The Abortion Fight and the Pretense of Precedent

By Jeffrey Toobin, The New Yorker

19 May 19

State legislators have proposed Draconian new laws on the assumption that, when they come before the Supreme Court, they will be used to vanquish Roe v. Wade once and for all.

s both candidate and President, Donald Trump has lied so frequently and so extravagantly that it’s possible to overlook the occasions when he told the truth. During the campaign, for example, he said many times that he was “pro-life,” and that he would appoint Justices to the Supreme Court who would vote to overturn Roe v. Wade. Indeed, as Trump put it in his final debate with Hillary Clinton, if he won, the burial of the Court’s 1973 abortion-rights landmark would “happen automatically, in my opinion, because I am putting pro-life Justices on the court.” So Trump promised, and so, with Justices Neil Gorsuch and Brett Kavanaugh, he has delivered.

During their confirmation hearings, both Gorsuch and Kavanaugh made the customary noises about respecting the Court’s precedents, including Roe, but one group in particular saw through the platitudes. State legislators who oppose abortion rights knew that the two Trump appointees, especially Kavanaugh, who replaced Anthony Kennedy, gave them the opportunity they sought. In recent months, a dozen states have taken steps to pass laws that restrict abortion rights in Draconian ways. The most common of these efforts have been the so-called “heartbeat bills,” which prohibit a woman from ending a pregnancy when an ultrasound scan can detect a fetal heartbeat. (Missouri passed one on Friday.) This can happen as early as six weeks into a pregnancy, at a time when a woman may not yet even know that she is pregnant. If the heartbeat statutes go into effect, doctors, rather than risk violating them, may elect not to perform any abortions. So these statutes will, in fact if not by law, amount to revocations of the right to choose abortion in those states.

Last week, though, Alabama decided to forgo even the pretense of respect for the Roe precedent. The State Senate voted twenty-five to six to ban virtually all abortions, and to establish criminal penalties of up to ninety-nine years in prison for doctors who perform them. The legislators also rejected an amendment that would have allowed women who were victims of rape or incest to obtain the procedure. (All twenty-five senators who voted in favor of the bill were men.) The bill passed the State House on Tuesday, and Governor Kay Ivey signed it into law the next day. The supporters of these statutes recognize that they violate existing Supreme Court precedent—and that’s the point. Legislators passed them on the assumption that, when they come before the current Court, the two Trump appointees, plus Chief Justice John Roberts, and Associate Justices Clarence Thomas and Samuel Alito, will use the case to vanquish Roe once and for all.

The human costs of these new laws can scarcely be overstated. Laws have never stopped women from getting abortions; indeed, the abortion rate in countries that ban the procedure is about the same as it is in countries that allow it. But, by driving the practice underground, the new laws will increase the danger to women’s health. It was once thought that the availability of abortifacient drugs would allow women to avoid the strictures of anti-abortion laws, but these methods are now being targeted, too. The heartbeat law that passed earlier this month in Georgia is so broadly worded that it could lead to the criminal prosecution of women who seek abortions, as well as medical personnel who perform them; women who are residents of Georgia and travel to other states to end their pregnancies could also be prosecuted.

All the new laws are currently being challenged in the lower courts, and several have already been enjoined because they contravene Roe and the many subsequent Supreme Court decisions that reaffirm a woman’s right to choose. There is a school of thought that the current Court, and especially the Chief Justice, will want to proceed cautiously on abortion, particularly in an election year; that the conservative majority will uphold restrictions but hold off on overturning Roe. This is unlikely, on both legal and political grounds. The Alabama legislators wrote their statute in a way that will make it impossible for the Justices to uphold it while still pretending that Roe is good law. Just as important, the gradualism theory overlooks the centrality of a Roe reversal to the conservative judicial agenda. More than any other issue, it has defined, and united, right-wing judges.

Just last week, in Franchise Tax Board of California v. Hyatt, the Court’s five conservatives gave a stark preview of how they regard precedents with which they disagree. The case concerned an obscure corner of civil procedure—specifically, whether states can be sued in the state courts of other states. The real issue, however, was whether a 1979 precedent of the Court should be overturned, and Justice Thomas’s opinion for the majority welcomed that opportunity. In his view, it is fine for the Court to do away with stare decisis, the rule of precedent, if the current majority believes that the precedent represents “an incorrect resolution of an important constitutional question.”

This is not how stare decisis is meant to work. Respect for precedent serves the values of stability and predictability; it allows lawyers to give good advice and permits ordinary citizens to plan their lives. Precedents are supposed to be overturned only in the rarest circumstances, not simply because the current Court would have decided differently. Kavanaugh’s alleged fealty to stare decisis won him the support of Senator Susan Collins, after his contentious confirmation hearings last year. Collins, the Maine Republican who is usually described as a supporter of abortion rights, announced that she would vote for Kavanaugh because of his expressed belief in precedent, notably when it came to Roe. She said, “When I asked him, would it be sufficient to overturn a long-established precedent if five current justices believed that it was wrongly decided, he emphatically said ‘No.’ ” By joining the majority in Hyatt, the now safely confirmed Kavanaugh has shown that he really meant “Yes.”

The four dissenters in Hyatt understood what was truly at stake in the case. Justice Stephen Breyer, writing for Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, said that the majority had given in to the temptation to overrule a precedent “even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.” Breyer didn’t spell it out, but it doesn’t take much wondering to see which case will likely be the next to fall.