Precedent in Peril: Dobbs v. Jackson Women’s Health Organization Showcases the Threat on Fundamental Rights as Overruling Precedent Becomes the Norm
The Supreme Court’s recent ruling in the Dobbs v. Jackson Women’s Health Organization marked the arrival of a new era for female reproductive rights, one in which abortion after the fifteen-week mark is criminalized under federal law. On its face, the Dobbs ruling points to the Court’s grave infringement upon a non-enumerated constitutional right. Yet, such a restriction on reproductive rights accompanies the growing judicial tendency to reject the long-standing principle of stare decisis. This principle holds that precedents or rules established in previous legal cases are binding, and should be applied to future cases dealing with similar issues. Dobbs demonstrates a fleeting respect for stare decisis and poses the question of whether overturning precedent has in fact become the new precedent.
The Dobbs v. Jackson Women’s Health Organization case was filed against Mississippi legislation passed in 2018. The Gestational Age Act prohibited all abortions after the fifteenth week gestational mark. In response, the Jackson’s Women’s Health Organization, which was the only licensed abortion clinic in Mississippi, filed a claim challenging the law. When the case first appeared in federal district court, the judiciary ruled based on the precedent set by the Supreme Court in Roe v. Wade. Roe cemented the right to abortion as a being fundamental, hence becoming federally recognized as requiring a stronger degree of protection from government encroachment. It set the precedent that unduly restrictive state regulation of abortion was unconstitutional.
One of the many responsibilities of the Supreme Court includes protecting fundamental rights, such as abortion, from undue government intrusion. Fundamental rights can be categorized as either enumerated or unenumerated. Enumerated fundamental rights are those which are explicitly mentioned within the Constitution, while unenumerated rights are those which are implied and legally relevant rights, but are not explicitly written in the Constitution as such. The right to abortion falls under the latter. Acting in accordance with the Due Process Clause, the Supreme Court can recognize additional rights requiring stronger degrees of protection, despite not being explicitly written in the Constitution as fundamental.
Under the 5th Amendment’s Due Process Clause, the federal government cannot make or enforce laws that violate an individual's fundamental right to life, liberty, or property. In Roe v. Wade, the Supreme Court found that abortion rights were part of due process. The Due Process Clause includes protecting the right to privacy, a right that extends to a woman's decision on whether or not she will bear her child. The right to privacy as a fundamental right is much newer than the right to life, liberty, and property. However, the Court’s ruling in Griswold v. Connecticut solidified the right to privacy as one requiring greater protection from the judiciary. Because the right to privacy is now a fundamental right and SCOTUS determined the right to abortion falls under privacy rights, abortion was declared fundamental as well, a conclusion which was reached in Roe.
In Dobbs, the Supreme Court found that the Constitution did not award or protect any such right to abortion. Within only fifty years, the judiciary has gone from recognizing abortion as a constitutional right worthy of greater judicial protection, to being nothing of the sort.
The Court’s ruling in Dobbs v. Jackson Women’s Health Organization demonstrated the ways in which the Supreme Court can freely redetermine the status of an unenumerated fundamental right. Hence, our liberties lie entirely in the hands of a court that has begun to disregard the core principle of stare decisis in light of a majority conservative bloc, as seen by the Dobbs ruling. Stare decisis holds that precedents or rules established in previous legal cases are binding, and should be applied to future cases dealing with similar issues. Roe set a precedent that recognized a new unenumerated fundamental right, that being abortion.
Yet, because abortion is not explicitly mentioned within the Constitution, the originalist Justice Alito, who authored the majority opinion in Dobbs, was able to formulate an argument that emphasized the absence of abortion in the Consitution. Somewhat paradoxically, while arguing for the rejection of stare decisis, vis-a-vis Roe, Alito turned to American culture, history, and tradition as ways to denounce abortion’s legal standing as a whole. Justice Alito remarked;“ Procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our history.” Rather than obliging by stare decisis and upholding the precedent set by Roe, Alito uses abortion’s status as being unenumerated to formulate his argument. He hones in on textualism and history to prove that abortion cannot be considered a fundamental right, and goes as far as to claim that Roe was “egregiously wrong.”
Overturning precedent, particularly one which will eliminate a constitutional right, is terrain that the Supreme Court rarely crosses. Overruling Roe v. Wade altered the status of abortion from being a fundamental right to an act subject to no judicial protection. In turn, individual states now possess the authority to restrict and criminalize abortion, marking its demise from fundamental right to felony. Although this change is within the court’s power, the Court rarely resorts to it. Nevertheless, Dobbs functions as a reminder that the Court’s power wields well beyond the authority to determine which rights require greater degrees of protection. It is within the jurisdiction of the court to decide whether an act such as abortion is a right to begin with.
Simply because a power is seldom invoked does not mean it ceases to exist. Dobbs demonstrates the extent to which the Supreme Court holds the authority to redefine and revoke fundamental rights in accordance with the political makeup of the Supreme Court. Such actions are taken through processes which disregard the core pillar of Stare Decisis, while also challenging the Due Process clause that recognizes fundamental rights as requiring a greater degree of protection.
As the Supreme Court dismisses precedent, it truly takes on the role of being the sole determiner of the fundamental liberties granted to the people by the Constitution. All the while there exist no procedural safeguards that protect the status of fundamental rights from the judicial branch itself. At play in Dobbs is the Court versus the history of judicial precedent, which for the longest has acted as a self-imposed check against contemporary biases which naturally seep into the Court. Yet, the overturning of Roe marks a certain death of such safeguards. Such demise poses a threat to unenumerated fundamental rights, subject to a textualist interpretation, while also bringing into question the standing of the judiciary in the three-branch system when it disregards principles meant to keep it in line. This dynamic evokes new questions about the legitimacy of the court. Additionally, it prompts skepticism as to whether such shifts in authority are reflective of the balance of power the framers had sought to create between the three branches of government.
While Dobbs leaves much of the nation worried about the future of female bodily autonomy, this case also exposes a disturbing trend within the Court, one in which precedent no longer holds the weight it once did. In turn, the court has the leeway to determine which unenumerated rights are fundamental, and which actions cannot be considered rights at all. Modern defiance of precedent opens the door for reactionary policies and beliefs to thrive within the judiciary. By disregarding stare decisis the Court can “turn back the clock” with far greater ease, with precedent no longer acting as a self-imposed check on the Court’s power.
Henriette Keita is a sophomore concentrating in International & Public Affairs. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at Henriette_Keita@brown.edu.