Dobbs Sentences #203: Part III

As always, you can find the Dobbs v. Jackson decision here.

Paragraph 1 of 8

Sentence 3 of 8

Just one claim in this sentence:

“It protects the interests of those who have taken action in reliance on a past decision. See Casey, 505 U.S., at 856 (joint opinion); see also Payne v. Tennessee, 501 U.S. 808, 828 (1991).”

Here’s the claim without the citations:

  • “It protects the interests of those who have taken action in reliance on a past decision.”

This claim is just defining the term (the “it” being stare decisis), and the support is in the Payne citation. The Casey citation doesn’t mention stare decisis, but discusses reliance interests at length and cites the same passage of Payne that Dobbs does. Here’s the relevant section in Casey, which actually begins on page 855:

“The inquiry into reliance counts the cost of a rule’s repudiation as it would fall on those who have relied reasonably on the rule’s continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennessee, supra, — U.S., at —-, 111 S.Ct., at —-, where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.

“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. See, e.g., R. Petchesky, Abortion and Woman’s Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

And here’s the citation in Payne:

“Payne and his amicus argue that, despite these numerous infirmities in the rule created by Booth and Gathers, we should adhere to the doctrine of stare decisis and stop short of overruling those cases. Stare decisis is the preferred course, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. See Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 265-266 (1986). Adhering to precedent ‘is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than it be settled right.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 285 U. S. 406 (1932) (Brandeis, J., dissenting).

The Payne passage offers an effective one-sentence summation of stare decisis and another quote that troubles me a little. The notion that “[a]dhering to precedent ‘is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than it be settled right’ strikes me as wrong. There are reasons to be wary of changing precedent if the precedent isn’t definitely correct, but it seems wrongheaded to me to avoid changing precedent that is definitely wrong. It’s complicated, I know, but this is a point I’m going to want to come back to.

So Payne is cited for the quick definition of stare decisis, and Casey is cited because it’s the link between Payne and Dobbs. I can appreciate it. I’ll call this true until something comes along to challenge it:

“[Stare decisis] protects the interests of those who have taken action in reliance on a past decision.”

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