A pending decision by the U.S. Supreme Court threatens the right to choose established in Roe v. Wade, and in the most recent issue of the Harvard Journal of Law & Public Policy, Elon Law Professor Tom Molony examines what Chief Justice John Roberts鈥檚 views on precedent could mean for Roe.
For nearly 50 years, the landmark case of Roe v. Wade that granted women the right to an abortion has been debated in the judiciary with frequent legal challenges when states attempt to regulate the procedure.
One such challenge to a Louisiana law is now days away from being decided by a U.S. Supreme Court with a majority of justices appointed by Republican presidents.
While pro-choice advocates have expressed concern that Justice Brett Kavanaugh鈥檚 elevation to the Court could spell doom for Roe v. Wade, that outcome is anything but certain, as an Elon Law professor points out in a new journal article focused on the views about a longstanding legal principle by the man believed to be a swing vote: .
by Professor Thomas J. Molony appears in the current issue of the Harvard Journal of Law & Public Policy.
鈥淎lthough he has dissented in the two significant abortion cases that have come before the Court since he joined its ranks, the Chief Justice himself has not expressed disagreement with, nor has he joined an opinion expressing disagreement with, Roe鈥檚 premises,鈥 Molony writes in the article, adding that 鈥渢hose who want to earn the Chief Justice鈥檚 vote to overturn Roe will need to do more than convince him that the Court got it wrong. They will need to attack Roe successfully on multiple fronts.鈥
The multiple fronts that Molony outlines in his article arise out of stare decisis, Latin for 鈥渢o stand by things decided鈥 and a legal principle that counsels in favor of adhering to past decisions – even when they are wrong. Citing a host of cases since Roberts became Chief Justice, Molony points out that the U.S. Supreme Court does periodically depart from that principle.
But under what circumstances will Roberts vote to overturn legal precedent? That鈥檚 where predictions get tough. Molony explores a number of factors that have led the Court to disregard prior decisions:
- Can an errant decision be corrected through legislation?
- Have legal and factual developments made the decision a 鈥渄octrinal dinosaur鈥?
- Has the rule in the decision proved unworkable?
- What would overruling the decision mean for other previous rulings?
- Perhaps most importantly as it relates to Roberts and Roe, how would disposing of the decision affect the legitimacy of the U.S. Supreme Court?
Roberts has refused to vote to overturn precedent even with previous rulings that he believes his predecessors got wrong, Molony writes. The same could happen with Roe.
For those who believe Roe v. Wade was incorrect and that the Constitution does not guarantee a right to choose, however, the hope that Roberts may cast a vote to overturn the 1973 decision is not a vain one, Molony writes. Roberts could overturn the ruling because the Court鈥檚 justification for the right has shifted over time.
In 1973, the Court ruled that a nebulous constitutional right to privacy required that a woman have access to abortion to a varying extent based on the trimester of her pregnancy. The Court in the decision, though, moved from privacy to the 14th Amendment鈥檚 guarantee of liberty and replaced the trimester framework with a new 鈥渦ndue burden鈥 test that more liberally permits state regulation.
As Molony points out, in past cases, Roberts has voted to stray from stare decisis when legal justifications have shifted. What鈥檚 more, the constant stream of abortion litigation may suggest that the undue burden standard has not provided a 鈥渃lear line鈥 test for judges to use to when evaluating abortion regulations, meaning that Casey鈥檚 understanding of the rule Roe requires is unworkable.
And when a ruling is not workable, Molony writes, Roberts has not considered the Court to be compelled to keep it.
鈥淚t would not be at all surprising to learn that the Chief Justice believes that the Court in Roe failed to act with restraint and thereby undermined the Court鈥檚 institutional legitimacy,鈥 Molony writes in his conclusion. 鈥淏ut in deciding what to do with Roe now, the Chief Justice likely would assess whether the Court can put the genie back in the bottle – whether the act of overruling Roe will help restore the Court鈥檚 legitimacy or damage it more – whether overruling Roe would be an act of hubris 鈥. or an act of restraint.鈥
Molony does not predict how Roberts may vote in the forthcoming U.S. Supreme Court decision in . Molony does conclude, however, that Roberts likely would need to determine that Roe was 鈥溾榥ot just wrong鈥 but 鈥榚xceptionally ill founded鈥欌 for him to favor casting Roe away.
Founded in 1978, the is published three times annually by Harvard Law students. It describes itself as 鈥渙ne of the top five most widely circulated law reviews and the nation鈥檚 leading forum for conservative and libertarian legal scholarship鈥 with alumni who included U.S. Supreme Court Justice Neil Gorsuch and several United States senators and judges on the Courts of Appeals.
Molony joined the Elon Law faculty in 2008 after practicing law with the Charlotte firm of Robinson, Bradshaw & Hinson.
He has previously published in the Florida Law Review, the Washington & Lee Law Review, the Connecticut Law Review, the Michigan State Law Review, and the Seton Hall Law Review.