Why Dobbs is a better precedent than Roe

Denver Newsroom, Jul 7, 2022 / 12:06 pm (CNA).

When the Supreme Court overturned Roe v. Wade last month, it ended almost 50 years of pro-abortion rights jurisprudence. For those who welcomed the decision, the legal foundation for a better future has been laid.

Teresa Collett, a law professor at the University of St. Thomas School of Law in Minneapolis said the Dobbs v. Jackson Women’s Health Organization decision is a “huge improvement.” She said she was “grateful for the courage of the justices.”

But she also saw Dobbs as “an imperfect resolution of the issue until we can pass the Human Life Amendment or federal legislation.”

“The issue will be returning to the people, which as a general rule is a good thing. Although in all honesty, neither side is really pleased with that outcome,” Collett told CNA June 27.

“It’s better than where we were. But it’s an odd thing to have personhood depend upon what state you’re in,” she said. She compared the situation to “pre-Civil War times where the humanity of a Black person depended on the state they were in.”

In the decision Dobbs v. Jackson Women’s Health Organization, made public on June 24, five Supreme Court justices agreed to overturn Roe. They were joined by Chief Justice Roberts, who advocated a limited decision upholding the Mississippi law under challenge, a ban on abortion 15 weeks or later into pregnancy, without overturning Roe.

The court’s rulings in Roe v. Wade and its companion case Doe v. Bolton legalized abortion nationwide in 1973, while the court’s 1992 decision in Planned Parenthood v. Casey reaffirmed legal abortion.

The Dobbs decision, authored by Justice Samuel Alito, engaged with the principle of “stare decisis,” a Latin phrase roughly meaning “to stand by things that have been decided.” This principle generally binds the Supreme Court to its own precedent.

However, Alito wrote that this principle is “not an inexorable command,” but is at its weakest when the Supreme Court is interpreting the U.S. Constitution.

“Roe was on a collision course with the Constitution from the day it was decided, Casey perpetuated its errors, and those errors do not concern some arcane corner of the law of little importance to the American people,” Alito wrote, later adding, “When one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake.” 

Roe relied on an “erroneous historical narrative” and gave great attention to matters that did not bear on the “meaning of the constitution,” Alito said. It relied on precedents fundamentally different from the question before the court, and “concocted an elaborate set of rules” for abortion restrictions without explaining the basis in the constitution, history, or prior precedent. The Casey decision abandoned some aspects of Roe, but still relied on an “exceptional” view of Supreme Court precedent.

For Alito and four other justices, the solution to this confusion was to return abortion decisions to the states.

“Stare decisis continues to apply to all Supreme Court decisions. Only precedents that have no basis in the constitution should be overturned,” Ligia Castaldi, a law professor at Ave Maria School of Law in Naples, Florida, told CNA. “According to Dobbs, Roe v. Wade is such a precedent.”  

“Precedent and stare decisis will continue to be understood as they have been so far,” she added. “The majority opinion specifically states that the abolition of Roe does not lead to the abolition of the doctrine of stare decisis and will not affect other precedents on contraception, homosexual acts and same-sex marriage.”

Collett said that precedent will apply for Supreme Court rulings that “have a historical foundation” and concern a matter “of such importance to our system of government that it really does cabin in the ability of the court to impose political will, or as Justice Alito said, a ‘raw act of judicial power’.” 

Alito’s decision in Dobbs used a legal test from the 1997 Washington v. Glucksberg decision, which rejected assertions of a right to assisted suicide. Among its requirements are that rights not mentioned in the Constitution must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” As applied by Alito, this means “the right to abortion does not fall within his category.” 

According to Collett, the use of Glucksberg is “a principled analysis.” In her view, this analysis will help stop “the erosion of other bodies of law.” She was critical of the wide allowance to abortion providers to bring legal challenge to health and safety laws, allegedly in their potential patients’ interest. She found this “absurd” and compared it to “giving the tobacco industry standing to represent all potential smokers” and fight every tobacco regulation.

“It’s clear that for people who are absolutely convinced that abortion is a prerequisite to women’s equality, they’re not going to be persuaded by anything,” Collett added. “But if you really look at it from a neutral jurisprudential point of view, (Dobbs) is a very finely crafted opinion.”

Collett was the lead counsel for an amicus brief filed in the Dobbs case on behalf of 240 women scholars and professionals and pro-life feminist organizations. In contrast to backers of legal abortion who claim the pro-abortion rights precedent was necessary for women’s progress, Collett’s brief argued that the precedent disadvantages women.

She told CNA she foresaw some attempts to reinstate a constitutional right to abortion, but predicted these will “largely be unsuccessful.” Backers of Roe will instead focus on presidential and congressional action, especially a renewed push to pass the Women’s Health Protection Act.

“You’ll see a lot more energy behind that, which really makes the upcoming congressional elections important,” Collett said. 

In her view, Dobbs “empowers individuals to as voters participate in the political process of crafting their state.” Precedent under Roe, she said, “required states to permit abortions” and resulted in “judicial control.” By contrast, Dobbs is “simply going to keep the courts out of it” and exclude abortion as a judicial question.

“This is a question for other branches of government and what the people decide legislatively will be the law of their particular state,” she said. 

Collett added that although there will be state courts that seek to protect legal abortions, Dobbs might withstand arguments that it too should be overruled. “It’s kind of hard to attack a precedent that allows the states to make these decisions individually,” she said.

Castaldi welcomed the decision with “elation,” saying, “This is a glorious day for the protection of all human life.”

The Dobbs decision “means that abortion will no longer be celebrated as a constitutional right under federal law. Even if the practice continues to be decriminalized, it will no longer enjoy the status of a fundamental right.”

Collett offered some advice at how to engage those in the wake of the change from the Supreme Court.

The pro-life movement “needs to tell stories about women who were distressed by their pregnancy but ultimately reconciled to it, and what a great gift that child was, both to the woman and her family.” 

Though Collett thought many claims made about a post-Roe world won’t hold up, friends, family, and neighbors may “feel scared about this.”

“When you’re talking to someone who’s really frightened, you have to be pretty gentle,” she said. “I think we need to be prepared to be kind as we make our case.”