The Precedent Value of Roe v. Wade

The confirmation hearings for Judge Alito’s nomination to the Supreme Court have begun. The chair of the Senate Judiciary Committee, Arlen Specter, was first out of the box and, predictably, his first series of questions involved the “right to choose.” In his questioning, he ignored the fundamental rightness or wrongness of Roe v. Wade and instead focused on its value as precedent. This basic principle of stare decisis, a great reluctance to overturn judicial precedent, is a cornerstone of Anglo-American jurisprudence. In the hearings there has already even been talk of “precedents,” “super precedents” and “super duper precedents.” And so increasingly this is how the defense of Roe is couched. Below is an excerpt of the opinion by Justices O’Connor, Souter and Kennedy from the 1992 case Planned Parenthood of Southeastern Pa. v. Casey, which upheld Roe and is arguably the high-water mark of the anti-abortion movement's campaign to overturn it:

While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine an argument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that, for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.

Richard Posner, who almost single-handedly invented the modern field of law and economics, who writes about 1 book a year, numerous journal articles, teaches at the University of Chicago Law School and is by the way the chief judge of a federal appellate court, has written about an economic model of judicial precedent. Adherence to precedent allows for consistency over time, meaning that people thinking about their options know the legal consequences of those options. To constantly overturn precedent is to make long-term planning impossible, and to thus lower risk-taking and wealth creation generally. On the other hand, society changes over time – the technology governing exchange in particular. And so to allow precedents to last too long is to risk having obsolete rules for a changed society. For example, if large media organizations both gain more market power and come to have more influence over governance, as arguably happened beginning in the 1970s, it becomes more important to subject their claims to scrutiny. Traditional rules governing copyright protections may then be too strict, with efficiency requiring that the fair-use exception to copyright be loosened. (For the record, this is not an argument that has been affirmed nor, as far as I know, even been offered in federal jurisprudence over copyright in the Internet age.) Judge Posner ultimately likens judicial precedent to a machine, which produces the output of rules, but whose usefulness deteriorates over time even as a machine depreciates in productivity.

So how should Roe be evaluated in this framework? One can sense the difficulty the three Justices had in Casey know they face in transferring the standard argument for stare decisis to Roe. Arguably the only people whose expectations would be upset are those who are currently pregnant at the time the decision is overturned. They tackle that argument in the second paragraph of the above excerpt, but this is really the only sensible way to think about it. Even if one thinks about all women (and for that matter, men) who are currently of childbearing age as having “organized intimate relationships and made choices that define their views of themselves and their places in society” (and this is meaningless blather), that too is an effect that passes after one generation.
In fact, the Posner argument means that Roe is less valuable as precedent than before. The improvements in contraceptive technology and (rightly or not) the sharp decline in social stigma (and hence, lost opportunities) attached to out-of-wedlock birth mean that if anything that unplanned pregnancies are more avoidable and less costly than they have ever been. If one takes the position of Roe that there are conflicting interests to be traded off – those of the fetus in life versus those of the women in liberty to have the baby or not – then the current balance favors the former more than it ever did. I have purposely avoided the broader issues of the extent to which women will then choose unsafe abortions, the philosophical issue of what life is (and whether that decision should be left to the woman) and the other more common controversies over the right to abortion, all of which are substantial arguments. But the precedent argument is much weaker for Roe than for other cases that were overturned (Plessy v. Ferguson, most famously. Roe (unlike the jurisprudence of the early 1930s on economic freedom overturned just a few years later by justices fearful of Franklin Roosevelt) can be more justifiably overturned because of the changes in the nature of the society around it.