Hyatt’s implications for Roe were not lost on the dissenters. In contrast to the majority’s mere three paragraphs on stare decisis, Justice Stephen Breyer’s dissent devotes over three pages to it. The dissent analyzed the stare decisis factors and found that few supported overruling the decision.
Justice Breyer is not one for over-the-top prose, but his dissent is full of alarm bells. He wrote that the majority had “surrendered to the temptation to overrule” a “well-reasoned decision that has caused no serious practical problems in the four decades since we decided it.” And he accused the majority of taking the “dangerous” path of overruling a decision “only because five members of a later court come to agree with earlier dissenters.” He too seems to have prewritten an opinion — a dissent — for when the court overturns Roe.
The court will soon have the opportunity to do just that, as states scramble to impose increasingly draconian restrictions on abortion. Georgia, for example, just enacted a law that prohibits abortion after a fetal heartbeat is detected, roughly six weeks after pregnancy.