Relying on case law — and that's what Supreme Court opinions are — to provide a right is a tricky proposition. Case law can and does change, as we have seen. Yes, there is a legal concept stare decisis that courts should not routinely change case law. Otherwise, the administration of justice would be unmanageable.
The question is, how firm should stare decisis be? Courts make errors, and the Supreme Court has made some whoppers. Here are thirteen. Whatever your political persuasion, you will probably find some cases among those that cry for reversal. We need some flexibilty when applying stare decisis.
The majority of the current Supreme Court has, it appears, taken a view that stare decisis is less important than getting something right — in their opinion. I wonder how much case law will now be open to revision. This could be the advent of a golden age for appellate lawyers.
There are alternatives to relying upon case law.
If you want to secure a right in the strongest manner possible, write it into the state and federal Constitutions. That's how we got the Bill of Rights. The whole debate over gun control and the Second Amendment is predicated on a constitutional right. There can still be disputes about the interpretation and application of that right, but you start from the high ground when the Constitution says something in your favor in plain language.
The next best course of action is to have your right established by legislative law (or the absence thereof). It's not as permanent as a constitutional provision, and it's also subject to both executive and judicial interpretation and application. But it's better than relying on case law.
Today's ruling puts abortion into the domain of legislative law, which is created by directly elected officials who, presumably, are more attuned to the will of the public than the judges who write case law and whose rulings are constrained by judicial practice. I always thought the mechanism to decide Roe v Wade was a stretch even though I agreed with the outcome.
The challenge for those who wanted to see Roe v Wade remain intact is to mobilize politically in a quest for legislative law or outright constitutional guarantee at the state level, the federal level, or both. Relying solely on state constitutions and state laws, of course, creates the possibility that something is legal in one state and illegal in another. Well, that's been the case since 1787. A change to the federal Constitution is the best answer, but it's the most difficult to obtain. Ask anyone who supports the Equal Rights Amendment.
