Mary Ziegler

Document Type

Article

Disciplines

Courts | Jurisprudence

Abstract

With President Donald Trump’s third Supreme Court nomination, the reexamination of Roe v. Wade has become a probability. An increasingly conservative Court will almost certainly not embrace the idea of abortion rights. Instead, the fate of abortion rights will likely turn on the meaning of stare decisis, a doctrine requiring the Court to pay some deference to its past decisions. Stare decisis has recently played a starring role in abortion jurisprudence. In his controlling concurrence in June Medical Services L.L.C. v. Russo, Chief Justice Roberts invoked stare decisis while gutting the substantive rule written into the precedent to which he proclaimed fidelity. This use of precedent might appear contradictory or even hypocritical. In truth, it emanates from decades of social-movement conflict about what defines a precedent—and what it means for a court to be bound by past decisions.

This Article chronicles the surprising history of that conflict. Struggles over stare decisis and abortion produced a separation of stare decisis rhetoric from any obligation to adhere to precedent, a willingness to treat a decision’s divisiveness as a sign of its failings, and a conflation of one or more stare decisis factors with others. The result is a vision of stare decisis that is opaque, if not outright dishonest. This obfuscation is particularly troubling in the context of abortion jurisprudence, where popular constitutional engagement is intense. The Court has never been more than one participant in a broader dialogue about reproduction and the Constitution. If the Justices reverse Roe, they have a duty to do so in a way that facilitates, rather than undermines, public engagement.

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