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Law & the Courts

Kavanaugh’s ‘Roadmap’ on Overturning Precedent Points to Overturning Roe

Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)

An excerpt from my piece on the homepage:

In 2020, Justice Brett Kavanaugh, who is widely expected to be one of the decisive votes in Dobbs, offered in a concurrence in an unrelated case, Ramos v. Louisiana, a “roadmap for determining whether to overrule an erroneous constitutional precedent” — and that roadmap points strongly in the direction of overturning Roe and Casey.

Kavanaugh outlined “three broad considerations” that justices should take into account when they’re asked to overturn precedent instead of following the doctrine of stare decisis: (1) whether the decision was “grievously or egregiously wrong;” (2) whether the decision has “caused significant negative jurisprudential or real-world consequences;” and (3) whether overruling the prior decision would “unduly upset reliance interests.”

It is obvious that the Roe decision was “grievously or egregiously wrong” as a constitutional matter: There’s nothing in the text of the Constitution or history to suggest a right to abortion is protected by the 14th Amendment. A simple look at the death toll from abortion since 1973 proves that Roe has also “caused significant negative . . . real-world consequences.” But the third question — whether overruling Roe would “unduly upset reliance interests” — is more complicated and worth dwelling on at greater length.

The Souter-O’Connor-Kennedy concept of “reliance” had more to do with sociology and psychology than it did with legal jurisprudence. “Casey acknowledged that traditional considerations of reliance had little force in this context because ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions,’” Notre Dame law professor Richard Garnett and former assistant attorney general Charles J. Cooper write in their amicus brief in Dobbs.

Here’s what the Souter-Kennedy-O’Connor opinion said about reliance:

For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.

In 2021, of course, there are several methods of birth control that are more than 99 percent effective, and the Affordable Care Act of 2010 mandates that all FDA-approved female contraceptives must be covered by insurers with no copay.

One remarkable aspect of the above excerpt from the Souter-Kennedy-O’Connor opinion is that it presents only two options for a woman experiencing an unwanted or unexpected pregnancy: Abort the child or raise the child. A third option — placing the child up for adoption — never really enters the picture even though it is available to 100 percent of pregnant women.

Adoption also never enters the discussion of reliance interests in the respondents’ brief in Dobbs: “Consider just one person’s reflection in a brief to the Court: ‘Becoming a first-generation professional would have been impossible without access to safe and legal abortion services.’” As Erika Bachiochi writes in National ReviewRoe and Casey themselves create expectations that make life more difficult for working mothers: “Rather than challenge workplace norms head-on, the decades-long quest for unfettered abortion feeds into the model of the ideal male worker who is beholden to no one but his boss. If abortion is what enables women to participate in the workplace, then perhaps costly accommodations, flexible work schedules, and part-time-pay equity are not so necessary.” Many millions of women have had successful careers while raising children, including children born following unexpected pregnancies. But the point remains that adoption is always an option for any particular woman facing an unexpected pregnancy who does not want to raise the child for any reason.

And of course it is a simple fact that ending Roe would not end access to abortion in the United States. Some states would generally prohibit abortion, some states would maintain or establish an expansive right to abortion, and others would place greater limits on it while keeping it generally legal. If Roe were overturned, research indicates that additional legal hurdles to abortion would lead to a decrease in the abortion rate of about 13 percent — roughly 100,000 fewer abortions per year.

“Even if contested, constitutional rights that have ‘become embedded’ in ‘our national culture’ are entitled to heightened stare decisis effect,” the respondents’ brief in Dobbs argues. But it can’t possibly be the case that simply because swathes of society “rely” in some broad sense on a grievously wrong and harmful precedent, that precedent should be preserved. The Supreme Court gave its blessing to segregation in 1896. By 1954, many states had been living under de jure segregation for many decades, and millions of white parents had strong expectations that they could send their children to segregated schools. As Garnett and Cooper write in their amicus brief:

No doubt “economic and social developments” premised on the continued lawfulness of race-based segregation took place in the 58 years between Plessy v. Ferguson (1896), and Brown v. Board of Education of Topeka (1954); and no doubt many white southerners “made choices that define[d] their views of themselves and their places in society” based on the institution. But that did not give the Brown Court any pause before restoring the Fourteenth Amendment’s promise of equal protection.

Brown v. Board did not end racism, nor did it immediately usher in an era of racial harmony. It was in fact followed by a period of social and political unrest. But segregation was a grave constitutional and moral injustice, and Brown was necessary for the United States to become a more just, decent, and humane society. In Kavanaugh’s 2020 Ramos concurrence, he wrote that when the justices look at reliance interests, they should focus on the “legitimate expectations of those who have reasonably relied on the precedent,” but in that same opinion he called Brown v. Board “the single most important and greatest decision in this Court’s history.” If Kavanaugh follows the logic of his own roadmap, it’s hard to see how he can help but arrive at the conclusion that Roe and Casey should be overturned.

There’s been much speculation that Kavanaugh and Chief Justice Roberts may try to find a way to uphold the Mississippi law without fully overturning Roe and Casey and restoring the right of states to limit or prohibit abortion. But it is very difficult to see how the Court could discard the arbitrary and judicially invented right to abortion until viability in favor of some other arbitrary and judicially invented right to abortion.


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