A rally at the U.S. Supreme Court on Dec. 1, in Washington.Eric Kayne/The Associated Press
The precedent set in Roe v. Wade establishing a woman’s right to an abortion in the United States has stood since 1973. On Wednesday, the U.S. Supreme Court heard a case from Mississippi that could cause the precedent to fall. Globe justice writer Sean Fine reports on the vulnerability of the precedent.
Why is precedent so central to the legal systems of Canada and the United States?
Precedents provide stability and predictability, and help distinguish courts from legislatures, whose members can change their minds whenever they want, and, unlike Supreme Court judges, are accountable in elections for doing so, says Richard Albert, the Allan Rock Visiting Professor of Law at the University of Ottawa. (A Canadian, he is usually based at the University of Texas at Austin.)
What if a court sets a foolish precedent?
Believing a precedent to be wrong is not enough to overturn it, according to both the U.S. and Canadian Supreme Courts. Special justifications are needed, such as new social facts and new legal frameworks – essentially, changing times. “If there’s a precedent that has been around for a long time,” says Christopher Green of the University of Mississippi School of Law, “it has to be not just wrong but really, really, clearly wrong to overrule it.” The U.S. Supreme Court ruling in Brown v. Board of Education in 1954 barred racial segregation in public schools, overturning Plessy v. Ferguson from 1896; in 2003, in Lawrence v. Texas, the court barred states from making gay sex a crime, overturning Bowers v. Hardwick from 1986. “In both cases, the court is expanding rather than retrenching rights,” Prof. Albert says.
So what exactly is the Roe v. Wade precedent?
That women’s right to choose an abortion is a privacy right under the 14th amendment of the U.S. Constitution, although the Constitution doesn’t mention privacy. The right of privacy exists until a fetus is “viable” – that is, until it could live outside the womb (then, roughly 28 weeks; today, roughly 24). In the first trimester, the matter is between a woman and her doctor, the court said. In the second trimester, the government’s interest in maternal health means the state may regulate abortion, on such matters as licensing and qualifications of practitioners. (The ruling was 7-2; five of the seven in the majority were Republican appointees, and one of the two in the minority was a Democrat appointee, reflecting a less partisan era on the court.)
Has Roe stood untouched all this time?
No. In 1992, the U.S. Supreme Court affirmed the central finding – the privacy right to choose, before the fetus is viable – but modified it, in a case called Planned Parenthood of Southeastern Pennsylvania v. Casey. (One issue: whether a woman could be required to give her husband notice of a planned abortion; the court said no.) A plurality of three judges, all of them Republican appointees, said that states have a compelling interest in protecting maternal health and “potential life,” and may therefore regulate abortion as long as they do not put an “undue burden” on a woman’s right to obtain an abortion. The court got rid of the trimester system.
In 2018, Mississippi banned abortions after 15 weeks. At the time, the state’s sole abortion clinic provided the procedure only until 16 weeks. “There was some idea it was a relatively small restriction,” Prof. Green says. But the clinic challenged the law on behalf of patients, and the courts would not let it take effect. A federal judge, Carlton Reeves, likened the state’s actions to those of the “old Mississippi – the Mississippi bent on controlling women and minorities,” and said it was a deliberate strategy to overturn Roe and Casey. “You can’t win this fight by playing footsie,” Prof. Albert said of the judge’s strong language.
What are the arguments of the two sides?
Mississippi argues it has a legitimate interest in safeguarding the medical profession from “barbaric practices,” and protecting women’s health and the lives of the unborn. It says scientific advances reveal more than had been previously known about fetal development, including the capacity to feel pain. The abortion clinic said that Roe and Casey make clear that the state has no authority to make the ultimate decision on whether a woman continues a pregnancy before viability.
Is the Mississippi law a direct challenge, then, to Roe and Casey?
The law, in setting the abortion ban at 15 weeks, takes direct aim at the viability standard. When liberal justice Sonia Sotomayor said on Wednesday that Mississippi had presented no evidence of fetal viability before 23 or 24 weeks, the state’s lawyer, Scott Stewart, replied that the real problem is “viability is not tethered to anything in the Constitution, in history, or tradition.”
But could the court allow the 15-week ban while preserving women’s right to choose an abortion?
Chief Justice John Roberts suggested as much on Wednesday when he said that choice could be maintained under the Mississippi law, even if it means scrapping the viability rule. On the other hand, the court could reconsider whether women have a fundamental right to privacy, encompassing the right to choose an abortion, Prof. Albert says.
What is the court likely to do?
Prof. Albert said before the hearing that he expects the court will continue to erode, rather than eradicate, the right to choose. “I think the writing is on the wall for the continuing vitality of the right to choose,” he says. “There is a majority now on the U.S. Supreme Court that has been waiting for the day to arrive where the Roe precedent is presented squarely to it so it can beat it down.” Donald Trump appointed three of the judges when he was president; in all, six of the nine judges are Republican appointees. A majority refused to block a Texas abortion ban this summer beginning at six weeks’ gestation. Prof. Green said Roe has been by far the most controversial precedent of the past century. Based on the judges’ comments and questions in the hearing, “it seems like it’s either going to be a 5-4 or 6-3 overruling of Roe and Casey.” The Guttmacher Institute, a policy group, says 26 states are ready to ban abortion if the Supreme Court weakens or eliminates the right to choose.
Are all precedents created equal?
Not according to Prof. Albert. He calls Roe a “super-precedent,” because of its outsized meaning in law and in politics. “It speaks to so much of what a person cares about: How she can govern herself and her body; how she determines the course of her life in the near term and long term; and how she relates to the state,” he says. In politics, says Prof. Green, “the parties see themselves as the party of trying to get rid of Roe, and the party of trying to keep it.”
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