In its June 2022 decision, Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, finding Roe “egregiously wrong from the start.” In making this decision, the Court looked to whether the stare decisis factors would allow for the continuation of judicially-created abortion rights in the United States. Those factors are “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”

Although the Court goes through all the factors, it spills remarkably little ink on the last one: concrete reliance. Traditionally, reliance generally has been understood as “dependence by one person on another person’s or entity’s statements or actions, particularly where the person acts upon such dependence.” While the stare decisis reliance considerations have been inconsistent, the Court’s decision in Planned Parenthood v. Casey, expressly acknowledged that one’s ability to “participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” But in just over two pages, the Dobbs Court repudiated this theory, and instead held that (1) the unpredictable nature of pregnancy, (2) the generalized social decision making about when and how an individual has a child, and (3) substantive due process interests were not concrete enough to justify the continuation of the precedent.

While no one stare decisis factor is dispositive, the Court’s cursory reading of reliance interests warrants a second look. In an increasingly data-driven society, quantifiable determinations for reliance interests offers the only objective metric to determine how individuals or groups will be impacted by the Court’s decision. In her forthcoming article, “Precedent, Reliance, and Dobbs,” Nina Varsava addresses this very issue. Varsava distinguishes the Supreme Court from Congress or a state legislature because of the promissory nature of precedent. Our elected representatives have no obligation to follow through on their campaign promises or keep the current law static. As such, elections provide a remedy to suture those concerns: voting those politicians out of office. In contrast, when the Supreme Court makes a statement about what the law is, individuals must solely rely on the good word of the Court to stand by what it said.

That said, the Court viewed the reliance-based consequences of breaking its promise in Dobbs very narrowly. For the Dobbs Court, the only people whose reliance interests have been violated are those that (1) are currently pregnant, (2) would have gotten an abortion, and (3) can no longer get an abortion. Of course, the Court may argue that even their reliance interests may not be violated because state bans would not be immediately enacted, thus giving interested parties time to make appropriate changes. With that in mind, post-Dobbs data reveals the substantial changes in abortion access.

For starters, a Texas abortion clinic was one of many that stopped procedures within minutes of Dobbs being released. And within the six months post-Dobbs, twelve states had fully or almost entirely banned abortion, four states had severely limited access to abortion, and six states had made substantial efforts to ban or restrict abortion, which undercuts the Court’s attempt to buttress the impact of its ruling.

Even more substantial is travel time to secure an abortion. Since Dobbs, travel times to obtain access an abortion increased from as low as fifteen minutes to four to eight hours. This affected minority communities the hardest, with 40% of black women facing drives longer than one hour to access an abortion clinic, up from 15%. Another datapoint is information from the remaining abortion providers themselves. The number of abortions in banned states fell, but states like Florida, New York, North Carolina, and Illinois saw increases in the 1000’s. Taken together, increased abortions in “legal” states and heightened travel time demonstrate that those seeking abortions relied on local access.

Although difficult to quantify at this early stage, there are substantial economic costs to states and individuals when rearing children. For parents, the cost of raising a child is $17,000 a year. For states, the cost of public education per year is an average of $15,000 per year. With somewhere between 600,000-900,000 abortions a year, birthing unwanted pregnancies could cost nearly $30 billion a year.

Finally, obtaining an abortion is far from uncommon. Nearly 25% of people that can get an abortion will by the time they are 45 years old. Although this could be attributable to a variety of factors (poverty, access to childcare, or the scope of health insurance coverage), the commonality of abortion services creates an assurance that the demand for abortions is inevitable, regardless of the constitutional backing.

While data can illustrate the tangible impacts of the Court’s decisions, adopting these “concrete” considerations almost always pose policy questions, rather than questions of law. How and whether the Court should make these determinations is indisputably difficult. What is an acceptable travel time to secure an abortion? How does one weigh questions of accessibility against an intangible interest in “life” generally? When do the costs to unborn life outweigh the economic considerations? To some extent, the Dobbs Court may have a point: states may know better than the federal courts regarding the needs of their own citizens – whether its parents or education system can handle more children – and the voters can decide if their legislatures made the right choice.

That said, once the Court has recognized a right, it should give due consideration to impacts that come with limiting or rolling it back entirely. For instance, when presented with the opportunity to end Miranda Rights in Dickerson v. United States, the Court observed that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Although the Dickerson Court did not quantify the number of times the warnings have been read or the defendants whose rights were vindicated after a custodial interrogation, the Court considered what sort of expectations people had as a participant in American society.

Americans rely on the Court’s decisions to navigate their behaviors and manage expectations. Without any ability to supersede constitutional rulings, the Court should expand the reliance interest factors to include quantitative determinations. When the Court chooses to alter constitutional rights, data and statistics ought to shape its conclusion.