Some aspects of overturning Roe v Wade for bars and lawyers

The removal of the constitutional right to abortion in the US through the US Supreme Court’s overruling of Roe v Wade raises interesting issues for bars and lawyers.

The American Bar Association (ABA) filed an amicus brief in Dobbs v. Jackson Women’s Health Organization, the case which overturned Roe v Wade. The ABA urged the court to uphold Roe and its subsequent line of decisions, citing extensive legal precedent, the irreparable harm that reversing Roe would cause women, and the disproportionate effect of a change in the law on women of colour.

After the decision was announced, the ABA issued a statement saying that it remains committed to doing all it can to support reproductive choice.

When the ABA first became involved in the abortion debate in the early 1990s, there were many who thought it was not an issue on which a professional organisation of lawyers should take a view: it was outside its role and mandate, and whatever stance it took would inevitably cause offence to a chunk of its membership.

Sure enough, after it first adopted a position in favour of abortion rights in February 1990, 1,400 lawyers resigned in protest. The two sides continued to fight it out: the ABA rescinded its initial decision six months later, after which most resigners re-joined. But the organisation revisited the issue yet again two years later and re-adopted an anti-abortion stance. This time more than 3,000 resigned. Yet the ABA found no drop in its overall membership, and there was evidence that some were drawn to the ABA because of its new policy, including women.

At one level, abortion is a medical/moral/religious/philosophical matter, and not legal. But there are obviously several legal issues tied in. For instance, the ABA passed a resolution last year opposing the criminalisation of those who carry out abortions on themselves. It said:

‘The criminal legal system and its apparatus – from law enforcement to prosecutions to courts to prisons and collateral consequences – is not the proper system to respond to issues of reproductive health; and when that system is involved, the same racial disparities in arrests, sentencing, and collateral consequences are present.’

The ABA has now issued a note on another legal aspect: stare decisis, or the binding power of precedent, through its very useful Legal Factcheck website. Obviously, the Supreme Court overturned its own precedent in the Dobbs decision. The question is whether at all, and if so how often and why, supreme courts should overturn their own precedents.

On the one hand, the US Supreme Court has often said that to follow its previous decisions encourages stability, brings uniformity in the application of law to cases and litigants, and establishes a societal reliance on settled law.

On the other, the majority decision in Dobbs (referring also to another case which affirmed the decision in Roe, called Planned Parenthood of Southeastern Pa. v Casey stated:

'Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.'

There are two legs to this reasoning. The first is that Roe was obviously wrong from the start. Many would strenuously disagree, but if true, it could be a ground to overrule precedent. But the second (the implication that returning the issue to the people’s elected representatives will stop debate becoming enflamed and division deepening) is laughable, in the light of public responses since the new decision was published.

Finally, there is the question of how law firms respond. Initial reports suggested that the largest US law firms were being careful not to alienate either side. They did not rush to take a public stance, unlike some major companies which made statements, including that they will cover travel costs for employees seeking abortions in a state which still permits them.

The suggestion is that the law firms are aware that a section of their clients and their own lawyers will support the new decision, and so they are walking a tightrope between the two sides. Yet a number of the firms announced in advance of the new decision, after a draft was leaked, that they planned to provide free legal support to women seeking abortions.

What a minefield! I hope we will not import this aspect of the culture wars (even if some of our politicians are keen to create division on aspects of sex and gender). Fortunately, our own settlement on abortion appears to keep the peace.

Jonathan Goldsmith is Law Society Council member for EU & international, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

This article is now closed for comment.