Debating the future of Roe 

At the Harvard Law School Rappaport Forum, panelists discussed abortion rights and whether the Supreme Court should honor precedent — or jettison Roe v. Wade 

On December 1, 2021, the Supreme Court heard argument in Dobbs v. Jackson Women’s Health Organization, which will require the Justices to determine whether to reaffirm, or overrule, Roe v. Wade and Planned Parenthood v. Casey. The briefing and argument sharply posed the question: How much weight should the Court give to “stare decisis” (deference to established precedents) in considering this important question?

The next day, Harvard Law School’s Rappaport Forum examined the question in an online discussion featuring Mary Ann Glendon, Learned Hand Professor of Law Emerita, Harvard Law School; Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School; and moderator Jeannie Suk Gersen ’02, John H. Watson, Jr. Professor of Law, Harvard Law School. The Rappaport Forum is a recurring series that seeks to foster respectful and open debate on salient issues, and was established last year thanks to a gift from the Phyllis & Jerome Lyle Rappaport Foundation.

Nearly 900 people watched as panelists discussed the Court’s jurisprudence and the role of stare decisis in determining whether it should reaffirm, modify, or overturn Roe and Casey.

The Dobbs case now pending before the Court concerns a Mississippi law that prohibits abortion after 15 weeks’ gestation — a direct challenge to Roe and Casey, which protect abortion rights before the point of fetal viability, typically defined as 22-24 weeks. Friend of the court briefs filed by Glendon and Siegel in the Dobbs case presented arguments to support opposing views of how the justices should rule.

In remarks opening the discussion, Glendon argued that, while honoring past court decisions is important, “There’s nothing in the doctrine of stare decisis that prevents the Supreme Court from overruling Roe and Casey and returning the abortion issue to the states.” She added that the Court’s decisions around abortion, “with their shifting rationale, standards, and guidelines, are an illustration of why the Court has often said that stare decisis is at its weakest in cases involving constitutional interpretation.”

If Roe were overturned and abortion laws left up to the states, said Glendon, American citizens could more easily have their views on the issue heard through the democratic process. By foreclosing debate on the subject, she contended, the Supreme Court has increased political polarization and driven those opposed to abortion to “the only channels reasonably open to them: judicial selection and confirmation.” “I’m not suggesting that [leaving abortion laws to the states] will magically resolve the … debate. But one can reasonably expect that it will foster the kinds of conversations that should have taken place decades ago, conversations about how a decent society should address all of the interests involved.”

The single greatest difference between the judge-made abortion regime in the United States and many of the democratic compromises that have emerged in Europe is that the U.S. cases generally frame the issue as involving women’s liberty interest and the state’s interest in protecting unborn life.

Mary Ann Glendon

Ultimately, she concluded, the result might resemble Europe’s patchwork of abortion laws, which are generally more restrictive, but also provide more support for women and families. “The single greatest difference between the judge-made abortion regime in the United States and many of the democratic compromises that have emerged in Europe is that the U.S. cases generally frame the issue as involving women’s liberty interest and the state’s interest in protecting unborn life,” she said. “That makes it sound as though all that’s involved is a huge, abstract, impersonal state interfering with women’s liberty and its most personal and intimate aspects. But it tends to gloss over the fact that makes abortion the most controversial among … issues: it involves the purposeful destruction of an innocent human life.”  The laws of countries like France and Germany, she added, protect life and “demonstrate that political compromise is possible, even when moral compromise may never be.”

Siegel defended Roe and Casey on the merits and on stare decisis grounds. “As recently as 2016, the Court with Justice Kennedy voting resoundingly and robustly reaffirmed Roe and Casey. Quite literally nothing has changed except Trump’s appointments to the Court,” she said.

Siegel emphasized that reaffirming Roe and Casey was important to preserving the Court’s institutional legitimacy and reputation. In Siegel’s view, Mississippi’s law is “flatly unconstitutional under a half century of Supreme Court precedent. The law was passed to give the Court — that President Trump constructed by procedurally irregular means — a vehicle to overturn Roe. And the Court should refuse.” In fact, she said, the Court has already considered whether to overrule Roe, and it chose instead to offer a compromise through its decision in Casey. There, “The Court sought to build a framework in which opponents of the abortion right could enlist their government in dissuading pregnant women who sought abortion, but could not obstruct the woman’s efforts to end the pregnancy,” she said. “The court designed [Casey’s] undue burden framework to channel the expression of two values – protecting potential life and respecting the dignity of women.”

The Constitution is not neutral when it comes to the question of women’s liberty and equality. … The 14th Amendment’s guarantees extend to women, even if women were denied the vote and voice in shaping of this nation’s laws for hundreds of years.

Reva Siegel

To Siegel, reaffirming Roe and Casey was about protecting women’s bodily integrity and reproductive freedom. “The Constitution is not neutral when it comes to the question of women’s liberty and equality,” she said. “The 14th Amendment’s guarantees extend to women, even if women were denied the vote and voice in shaping of this nation’s laws for hundreds of years.”

Glendon disagreed with the position that Roe could find support in the Constitution. “When the Casey plurality affirmed Roe, it wasn’t because the justices said that Roe was correct as a matter of constitutional law,” she said. “They did not say that the abortion right was grounded in constitutional text, history, tradition, structure; rather it was on the basis mainly of stare decisis … .”

“When you say text, history, and structure, according to whom?” asked Siegel. “Liberty, equality: What did those terms mean? … You can find women [like] Lucy Stone talking about questions of voluntary motherhood, a woman’s ability to say yes, to consent to sex and marriage, to say yes to motherhood as being fundamental, all the way back before the ratification of the 14th Amendment. And why isn’t that fundamental to our understanding of liberty?”

Despite their differing positions on Roe and Casey, Glendon and Siegel agreed that abortion is not a “single issue issue,” as Siegel put it, and that, regardless of what happens in Dobbs, America should do much more to support women and families.

“We have the best hope for exploring and perhaps finding common ground between branches of pro-choice and pro-life movements … who believe in a care ethic and who believe in committing to and providing for life and for the next generation,” said Siegel. “Life is on both sides of the equation, and it ought to be addressed that way.”

“Abortion is not a single issue,” Glendon concurred. “One can’t stress enough that abortion is an issue that involves women, families, children, and the interest of not just the state, but society, and what kind of a world we’re bringing into being.”