Document Type

Article

Publication Title

Harvard Law Review

Abstract

The relationship between stare decisis and the Court’s abortion jurisprudence is evident in the Court’s disposition of June Medical Services L.L.C. v. Russo, a challenge to Louisiana’s Act 620, which required physicians providing abortions to have admitting privileges at a local hospital. Although the Court voted 5–4 to invalidate the challenged law, the Justices were fractured in their reasoning and the guidance they provided to lower courts judging future abortion restrictions. Indeed, one of the few points of agreement among all nine Justices was that principles of stare decisis dictated the outcome in the instant case. Using June Medical Services as a point of entry, this Comment surfaces and examines the complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence. This Comment proceeds in four parts. Part I considers the relationship between stare decisis and the Court’s abortion jurisprudence. Focusing specifically on Planned Parenthood v. Casey and Gonzales v. Carhart, it argues that stare decisis and precedent have come to shape the public conflict over abortion rights and, more particularly, the Court’s efforts to resolve that conflict in its jurisprudence. Part II turns to June Medical Services v. Russo to elaborate the relationship between stare decisis and the Court’s abortion jurisprudence. Specifically, it focuses on Chief Justice Roberts’s concurrence to show that the dynamics identified in Casey and Gonzales are not isolated, but rather are part and parcel of the Court’s efforts to delineate the scope and substance of the abortion right. As this Part explains, the Chief Justice’s concurrence wrestled with the question of what it means to be faithful to past precedent. While the Chief Justice acknowledged that, under principles of stare decisis, Whole Woman’s Health, the Court’s most recent abortion decision, controlled, he was nonetheless selective about which aspects of the 2016 decision demanded deference. This selective approach to stare decisis transformed the meaning — and precedential value — of Whole Woman’s Health, as well as the standards by which abortion restrictions will be judged going forward. Part III argues that even as stare decisis has shaped the Court’s abortion jurisprudence, the doctrine has in turn been shaped by the Court’s abortion jurisprudence. To elaborate this claim, this Part first explains how Casey has informed much of the Court’s jurisprudence on stare decisis. Relatedly, it shows how the Court’s abortion jurisprudence has served as both a blueprint and a roadmap for dealing with precedent in nonabortion contexts. More provocatively, this Part argues that Roe and the abortion right shadow all of the Court’s efforts to define and observe the requirements of stare decisis. Part IV considers the normative implications of the abortion jurisprudence’s influence on the Court’s approach to precedent. The Comment then briefly concludes.

First Page

308

Volume

134

Publication Date

2020

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