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The historical fallacy of overturning Roe v. Wade

Anti-abortion advocates point out that some of the Supreme Court’s most lauded decisions reversed precedents. But that claim misses something crucial.

A Planned Parenthood rally in Sacramento, Calif., in 2018.Rich Pedroncelli

This month marked the 49th anniversary of the Supreme Court’s landmark decision in Roe v. Wade, which established the right to abortion. It may, however, be the last time US women can take comfort in the Constitution’s guarantee of control over their own reproduction. The court appears poised to overrule Roe in Dobbs v. Jackson Women’s Health Organization, which challenges a Mississippi statute outlawing abortion after 15 weeks.

One of the most alarming aspects of the Dobbs case arose in oral arguments before the Supreme Court. The lawyer for the State of Mississippi and some of the anti-abortion justices on the court drew specious analogies to instances in which the court has overturned precedents. For example, they compared overruling Roe to the landmark 1954 civil rights case Brown v. Board of Education and the signature 1966 criminal procedure case Miranda v. Arizona.

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Neither analogy holds up under scrutiny. If the Brown and Miranda cases stand for anything, it is the idea that the Constitution protects against unjust exercises of state power.

While the supporters of the Mississippi law argue for returning the regulation of abortion access entirely to the states, Brown affirmed a federal right to be free from state laws that imposed segregation. In Brown, the court outlawed state-imposed segregation and thereby displaced a long-standing precedent. That Mississippi and other states that enforced segregation seem now to be enamored of the Brown decision is a new day indeed — but their affection extends only to Brown’s overturning a Supreme Court precedent, not to what Brown actually accomplished.

Mississippi and other states seek to subject the right to abortion care to the pre-Roe reality, conditioning access on state law, just as Black Americans and other nonwhites were at the mercy of state laws in the pre-Brown era. Roe v. Wade — along with Planned Parenthood v. Casey, a 1992 case that reaffirmed the right to abortion — did something similar to what Brown did. It established a baseline protecting a right as a matter of federal law and prohibited the states from interfering with that right.

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A comparison to the Miranda ruling also overlooks important details. First, like Brown and Roe, Miranda required state police and prosecutors to observe federal constitutional protections — specifically, that they inform criminal defendants of their right to counsel and their right to remain silent.

Second, these references to Miranda omitted a crucial aspect of the history of this important precedent. In 1968, Congress enacted a law that allowed courts to admit “voluntary” confessions obtained without the required warnings. The court reconsidered Miranda and the constitutionality of the subsequent statute in United States v. Dickerson, in 2000. Although Chief Justice William Rehnquist had criticized the Miranda ruling for 25 years, he wrote the opinion of the court reaffirming Miranda and invalidating the 1968 law. He wrote that “whether or not we would agree with Miranda’s reasoning and its resulting rule” in 1966, “the principles of stare decisis” — deference to precedent — “weigh heavily against overruling it now.” He observed that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” In the 1992 Casey decision affirming Roe, the court similarly noted that people “have organized intimate relationships and made choices . . . in reliance on the availability of abortion.”

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Overturning Roe would expose the fundamental liberty of people to control their reproductive health to political interference and risk disrupting the balance of competing rights under which regulation of abortion has functioned for nearly half a century. Abortion opponents now seek cynically to shroud the retrenchment of abortion rights in superficial comparisons to revered cases. Brown and Miranda, however, do not provide justifications for overturning Roe; rather, they support the opposite. They stand for the principle of protecting individual rights from state intrusion.

Renée M. Landers is professor of law and faculty director of the Health and Biomedical Law Concentration and Master of Science in Law at Suffolk University Law School. She is the board chair for Planned Parenthood League of Massachusetts.