“Some of our most important constitutional decisions have overruled prior precedents,” said Alito, citing the Brown v. Board of Education decision which ended racial segregation in schools. The pro-racial segregation Plessy v. Ferguson decision, he said, “betrayed our commitment to equality under law.”
The Roe decision relied on an “erroneous understanding” of the history of abortion laws in the U.S., including reliance on “two discredited articles by an abortion advocate.” This misunderstanding “appears to have played an important part in the Court’s thinking,” Alito said.
Supporters and critics of current abortion precedents, in arguments and briefs before the Supreme Court, gave very different interpretations of that principle. Backers of the legal decisions supporting legal abortion tried to depict them as “precedent on top of precedent.”
Castaldi told CNA last year that 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. It also dispensed with Roe’s trimester-based system for evaluating state abortion laws.
Such developments were a departure from precedent at the time and allow grounds for further change: the court can either further undermine or abolish Roe.
In response to the draft Dobbs opinion, Castaldi echoed Alito by citing previous court decisions that were overturned.
“Yes, the court has abolished wrongfully decided judgments before, such as Plessy v. Ferguson, upholding segregation statutes, and Korematsu v. United States, upholding internment of people of Japanese ancestry in concentration camps during World War II, to name a few,” she said.
“The draft similarly finds that Roe was ‘egregiously wrong from the start’ and holds that ‘Roe v. Wade must be overruled.’ It indicates that stare decisis, the judicial tradition of following precedent, has not historically bound the court to follow erroneously decided judgments, especially when the said decision was poorly reasoned, did not create workable rules, had disruptive effects on other areas of the law and failed to rely on proper constitutional interpretation, as Roe did,” Castaldi explained.
Alito’s draft argued that the Casey decision “deployed a novel version of the doctrine of stare decisis” that “did not account for the profound wrongness of the decision in Roe, and placed great weight on an intangible form of reliance with little if any basis in prior case law.”
Reliance, or reliance interests, are a legal concept that generally aims to protect those who have made a past decision.
“Typically, reliance refers to property, as in a case where a city changes an industrial area to a residential area,” Collett told CNA. A city can’t order someone who has built an industrial plant in that area to shut it down because of the changed status.
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Collett was the lead counsel for an amicus brief of 240 women scholars and professionals and pro-life feminist organizations. In contrast to backers of legal abortion who claim current pro-abortion rights precedent is necessary for women’s progress, this brief argues that the precedent disadvantages women.
“Of course, it is our clients’ position that there is no reliance that you can consistently show,” she explained. “Abortion, as the court recognized in the Casey opinion, is a response to an unplanned pregnancy. And therefore it is a prospective act, that evidences virtually no reliance.”
Collett told CNA that both the brief she co-authored and opposing briefs are cited in Alito’s draft “to establish that we simply do not know if such reliance occurred.”
Legal abortion backers have argued that the court must uphold abortion rights precedent to ensure women’s progress.
Alito said that the Casey decision had already rejected the contention that abortion precedent involves traditional reliance interests. In his view, that decision then tried to present women’s relationship choices and choices about their roles in society as a form of reliance interests. Alito said the Supreme Court is “ill-equipped” to evaluate these assertions. The evaluation of the social and individual effects of a right to abortion is best left to state legislatures and other political processes in which, the justice noted, women have a prominent role.
“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power,” he said.