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Roe<\/em> and Casey<\/em> Were Grievously Wrong and should be Overruled<\/strong>[1]<\/a><\/p>\n Charles J. Cooper<\/p>\n Richard W. Garnett<\/p>\n Peter A. Patterson<\/p>\n Brian W. Barnes<\/p>\n John D. Ohlendorf<\/p>\n <\/p>\n The Supreme Court of the United States has done much over the course of American history to protect and secure our constitutional system of government, but it has been far from infallible. This Article is about two of its worst mistakes.<\/p>\n The history of how the Nation and the Court have together come to recognize past constitutional errors is an uneven one. It took the Civil War and the Thirteenth and Fourteenth Amendments to correct the Court\u2019s grievous errors in Dred Scott v. Sandford<\/em>.[2]<\/a> In many other instances, however, the Court has recognized and corrected its own errors. Indeed, it was the Court\u2019s willingness to heed the call to turn from grievous error that led to \u201cthe single most important and greatest decision in the Court\u2019s history,\u00a0Brown<\/em>\u00a0v.\u00a0Board of Education<\/em>, which repudiated the separate but equal doctrine of\u00a0Plessy v. Ferguson<\/em>.\u201d[3]<\/a> It has the opportunity and the duty to do so again.<\/p>\n In 1973, the Court decided Roe v. Wade<\/em>, holding that the Constitution confers an expansive right to unrestricted abortion, \u201cobliterat[ing] the abortion laws of all fifty States\u201d[4]<\/a> with a single stroke. As a matter of the Constitution\u2019s text and history, it is no secret that Roe<\/em> is not just wrong but grievously so. Roe<\/em> was roundly criticized as wrong the day it was decided, and it has been robustly opposed both within and outside the Court ever since. No sitting Justice has defended the merits of its actual reasoning.<\/p>\n By the narrowest of margins, the Court in Planned Parenthood v. Casey<\/em> refused to overrule Roe<\/em>\u2014not because it thought Roe<\/em> was correct, but because it thought Roe<\/em> must endure as a matter of stare decisis<\/em>. But 30 years later it has become clear that Casey<\/em>, too, was egregiously wrong, for each one<\/em> of the stare decisis<\/em> factors cited by Casey<\/em> itself supports Roe\u2019s repudiation<\/em>. While many Americans may hope and expect <\/em>that the political victory Roe<\/em> declared for their side of the abortion debate will remain unquestioned, this expectancy plainly does not constitute the type of detrimental reliance to which the Court has given weight in the stare decisis<\/em> calculus. Judicial developments and scientific progress have undermined Roe<\/em> as a matter of fact and law. And Roe<\/em>\u2019s doctrinal standards, as reframed by Casey<\/em>, have proven unworkable.<\/p>\n The deeper sentiment behind Casey<\/em>\u2019s decision\u2014a vision of the Court \u201ccall[ing] the contending sides of [the] national controversy\u201d over abortion \u201cto end their national division,\u201d[5]<\/a>\u2014has proved equally unsound. By reaffirming Roe<\/em>, the Casey<\/em> majority imagined that it could bind up the national division over abortion. But it was the decision in Roe<\/em> itself that \u201cstimulated the mobilization of a right\u2013to\u2013life movement,\u201d[6]<\/a> and the abortion controversy has endured and intensified since Casey<\/em>. By reaffirming Roe<\/em>, the Casey<\/em> majority hoped that it could forestall a \u201closs in confidence in the Judiciary.\u201d[7]<\/a> In fact, 30 more years of Roe<\/em>\u2019s misrule have proved that the greatest enduring threat to the Court\u2019s legitimacy is Roe<\/em> itself. By reaffirming Roe<\/em>, the Casey<\/em> majority hoped to preserve \u201cthe Nation\u2019s commitment to the rule of law.\u201d[8]<\/a> But rather than safeguarding our constitutional order, Roe<\/em> and Casey<\/em> have distorted it. By every measure\u2014including the lines marked out by Casey<\/em> itself\u2014no judicial error stands in greater need of correction than the one made in Roe<\/em>.<\/p>\n It is now 48 years \u201cafter [the Court]\u2019s holding that the Constitution protects a woman\u2019s right to terminate her pregnancy,\u201d[9]<\/a> and the legitimacy of that holding \u201cis still<\/em> questioned,\u201d[10]<\/a> more intensely than ever. Another 48 years of standing by Roe<\/em>\u2019s error will not yield any different or better result. The time has come to overrule Roe v. Wade<\/em>.<\/p>\n I.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Roe<\/em>\u2019s Creation of a Constitutional Right to Abortion Was Egregiously Wrong.<\/strong><\/p>\n As the Court has long recognized, stare decisis<\/em> is \u201cnot an inexorable command,\u201d[11]<\/a> and \u201cis at its weakest when [the Court] interpret[s] the Constitution.\u201d[12]<\/a> When \u201cstrong grounds\u201d exist for overturning an erroneous constitutional precedent, the Court will do so.[13]<\/a><\/p>\n The stare decisis <\/em>inquiry looks first to \u201cthe quality of [the precedent\u2019s] reasoning,\u201d[14]<\/a> including whether it is \u201cnot just wrong, but grievously or egregiously wrong.\u201d[15]<\/a> We begin, accordingly, by briefly surveying some of Roe<\/em>\u2019s most serious, and by now almost universally acknowledged, flaws.<\/p>\n A. Roe<\/em> conceded up front that \u201c[t]he Constitution does not explicitly mention any right of privacy,\u201d[16]<\/a> and it was remarkably coy about what provision of the Constitution, exactly, gives rise to the right. Ultimately, the most it hazarded was the observation that \u201cwe feel it is\u201d \u201cfounded in the Fourteenth Amendment\u2019s concept of personal liberty and restrictions upon state action\u201d[17]<\/a>\u2014by which it evidently meant the Due Process Clause. But whatever rights this clause protects, the right to an abortion is plainly not among them.<\/p>\n The reason for this is simple: The text of the Fourteenth Amendment does not even hint at such a right, and the generation that adopted the Fourteenth Amendment overwhelmingly banned the practice<\/em> of elective abortion. By the time the Fourteenth Amendment was ratified in 1868, 30 of the 37 states in the Union had superseded the common law prohibition on abortion by adopting criminal statutes banning elective abortions\u2014and 27 of those 30 statutes applied even before quickening, \u201cthe first recognizable movement of the fetus in utero.\u201d[18]<\/a> That includes 25 of the 30 states that had voted to ratify the Fourteenth Amendment by the end of 1868.[19]<\/a> It is inconceivable that the same generation of Americans who enacted and enforced outright bans<\/em> on abortion in overwhelming numbers nonetheless understood the text of the landmark constitutional amendment they adopted to guarantee a right<\/em> to that very procedure.<\/p>\n B. Roe<\/em> also gestured towards the view that the right it discovered was protected by the Ninth Amendment.[20]<\/a> But whether or not the Ninth Amendment confers, and authorizes judicial enforcement of, any substantive unenumerated rights, a right to an abortion was clearly not one of them.<\/p>\n Like the generation that ratified the Fourteenth Amendment, the Founders understood abortion to be unlawful. Blackstone explained that the killing of an unborn child \u201cin [the mother\u2019s] womb\u201d was \u201ca very heinous misdemeanor.\u201d[21]<\/a> To be sure, Blackstone described this rule as applying<\/em> once \u201ca woman is quick with child.\u201d[22]<\/a> But \u201cat all times, the common law disapproved of abortion as malum in se<\/em> and sought to protect the child in the womb from the moment his living biological existence could be proved.\u201d[23]<\/a><\/p>\n C. In addition to being plainly and egregiously wrong, Roe<\/em>\u2019s reasoning is generally acknowledged to be unprincipled.<\/p>\n Roe<\/em>\u2019s resort to privacy rights that \u201chave materialized like holograms from the \u2018emanations and penumbras\u2019\u201d[24]<\/a> formed by the Bill of Rights, has been widely decried as \u201cjudicial legislation completely cut loose from any pretense of textual justification.\u201d[25]<\/a> John Hart Ely famously derided Roe<\/em> as \u201cbad because it is bad constitutional law, or rather because it is\u00a0not<\/em>\u00a0constitutional law and gives almost no sense of an obligation to try to be.\u201d[26]<\/a> Many other scholars have concurred.[27]<\/a><\/p>\n Indeed, Roe<\/em> has given rise to a cottage industry among pro\u2013choice legal academics: penning faux opinions in Roe<\/em> that attempt to provide more plausible justifications for the Court\u2019s decree. So popular has this sub\u2013genre become that there is an entire book<\/em> dedicated to the subject.[28]<\/a><\/p>\n The judicial impression of Roe<\/em>\u2019s reasoning has not been more favorable. Justices have repeatedly<\/em> pointed out Roe<\/em>\u2019s fatal analytical flaws.[29]<\/a> And no<\/em> Justice on the Court, save Roe<\/em>\u2019s author, has written in defense of Roe<\/em>\u2019s actual reasoning<\/em>.<\/p>\n II.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Casey<\/em>\u2019s Reaffirmation of Roe<\/em>\u2019s Supposed \u201cCentral Holding\u201d Was Egregiously Wrong.<\/strong><\/p>\n Like Roe<\/em>, the decision in Casey<\/em> is demonstrably and grievously wrong. As with Roe<\/em>, a full discussion of Casey<\/em>\u2019s errors could fill many pages, so we confine our discussion to a few of the most significant ones.<\/p>\n A. Casey<\/em> went wrong from the beginning by failing to acknowledge the gravity of Roe<\/em>\u2019s errors. The stare decisis<\/em> inquiry depends in part on whether \u201cthe prior decision is not just wrong, but grievously or egregiously wrong,\u201d[30]<\/a> and as just described, Roe<\/em> surely qualifies. But while the Casey<\/em> plurality candidly acknowledged \u201cthe reservations [some] of us may have in reaffirming the central holding of Roe<\/em>,\u201d[31]<\/a> it never faced up to the seriousness of Roe<\/em>\u2019s widely acknowledged flaws.<\/p>\n Nor does anything Casey <\/em>say meaningfully fill Roe<\/em>\u2019s gaping analytical holes. Like Roe<\/em>, Casey<\/em> simply does not grapple<\/em> with the undisputed fact that 30 out of 37 States criminalized abortion when the Fourteenth Amendment was adopted\u201427 of them from the beginning of pregnancy onward.<\/p>\n B. The new doctrinal framework Casey<\/em> erects in place of Roe<\/em>\u2019s trimester\u2013based schema is also seriously flawed. Perhaps most fundamentally, while Casey <\/em>appears to draw the critical line at \u201cviability,\u201d from Roe <\/em>to today, \u201c[e]xactly why [viability] is the magic moment\u201d has been a mystery.[32]<\/a> After all, if a State\u2019s interest in protecting prenatal life is \u201ccompelling after viability,\u201d then it \u201cis equally compelling before viability.\u201d[33]<\/a> Casey<\/em>\u2019s naked conclusion that \u201cviability marks the earliest point at which the State\u2019s interest in fetal life is constitutionally adequate\u201d[34]<\/a> is asserted as though it is self\u2013evident, but it simply does not follow from the premises. Just as Laurence Tribe observed of Roe<\/em>\u2019s similar nondefense of the viability line, \u201c[o]ne reads the Court\u2019s explanation several times before becoming convinced that nothing has inadvertently been omitted.\u201d[35]<\/a><\/p>\n C. Rather than meaningfully defend Roe<\/em> on the merits, Casey<\/em> principally rests its reaffirmation of Roe <\/em>on the prudential stare decisis<\/em> factors. But none of these other factors justified retaining Roe<\/em>; and Casey<\/em>\u2019s misapplication of those factors was far from a \u201cgarden\u2013variety error.\u201d[36]<\/a><\/p>\n With respect to three of the traditional stare decisis<\/em> factors\u2014whether the precedent is \u201cunworkable,\u201d and whether subsequent legal or factual developments have undermined its foundations\u2014Casey<\/em>\u2019s discussion is remarkably cursory.[37]<\/a> And with respect to the remaining factor\u2014reliance interests\u2014Casey <\/em>acknowledged that traditional considerations of reliance had little force in this context because \u201creproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.\u201d[38]<\/a><\/p>\n Instead, Casey<\/em> created an altogether novel<\/em> category of \u201creliance,\u201d grounded in the \u201ceconomic and social developments\u201d that have occurred since Roe<\/em>.[39]<\/a> \u201c[P]eople have organized intimate relationships and made choices that define their views of themselves and their places in society\u201d[40]<\/a> based on Roe<\/em>. What this means is known for sure only by its authors, but whatever it means the Court has consistently insisted on a showing of more concrete forms of reliance when addressing stare decisis<\/em> outside the abortion context.[41]<\/a> And with good reason. If \u201ceconomic and social developments\u201d[42]<\/a> that have taken place after a prior decision sufficed then the element of reliance would always<\/em> be satisfied and the concept would be emptied of meaning. No doubt \u201ceconomic and social developments\u201d premised on the continued lawfulness of race\u2013based segregation took place in the 58 years between Plessy v. Ferguson<\/em> and Brown v. Board of Education<\/em>; and no doubt many white southerners \u201cmade choices that define[d] their views of themselves and their places in society\u201d[43]<\/a> based on the institution. But that did not give the Brown<\/em> Court any pause before restoring the Fourteenth Amendment\u2019s promise of equal protection.<\/p>\n Roe<\/em>, according to Casey<\/em>, has also facilitated \u201c[t]he ability of women to participate equally in the economic and social life of the Nation.\u201d[44]<\/a> But Casey <\/em>offered no meaningful evidence that it was abortion rather than other factors\u2014such as women\u2019s \u201cdetermination to obtain higher education and compete with men in the job market\u201d[45]<\/a>\u2014that is responsible for their welcome advancement in the last 50 years. To the contrary, evidence indicates that women\u2019s social advancement began several decades before Roe<\/em> and is not correlated with abortion rates.[46]<\/a> And rather than abortion becoming ever more entrenched in American life, Americans in fact have fewer abortions per capita today than before Roe<\/em> was decided.[47]<\/a><\/p>\n Indeed, some pro\u2013choice scholars have argued that Roe<\/em> has to some extent hindered<\/em> women\u2019s equality, by \u201clegitimat[ing] . . . the lack of public support given parents in fulfilling their caregiving obligations,\u201d with especially dire consequences for the \u201cwoman who is poor and chooses to parent.\u201d[48]<\/a> Moreover, Casey<\/em> says nothing about the harm to women\u2019s equality inflicted by the free availability of sex\u2013selective abortions\u2014a phenomenon that is pervasive and widely acknowledged in other countries[49]<\/a> and also appears to be common in some communities in the United States.[50]<\/a> The Court need not assess or quantify this harm, but it must be noted that Roe<\/em>\u2019s constitutional right to abortion on demand plainly has done nothing to secure the equal social and political participation of millions of unborn human females, some unknown portion of which were aborted because of their sex.<\/p>\n * * *<\/p>\n Roe<\/em> and Casey<\/em> are thus wrong\u2014demonstrably and egregiously wrong \u2013- and were wrong from day one. That arguably should suffice to justify their repudiation.<\/p>\n In his concurring opinion in Gamble v. United States<\/em>, Justice Thomas articulated an approach to stare decisis<\/em> under which, \u201cif the Court encounters a decision that is demonstrably erroneous . . . the Court should correct the error, regardless of whether other factors support overruling the precedent.\u201d[51]<\/a> That view, Justice Thomas urged, \u201cfollows directly from the Constitution\u2019s supremacy over other sources of law\u2014including our own precedents,\u201d[52]<\/a> and it is also consistent with \u201cthe nature of the \u2018judicial Power\u2019 vested in the federal courts,\u201d[53]<\/a> which \u201cis not the power to \u2018alter\u2019 the law; it is the duty to correctly \u2018expound\u2019 it.\u201d[54]<\/a><\/p>\n There is much to be said for this view. All acknowledge that application of the traditional stare decisis<\/em> factors is far from \u201cmechanical,\u201d[55]<\/a> and their subjective nature creates the risk, often realized, that judges may apply the doctrine to protect those decisions they favor on policy grounds but offer no refuge to those precedents they dislike. Moreover, given \u201cthe Constitution\u2019s supremacy over . . . [the Court\u2019s] own precedents,\u201d[56]<\/a> it is paradoxical that the Court should demand a \u201cspecial justification\u201d[57]<\/a> before correcting<\/em> a demonstrably wrong decision, rather than a \u201cspecial justification\u201d for continuing to adhere<\/em> to a decision it has concluded is in error.<\/p>\n Ultimately, however, the debate over the correct approach to stare decisis<\/em> is beside the point, for the special justifications for overruling Roe<\/em> and Casey <\/em>are overwhelming.<\/p>\n III.\u00a0\u00a0\u00a0\u00a0\u00a0 The Other Stare Decisis<\/em> Factors Support Overruling Roe<\/em> and Casey<\/em>.<\/strong><\/p>\n The other stare decisis<\/em> factors the Court has considered also demonstrate that Roe<\/em> and Casey<\/em> should be overruled. Indeed, by every measure, it is difficult to imagine a constitutional precedent less worthy<\/em> of adherence than Roe<\/em> and Casey<\/em>.<\/p>\n A. Begin with the role of stare decisis<\/em> in protecting against upsetting \u201cdetrimental<\/em>reliance\u201d[58]<\/a>\u2014the frustration of transactions or conduct premised upon precedent in a way that leaves those involved \u201cworse off than . . . [they] would have been had . . . the mistaken earlier ruling . . . never occurred.\u201d[59]<\/a> Because this type of reliance generally occurs where overruling would inflict a \u201cbroad upheaval of private economic rights,\u201d[60]<\/a> reliance interests \u201care at their acme in cases involving property and contract rights.\u201d[61]<\/a><\/p>\n There is nothing like this here. Of course, many Americans hope and expect that Roe<\/em> will not be overruled, but the law does not protect this type of \u201cmere expectancy,\u201d[62]<\/a> or else every<\/em> precedent would create reliance interests. And while the abortion industry could see its profits suffer in some States if Roe<\/em> is overruled, the fact that abortion providers \u201cmay view [the continued rule of Roe <\/em>and Casey<\/em>] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest\u201d[63]<\/a> in correcting grave error.<\/p>\n Moreover, any assertion of reliance \u201cignores the checkered history\u201d of the Court\u2019s abortion\u2013rights jurisprudence.[64]<\/a> While Casey<\/em> purported to reaffirm Roe<\/em>\u2019s \u201ccentral holding,\u201d[65]<\/a> it simultaneously interred the great bulk of Roe<\/em>\u2019s doctrinal framework[66]<\/a> and overruled several post\u2013Roe<\/em> abortion decisions.[67]<\/a> Nor did the twists and turns in abortion rights jurisprudence end with Casey<\/em>.[68]<\/a> This vacillation diminishes any legitimate expectation that Roe<\/em> and Casey<\/em> will apply in perpetuity.<\/p>\n The repeated calls by justices of the Court to overrule Roe<\/em> likewise undermine any reliance.[69]<\/a> The Nation has \u201cbeen on notice for years regarding the Court\u2019s misgivings about\u201d Roe<\/em>.[70]<\/a><\/p>\n B. Next, \u201crelated principles of law\u201d have \u201cdeveloped\u201d in the last three decades in a way that has rendered Roe<\/em> and Casey<\/em> increasingly isolated.[71]<\/a> In the past several decades, the Court has frequently approached novel or monumental questions of constitutional law with an approach that hews closely to the Constitution\u2019s text, history, and tradition. Perhaps the best exemplar of this approach is District of Columbia v. Heller<\/em>.[72]<\/a> The first decision from the Court to seriously examine the Second Amendment, Heller<\/em> was firmly rooted in the original meaning and historical understanding of that provision\u2019s text. The Court has increasingly taken a similar approach to cases involving the Constitution\u2019s structural protections.[73]<\/a><\/p>\n