Published November 8, 2017
Roe v. Wade ranks among the most controverted Supreme Court decisions in the nation’s history, joining the likes of Dred Scott v. Sandford, Plessy v. Ferguson, and Lochner v. NY. Both Justice Rehnquist in his Roe dissent and constitutional law scholars since 1973 have drawn analogies between Roe and one or another of these cases over the years, with a majority of the Court attending to, and rejecting, such analogies in Planned Parenthood v. Casey.
The Casey court suggested that the facts underlying those putatively analogous decisions — or at least the nation’s understanding of those facts — had changed, such that “a terrible price would have been paid” had the Court not reversed course in those prior decisions. By contrast, according to the Joint Opinion, the right to abortion enunciated in Roe had been relied upon to such an extent in the intervening nineteen years that, in the Court’s view, the “certain cost[s]” of overruling Roe were too extensive — even if the original decision had been made in error. That is, even though the justices who coauthored the Joint Opinion were expressly unable to endorse the decision in Roe as an original matter, the court in Casey still held that Roe’s “central holding” must be reaffirmed, on the basis of the Joint Opinion’s “explication of individual liberty…and the force of stare decisis.”
In this article, I revisit and critique Casey’s controversial decision anew, attending in Part I to the Joint Opinion’s “explication of individual liberty,” and in Part II, to the “reliance interest” analysis of its stare decisis holding. In sum, I argue that the justices’ concerns about women’s equality are the key interpretative lens through which to understand the controversial reaffirmance of Roe, but one which has been inadequately explored and critiqued on the part of those critical of Casey. I aim to fill that void.
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