The Supreme Court Just Outlined How It Might Get Rid of Abortion Rights
In this column, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
On Monday, the U.S. Supreme Court released its opinion in Franchise Tax Board of California v. Hyatt, in which the Court's five-justice conservative bloc determined that state governments enjoy sovereign immunity—that is, they cannot be sued as a matter of law—in both their own state's courts and in the courts of other states, too.
This case is notable not only because of its implications for the future of litigating certain interstate civil claims. To reach its conclusion in Hyatt, the majority first had to overturn a 40-year-old Supreme Court case that reached the opposite conclusion, over the vociferous protestations of the four-justice liberal minority. At a moment when anti-choice activists are working diligently to get a case before the Court that will allow its five conservative justices to overturn the 46-year-old precedent of Roe v. Wade, thereby gutting abortion rights in this country, Hyatt functions as a tidy preview of that coming showdown. And the result should make pro-choice advocates very nervous.
When issuing opinions, judges (generally) adhere to a principle called stare decisis, which refers to the notion that they should rule in a given case according to the rulings they (and other judges) issued in similar cases in the past. This reliance on precedent provides simple, common-sense benefits: It leads to consistent and predictable judicial outcomes, reduces the number of disputes that result in actual litigation, and allows for the coherent, long-term development of law. (Imagine how useless the legal system would be if, for example, every judge resolved every case based only on their feelings about the facts at hand, and without any relevant points of reference.)
Since the Supreme Court established in Roe that the Fourteenth Amendment protects a woman's right to choose, it is stare decisis that has protected this ruling from decades of attacks mounted by the conservative movement. To date, the Court has declined every opportunity to overrule itself, which means that lower-court federal judges hearing abortion cases—even judges who quietly find the anti-choice argument to be more convincing—must uphold Roe and Planned Parenthood v. Casey, a 1992 decision that narrowly affirmed Roe, too. During his confirmation hearings last year, Brett Kavanaugh dutifully acknowledged that Roe is "settled and a precedent of the Supreme Court," and is "entitled to respect under principles of stare decisis."
In Hyatt, however, this Court's five conservative justices lay out a clear framework for when they might feel it appropriate to abandon precedent. Stare decisis, writes Justice Clarence Thomas, is "not an inexorable command." (Kavanaugh's proclamation, you will note, acknowledges the existence of settled law but makes no promises about how he would treat it as a Supreme Court justice.) Next, Thomas's opinion lists the factors that, he says, justify overturning precedent in Hyatt and in similar cases: When the old opinion's reasoning is of dubious quality, for example, and inconsistent with related decisions, and has been affected by subsequent matters that have come before the Court.
Again, the application of these factors to interstate sovereign immunity does not make for especially compelling reading. But it is easy to see how the same justices might use the same list to overturn Roe and Casey or, at the very least, to render those cases' promises meaningless. Liberals and conservatives alike have long criticized Roe as a sloppily written opinion—an example of judges arriving at their preferred conclusion and then reverse-engineering a legal explanation for it. Even Justice Ruth Bader Ginsburg has referred to Roe as an episode of "heavy-handed judicial intervention" that, she believes, galvanized the anti-choice movement and made it more difficult for pro-choice activists to secure abortion rights via the legislative process. Applying this logic, the Court's conservatives could declare Roe to be legally unsound—too awkward and unwieldy to function as precedent any longer.
The existence of intervening changes in factual circumstances, too, provide a clear pathway for conservatives to dispose of Roe. In Georgia's "heartbeat bill," which prohibits abortion as early as six weeks into pregnancy, state legislators explained that they felt compelled to act by "modern medical science, not available decades ago," which purportedly "demonstrates that unborn children are a class of living, distinct persons." If the bill's proponents can one day convince five justices that Roe and Casey do not comport with the scientific understanding of human life, it will be much easier for the Court to publicly explain its decision to overrule itself.
In the strongest hint yet that the Court's members now see the abortion battle looming on the horizon, in his dissent in Hyatt, Justice Stephen Breyer singles out the majority's treatment of stare decisis for his harshest critique. The majority, he wrote, did not even bother trying to set forth any "special justification" for changing its mind. And of all the landmark cases he could have chosen to illustrate the importance of upholding precedent, he just happened to pick Planned Parenthood v. Casey. In an environment that prizes civility and comity as much as the United States Supreme Court, this is about as ominous as a warning gets.
It is one thing to overrule a case when it “def[ies] practical workability,” when “related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,” or when “facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.” Casey, 505 U.S., at 854–855. It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall 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," Breyer concluded, "can only cause one to wonder which cases the Court will overrule next." He's not really wondering, though. Neither is anyone else.
Update: An earlier version of this article incorrectly stated that Georgia's "heartbeat bill" prohibits abortion as early as six weeks from conception; it prohibits abortion as early as six weeks of pregnancy.
Originally Appeared on GQ
