Roe as Potemkin Village: Fallacies, Facades, and Stare Decisis

Abstract

The abortion debate has escalated once again, taking on a new urgency in the wake of the Supreme Court’s granting certiorari in Dobbs v. Jackson Women’s Health Organization and denying emergency relief in Whole Woman’s Health v. Jackson. In Dobbs, the Court agreed to reconsider Roe’s “essential holding,” determining whether pre-viability bans on abortion remain unconstitutional. In Whole Woman’s Health, a majority of the Court declined the request to enjoin a Texas statute banning abortions at roughly six weeks, thereby permitting the law to go into effect. Supporters of abortion rights understandably worry that Whole Woman’s Health indicates that in Dobbs a majority of the Court will overturn or severely limit Roe. In defense of Roe and its progeny, these individuals frequently invoke Casey and stare decisis to justify retaining Roe’s viability standard, which has held sway for almost half a century. What these supporters do not do is adopt Roe’s constitutional analysis—and for good reason. As this article explains, Roe’s argument in support of viability rests on seven informal fallacies and at least one formal fallacy. While commentators on both sides of the abortion debate have highlighted problems with Roe’s reasoning, none has undertaken this type of detailed argument reconstruction. A careful review of Roe’s reasoning reveals that Casey’s use of stare decisis to preserve Roe is a Potemkin village—a tribute to a longstanding precedent that, when scrutinized, is seen to lack a constitutional foundation. That Roe’s constitutional argument is severely wanting bears directly on the stare decisis analysis in Dobbs in two important ways. First, a key factor for the Court when determining whether to overrule a prior decision is the quality of the reasoning in the earlier case. Regardless of one’s views on abortion, Roe was poorly reasoned. Its viability standard is not predicated on the Constitution’s text, original meaning, or general purposes. As this article explains, it is grounded in a series of fallacies that do not support its holding. Thus, if the Respondents in Dobbs parrot Roe’s argument, they are apt to lose before the current Court. Second, if those defending Roe advance new arguments to supplement its reasoning, they should worry that the Court may not apply stare decisis at all. As Chief Justice Roberts explained in Citizens United, stare decisis is “a doctrine of preservation, not transformation.” If those defending Roe present novel arguments, the Court need not (and perhaps should not) defer to those arguments because the Court would be considering them for the first time.