Michael Stokes Paulsen has two excellent essays on Public Discourse discussing the Dobbs case, which may result in the overruling of Roe and Casey. Part I focuses on “why Dobbs is the most important abortion case to reach the Court in nearly thirty years—since Planned Parenthood v. Casey (1992), the case in which a splintered Court, by the narrowest of 5-4 margins, reaffirmed Roe, not because a majority of the justices thought Roe was right, but on the basis of the judicial doctrine of “stare decisis.” Dobbs is important because it frames a direct challenge to Roe and Casey, forcing the Court to confront the legal indefensibility and radicalism of the Court’s pro-abortion jurisprudence. Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes.
Part II considers “the question whether the doctrine of stare decisis legitimately can require, or even permit, the Court to adhere to a grievously wrong, legally insupportable precedent, simply because it is a precedent.” Paulsen’s answer is an emphatic no.
As Paulsen explains, “Dobbs v. Jackson Women’s Health Organization is likely to make history.”