 124 (2007). it argues that stare decisis and precedent have come to shape the public conflict over abortion rights and, more particularly, the Court’s efforts to resolve that conflict in its jurisprudence.

Part II turns to June Medical Services v. Russo to elaborate the relationship between stare decisis and the Court’s abortion jurisprudence. Specifically, it focuses on Chief Justice Roberts’s concurrence27×27. June Med. Servs., 140 S. Ct. at 2133–42 (Roberts, C.J., concurring in the judgment). to show that the dynamics identified in Casey and Gonzales are not isolated, but rather are part and parcel of the Court’s efforts to delineate the scope and substance of the abortion right. As this Part explains, the Chief Justice’s concurrence wrestled with the question of what it means to be faithful to past precedent. While the Chief Justice acknowledged that, under principles of stare decisis, Whole Woman’s Health, the Court’s most recent abortion decision, controlled,28×28. Id. at 2134 (“The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons.”). he was nonetheless selective about which aspects of the 2016 decision demanded deference.29×29. See id. at 2135–36. This selective approach to stare decisis transformed the meaning — and precedential value — of Whole Woman’s Health, as well as the standards by which abortion restrictions will be judged going forward.

Part III argues that even as stare decisis has shaped the Court’s abortion jurisprudence, the doctrine has in turn been shaped by the Court’s abortion jurisprudence. To elaborate this claim, this Part first explains how Casey has informed much of the Court’s jurisprudence on stare decisis. Relatedly, it shows how the Court’s abortion jurisprudence has served as both a blueprint and a roadmap for dealing with precedent in nonabortion contexts. More provocatively, this Part argues that Roe and the abortion right shadow all of the Court’s efforts to define and observe the requirements of stare decisis. Part IV considers the normative implications of the abortion jurisprudence’s influence on the Court’s approach to precedent. The Comment then briefly concludes.


∗ Frederick I. and Grace Stokes Professor of Law and Faculty Director of the Birnbaum Women’s Leadership Network, New York University School of Law. For helpful comments and conversations, I am grateful to Colleen Campbell, Guy-Uriel Charles, Cynthia Godsoe, Solangel Maldonado, Caitlin Millat, Doug NeJaime, Rachel Rebouché, Alice Ristroph, Carol Sanger, Micah Schwartzman, Reva Siegel, and Jane Spinak. I received helpful feedback from participants at the New York City Family Law Scholars Workshop. Alon Handler and Hilarie Meyers contributed valuable research assistance. Many thanks to the editors of the Harvard Law Review for their excellent editorial assistance. All errors are my own.