Does our Constitution really protect some “right” to abortion, such that the states may not protect prenatal life by anti-abortion laws?
A half century ago, in Roe v. Wade, a 7-2 majority of the Supreme Court said “yes.” Three decades ago, in Planned Parenthood v. Casey, a bare 5-4 majority reaffirmed the same and specified that the Constitution’s abortion right bars any “prohibition of abortion” before extrauterine “viability” (roughly 22 weeks after conception).
Now, in Dobbs v. Jackson Women’s Health, the question is once again before the Court. At issue is a Mississippi statute that expressly prohibits the abortion of some pre-viability humans—more specifically, those who have reached 15 weeks after their conception. This prohibition is plainly irreconcilable with Casey.
For good reason, then, several commentators have concluded that to uphold the statute in Dobbs, the Supreme Court must overrule Casey. Professor Sherif Girgis, for instance, has concluded that the Court must “scrap precedent” and simply “overrule” Casey. And here at Public Discourse, Professor Michael Paulsen has decried Casey “as the worst constitutional decision of the Supreme Court of all time.” And as to the well-established rule of stare decisis (let stand the things already decided), Paulsen calls it a “pernicious doctrine.”
Indeed, some might contend that even if Roe and Casey had been affirmed and reaffirmed unanimously by every American judge for 100 years, the Court today should still discard these precedents. To adopt the language of another famous case, the Dobbs Court might say that Roe was “an unconstitutional assumption of powers by courts of the United States that no lapse of time or respectable array of opinion should make us hesitate to correct.”
Nonetheless, I don’t believe stare decisis, as applied to Casey, favors a pro-abortion outcome in Dobbs. Rather, fidelity to Casey’s reasoning as a whole now requires a reconsideration of its abortion license.
Casey’s Unanimous Rejection of Roe’s Pseudo-History
In Casey, the Court decided three key issues before reaffirming Roe’s abortion holding. First, the Court unanimously decided to reject Roe’s originalist foundation for the abortion right.
In Roe, Justice Blackmun, writing for the majority, had set forth an extensive historical analysis concluding that before the Fourteenth Amendment, “a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today.” Only after the Civil War, he argued, did the states generally prohibit abortions throughout the first and second trimester—even before so-called “quickening” (when fetal motion is first detectable by the mother). The implication, then, was that the Court was vindicating and recovering some traditional pre-quickening right to abortion, supposedly recognized at the amendment’s adoption, but wrongly neglected thereafter.
But in Casey, the Court unanimously set aside this analysis. Relying on post-Roe scholarship, the four dissenters pointed out that by the amendment’s adoption in 1868, at least three-fourths of the states had passed statutes banning pre-quickening abortion to supplement and extend the common law’s ban on post-quickening abortions. Thus, it was plain error to say that when the amendment was adopted, there was some long-recognized and traditional right to abortion. (This historiography appears again in the Dobbs case in an amicus brief filed by Joseph Dellapenna, one of the leading post-Roe scholars of abortion-law history.) The majority tacitly agreed. Even Justice Blackmun, still on the Court, did not bother to defend Roe’s history. Instead, as discussed below, he joined a majority that laid for the abortion right a new, living-constitutionalist foundation.
This unanimous and emphatic rejection of Roe’s historical claims was properly only tacit. All the justices in Casey agreed with or acquiesced to the rejection, including Justice Blackmun, Roe’s author, who, at eighty-three years old, was then the Court’s eldest member. Therefore, an express repudiation of his Roe history was neither necessary nor respectful.
This particular decision in Casey was its most authoritative. It was not only unanimous but also unimpeachable. The Roe opinion had been based on “assumed historical facts which are not really true,” to borrow an apt phrase from Lincoln.
The Court in Casey thus had compelling reason to reject Roe’s error. Like all federal judges, the Court’s members take an oath to administer justice “under” the Constitution and not over it. Where a decision relies on proven historical error, persistence turns judicial error into judicial deceit. The rule of law cannot admit the rule of lies.
Casey’s Anti-Originalist Grounds for Abortion
The second key decision in Casey, by a bare majority, was to re-found Roe’s abortion right on anti-originalist grounds. The majority pointedly and directly denied that the “rules of law [prevailing] when the Fourteenth Amendment was adopted” should limit the meaning of “liberty” in the Amendment. Rather, the Court insisted, this “liberty” is a “living thing,” subject to a “national process.” And in this “process” the Supreme Court has the ultimate authority to “define the liberty of all.”
To support this judicialist or kritocratic approach, the Casey majority relied chiefly on the Court’s unanimous decision in Loving v. Virginia (1967). Of that decision, the majority made the following historical claim:
Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause.
The inference here is compelling. In Loving, the Court had rejected the limits of constitutional text and tradition to vindicate a new liberty of interracial marriage. In Roe, the Court rightly did the same for abortion.
Tests for Roe’s Durability in Casey
Pursuant to this living constitutionalism, the Court decided a third crucial point. It relied upon a four-factor test to assess the durability of its liberty-redefining precedents, including the right to abortion decided in Roe. In particular, the Court considered whether the precedent (1) has proven workable, (2) has become subject to important “reliance interests,” (3) has been consistent with subsequent developments in closely related areas of law, and (4) has retained its “application or justification” in light of other subsequent changes.
Finally, after assessing these four factors, the Court concluded, that as of 1992, Roe’s liberty of abortion should be retained. It reasoned that Roe’s redefinition of liberty had proven workable. Second, this new abortion liberty had occasioned significant reliance; men and women “have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion.” Third, no legal development had undermined the precedent. Fourth, although advances in medicine had enhanced extra-uterine viability, no factual development had undermined Roe’s “central” pro-abortion conclusion. Thus, the Court reaffirmed Roe’s abortion right but limited it to a right to pre-viability abortion.
Updating, Not Overturning, Casey
It has now been thirty years since Casey. Things have changed. Important developments in scholarship, law, and society are such that, in our time, stare decisis as to Casey requires a reconsideration of its pro-abortion conclusion.
This reconsideration is necessary for two reasons.
First, even if in deference to Casey the Court should reaffirm its living constitutionalism, such deference also requires the Court to assess each of Casey’s four factors to determine whether, as of 2022, constitutional “liberty” still includes abortion. Among other changes, reliance on abortion has declined dramatically; abortion rates have dropped roughly 50 percent since the Roe–Casey era. And at the same time, opposition to abortion has persisted and become more concentrated in some states and in one major party. There is no longer, as there was thirty years ago, any reasonable hope that the American polity will, across the states and parties, generally acquiesce in a judicially decreed national abortion policy.
Second, the Court should set aside Casey’s living constitutionalism precisely in deference to Casey’s first and most authoritative decision: to reject a legal conclusion based on obvious historical error. Just as, by the time of Casey, post-Roe scholarship had demolished Roe’s history of abortion, so in our time, post-Casey scholarship has demolished Casey’s history of interracial marriage.
In particular, careful studies by various scholars, including the late Peggy Pascoe and myself, have refuted the Casey majority’s assertion—unsupported by any citation—that bans on interracial marriage were prevalent even with the ratification of the Fourteenth Amendment. To the contrary, in the five years immediately after the amendment’s adoption, interracial marriage had become lawful in a clear majority of the states—and a supermajority of those that had voted for ratification (including, incidentally, Mississippi)—in large part because Republican judges and lawmakers concluded that the Amendment barred the states from making or enforcing so-called “anti-miscegenation” laws.
Indeed, the Loving Court itself had anticipated this post-Casey scholarship. In Loving, the petitioner’s counsel had offered a living-constitutionalist argument: that the Amendment was “open-ended and meant to be expounded in light of changing times and circumstances.” But the Court ignored this invitation, and instead invoked the amendment’s original understanding. The Court explained that when the amendment had been adopted, its effect on bans on interracial marriage and schooling was in dispute, but that the amendment’s advocates (mainly Republicans) “undoubtedly intended” to remove all such legal obstacles. Casey clearly misrepresents Loving’s own stated reasoning.
Casey’s legal history of liberty, like Roe’s, was plainly mistaken. And just as the Casey Court set aside Roe’s error and its resulting spurious originalism, the Dobbs Court should set aside Casey’s error, and its unfounded living constitutionalism.
Reconsidering Casey Doesn’t Threaten Precedents
But hasn’t post-Casey jurisprudence, especially its same-sex decision in Obergefell v. Hodges (2015), bolstered Casey’s evolutionary kritocracy? Would reconsidering Casey’s bad history unravel decades of caselaw that cite Casey’s use of Loving? Is the precedent too cemented into constitutional law? After all, in Obergefell, albeit by a bare majority, the Court declared that “history and tradition . . . do not set [the] outer boundaries” of the meaning of constitutional rights, and in this development, the courts have the ultimate authority: “The identification . . . of fundamental rights is an enduring part of the judicial duty.”
But Obergefell’s “liberty” opinion was sui generis. Other post-Casey decisions, likewise 5-4, relied on a traditional definition to “liberty” to exclude any right to assisted suicide and to include the right to bear arms. Further, Obergefell involved not a liberty, but an equality claim. The petitioners there did not ask for a freedom from government, but equal right to a particular government benefit: public recognition. Therefore, the majority relied also on constitutional equality. This equality basis for same-sex marriage was far more consistent with the public’s understanding of the right: “marriage equality,” not “marriage liberty.”
And most tellingly, the Obergefell majority conspicuously omitted any reference to Casey and its Loving analogy. If Casey’s living constitutionalism had remained a strong precedent, the Court would have cited it; indeed, its misreading of Loving would have provided the best precedent for the majority’s conclusion. But only the dissenters mentioned either Casey or Roe—and only pejoratively.
Respect for the Supreme Court’s precedents is, indeed, a vital part of the rule of law. Casey, as a whole, should be respected. Its unanimous correction of Roe’s historical error should be respected. And its other 5-4 decisions should be as respected as much as any other 5-4 decision. But where any decision is based on an “obvious mistake,” in Lincoln’s words, “is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?” Casey’s pro-abortion conclusion was based on an obvious historical mistake. The Dobbs Court can and should unanimously reconsider that conclusion.