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Happy Birthday, Roe v. Wade—A Commentary by Kenji Yoshino '96

The following commentary was posted on Slate.com on January 18, 2007.
 
Happy Birthday, Roe v. Wade
By Kenji Yoshino

On the anniversary of Roe v. Wade next week, any celebration of that 1973 opinion must include a celebration of the 1992 case Planned Parenthood v. Casey. In Casey, the Supreme Court upheld the legal right to abortion. Along the way, the justices articulated a systematic test for when they could overrule their own precedents—and in applying it, found that Roe did not present such an instance.

It is not clear that such a systematic test is a good idea to begin with, or that this particular one works well. Luckily, however, the Casey test saves itself by leaving room for its own overruling. And in fact, the court seems on its way to doing so. Indeed, the Casey court may have been less interested in the test than in making Roe bulletproof. And in that end, it largely succeeded.

Many thought the Casey court would overrule Roe. In the years after Roe, conservative Republican presidents appointed justices to the court more or less with that agenda. Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. "Under normal stare decisis analysis," the three justices' opinion stated, "the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it."

Coming from the Latin for "to stand by things decided," stare decisis is a hoary common-law principle. It goes to the heart of the rule of law. As the joint Casey opinion observed, "no judicial system could do society's work if it eyed each issue afresh in every case that raised it." On the other hand, as the opinion recognized, stare decisis has never been deemed an "inexorable command." As Oliver Wendell Holmes Jr. once observed, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

The difficulty, then, is deciding how much deference the doctrine of stare decisis requires in any given case. Before Casey, the Supreme Court treated this issue as an art rather than a science. In Casey, however, Kennedy, O'Connor, and Souter (here speaking for a majority of the court) took a more comprehensive approach, observing that the court usually looked to four "prudential and pragmatic considerations." Precedents would be likely to be overruled if they had proven to be unworkable as a practical matter; if there had not been general social reliance on the rule; if there had been subsequent changes in doctrine; and if there had been subsequent changes in fact. Applying these factors to Roe, the justices found that they all cut in favor of upholding the legal right to abortion.

Casey was a valiant attempt to pull together the principles that might constrain a judge from simply voting her ideology. But once Casey set forth a test for stare decisis, a vexing metaphysical problem came into view. As Yale Law School professor Akhil Amar has pointed out, it is difficult to know how much precedential weight to give a precedent, like Casey, that tells us how much precedential weight to give a precedent. If, for instance, we think that Casey got its stare decisis test wrong, are we still compelled to use that test in weighing whether the test should stand? Perhaps yes, given that stare decisis constrains a judge from ignoring a precedent just because she disagrees with it. Or perhaps no, given that a bad test could eternally entrench itself if any resistance offered within it were futile.

Fortunately, the Casey test gives the court enough discretion to supplant it. In other words, if we apply the four stare decisis factors to the four stare decisis factors, there is ample room for the court to overrule this part of Casey.

Workability cuts for the retention of the test. By workability, the court meant whether a test was sufficiently specific that a court could administer it. The Casey four-factor test easily meets this standard, as most of the court's tests will do.

The change in fact factor also cuts for keeping the test. Here, the court looks to see if there have been changes either in facts or perceptions of constant facts. One example the joint opinion gave was the changed view of racial segregation and its harms that permitted Brown v. Board of Education to overrule the 1897 case Plessy v. Ferguson, which upheld the doctrine of "separate but equal." The court's other example reflected similar seismic changes in the nation. No such change has occurred since 1992 that would undermine the test.

In contrast, social reliance cuts against retaining Casey's stare decisis standard. Although we the public might legitimately rely on the basic idea of stare decisis, we cannot rely on any particular formulation of it. This is because most of us are unaware of the specific test the court formulated.

Most significantly, change in doctrine also cuts for jettisoning the test. Kennedy, O'Connor, and Souter observed that a precedent that was a "remnant of abandoned doctrine" would be ripe for overruling. Arguably, the Casey test is such a remnant. The court has repeatedly overruled precedents without engaging in a full Casey analysis. In a 1995 affirmative action case, the court overruled a 1990 precedent without applying all of the factors. Similarly, in Lawrence v. Texas, the 2003 case striking down a state sodomy statute, the court overruled a 1986 precedent without applying the full test. The 1995 and the 2003 cases were written by two of the Casey opinion's authors—O'Connor and Kennedy, respectively.

The Casey stare decisis test, then, leaves more than enough leeway for the court to depart from it. And even though it has not formally overruled this part of Casey, the court began moving away from it only three years after creating it. So, why did the court bother to outline such a comprehensive test in the first place?

The answer can be found in the court's statement that all of the test's factors cut in favor of upholding Roe. The best way of understanding Casey is as the court's way of saying that any reasonable standard of stare decisis would lead to the conclusion that Roe should stand. What was at stake in Casey was not a neutral attempt to advance a general test for stare decisis, but a largely successful attempt to entrench Roe. This is why those who celebrate Roe, and the national right to abortion it established, should also celebrate Casey.

Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.