Today, the U.S. Supreme Court hears Dobbs v. Jackson Women’s Health Organization, among the most significant cases in a generation. The court will consider whether states may prohibit pre-viability abortions. Deciding they may could lead the court to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, which would cause waves across American law, culture, and politics.
Roe and Casey, the 1992 decision that reaffirmed Roe and prohibited pre-viability abortion regulations that pose an “undue burden,” put the court at the center of arguably the most heated debate in social policy and, in doing so, touched the most fundamental and contested principles in American governing: self-rule, pluralism, federalism, equal protection, substantive due process, natural law, stare decisis, and more. As such, Dobbs invites sweeping, passionate arguments about the most interesting abstract concepts. This is particularly true across much of the political right, where it is widely held that Roe and Casey were wrongly decided and have distorted law and politics ever since.
Though such arguments are unquestionably important, they are unlikely to carry the day in Dobbs. This is not a case about relitigating Roe and Casey. In fact, all six of the current Republican-appointed justices probably would have voted against Roe had they been on the court in 1973. The issue before the court today is what to do given that Roe and Casey have been on the books for decades.
This involves more than the strength of precedent—the extent to which the Supreme Court should preserve those decisions for the sake of continuity and predictability. All six of today’s more conservative justices—using various rules of thumb for assessing when precedents should be overturned—probably see the legal merits of ending the Roe/Casey era.