All eyes are on the U.S. Supreme Court this week after oral arguments in a case involving a Mississippi law restricting abortions after 15 weeks of pregnancy.
As liberals fret over the potential impact this ruling could have on abortion access nationwide, the underlying issue comes down to the legal concept of stare decisis — and according to The Washington Post, Justice Neil Gorsuch has already weighed in on the matter.
Abortion ban under fire
The concept of stare decisis emphasizes respect for prior precedent-setting decisions.
In a statement related to a prior case, the conservative justice argued that the principle can at times be wrong and should not be binding for the court.
At hand this week was the case of Dobbs v. Jackson Women’s Health and much of Wednesday’s oral arguments hinged on the viability of a fetus — usually around 24 weeks into a pregnancy — in contrast with the Mississippi law’s 15-week threshold.
The precedent set in 1992 with the Casey v. Planned Parenthood ruling protected abortions during the first two trimesters, which would be a direct conflict with the Mississippi restriction.
Pro-life advocates would like to see that precedent — if not the 1973 Roe v. Wade decision before it — overturned by a more conservative Supreme Court. The pro-abortion side, however, adheres to the concept of stare decisis to claim indefinite constitutional protection.
“What everyone knows to be true”
Last year, Gorsuch weighed in on a case involving whether state juries must be unanimous in convicting someone of a serious crime, pointing out that it would be in conflict with a 1972 decision limiting jury unanimity to federal court cases.
Writing for the majority, he explained:
Even if we accepted the premise that [the 1972 decision] established a precedent, no one on the Court today is prepared to say it was rightly decided, and stare decisis isn’t supposed to be the art of methodically ignoring what everyone knows to be true.
He went on to acknowledge that such precedents “warrant our deep respect as embodying the considered views of those who have come before,” but not as “an inexorable command.”
Justice Brett Kavanaugh built on that position by listing a number of Supreme Court rulings that were overruled by later courts, essentially proving that stare decisis has not prevented justices from changing direction from prior decisions numerous times in the nation’s history.
Even as pro-abortion progressives declare that the Roe and Casey decisions must be upheld no matter what, there is plenty of evidence that no precedent is invincible.