Abortion looms as precedents are dumped
A constitutional right hinges in the footnotes for Supreme Court
WASHINGTON – When a fractured Supreme Court ruled last week that jury convictions for serious crimes must be unanimous, one word appeared nearly as frequently in the differing opinions offered by five justices as “jury.”
That word was “precedent.” And lurking between the lines was another word, mentioned just twice and only in footnotes: abortion.
Since 1973, the constitutional right to abortion has hinged on the high court’s decision in Roe v. Wade, later modified but upheld in 1992. Before he was confirmed to the court in 2018 by the narrowest of margins, Associate Justice Brett Kavanaugh referred to those rulings as “precedent on precedent.”
But in striking down a Louisiana prisoner’s conviction and subsequent sentence of life without parole, the Supreme Court jettisoned yet another of its own precedents, established a year before Roe and a generation before 1992’s Planned Parenthood v. Casey. Six justices agreed with the reversal.
For SCOTUS-watchers, it was but the latest indication that a more conservative court, focused first and foremost on the words written in the Constitution, is increasingly willing to reverse the work of its predecessors. And no issue hangs in the balance more than abortion.
“More and more of the justices are aware that they need to have a theory of precedent,” said William Baude, a University of Chicago Law School professor whose recent treatise on the subject was cited by Kavanaugh in the Louisiana ruling.
Kavanaugh spent 18 pages laying out his theory for when precedent can be cast aside, one that hinges on three factors: a “grievously wrong” prior court decision and its negative consequences, set against the degree to which it has become relied upon.
“Some of the court’s most notable and consequential decisions have entailed overruling precedent,” he wrote. Among them: landmark rulings on school segregation, same-sex marriage, campaign spending, defendants’ rights – and abortion.
The lone justice to oppose all the attacks on Supreme Court precedent has been Associate Justice Elena Kagan. In a unanimous opinion in March involving states’ immunity from copyright infringement lawsuits, she quoted from an earlier decision that called honoring the court’s prior workmanship a “foundation stone of the rule of law.”
Kagan was in the minority in the court’s ruling on unanimous juries, which her fellow dissenter, Associate Justice Samuel Alito, wrote could prompt a “tsunami of litigation” in Louisiana and Oregon, the only two states with non-unanimous jury verdicts in dispute.
The majority opinion by Associate Justice Neil Gorsuch overturned the 1972 ruling in Apodaca v. Oregon. A single justice had cast the deciding vote for allowing non-unanimous verdicts in state, but not federal, courts. Gorsuch and just two colleagues said the fractured nature of that decision made it unworthy of precedential force.
“Even if we accepted the premise that Apodaca established a precedent, no one on the court today is prepared to say it was rightly decided, and “stare decisis” isn’t supposed to be the art of methodically ignoring what everyone knows to be true,” Gorsuch wrote, using the Latin term for upholding precedent.
Even imperfect precedents routinely are preserved if society has come to rely on the consequences, however. In this case, Gorsuch reasoned that although Louisiana and Oregon will face litigation from defendants convicted by non-unanimous juries, that burden is sustainable. Other precedents, he acknowledged, have greater economic, regulatory or social reliance interests.
On which side of that ledger abortion rights falls remains to be seen.
It won’t take long to get at least some sense of the court’s intentions regarding abortion.
The justices in 2016 struck down restrictions on Texas abortion clinics and doctors that a 5-3 majority said unduly burdened women seeking abortions. In March, Louisiana was before the court with a mirrorimage case and two new justices sitting in judgment: Gorsuch and Kavanaugh.
Even if that case doesn’t produce the clear-cut victory sought by opponents of abortion, the steady drumbeat of challenges to state restrictions promises to send more cases the high court’s way.
Of course, it may be a long road from Louisiana’s requirement that abortion clinic doctors have hospital admitting privileges to overruling Roe.
“One of the questions will be how does his theory apply to Roe, but I don’t think we know the answer to that yet,” Baude said.
“Everyone wants to see abortion in the tea leaves on this one,” Schauer said, but the battle over the importance of precedents isn’t over. Just the recent intense focus, he said, “makes it harder for any justice to ignore it completely.”