The Washington PostDemocracy Dies in Darkness

Opinion Stare decisis is essential to social stability. The court doesn’t care.

A protester holds a wire hanger at a rally held in reaction to the leak of a draft Supreme Court opinion overturning Roe v. Wade, in Atlanta on May 3. (Alyssa Pointer/Reuters)
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In its arrogance and in its isolation from everyday life in America, the right-wing radical majority on the Supreme Court seems prepared to blithely sweep away 50 years of legal history and, with it, the monumental changes in women’s lives since the 1970s.

Stare decisis, or the legal principle of adhering to precedent, is not simply a theoretical restraint on the court that should prevent a single batch of justices (or one or two decisive ones) from willy-nilly upsetting the law to suit their political minders. Stare decisis is essential to 330 million Americans who have planned their lives with the assumption that half a century of law won’t disappear overnight.

Over the past 30 years, conservative Supreme Court nominees testified about abortion rights during their Senate confirmation hearings. (Video: JM Rieger/The Washington Post)

This reality was underscored in, of all places, a Pentagon briefing Wednesday in which the press corps peppered spokesman John Kirby with questions about what effect the potential criminalization of abortion would have on the military, specifically its female workforce (although reporters did not point out that the female spouses of military personnel will be gravely affected, too).

Kirby was understandably reluctant to weigh in on a draft opinion, but the persistence of female reporters put some unavoidable questions to him: If women cannot get abortions and lifesaving care (e.g., ending ectopic pregnancies), will the military have trouble recruiting women, who are especially critical in scientific and cybersecurity functions? Will our national security be impaired?

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Kirby made three points in response: (1.) Any social or economic issue in the country will affect the all-volunteer military; (2.) the military takes seriously its obligation to provide medical care to personnel and their families; and (3.) women most definitely are essential to our national security.

It might be news to the gang of six sitting in their marble building, but there have been dramatic changes in the lives of women since Roe v. Wade guaranteed the right to abortion — changes that allowed women to enter the military anywhere in the country, certain that their access to essential care would not depend on the state they were stationed in. If they knew they might have to hunker down in blue states, would they have joined the military? Stayed in the military?

Women have relied in hundreds of ways on a right to privacy that was not contingent on their state of residency. They chose colleges, took jobs, opened businesses, and planned marriages and pregnancies based on many factors — but might they have chosen differently if the possibility of getting stuck in a state that criminalized abortion was a factor, too?

Maybe a woman would have prioritized finding a job with the sort of company that would, if necessary, fly her out of state for medical care. Perhaps she would have avoided the military because she or her spouse could at some point be dropped into a red state that did not recognize women’s bodily autonomy.

Lives will now be disrupted. People might need to quit jobs, transfer colleges, relocate their businesses or physically move because the Supreme Court, with a stroke of a pen, tells them they were foolish to rely on a legal and social framework that, in many cases, pre-dated their birth — a framework they were told was “settled law.”

Think also of the military, businesses, schools and other institutions that have to cope with a decision at odds with the views and values of most women. “Businesses with workers spread coast-to-coast might face logistical hurdles to providing equal access to health care for workers in Texas vs. California,” The Post reports. “Entire parts of the country might be ruled in or out for new development and investment. Some companies might struggle to attract new hires to states with abortion bans, while other employees might seek out work only in those same areas.” Will businesses have to relocate? Will they face a daunting wave of resignations (on top of the current one) as women reorder their lives?

The ordering of one’s life based on the assumed stability of the law is what stare decisis is meant to provide. But the Supreme Court majority either does not understand or does not care about how much havoc it will wreak on women, their families, the military, businesses and schools. Its religion-driven tyranny will disrupt lives and induce utter contempt from millions whose very existences will need rearranging.

Who knew Americans would have to plan their lives around whether Sen. Mitch McConnell (R-Ky.) could steal a seat or two on the court? Blowback? The court has no idea what is coming if Roe vanishes.