During the oral arguments for Dobbs v. Jackson Women's Health, the U.S. Supreme Court justices discussed the stare decisis factors they should consider when reexamining the Court's precedents. The conclusion they reach could decide the fate of Roe v. Wade.
In Planned Parenthood v. Casey—the 1992 case that upheld Roe—the Court analyzed several cases in which it decided not to follow its own precedents. It primarily focused on Brown v. Board of Education, the 1954 ruling that overturned a 58-year-old precedent in Plessy v. Ferguson. In Plessy, the Court allowed states to establish racially segregated facilities as long as they were "separate but equal." In Brown, the Court cited research that proved school segregation marked minority students with a badge of inferiority. The Casey Court noted "that the Plessy Court's explanation for its decision was so clearly at odds with the facts apparent to the Court in 1954 that the decision to reexamine Plessy was on this ground alone not only justified but required."
Could Roe be similarly reexamined if new facts came to light? The Casey Court affirmed that "changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty." However, it did not overrule Roe. The justices found that "no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it."
That finding grows shakier with every passing year. As I outlined in my recent article for the Tennessee Law Review, significant societal, legal and scientific developments have occurred since Roe was decided in 1973. The facts facing the Dobbs Court today are so different that Roe has been robbed of its original justifications.
Justice Amy Coney Barrett drew attention to one of those developments during oral argument. She used the post-Roe development of safe haven laws to assess whether Roe can be overturned. When it established a constitutional right to abortion, Roe emphasized the burdens of parenting and identified abortion as a way to free women from "[t]he distress...associated with the unwanted child" and "the additional difficulties and continuing stigma of unwed motherhood."
Barrett rightly pointed out that these concerns have been eliminated by safe haven laws. She asked why women need abortion access to free themselves from the burdens Roe described when every state has a safe haven law—enabling women to relinquish custody of newborns to police stations, fire stations and other state agencies with no questions asked.
Justice Samuel Alito raised a second important development when he asked Mississippi solicitor general Scott Stewart if there are now "secular philosophers and bioethicists who take the position that the rights of personhood begin at conception." This question was likely a reference to the Roe Court's use of states' reluctance to "accord legal rights to the unborn" to hold that states did not have a compelling interest to protect prenatal life at fertilization.
Today, the Dobbs Court can explain that the law now recognizes all humans as persons at fertilization. The post-Roe development of fetal homicide laws shows that many states recognize the killing of a fetus as homicide or murder—29 now have laws that protect the preborn at fertilization. Our nation has progressed in its legal recognition and protection of preborn humans since Roe first declared that "the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth."
Finally, Justice Sonia Sotomayor claimed the "issue of when life begins has been hotly debated by philosophers since the beginning of time." This was a reference to the Roe Court's determination that it could not resolve "the difficult question of when life begins" at "this point in the development of man's knowledge." The Court used this position of ignorance to reject the fertilization standard as merely reflecting "one theory of life."
In a recent survey, 80 percent of the 4,107 American respondents selected biologists as the group most qualified to determine when life begins. More than 5,500 biologists from 86 countries were surveyed on the same question, and 68 percent agreed they are most qualified. Even though 85 percent of the sample identified as pro-choice, 96 percent affirmed that a human's life begins at fertilization. An amicus brief signed by biologists from 15 countries further establishes the scientific consensus on the fertilization view, and no brief in support of Roe contested it.
These recent developments mean that women no longer need abortion access to be free from unwanted child-rearing and, starting at fertilization, the preborn are biologically recognized as humans and legally protected as homicide victims. The Dobbs Court should use these developments to help "the thoughtful part of the Nation" understand that Roe must be overturned. In fact, most Americans are open to it—a majority already oppose abortion in most circumstances and throughout most of pregnancy. Regardless of whether Roe was correctly decided and aptly justified based on the facts available to the Court in 1973, in 2021, the facts have changed, rendering Roe's justifications obsolete. The Dobbs Court should fulfill its constitutional duty and overturn Roe.
Steve Jacobs is the program director of Illinois Right to Life. He received his J.D. from the Northwestern University School of Law and his Ph.D. from the University of Chicago.
The views expressed in this article are the writer's own.
