Eric Smith (Weber State), Abortion and State Taxes: Unexpected Parallelism, 78 Okla. L. Rev. __ (forthcoming 2026):

In 2018, South Dakota v. Wayfair, Inc., overruled the physical presence rule, a state and local tax doctrine requiring an out-of-state vendor to be physically present in a state before being compelled to collect the state’s sales and use tax. The Court established the physical presence rule in 1967, and reaffirmed it in 1992. This sequence of establishing initial doctrine, reaffirming, and then overturning, resembles the Court’s main line of abortion cases, beginning with Roe v. Wade, establishing initial doctrine, Planned Parenthood of Southeastern Pennsylvania v. Casey, reaffirming that doctrine, and Dobbs v. Jackson Women’s Health Organization, overturning.

The thesis of this article is that Wayfair was a prefiguration of what would come in Dobbs; that the case for stare decisis in Wayfair was strong enough that when the Court overruled the physical presence rule, it portended a similar result for Roe and Casey. To demonstrate this, the notion of precedential intactness is proposed and introduced to the literature as a systematic set of considerations to measure the precedential strength of a Supreme Court doctrine after it has been established and then subsequently reaffirmed. Precedential intactness—informed by the Court’s analyses across a span of antecedent cases, measured by dimensions of consistency, adamancy, and clarity, and undergirded with Randy Kozel’s reconceptualized reliance framework—relates to precedential constraint, but is unique to the question of durability of precedent after it has been reaffirmed by the Court and suggests that not all reaffirmation and upholding are equal.

Applying the elements of precedential intactness to the physical presence rule, a compelling case emerges for leaving the doctrine intact. Even so, the Court overruled it. When the same constructs are applied to Casey’s reaffirming of Roe, precedential intactness wanes, such that when the physical presence rule was overruled, it left Roe and Casey tenuously poised to follow the same fate.