At issue in the Dobbs case is the constitutionality of Mississippi’s 2018 ban on most abortions after 15 weeks of pregnancy.
As Castaldi explained, the state law directly contradicts Roe, Doe, and Casey. Roe prohibited states from banning abortion prior to fetal viability, or the capacity of the fetus to survive outside the woman’s body (now considered to be at approximately 24 weeks gestation) while Casey barred states from adopting regulations that pose an “undue burden” for a woman exercising her legal right to obtain an abortion.
“It also challenges Doe’s health exception, since Mississippi defines health to mean only physical, not mental health of the mother,” Castaldi said.
“Thus, it begs the question of whether the court should invalidate Roe and the only way that the Court could do this is by departing from stare decisis,” she continued. “That will not be easy to do since Roe has been reaffirmed in the past, such as in Casey, and again in June Medical, where Chief Justice Roberts shocked fellow Catholics by declaring that Roe was binding precedent under stare decisis.”
The 2020 decision June Medical Services, LLC v. Russo concerned a Louisiana law that held abortion clinics to the same standards as other surgical centers, such as requiring doctors to have admitting privileges at a local hospital. The court ruled this posed substantial obstacles to a woman’s access to abortion.
Roberts’ concurring opinion in the 5-4 case said the law was “just as severe” as a similar Texas law struck down in a 2016 Supreme Court decision. Though he had dissented from that 2016 ruling, he said the principle of stare decisis meant that Louisiana’s law could not stand.
However, Castaldi noted, the Supreme Court has already “chipped away” at its precedent in Roe. Casey affirmed a right to abortion based on personal liberty, rather than Roe’s privacy finding, she said, while also dispensing with Roe’s trimester-based system for evaluating state abortion laws.
For Castaldi, such developments allow grounds for further change.
“Therefore, the court can rely on its own precedent to either undermine or entirely abolish Roe,” she said.
‘Precedent on top of precedent’?
The principal brief against the Mississippi law was filed by attorneys from the pro-abortion rights group Center for Reproductive Rights, on behalf of the Mississippi abortion clinic Jackson Women’s Health Organization. This brief cites principles of precedent, like stare decisis, to argue that all pre-viability bans on elective abortion are unconstitutional. The viability standard is “well grounded in the constitution and the court’s broader jurisprudence.”
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The brief also faults backers of the Mississippi law for failing to establish an alternative precedent. If a state seeks to overrule a repeatedly affirmed precedent, the brief argues, it “should at least propose and seriously develop an alternative legal framework.”
The pro-abortion rights brief depicts Casey as “precedent on top of precedent,” saying the decision backed up the correctness of the viability line.
“Even if contested, constitutional rights that have ‘become embedded’ in ‘our national culture’ are entitled to heightened stare decisis effect,” the brief states. It argues that the right to an abortion is grounded in precedents guaranteeing bodily autonomy, family decision-making, and access to contraception. The brief also depicts the viability line as “a principled point” at which to strike the balance of “the individual’s interests against the state’s interests.”
“(T)ime and again, the Court has reaffirmed that it is ‘imperative’ to retain a ‘woman’s right to terminate her pregnancy before viability’,” the brief states.
For Collett, however, the constitutional arguments are key to determining whether precedent should stand.
“Both Roe and Casey are cases that have no foundation in the text of the Constitution, nor are they consistent with the states’ history of outlawing abortion both to protect the unborn child and the mother,” the University of St. Thomas law professor said. “As several justices have noted, stare decisis has less weight in reviewing interpretations of constitutional text.”