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Shawn Roche's avatar

I quite enjoyed class today, and I believe the classification of abortion as a negative right was the constitutionally correct interpretation under Harris and Maher. However, I did not find the majority opinion of Casey or dissent in Dobbs to be particularly compelling. Both opinions stress the importance of stare decisis. I think this assertion is especially weak because both Justices Breyer and Sotomayor voted to ignore stare decisis and overturn a 50 year precedent of Apodaca v. Oregon in Ramos v. Louisiana, 590 U.S. 83. - Which was decided just two years before Dobbs.

Justice Gorsuch wrote in Ramos, "But stare decisis has never been treated as “an inexorable command.” And the doctrine is “at its weakest when we interpret the Constitution” because a mistaken judicial interpretation of that supreme law is often “practically impossible” to correct through other means. To balance these considerations, when it revisits a precedent this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.” 590 U.S. 83, 105-106. Casey and the Dobbs dissent rely heavily on reliance. I disagree that reliance interests should matter at all in questions of constitutional interpretation. That is a policy arguement for legislatures and voters, not for unelected judges.

I believe the only thing that should matter when revisting prior precedent is whether the interpretation was incompatible with the Constitution. I think the majority in Dobbs fleshed this out well.

That said, I found myself agreeing with large parts of the Dobbs dissent. Although, I found the language regarding other substantial due process decisions being on the chopping block to be inappropriate and unwarranted. However, the portions I did agree with were not constitutional arguments regarding why Roe and Casey were correct. The dissent instead focused on the importance of abortion access and utilized figures to show a substantial amount of women access this care in their lifetimes. This is, however, something that must be left to the legislature, and if needed, the constitutional amendment process.

To conclude, legitimacy, public reaction, reliance, and policy arguements should not be the canons upon which whether precedent should be upheld. But rather, was the prior decision incompatible with the constitution? I believe Dobbs got that correct.

I wonder how my reasoning, or the cases since Roe, may differ if Roe was decided according to Equal Protection rather than Due Process.

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Richard LeMay's avatar

The philosophical underpinning of Casey is beautiful but horribly misplaced. Oft-quoted, it has served as a punchline just as much as an aspiration, depending on which judge wields it. The majority ought to have seen the weakness they were threading into precedent by basing the decision on this amorphous design that strangely mirrors a natural law mindset. The 'undue burden' standard further confused the available restrictions and caused accessibility issues to proliferate. In the end, it was inevitable that Casey would eventually lead to such a reduction in availability for abortion that the procedure would have, in effect, been banned for much of the country, even if Dobbs had never come to pass.

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