The Rule of Law: Roe v Wade and Dobbs v Jackson Women’s Health Organisation

by Malcolm Stewart, Senior Vice President, Rule of Law Education Centre

The rule of law comprises a number of principles that underpin common law legal systems such as Australia, the United States, Canada, and England.

On 24 June 2022 the US Supreme Court delivered its decision Dobbs v Jackson Women’s Health Organisation, which overturned Roe v Wade. The US Supreme Court is the equivalent of the High Court of Australia, the pinnacle of each countries judicial systems.

In Dobbs, both the majority, and the minority, rely upon the rule of law in aid of their judgments for the constitutional validity, and invalidity, of State laws permitting abortion.

The Majority: ALITO, J., delivered the opinion of the Court, in which THOMAS, GOR- SUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KA- VANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment.

Opinion of the Court: [Page 6] It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.  “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democ- racy: by citizens trying to persuade one another and then voting.” Casey, 505 U. S., at 979 (Scalia, J., concurring in judgment in part and dissenting in part).  That is what the Constitution and the rule of law demand.

The Minority: BREYER, SOTOMAYOR, and KAGAN, JJ., filed a dissenting opinion.

Dissenting opinion: [Page 57] Weakening stare decisis creates profound legal instability.  And as Casey recognized, weak- ening stare decisis in a hotly contested case like this one calls into question this Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.

If the rule of law can be said by the most senior judges in the United States to support both sides of the divisive abortion debate, this should cause us to pause.

So which side of this Constitutional debate does the rule of law support?

There are three possibilities. First, both majority and minority are applying the rule of law correctly, so the rule of law has no role to play in determining whether the majority or minority are correct. Analysing and assessing, the correctness of the decision will not depend on the rule of law. Second, one side is incorrectly applying the rule of law. Third, neither side is correctly applying the rule of law.

The majority in Dobbs held that it was imperative to heed the Constitution, there being no reference in it to abortion, and return the issue to the State legislatures to determine. That is what, according to the majority, the Constitution and the rule of law demanded. There was no further explanation of what rule of law principle the majority were referring to. The majority decision was based on their interpretation of the Constitution, to which the rule of law added little if anything. It is a principle of law, not the rule of law, that the Constitution determines the powers and duties the Federal and State Governments, and guarantees rights to the people.

The minority, on the other hand, clearly specified the rule of law principle that they were relying upon, that being stare decisis. The majority explained the principle as, legal authority (such as Roe v Wade) should not be altered without a very good reason. They said this principle was central to the rule of law. Stare decisis is the legal principle that courts will adhere to precedent in making their decisions. It means “to stand by things decided”, in Latin. It is not really a rule of law principle, rather a common law principle applicable to common law jurisdictions. It is not central to the rule of law. To equate a rule of law principle with a common law principle reduces the importance of all rule of law principles. This should be avoided.

The rule of law does require a level of consistency in laws whether they be made by Parliament or judge made. Otherwise it becomes difficult to know and comply with laws that are changing. But it is not uncommon for judges to overrule previous decisions, even if they be longstanding.

Independence of the Judiciary and the Rule of Law

There is however one important rule of law principle that the minority and the majority did touch on. Quoting from the 1992 Supreme Court decision in Casey, the minority held:

“The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not ‘social and political pressures’. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial ‘watershed’ decision, such as Roe.”

Similarly the majority held:

“The argument [in Casey that upheld Roe] was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.”

These passages illuminate the important rule of law principle that arises in Dobbs, that members of the judiciary must be independent to ensure public confidence in the exercise of their powers of judgment . The rule of law requires judges to be independent in their application of legal principles. Independence does not just mean independence from the executive government. It also means that judges should put aside any personal bias or political beliefs in making their decisions. Bingham, in his book on the Rule of Law stated that judicial independence: “calls for decision makers to be independent of.….government, vested interests of any kind, public and parliamentary opinion, the media, political parties and pressure groups, and their own colleagues, particularly those most senior to them. In short, they must be independent of anybody of anything which might lead them to decide issues coming before them on anything other than the legal and factual merits of the case as, in the exercise of their own judgment, they consider them to be.”

It is technical legal reasoning by judges in judgments that is required by the independence principle of the rule of law.

The majority judgment in Dobbs starts with the words “Abortion presents a profound moral issue…”. The minority refer to the balance that Roe created between protecting life and the viability of a foetus. So far as any Court is concerned, and in particular the Supreme Court of the United States, this is a Constitutional issue only.

That the judgments in Dobbs are clearly infected by the judge’s political persuasion or personal beliefs is a statement that can be made about the majority and the minority.

The decision of the majority may be correct. But their lack of independence evident from their political and personal beliefs, as well as their reasoning, makes it impossible to have confidence that the judgments follow proper legal principles. A lack of confidence in such an important matter, will cause a lack of confidence in the United States legal system generally. The difficulties that this creates are obvious. That is what the rule of law, if properly applied, protects.