Abortion Ruling Leads to Deep Look at Stare Decisis

A photo of Nina Varsava smiling in front of a city skyline with trees nearby.
Nina Varsava

Before last summer’s U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, Assistant Professor Nina Varsava had never focused on an abortion case in her work.

Yet within a month following the de­cision, Varsava had posted the first draft of “Precedent, Reliance, and Dobbs” to the Social Science Research Network (SSRN). The article was published in the Harvard Law Review in May 2023.

“I had read the leaked decision as soon as it came out and found it notable how much of the decision was about stare decisis,” she said.

While she wasn’t surprised that would be the case “because it was about whether to overrule this really important precedent” (in Roe v. Wade), Varsava was struck by “how the court treated stare decisis in the decision and how critical it was of the approach to stare decisis in Casey v. Planned Parenthood.”

Varsava first became interested in legal precedent during her Ph.D. studies in philosophy and literature at Stanford University; it was her dissertation topic and led her to pursue her J.D. at Yale Law School.

Stare decisis enables people to rely on judicial decisions to form expecta­tions about their legal rights and duties into the future, so they structure their lives accordingly. In following prece­dent, courts support people’s autonomy, self-governance and dignity.

But in Dobbs, the Supreme Court declined to give consideration to wide­spread reliance on the precedents pro­tecting abortion.

“This move signals a notable shift in the Court’s stare decisis jurisprudence and would seem to overrule Casey v. Planned Parenthood as a precedent about precedent,” Varsava explained.

The Dobbs majority said only “tan­gible” or “concrete” reliance interests count for stare decisis purposes, and in this case, they found no tangible reliance worth considering, since it wasn’t clear that people had made any investment decisions based on the precedent that would leave them materially worse off as a result of their reliance on it.

The most obvious group that would have had a worthy tangible reliance interest on precedent were those who were pregnant at the time of the Dobbs ruling. They believed they would have access to abortion or to critical health care if complications arose; after the ruling, they faced a detrimental condi­tion. As Varsava points out, the major­ity opinion neglects to count reliance costs to this group, perhaps because the justices perceived the magnitude of reli­ance here to be trivial given the relative­ly small number of potentially affected individuals.

Intangible reliance is broader and harder to define. It refers roughly to dis­appointed expectations and understand­ings. In the abortion context, individuals made decisions about their education, career, relationships and family life.

Varsava said the Dobbs majority insists intangible reliance is not relevant for stare decisis for two reasons: 1. it says the court hasn’t considered that type of reliance in other cases, aside from Casey, which it views as anomalous; and 2. the court is not well-equipped to assess or measure that kind of reliance, so it should just refrain from considering it at all.

“It’s unsettling when we’re proven wrong, even when we didn’t make differ­ent decisions, even if our expectations aren’t upset in a tangible way,” Varsava said.

She argues that the court has a re­sponsibility to recognize and mitigate the harms induced when intangible reliance is ignored. But Casey was vulnerable to attack because it put weight on intangi­ble reliance but did not unpack it. She spends a considerable portion of her article doing that unpacking.

While Varsava has not yet seen the U.S. Supreme Court rely on the Dobbs ap­proach to stare decisis, moving forward, she said the court seems to think that reliance will mainly play a role in com­mercial cases where tangible reliance is at stake, for example, in the contract or property context where economic in­terests would be thwarted if a precedent were overruled.

In her newest work, Varsava is con­tinuing to explore, from a philosophical perspective, problems related to prece­dent and adjudication.

Noteworthy Activities This Year

In January, Varsava was award­ed the Association of American Law Schools’ (AALS) Jurispru­dence Future Promise Award, which recognizes junior schol­ars who exhibit exceptional promise in philosophy and law.

In March, Varsava par­ticipated in an interdis­ciplinary discussion of “Roe at 50, the Anniver­sary That Wasn’t,” host­ed by the UW–Madison Humanities Center.

In May, Varsava held the “Legal Reasoning and Adjudication Symposium,” bringing together a diverse group of scholars from across the United States as well as the United Kingdom and Canada. She pre­sented a new paper about statutory inter­pretation and intersystemic adjudication.

By Jennie Broecker