Why Precedent Won’t Protect ‘Roe’

Anti-abortion demonstrators, Washington, D.C.
Mario Tama/Getty Images
Anti-abortion demonstrators on the first day of the Supreme Court’s new session, Washington, D.C., October 2019


At the Supreme Court, precedent is the topic of the day. The reason isn’t obscure. With the retirement of Justice Anthony Kennedy two years ago, the prospect of the Court overturning the 1973 Roe v. Wade decision is imminent in a way it has not been since 1992, when Kennedy jointly wrote an opinion with Justices Sandra Day O’Connor and David Souter that preserved the core of Roe while subtly transforming it. That opinion, in Planned Parenthood v. Casey, depended explicitly on stare decisis, the common-law doctrine of precedent that exercises such pull in the realm of US constitutional law. The aspirationally aphoristic first sentence of the opinion read, “Liberty finds no refuge in a jurisprudence of doubt.”

Today, doubt about the Roe precedent is on the prowl, and reproductive liberty finds itself very much in search of a refuge. In an April decision in a case having nothing to do with abortion (at least on the surface), Justice Brett Kavanaugh, Kennedy’s replacement, published an eighteen-page solo concurrence laying out his vision for when the Supreme Court should overturn precedent.1 This remarkable document included a comprehensive list of what Kavanaugh called “some of the court’s most notable and consequential decisions”—all of which “entailed overruling precedent.” The list included such highlights as Brown v. Board of Education, which rejected racial segregation in public schools by declaring “separate but equal” facilities unconstitutional; Brandenburg v. Ohio, which extended free-speech norms well beyond the old “clear and present danger” rule; Lawrence v. Texas, which overturned previously constitutional laws against gay sex; and Obergefell v. Hodges, which enshrined same-sex marriage as a fundamental right. It is hard to read Kavanaugh’s opinion as anything other than a trial balloon for an opinion overturning Roe.

Kavanaugh’s willingness to flip the switch will be tested when the Court decides this term whether to overturn a Louisiana law that requires abortion providers to have admitting privileges at surgical centers in proximity to their clinics. In 2016 the Court rejected an identical Texas law, with Kennedy providing the decisive fifth vote. The precedent is fresh and therefore vulnerable to the objection that it hasn’t yet set expectations. At the same time, overturning it would be an open admission that precedent cannot easily survive a change in the Court’s composition.

For liberals, the doctrine of precedent poses something of a conundrum in the current moment, when the threat to women’s reproductive rights is more immediate and pressing than it has been in at least a generation, and Donald Trump’s Supreme Court appointees seem poised to overturn established law. On the one hand, precedent presents itself as the best argument available for liberals to make the case to judicial conservatives that they should not roll…

This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your nybooks.com account. You may also need to link your website account to your subscription, which you can do here.