In a biting dissent two years ago, when the Supreme Court overturned a ruling from 1979, Justice Stephen Breyer wrote that the decision “can only cause one to wonder which cases the court will overrule next.”
Breyer is about to find out.
The justices are gathering Wednesday to consider a momentous question that has roiled the political sphere for decades and become a major feature of every modern-day judicial confirmation hearing: should Roe v. Wade be overturned?
Front and center at oral arguments will be a Mississippi law that bars abortion after 15 weeks of pregnancy, that has the court considering whether a woman has a constitutional right to end a pregnancy.
But lurking behind the law is another question that goes to the stability of the court as an institution. The justices will also weigh in on how seriously they should consider the very fact that Roe has been on the books for nearly a half-century.
Put another way: if the court uses cases as building blocks to construct the rule of law, what happens when one block – put in place in 1973 – is yanked out?
As much as some of the justices might wish they were writing on a blank slate, they cannot pretend they haven’t dealt with Roe in numerous cases over the years. Equally important, several of the justices have at various times laid out the factors they weigh when voting to overturn precedent.
How the court grapples with that question could illuminate the way forward for the court and its aggressive right flank as it grapples with other divisive topics in the future.
In legalese, the doctrine the justices will consider on Wednesday is called stare decisis. It derives from the Latin “stare decisis et non quieta movere” meaning, roughly, to stand by things decided and not disturb the calm.
For some, stare decisis is critical because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles. For others, like Justice Clarence Thomas, it is overrated at times, especially as he wrote in 2019, if it gives the “veneer of respectability” to what he called “demonstrably incorrect precedents.”
Wednesday’s case will bring the debate to a head as the court considers a federal appeals court decision that struck down the Mississippi law. The 5th US Court of Appeals – one of the most conservative courts in the country – invalidated the Mississippi law, holding it was in in direct contravention of Roe.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” the court held.
Mississippi appealed the decision to the Supreme Court. After the justices agreed to take up the dispute, the state attorney general made the big ask: “This Court should overrule Roe,” because the decision has proven “hopelessly unworkable.” Roe, and another case called Planned Parenthood v. Casey decided in 1992 have “inflicted profound damage,” the state said.
“Reliance interests do not support retaining them,” the state argued. “And nothing but a full break from those cases can stem the harms they have caused.”
Supporters of abortion rights, were quick to respond, emphasizing from the start how the country has come to rely on Roe.