“Precedent and stare decisis will continue to be understood as they have been so far,” she added. “The majority opinion specifically states that the abolition of Roe does not lead to the abolition of the doctrine of stare decisis and will not affect other precedents on contraception, homosexual acts and same-sex marriage.”
Collett said that precedent will apply for Supreme Court rulings that “have a historical foundation” and concern a matter “of such importance to our system of government that it really does cabin in the ability of the court to impose political will, or as Justice Alito said, a ‘raw act of judicial power’.”
Alito’s decision in Dobbs used a legal test from the 1997 Washington v. Glucksberg decision, which rejected assertions of a right to assisted suicide. Among its requirements are that rights not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” As applied by Alito, this means “the right to abortion does not fall within his category.”
According to Collett, the use of Glucksberg is “a principled analysis.” In her view, this analysis will help stop “the erosion of other bodies of law.” She was critical of the wide allowance to abortion providers to bring legal challenge to health and safety laws, allegedly in their potential patients’ interest. She found this “absurd” and compared it to “giving the tobacco industry standing to represent all potential smokers” and fight every tobacco regulation.
“It’s clear that for people who are absolutely convinced that abortion is a prerequisite to women’s equality, they're not going to be persuaded by anything,” Collett added. “But if you really look at it from a neutral jurisprudential point of view, (Dobbs) is a very finely crafted opinion.”
Collett was the lead counsel for an amicus brief filed in the Dobbs case on behalf of 240 women scholars and professionals and pro-life feminist organizations. In contrast to backers of legal abortion who claim the pro-abortion rights precedent was necessary for women’s progress, Collett’s brief argued that the precedent disadvantages women.
She told CNA she foresaw some attempts to reinstate a constitutional right to abortion, but predicted these will “largely be unsuccessful.” Backers of Roe will instead focus on presidential and congressional action, especially a renewed push to pass the Women’s Health Protection Act.
“You'll see a lot more energy behind that, which really makes the upcoming congressional elections important,” Collett said.
In her view, Dobbs “empowers individuals to as voters participate in the political process of crafting their state.” Precedent under Roe, she said, “required states to permit abortions” and resulted in “judicial control.” By contrast, Dobbs is “simply going to keep the courts out of it” and exclude abortion as a judicial question.
“This is a question for other branches of government and what the people decide legislatively will be the law of their particular state,” she said.
Collett added that although there will be state courts that seek to protect legal abortions, Dobbs might withstand arguments that it too should be overruled. “It's kind of hard to attack a precedent that allows the states to make these decisions individually,” she said.
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Castaldi welcomed the decision with “elation,” saying, “This is a glorious day for the protection of all human life.”
The Dobbs decision “means that abortion will no longer be celebrated as a constitutional right under federal law. Even if the practice continues to be decriminalized, it will no longer enjoy the status of a fundamental right.”
Collett offered some advice at how to engage those in the wake of the change from the Supreme Court.
The pro-life movement “needs to tell stories about women who were distressed by their pregnancy but ultimately reconciled to it, and what a great gift that child was, both to the woman and her family.”
Though Collett thought many claims made about a post-Roe world won’t hold up, friends, family, and neighbors may “feel scared about this.”
“When you're talking to someone who's really frightened, you have to be pretty gentle,” she said. “I think we need to be prepared to be kind as we make our case.”