Supreme Court

Sherif Girgis on the Supreme Court's Options in the Next Abortion Case

There are "Two Obstacles to (Merely) Chipping Away at Roe in Dobbs," he writes

|

On a few recent episodes of Divided Argument, co-host Dan Epps and I talked about the Supreme Court's recent grant of certiorari in Dobbs v. Jackson Women's Health Organization, and what the Court might do when it decides the merits. One of our listeners, Sherif Girgis (who will be a starting law professor at Notre Dame Law School this fall) wrote to me with some extended thoughts disagreeing with some of what I said. I'm not entirely persuaded by them, but I thought they were interesting enough to be worth sharing with readers:

Two Obstacles to (Merely) Chipping Away at Roe in Dobbs

I'm surprised by commentary on the Supreme Court's decision to take Dobbs v. Jackson Women's Health Organization.  At issue is Mississippi's prohibition of abortions after 15 weeks (with exceptions for maternal health emergencies or severe fetal abnormality).  Given the law's reach, the Court's makeup, and the timing, some observers say it is "unlikely that there will ever be a more opportune vehicle" to revisit Roe v. Wade.  That much seems plausible.  But many on both sides also assume first, that even if Dobbs pared back Roe, the Justices would stop short of eliminating Roe's constitutional right to elective abortions; and second, that this would be part of a "long game" of chipping away at that right until the Court could deal the now-crumbling right a final blow.

I make no predictions.  But reflecting on the Roberts Court, the history of abortion cases, and the details of this case, I have doubts about both assumptions.  I think the conventional wisdom vastly underestimates how hard it would be for the Dobbs Court to (1) stake out a middle ground, or (2) position itself to fully reverse Roe down the line.  (Here "fully reverse Roe" means: eliminate any constitutional entitlement to elective abortions—those not needed for maternal health—such that states could prohibit or allow those, at any stage, subject to rational-basis review.)

On (1):  I see how the Court could use standard judicial reasoning (sound or not) to justify an all-or-nothing outcome.  At one end, it could invalidate the 15-week law based on Roe and its progeny.  At the other end, the Court could scrap those precedents and uphold the law based on textual or historical arguments.  (The objections to each path are familiar.)  It is much harder to imagine the opinion from this Court that upholds the Mississippi law (or remands) without fully reversing Roe.

On (2):  For reasons peculiar to Dobbs and given below, a "moderate" ruling couldn't simply narrow the existing abortion right.  It would have to double down on any new version of the right it created, making it hard for the same Justices to then abolish that residual right later on.  If Dobbs was meant to advance a long game against Roe, it was an odd choice.  For better or worse, a moderate Dobbs might cut the game short.  The reasoning needed to go moderate here differs in kind from that used by the Roberts Court in cases that became stepping-stones to eliminating a disfavored doctrine.

To begin to see why on both (1) and (2), step back for a second to consider the arc of our abortion jurisprudence.  The right declared in Roe is not expressly set out in the Constitution's text, and it lacks a history of well-defined sub-constitutional protection.  So there are few legal footholds on which a court can rest any specific doctrines meant to implement this right.  There's nothing specific to cite in text or history, but only in precedents that arose since the right was announced, plus any bright-line ethical or policy lines a court can find.  (Bright-line, so that the reasoning feels judicial, not legislative.)  But in some cases, there may be no bright lines.  Or there may be too many bright lines to choose from, which again makes any choice among them look legislative, not judicial.  In those cases, only the vaguest implementing doctrine won't seem plucked out of thin air.  (That's why it sounds more plausible to say that the Constitution contains an unwritten "no undue burdens on abortion" rule, than to say that it contains an unwritten "no bans after 13.5 weeks" rule.)  So there will be a tradeoff between a doctrine's determinacy and its apparent legal authority.  More determinate doctrines will seem made up, and more authoritative-sounding ones will be vague and manipulable.

When the Court declared a right to elective abortions in Roe, it fashioned quite specific legal standards to implement the right.  Roe made regulation of abortion hardest in the first trimester, easier in the second, and easiest in the third.  And sure enough, it lacked the feel of judicial reasoning.  It was widely panned for that.  John Hart Ely, who favored legal abortion, said the decision was "not constitutional law and [gave] almost no sense of an obligation to try to be."  Still, once Roe was on the books, the Court could cite it as precedent the next time it conducted a wholesale reexamination of the legal test for abortion laws.  That happened in Planned Parenthood v. Casey (1992).  But even in Casey, the controlling plurality—Justices O'Connor, Kennedy, and Souter—was embarrassed by the specificity of Roe's elaborate rules.  (While "legislatures may draw lines which appear arbitrary without … offering a justification," it said, "courts may not.")  So Casey whittled down Roe's complex rules to a simpler-looking test meant to capture Roe's core.  Since then, the Court has tried only to apply or tweak (not replace) Casey's test, always to laws more modest than Mississippi's 15-week ban.

It can't do that in Dobbs.  To rule for Mississippi (or remand), without abolishing Roe, the Court would have to devise a test that allows prohibitions starting sometime after conception but before 15 weeks (or tell the lower courts to do so, based on a new doctrine that Dobbs would provide).  But not only will Dobbs be unable to cite text or history to support any test.  Unlike Casey, it can't cite precedent (or even repurpose precedent, as shown below).  That's because the Court's precedents uniformly reject laws as sweeping as Mississippi's.  The latter bans abortions well before viability, which Casey forbids.  Indeed, the question presented in Dobbs is "whether all pre-viability prohibitions on elective abortions are unconstitutional," and Casey answers that yes-or-no question with "yes":  "[A] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."  Thus, to do anything but block Mississippi's law, Dobbs must reverse Casey (as the cert petition asks it to do if needed).  And if the Court does that while still keeping some right to abort, it will have to create a test for abortion laws from scratch, for the first time since Roe.

But this isn't the freewheeling Burger Court of Roe, ready to constitutionalize "legislative code[s]," as then-Judge Ruth Bader Ginsburg lamented.  Nor is this the Casey Court, controlled by decided non-formalists O'Connor and Kennedy.  It's the Roberts Court.  Most of its members—and certainly the perceived swing Justices, Chief Justice Roberts and Justice Kavanaugh—are more lawyerly.  They will want at least a bright-line ethical principle (if not history or precedent) on which to rest their decision in Dobbs.  And as suggested below, there's no cogent candidate (for a moderate ruling).  While they could always fall back on creating a vague standard, any that saved Mississippi's law would have to be vaguer than Casey's.  And a ruling based on sharp but arbitrary lines would be too obviously ungrounded in legal sources.  In any scenario, an in-between approach to Mississippi's law would require Roberts or Kavanaugh to be less formalist than O'Connor, Kennedy, and Souter.

Similar dynamics make it hard to use Dobbs as a stepping-stone to overturning Roe.  Again, the law is so restrictive that the Court can't uphold it just by refusing to extend abortion precedents, or by reading them narrowly.  The Court would have to scuttle its abortion precedents.  So if it didn't eliminate with them any constitutional right to elective abortions, Dobbs would have to create a new and narrower right, based on a new and more permissive test.  This, as seen below, would require the Justices to justify the new right and test in their own voice (if only based on reliance interests).  And that would make it hard for them to say in a future case that there is, after all, no such right.  For then they would be rejecting not only Roe and Casey, but their own affirmative reasoning in Dobbs.

Some might respond that with abortion, the Court isn't bound by legal niceties—that it will use any means to advance its goals while limiting the blowback.  But in this case, the incentives to be lawyerly and to limit any headache for the Court might align.  Recall the tradeoff between determinacy and legal authority.  Again (and as explored below), here the in-between options would be un-lawyerly in the sense of (1) having an apparently less principled basis than any of the Court's abortion rulings since Roe, or (2) requiring a new constitutional test for abortion laws that is less determinate than any previous test.  But a less-principled-looking basis would harm legitimacy, by making it hard for the Court to say its hands were tied to reach its "conservative"-ish result.  And the second problem, a malleable new test, might further politicize the Court by ensnarling it in endless litigation of ever more stringent abortion laws upheld by emboldened lower courts.  That is something the Roberts Court may be as keen to avoid as decisions that seem unprincipled.

Likewise, if the goal is to chip away at Roe now, to soften the blowback from a future reversal, using Dobbs as the means might be self-defeating.  It might worsen the blowback, by forcing the Justices to flip-flop so visibly.

In Dobbs, then, legitimacy and de-politicization may point in the same direction as lawyerly self-respect.  They may push the Roberts Court to go all or nothing now.  To see why the alternatives may be incoherent, or too apparently lacking in authority, or so vague that they spawned more litigation than they resolved, or patently inconsistent with reversing Roe later, take them in turn.

0. Just say "no" and remand? Some wonder if a Roe-skeptical but gun-shy Court might simply answer the question in Dobbs with "no, not all pre-viability prohibitions are unconstitutional," and remand for the lower courts to figure out if this one is.  It can't.  The first part of that ruling—"no, not all"—would scrap Casey, the source of the current legal standard.  So what test would the lower courts apply to Mississippi's law on remand?  Dobbs would have to create one.  (And for a remand to make sense, the new test's implications for 15-week bans must be debatable.)

What new test might Dobbs create?  I'll quickly review the options, in three buckets.

1. Repurpose Casey's "undue burden" test, much as Casey revised Roe? Mississippi's attempt to square its law with Casey, though it fails, might point to one set of options.  Casey forbade laws imposing an "undue burden" on abortion before viability (~24 weeks).  Mississippi argued that its law complies with Casey by leaving pregnant women ample time—up to the 15th week—to decide to abort a pre-viable fetus.  But this is a flat misreading.  For one thing, Casey's undue burden test is relevant only to laws that make it harder to abort pre-viability.  It says they shouldn't make that too ("unduly") hard.  Since prohibitions like Mississippi's make such an abortion impossible, they're always "undue"; no test needed.  In fact, "undue burden" is just Casey's way of telling when a regulation is so severe that it effectively prohibits pre-viability abortion, as Casey rules out.

More important, Casey forbids undue burdens (and prohibitions), not on the ability to abort at some point before viability, but on the ability to abort at any given point until then.  And it does so on the absolutist ground that "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion."  (This wasn't dictum.  Repeated in various terms, it was the heart of Casey's rationale for the viability-based test that Casey then applied to a range of pre-viability regulations, precisely to see if any amounted to an unlawful "prohibition of abortion" "before viability.")  That rules out Mississippi's prohibition throughout a solid two months before viability, from week 15 to 24.

But what if Dobbs turned Mississippi's misreading of Casey into the new rule?  For legal authority of a sort, Dobbs could appeal to the example of Casey itself.  Casey rejected Roe's trimester framework as "rigid."  Dobbs might say that of Casey's viability rule.  To replace Casey's "don't preclude abortion before viability" rule, maybe Dobbs could say, "don't 'unduly' narrow the window for aborting."  But I doubt this would sit well with the Roberts Court, for several reasons.

For one thing, this approach would layer vagueness upon vagueness.  Casey was ridiculed for using the vague "undue burden" concept to tell when a regulation makes abortion too hard.  (Since "unduly" is synonymous with "too…", saying that a burden goes too far if it's undue is like saying that it goes too far if it goes too far.  Casey's other phrase, "substantial obstacle," was little help, though I've elsewhere tried to reconstruct that concept and its cognates in other bodies of law.)  But at least Casey had a crisp rule for when abortion shouldn't be "unduly burdened":  pre-viability.  By contrast, the test we're imagining would deploy the vacuous "undue" concept for that, too.  So it would forbid states to impose (1) unduly burdensome (hard-to-clear) obstacles, to abortions obtained past an (2) unduly burdensome (early) cutoff point in the pregnancy.  If one "undue-ness" test was bad, two may be unacceptable to Justices open to Mississippi but keen to avoid endless re-litigation.

The Court could avoid this indeterminacy by drawing an arbitrary sharp line:

"To honor the spirit but not the letter of Casey, which honored the spirit but not the letter of Roe, which sought to honor the spirit if not the letter of the Fourteenth Amendment, we must guarantee women a fair opportunity to abort.  And we must otherwise leave states free to protect life.  Yet we would rather not have the spirits of Roe and Casey haunt our docket indefinitely, through endless litigation of a vague 'fair opportunity' test.  So we declare that states may prohibit abortion starting [three? four? six?] weeks after a woman has learned or should have learned of her pregnancy.  The Fourteenth Amendment does not fix that number.  But we choose it in order to give pregnant women and states clear notice of their rights, and the lower courts clear guidance."

Setting aside whether card-carrying originalists like Kavanaugh could put their names to this, the Roberts Court might find it unappetizing for several reasons previewed above.

First, any version of this approach would either be unadministrable or feel arbitrary.The state laws permitted by the version above would be hard to administer, requiring officials to figure out when a woman knew of her pregnancy.  To avoid that, the Court could simply allow prohibitions after a fixed point in pregnancy.  But then it would have to permit emergency (very emergency) as-applied challenges brought by women who couldn't learn of their pregnancy in time to get the fair opportunity to which they'd now be constitutionally entitled.  And either of these numerically specific "fair opportunity" rules would purchase determinacy at the price of seeming legislative.  The Court could mask the arbitrariness by refusing to say how long is needed for a fair opportunity.  (It could just say that 15 weeks is enough.)  But that minimalism wouldn't last long.  States are pushing the envelope.  Does Missouri's eight-week ban, now under review by the Eighth Circuit, leave a fair opportunity?  If the Eighth Circuit (with 10 of 11 active judges appointed by Republicans) says yes, the Court would have to disagree, or agree, or telegraph agreement by not taking the case.

So the minimalist version of a "fair opportunity" decision might be a Pyrrhic victory for de-politicization.  For one moderate (if contrived) ruling now, it would ensure that the hard issues came back in a string of cases, each more contentious than the last, as the stakes kept growing with more aggressive laws.  Nor could the Court look apolitical by refusing to hear later challenges.  Its refusal to review rulings that upheld sweeping bans may prove nearly as controversial as outright approval.

Second, any "fair opportunity" ruling would make it hard for the majority to later abolish any constitutional abortion entitlement, if that is indeed their goal.  For the ruling's first part, crucial to its holding, would not only limit the existing right, but double down on a new, narrower right.  ("To honor the spirit of Casey… we must guarantee women a fair opportunity to abort.")  Having rejected Casey, as Mississippi's petition asked them to do if needed, the Justices would own Casey's replacement.

Put otherwise, it's one thing to pointedly refuse to extend a precedent today, and scrap it tomorrow.  The Roberts Court has done that more than once.  It's another thing to reject a precedent's main holding, and so have to justify a replacement, before coming back to reverse even that replacement.  The latter requires manifest self-contradiction.  The Court did the first thing with (to take just one example) Abood—which it cast aspersions on in Harris before overruling in Janus.  But the Janus majority could say it wasn't contradicting its earlier position in Harris, which had merely "refused to extend Abood to situations where it does not squarely control … while leaving for another day the question whether Abood should be overruled."  Dobbs couldn't do this with Casey.

Someone might say it could—that Dobbs could arrive at a "fair opportunity" rule by rejecting part of Casey while just bracketing the rest (not endorsing it).  On this view, Dobbs could scrap Casey's rule against pre-viability bans, while leaving undisturbed (as undisputed in this case) Casey's protection of a woman's "ultimate control over her destiny and her body."  (NB:  Dobbs couldn't leave intact Casey's similar-sounding "ultimate decision" language, since context shows that this always refers to a right to abort at any stage pre-viability, which is disputed in this case.)  But Dobbs couldn't actually rest there.  First, having rejected a key part of Casey, Dobbs couldn't leave this "ultimate control" part in place merely on Casey's authority as precedent.  The Justices would have to say why the "ultimate control" part warranted more respect than the rest of Casey.  And whatever they said would necessarily be in their own voice.  Second, the "ultimate control" principle isn't self-executing, as the Casey plurality recognized.  Thus, to confirm that Mississippi's law complied with it, the Court would have to give this principle effect with a new rule along the lines sketched above.  It would then own that rule, just as the Casey plurality owned the rule it adopted to give effect to the same principle.  Dobbs would thus become the new Casey—and Casey was no stepping-stone to reversing Roe.

Finally, this approach might seem (to the key Justices) to contradict Roberts' own reason for reversing a different precedent in full, not in part:  "It should go without saying … that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right."  There's a reason it's rare to see what Justice Scalia called Casey's "[un]heard of" "keep what you want and throw away the rest version" of stare decisis, which this tack in Dobbs would also require:  For obvious reasons, that version is systematically likelier to lack a coherent foundation (as Scalia thought Casey did).

And it might well lack one here—as might any of the above efforts to move the "undue burden" test back from viability, but not too far back.  Each rejects Casey's straightforward rationale that "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion."  Each presupposes instead that the state's interests begin to trump sometime before viability.  Yet the most obvious asserted state interest that exists anytime pre-viability, is the interest in protecting the individual life at hand.  And that interest, if legitimate at all, is constant throughout the pre-viability phase (and beyond).  It's imperiled as much by a law that leaves ten or 15 weeks to decide to end the life, as by a law that leaves 22 or 24.  (Indeed, making sure that pregnant women could override this supposed interest would be the express point of any "fair opportunity" ruling.)  Conversely, if Dobbs continues to forbid states to pursue an interest in saving the life at issue, what interest is there to justify bans on abortions shortly before viability?  There's no consistent case for a "fair opportunity" test.  Unless Dobbs can find an interest that does get strong enough only right before viability…

2. Base a new test on the Blackmun-Stevens sliding scale of state interests? In a case decided just before Casey, Justice Harry Blackmun (Roe's author) quoted an earlier opinion by Justice John Paul Stevens for just such a view.  Both thought the state interests that matter are those that strengthen over time, as the fetus becomes more like a born human being.  (The risk of complications for the woman also grows.)  If so, then there may come a point at which the interest in aborting is outweighed by the interest in banning.

Blackmun's and Stevens' opinions provide some legal pedigree Dobbs could cite for this rationale.  But again, Dobbs would still have to translate this rationale into a test that allowed a 15-week ban and not too much more.  And ideally, given the Roberts Court's concerns for lawyerliness and legitimacy, the test would have its own basis in some legal source.  (I'll relax this demand in the final section.)  That would help overcome the arbitrariness plaguing this approach in picking (a) which interests the state may act on, and (b) when those are outweighed by the woman's interests.  What basis for resolving these questions would find roots in history or precedent

A. First trimester? Drawing the line at the first trimester (12–13 weeks) would save the 15-week ban and might seem to have a basis in precedent, in Roe.  But Roe let states regulate in the second trimester only to guard the mother's health.  It offers no support for the idea that the interest in protecting life gets strong enough.  Besides, Roe's trimester latticework of rules was so ungrounded that Casey refused to retain it even on stare decisis grounds.

B. Quickening? Could the Justices draw the line at quickening (when a woman begins to feel fetal movements), based on its historical relevance to some common law protections of pre-natal life?  No.  The quickening argument wasn't briefed, much less passed on below, perhaps because quickening may happen too late to save Mississippi's ban.  More to the point, quickening was used historically only for some forms of legal protection before birth, not all—and only for a now-obsolete reason:  the evidentiary difficulties of establishing a pregnancy earlier.  Beyond that, as a metaphysical argument, the old folk belief that at "quickening" an entity is "animated"—or a "brute animal" becomes human—is discredited by modern science.  Both sides grant that an embryo or fetus is a living member of Homo sapiens—whatever its moral status—from day one, not week 16.

Trimesters and quickening aside, there's no line between zero and 15 weeks with a historical or precedential (or other legal-sounding) basis for deciding when fetal life may trump.  The alternative is for the Justices to do the moral math themselves.  Imagine:

"Attached to this opinion is an appendix containing a graph with two curves (derived from the Fourteenth Amendment's Due Process Clause).  The upward sloping line measures the state's growing interest in protecting fetal life over time; the horizontal line reflects a woman's constant interest in choosing whether to abort.  The lines cross at 13.5 weeks of gestation, so this 15-week law passes muster."

The Chief, who may be the keenest to avoid an all-or-nothing decision, wrote just last year that in abortion cases, "the benefits and burdens are incommensurable."  As for balancing them, he quipped, "they do not teach such things in law school."  No Justice ruling for Mississippi would disagree.

3. Draw a novel developmental bright line? The Court isn't strictly bound by its own precedents, and sometimes devises tests without a legal basis.  It could pick a novel switchover point between zero and 15 weeks.  But to make up for its lack of legal pedigree, this approach would at least have to rest on a bright-line, qualitative fetal development.  I see two options.

A. Heartbeat? The emergence of a heartbeat seems morally relevant to some.  But it occurs at six weeks, before many women realize they're pregnant.  As a basis to allow prohibitions, it would cut Roe down to a constitutional right to take the morning-after pill.

B. Pain? The fetus's capacity for pain might seem to implicate a new state interest, and so justify greater restrictions.  But implementing this approach would require the Court to draw still more bright lines (along at least two spectrums) without any legal authority to cite for support.  It wouldn't easily justify a prohibition as early as Mississippi's anyway.  Most problematic, as seen below, a pain-prevention rationale would be incoherent, contradicting its own premise that abortion is a fundamental right.  And recasting the test to get around that would require unconstrained philosophizing, and invite more in future cases.

a. The practical case for a pain-based standard. Some think the fetus's attainment of a capacity for pain grounds a new reason to regulate:  pain-prevention.  But to begin, gaining sentience is a gradual process—actually, a series of gradual developments—as explained by the medical sources cited by Mississippi.  The landmarks stretch from the earliest weeks, when the "neural circuitry" needed for "primitive" responses to pain develops, to 20 weeks, when hormonal stress responses occur, and on from there.  Sooner or later, the Court would have to make a philosophical choice about which kind of pain-sensitivity to declare legally sufficient (but on what publicly compelling basis?).  And to save Mississippi's law, the Court would have to justify a type of sentience that kicks in before 15 weeks—even though the more commonly targeted sort of pain-response arises at 20 weeks.  (More than a third of the states have attempted 20-week bans.)  Then the Court would have to decide how risk-averse states may be in trying to prevent that pain, in the face of inevitable uncertainties about what is or isn't going on in the psychology of a fetus of a given age.  On none of these issues could the Court rest its answer on history or precedent or any other apparently legal foothold; there is none.

Finally, this approach is incoherent.  It is hornbook law that states may not prohibit exercises of a fundamental right for the sake of interests they could achieve by less restrictive means.  Yet the ruling we're imagining now, while presupposing that abortion is a fundamental right, would let states ban abortion to prevent pain they could just as well prevent without a ban:  They could require abortion providers to anesthetize the fetus (absent a heightened risk of complications for the woman).  Some jurisdictions already do so, and anesthesia is routinely used for fetal surgeries.

Of course, requiring this extra step would itself burden women's right to abort, and the merits of such a policy would be intensely disputed.  But the narrow, doctrinally relevant point is that requiring anesthesia for later abortions would be far less restrictive than a flat ban on the same abortions.  That's why Dobbs couldn't bless such bans to prevent pain, and still treat abortion as a fundamental right.

The Court might manage to avoid addressing this objection for now.  And it might remand for the lower courts to take a first pass at the line-drawing problems for any pain-based test.  But it couldn't leave these (entirely foreseeable) questions to trial and circuit courts for long.  As under the cagey version of a "fair opportunity" ruling, explored above, states would keep pushing the envelope.  So would friendly lower courts.  Refusal to countermand them would itself look political.  And so on.

b. The philosophical case for a pain-based standard. Some might say that the capacity for pain matters not because it implicates a new state interest in pain-prevention, but because it imbues the fetus with a higher moral status.  But once preventing actual pain isn't the point—once the focus is on capacity—it'll be hard for the Court to say why only the capacity to immediately feel pain should count.  Getting there is just one stage in the long and gradual development toward a functioning nervous system.  In that respect, a late fetus's "capacity" and an embryo's differ only in degree.  To say that the one bestows moral status but not the other would require a nakedly philosophical choice.  (Pause and try to imagine how Roberts or Kavanaugh would write a paragraph supporting this choice without any legal citations.)  And it would open the Court up to purely philosophical arguments in future cases about what else might bestow moral status.  So this tack would undermine legitimacy and further politicize (indeed, philosophize) the Court's docket.  Who on this Court would welcome that?

Is there any other qualitative and relevant change between the emergence of a heartbeat at six weeks, and Mississippi's cutoff at 15?  Even Casey would admit not.  Indeed, across a whole pregnancy, the plurality there plausibly confessed, "no line other than viability … is more workable."  (And even for that line, Casey's own rationale was unilluminating:  When the fetus can live outside the womb, it said, "the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman."  In other words, a viable life can justify banning abortion because … viability can fairly justify banning abortion.  As John Hart Ely wrote of Roe's identical case for viability, this "seems to mistake a definition for a syllogism.")  But if Casey strained to justify a line at viability, and thought others clearly too arbitrary, no Justice inclined to move the line back for Mississippi in Dobbs will likely find another better.  If the Roberts Court is no less formalist than the Casey Court, it may have only two live options in Dobbs.

NEXT: Supreme Court Refuses to Consider Case Challenging Male-Only Draft Registration - but Suggests it Might Revisit the Issue in the Future

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. It will be a 5-4 decision nominally leaving Roe intact but upholding the regulations at issue in this case.

  2. As I said in the draft case, conservatives expect this 6-3 court to rule certain ways on fundamental issues. If it does not, it means the end of the whole Federalist Society project and the end of establishment types being appointed by GOP presidents. Bomb throwers only.

    1. And what would you consider Trump’s appointments to be?

      1. As I recall, they were uniformly federal judges with stellar academic credentials and no history of controversial opinions.

      2. Kav, Gorsuch and Amy are well within standard GOP paramaters, not bomb throwers at all. Gorsuch is libertarian leaning and Kav is Roberts-like in qualifications. Amy is not double Ivy and not from DC or NYC so to that extent is different.

        1. Bob, the problem that you have is that they are sane and rational, and most of the positions you espouse are not. So you may need bomb throwers to get what you want, if you can.

          1. Trump had almost nothing to do with judicial appointments—McConnell, McGhan, Leo, and George Wu Bush got these justices approved. So it was George Wu Bush that called Collins and urged her to support Kavanaugh.

          2. Sorry, but there’s nothing sane or rational about Roe, about the SC striking down Trump’s anti-DACA EO, or pretty much any other left wing position.

            They’re all about lust for power, not following the US Constitution and the law.

            So look in a mirror, if you wish to see someone lacking in sanity and / or rationality

            1. Lust for power? Methinks you have that backward.

              Conservatives want to use the power of government to do nasty things to people. Like force pregnant women to carry to term fetuses they don’t want. Or prevent gays from getting married (or, depending on how conservative they are, have sex without going to jail). Or deport people who were brought here as children and have never had another home. They then have the gall to claim it’s liberals who are big government.

              Most of the decisions you decry are judges telling conservatives that they can’t do bad things to people, or at least not those specific bad things. So who is it that’s really lusting after power?

              1. 1: They’re human babies. The fact that you Democrats don’t want them to have any rights shows you haven’t changed at all from the 1800s. “They’re not black Americans, they’re black slaves, they have no rights!” “They’re not human babies, they’re human fetuses, they have no rights!”

                2: Every woman has a right to refuse to have sex. Once you’ve consented to have sex, killing the human being you created because that person is inconvenient to you? That’s murder. And it’s no more “nasty” to block you from that murder, than it is to block you from any other murder

                1. A lawful abortion and murder are mutually exclusive, like a circle and a rectangle. One can’t be the other.

              2. “Gay marriage” wasn’t and isn’t about conservatives being so mean they wouldn’t let gays have a wedding ceremony.

                It’s about using the power of the Courts to force governments and corporations to treat people in fake marriages like they’re in real marriages.

                It is about demanding benefits without earning them. Because society rewards heterosexual marriage because it’s the basis of our society, and because it benefits society (20 year old men married to women are on average a lot better citizens than 20 year old men who aren’t married to women, for a simple example).

              3. “Or deport people who were brought here as children and have never had another home”

                1: Gosh, yeah, someone who was brought here at 17, or 15, or 10, they never had another home! /sarc

                2: What you’re really complaining about is that conservatives think we should actually be a country of laws, rather than a country where you are the dictator, and the rest of us must bow to your whims. Which is to say, you are vile scum

                Laws have been passed that you don’t like. So what? If it makes me a “bad person” for thinking that law should be enforced, then you are a bad person for wanting to enforce any law I don’t like.

                You want an America with no government? Where there are no enforced laws, just everyone grabs whatever their gang can get?

                How many guns do you own, how good are you with them, and how many friends do you have living by you who will back you?

                Rule of law, or rule of guns. The smart / sane people pick the first. Why are you on the other side?

                1. 1. Black Americans had been born.

                  2. A fetus isn’t a person.

                  3. You’re entitled to your opinion about what is and is not a valid marriage, but you’re not entitled to have people whose marriages you don’t approve of treated differently by the state.

                  4. “It’s a law” doesn’t end the discussion. If it did, then the courts shouldn’t have interfered with Jim Crow either.

                  5. Nobody said anything about not having any laws.

                  6. If, by your last point, you’re agitating for another civil war, be careful. You may have guns, but the Army has tanks. And drones. And really good intelligence. If we have a war, don’t be so sure it will end up with a result that you like.

                  1. ” A fetus isn’t a person”

                    Yes, i know you wish to dehumanize those you wish to kill. Saying “they’re not human, so I can kill them” just restates your power abuse, without in any way justifying it.

                    ” Nobody said anything about not having any laws.” No, you just said that no law that you don’t like should be allowed to exist.

                    There is no shred of a conceivable ground in which you can argue that countries aren’t allowed to have borders. (You could argue that countries shouldn’t exist, which translates to “no laws”. But you can’t argue that they’re not allowed to have borders. Since that is what defines a country.)

                    If you have borders, then you have the right to decide who and what can cross that border.

                    Which means that you have the right to punish people for having crossed that border in violation of your rules, including kicking them out of your country.

                    Demanding people not enforce the law is the same as saying “that law shouldn’t exist”.

                    You can say “I don’t like that law”. You can’t say “that law is illegitimate, and anyone who supports it is just an evil thug” without rejecting the concept of law altogether.

                    So when you call opponents of DACA nasty people for simply wanting to enforce immigration laws, you’re rejecting “law”.

                    “the Army has tanks. And drones. And really good intelligence”

                    1: The Army has sensitivity training, and it’s spending its time on that, rather than having good intelligence and competent troops.

                    See the Navy’s recent ship crashes, for examples that can’t be covered up as to how crappy our military’s training is right now.

                    2: The Army couldn’t win in Afghanistan, but you’re sure they can win here?

                    3: The majority of the troops and officers won’t be on your side, chum. The ones who are? They’re the ones doing sensitivity training rather than actually learning how to fight

                  2. Daddy run a Ponzi scheme for 15 years. He bought is family a nice house in a great neighborhood, where tehy got to go to great schools,a nd have a great life.

                    This is all the life the kids have ever known.

                    Daddy gets caught, arrested, tried, and convicted.

                    Krychek_2 doesn’t want Daddy to have to pay back all the money he stole as restitution / fines, because it would destroy the only life the kids have ever known, and they’re not guilty of anything!

                    As we saw in the early months of the Trump Administration, when illegal aliens stop coming to the US, unemployment for lower SES Americans goes up, as do their wages.

                    Modern US immigration helps the richest Americans, and the aliens, while harming the poorest Americans. The invasion of illegal aliens does this even more so.

                    Anyone who actually considers himself to owe a moral duty to his fellow Americans is in favor of stopping the illegals, kicking them all out (because any reward for successful illegals, by its very nature, encourages more illegals), and significantly cutting legal immigration.

                    Anyone who opposes those measures is screwing over low-income Americans to help the well off.

                    But Krychek_2 tells us it’s the ones who honor their moral duty who are “nasty”

    2. In your nihilist end-this-republic dreams, Bob.

      You purposefully put lunatics on the Court, you lose the Court as a check. No one but people as far gone as you want that.

      1. The courts are choking the life out of the republic. Deciding every issue, one way ratchet leftwards.

        Either the 6-3 majority starts restoring the balance by stopping reversing left wing excesses or it will need to get out of the way for those who will.

        1. Lol get a grip.

          1. It is useless trying to convince him.

  3. Long story short, Roe is a soap bubble, completely hollow of any constitutional basis. Soap bubbles do not pop gradually, they do it all at once.

    1. Brett,
      Yours is a really bizarre post. You (and everyone else) has the ACTUAL KNOWLEDGE of “Roe” and the 50 years following it. You and I and everyone else has seen the right to an abortion slowly eroded…depending on the particular state. Literally no one on earth is claiming that a woman’s right to have an abortion in America, in 2021, is as expansive as it was right after Roe. Right? You’re certainly not arguing that.

      But, given that; I’m not understanding your anti-common-sense argument that, in fact, abortion rights are this proverbial soap bubble (and, therefore have been, are, and will be, all or nothing). I feel like you’re trying to make a point about what the law *should be* by Brett’s standard of good vs bad laws, good vs bad alleged rights, etc.. But pretending that you’re giving us an accurate description of women’s rights post-Roe is not helping your cause, or your credibility.

      1. The erosion I’ve seen has been entirely on the application end, not doctrine. None of the changes have challenged the idea that abortion IS a constitutional right, or done anything about the trimester system.

        Trimester one, elective abortion on demand, hands off.

        Trimester two, procedural regulations permitted in the interest of the mother’s health.

        Trimester three, the state can regulate or ban abortion on the basis of the interests of the fetus, with a health of the mother exception which largely swallowed the rule in practice until you got really late in the pregnancy.

        What we’ve seen permitted are regulations which do NOT challenge this, but instead just threw up 2nd and 3rd trimester inconveniences in the name of protecting the mother’s health.

        IOW, the erosion you’re talking about is not Roe eroding, but instead just the maximalist interpretation of it that had largely made a mockery of the Court’s promise states could regulate in the 2nd trimester. You’ve been seeing something closer to what Roe purported to be, but wasn’t in practice.

        1. Fwi : According to the Centers for Disease Control and Prevention, about 1.3 percent of abortions were performed at or greater than 21 weeks of gestation in 2015. In contrast, 91.1 percent were performed at or before 13 weeks and 7.6 percent at 14 to 20 weeks.

          I’m gonna go out on a limb here and bet you guessed (or fantasized) the 1.3 number was larger. Also, while looking up the data I learned it’s a tenet of the anti-abortion movement that a women pregnant with a fetus that will die upon delivery should be required to carry that pregnancy to term. That gives you a sense of the moral stature of the movement, doesn’t it?

          1. 1: It is the Left that fights to the last against “born alive” protections. That’s, what, 0.001% of abortions? But the Democrats MUST have them. (The only 3 Democrat Senators who voted for the bill in 2020 were Casey, Jones, and Manchin)

            Let’s be clear here as to who the lunatics are, because it’s not the pro-life crowd.

            2: “it’s a tenet of the anti-abortion movement” …. Really? Every single pro-life group believes that?

            Are you really that stupid, or are you just one of the people who dehumanizes everyone who disagrees with you, consigning them to a pigeonhole of “they are a bunch of mind number robots who all think exactly the same”?

          2. “In contrast, 91.1 percent were performed at or before 13 weeks”

            So you’re saying the law at hand doesn’t really impose any significant restrictions on abortion, and therefore should be allowed to pass Constitutional muster?

          3. I’m gonna go out on a limb here and bet you guessed (or fantasized) the 1.3 number was larger.

            Does it need to be ? 1.3% of about 750,000 abortions per year is 10,000 or so. For those who think humans of 21 weeks gestational age are morally valuable – 10,000 a year is not trivial.

            By comparison police kill about 250 black Americans a year, and lots of people think that’s a big deal.

          4. Did Kermit Gosnell’s work show up in those statistics?

            Here’s some stats collected by the Guttmacher institute, not exactly a pro-life hotbed.

            While 46 states require some sort of reporting, over half the states do not require reporting the reason for the abortion, and most don’t require reporting on fetal viability. The most common reporting requirement is reporting complications.

            Note, the Institute’s chart is dated, NY has repealed all reporting requirements, so the CDC is just guessing what’s going on there.

            What I’d suggest is that the CDC’s numbers are decidedly incomplete.

      2. Whether you agree with Brett’s analogy or not, I don’t think that’s an obstacle.

        Soap obstacles degrade before they pop, the surface thins. It’s not actually all or nothing. But the initial degredation is only modest, leaving the main structure intact, and then the structure collapses.

        That may or may not occur here. But it’s not a completely implausible scenario.

        If Roe v. Wade gets reversed completely or close to completely, as Brett seems to be predicting, all the changes of the last ~50 years, great as they may seem now, may seem modest and incremental in comparison.

  4. For one thing, Casey’s undue burden test is relevant only to laws that make it harder to abort pre-viability. It says they shouldn’t make that too (“unduly”) hard. Since prohibitions like Mississippi’s make such an abortion impossible, they’re always “undue”; no test needed.

    This seems to ignore the possibility of going to another State to get your abortion. So long as Mississippi (or whoever) does not punish extraterritorial abortion seeking, I should have thought the state law is making abortion harder, not impossible. Whether this is “undue” is a different question.

    1. Lee,
      Fails any sort of “least restrictive” prong. And I’d wonder about Equal Protection as well. A state passing a law that says, essentially, “Rich and middle-class women may get an abortion in this alternate way, but very poor women will not be able to afford to do this.” . . . may not be acceptable to even far-right judges and justices.

      (Or maybe it would…maybe an anti-choice judge would be perfectly fine with a legal fig leaf???)

    2. I think that would result in a doctrine where a state law moves from constitutional to unconstitutional based on how many (and perhaps the proximity of) other states who have similar laws. Is there any precedent for such a doctrine?

      1. The “evolving standards” doctrine.

      2. IANAL, Josh, I just read the words. I’m just criticising the logic of the ‘impossible” claim. That which can be done by crossing a State line may be harder, but it’s not impossible. As santamonica argues, the burden is more burdensome for those who can’t afford cars or plane tickets, but even undue burdens are not impossible ones.

        And as you suggest, if you are hedged in by lots of other Mississippi like States, then your burden is heavier than if you live somewhere where you only have a twenty five mile drive.

        But – venturing a toenail onto legal ground – doesn’t the question of how difficult it may be, in practice, to get to a place where you can have a legal abortion fit rather well with the “undue burden” doctrine ? It all involves judges getting their tape measures out and saying “Hmm, that’s a bit far.”

        In contrast – if a State made extraterritorial anti-abortion laws, such that a resident of Mississippi could get herself punished in Mississippi for having gone and got an abortion in Florida, then the business of going out of State is no longer just a burden. There’s a (legal) impossibility being imposed.

  5. If the court punted abortion policy back to the states, would states be allowed to ban the morning after pill? Or does FDA approval preempt state policy?

    1. Presuming the courts actually pay attention to the science, probably not. First of all, if your definition of abortion involves the termination of an implanted fetus, there has never been an understanding that the morning after pill did that. Second, the theory when the pill was first released was that it worked by a combination of inhibiting ovulation (i.e. the egg is never fertilized) and preventing implantation by alterting the endometrium (uterine lining). Regularly taken birth control pills actually do both, but basically every recent study shows that the morning after pill doesn’t have time to affect the endometrial lining- that is, the mechanism of action is only preventing ovulation. The FDA notes haven’t been updated to reflect this, but I imagine that federal court cases would probably bring in the last decade’s worth of research.

      TLDR, a very expansive definition of abortion might include IUDs and regular birth control pills, but not the morning after pill. People just think of it as an abortion pill either because of the original theories on how it worked, and probably also because it *feels* different to talk about something taken after sex rather than before, or because they confuse the morning after pill with medical abortions, the pills for which became much more common around the same time as the morning after pill was released.

      1. So you’re claiming that the only “protection” the “morning after pill” provides is that if the woman has not already ovulated, then any sperm that hang around until she would have ovulated won’t get that chance to get lucky?

        That seems like a pretty weak effect

        1. But if correct, it’s fairly relevant, no ?

          I mean absolutely nobody thinks preventing ovulation is “killing an unborn child.”

          1. If correct it’s very relevant

            It’s also makes the MA pill pretty damn useless

      2. if your definition of abortion involves the termination of an implanted fetus

        The 1960s medical redefinition of “pregnancy”, “abortion” and “contraception” was primarily for PR / political purposes. It shoudn’t really affect the legal principles.

        Thus the set of people who define “abortion” by reference to implantation does not intersect at all with the set of people who are “anti- abortion.” The latter object to the killing of the crittur, at any stage, however the procedure is described. A rose etc.

        Likewise, if it were the case that the law recognised the State’s interest in preserving the life of the crittur, but also defined “abortion” by reference to implantation, the State would not regulate “abortion” per se, but any crittur-killing actions.

        So if the morning after pill merely prevents ovulation, then even the most fanatical anti-abortionista is not going to complain about it as the destruction of a human life. Which it obviously isn’t, on any definition. And consequently, where is the State’s interest in regulating it ? Whereas if it sometimes prevents implantation, then the anti-abortionistas are going complain, whatever definition of “abortion” is adopted. And the State has an interest to assert.

        The point at issue is not the definition of “abortion” – it’s whether and at what point it is or isn’t OK to end a human life. Which depends on the moral value, if any, one ascribes to the developing human at various stages in its life cycle.

        1. Thus the set of people who define “abortion” by reference to implantation does not intersect at all with the set of people who are “anti- abortion.”

          Sorry there was supposed to be a “tout court” at the end of that sentence. Obviously there are those who are anti-later-on-abortion who have no big objection to abortion meaning abortion of an implanted embryo/fetus.

          I’m talking about anti-abortion from day 1 people.

  6. Don’t have to overrule Roe. Just overrule Casey. Casey is the problem. If the line is drawn at first trimester, then most Americans will support it (although I will not, as a pro-life, life begins at conception kind of guy).

    1. Ghost,
      I suspect that you’re right…if SCOTUS came out with a bright-line rule of “Essentially unlimited right for women in the first trimester. Essentially no right for women in 2nd or 3rd.” . . . a huge plurality of American’s would be fine with that. You would not, for the reason you gave. I would not (on the other side), as I trust women to take care of their own bodies. But you and I might be in the minority, here.

      1. Really, Casey AND Doe v Bolton.

        It was Doe, decided later that same day, that gutted the promise of Roe that states would be permitted to regulate in the 2nd trimester, and ban in the 3rd, because it made a doctor’s declaration of medical necessity unrenewable. Which allowed for pretextual declarations of medical necessity.

      2. I would not (on the other side), as I trust women to take care of their own bodies.

        Judging from the size and shape of quite a few of them*, this seems something of a leap of faith.

        Nevertheless, the government regulates a lot of health and medical stuff, second guessing those women* you trust, ostensibly for their benefit. And over the last year or so, the government has been regulating their behavior pretty severely, not least for the benefit of third parties.

        So there seems to be quite a lot of precedent for the state dis-trusting women as to their decisions about their bodies. And also precedent for the notion that whether or not the state trusts you as to your body, it has a legitimate interest in regulating what you do with your body, to the extent that that might impact on third parties.

        *and men

    2. I find it hard to believe that Thomas, Alito or Gorsuch will sign on to an opinion affirming a constitutional right to a first trimester abortion unless they believe it is a step towards fully reversing Roe later on. Yet, Girgis makes a compelling argument for why it couldn’t be a step. So perhaps instead as suggested in Baude’s podcast (I couldn’t tell which one made the suggestion) you have those three justices (plus perhaps Barrett) writing to overrule Roe, and Roberts plus Kavanaugh (plus perhaps Barrett) setting the marker at the first trimester. The result is a controlling middle ground that can’t get even four votes.

  7. These conservative musings are interesting; if anyone is curious about legal thinking on the winning and consequential side of America’s marketplace of ideas, the American Constitution Society is conducting an online annual convention this week. Events are free without continuing legal education credits; the charge is $100 for a half-dozen or so CLE credits.

    One panel ACS is not conducting this week, but could have:

    Which will be the precipitate for

    (a) enlargement of the Supreme Court

    and which for

    (b) elimination or substantial diminution of the filibuster:

    (1) voting rights/voter suppression,
    (2) abortion,
    (3) gun safety,
    (4) admission of new state(s),
    (5) 2022 election result,
    (6) infrastructure spending,
    (7) other, or
    (8) none?

  8. Whatever they do, Roberts (and probably Kavanaugh) will probably attempt to draw the line in an attempt to save conservatives from themselves by making the test such that they aren’t giving the green light to states to go ahead and make rape victims go through a whole pregnancy, investigate and prosecute miscarriages, or having hospitals cite state law while
    a pregnant woman goes septic like Savita Halappanavar. They probably also want to prevent or discourage states like Ohio from having their codes contain complete fantasies like reimplanting ectopic pregnancies.

    1. “Savita Halappanavar”

      Got any American examples? Irish law was/is not US law, threats to the life of the mother is accepted as grounds for abortion by nearly all pro lifers.

      Even the biased wikipedia article makes it clear that it was poor care, not law that killed her.

      1. I don’t have any American examples because of Roe and Casey, dude. That’s the point. Although there are some examples of prosecuting miscarriages.

        1. Saving the life of the mother was a reason for a legal abortion pre-Roe. In fact, the Texas statute at issue had such a provision.

          1. But they wouldn’t have a constitutional right to have access abortion even if their life or health were in danger. States would have to allow that, but they don’t have to. And it’s important to remember that state legislators are often morons who don’t know how the human body works and would be given free reign to draft statutes in defiance of medical science and could impose fantasy requirements that undercut the ability of doctors to look out for the the health or life of the mother. See again, Ohio legislators thinking that you can reimplant ectopic pregnancies.

            1. “States would have to allow that, but they don’t have to.”

              They did before Roe but won’t now. Gotcha.

              1. Yes! There is a whole fetal personhood movement!

              2. Bob, do you know how affirmative rights versus legislative carveouts work?

            2. “But they wouldn’t have a constitutional right to have access abortion”

              That’s because there IS no such right.

              If we had the right to control our own bodies, suicide would be a Constitutional right.

              If we had right to control our own bodies, neither the Feds nor the States could keep us from buying any pain killers we want, and a significant number of other things that are “prescription only” would also become over the counter.

              The “right” is a lie and a fraud

            3. And it’s important to remember that state legislators are often morons who don’t know how the human body works and would be given free reign to draft statutes in defiance of medical science

              So you have tossed into the trash bin of history the old standard of a self governing populace?
              Replacing it with rule by self anointed betters. China is proud of you.

              We have been subjected to scientists lying to us for the last 15+ months.
              The people ruling themselves sounds like heaven.

  9. Anyone who is hoping Roe gets overruled here is going to be sadly disappointed.

    That said, the left has to keep their peon voters in line with the usual scare tactics though. That includes yelling at all women that they are one step away from being thrown into subjugation by men and all it will take it for the sacrosanct right to kill an unborn baby to be taken away. Then it is endless no shoes and kitchen duty for them all.

    1. Your comment is textbook projection coming from the political side that has lived-off abortion hysteria for decades. Sure, the Left is most concerned about America’s Taliban gaining full constitutional authority for womb management. That goes without saying. But guess who next in line?

      Yep. The GOP. Because abortion rights have full and solid backing in popular support. That’s the case today, ten years ago, twenty years ago, forty years ago. Why do you think people like Brett spend so much time talking about the microscopic number of late-term abortions? They’re trying hard to find some ground where they claim broader support.

      So yeah, the Right has succeeded in amplifying the voice of a angry minority – but what do you think happens when they face a much larger angry majority? And it doesn’t involve just that backlash, but also the loss of countless single-issue voters. How many people voted for a huckster buffoon like Trump solely because of the abortion issue?

      By this point it’s pretty clear the GOP can’t win a majority vote in a national election. Score your jihadic victory against women’s choice and I guarantee it won’t even be close

      1. Actually, the polling is quite pro-life after the first trimester, if you ever bother to look at it. For instance:

        Trimesters Still Key to U.S. Abortion Views

        First trimester legality has ranged, over the last 25 years or so, from a high of 66% support, to a low of 60%.

        Second trimester? From 24% to 28%.

        Third trimester? 8% to 14%.

        And even in the first trimester, abortion solely because the woman just doesn’t want the child has only 45% support.

        Generally, the pro-life movement is trying to leverage opposition to abortion later in pregnancy, and for shallow reasons early in pregnancy, to get all abortion outlawed.

        But the pro-choice movement is performing the opposing bait and switch, leveraging support for early abortion, and genuinely medically necessary abortion, to keep almost all abortions legal.

        And with great success, because the courts have had their back…

        1. Yeah, Brett. But the difference is in the data I just posted in a comment above : Late term abortions are a tiny percentage of abortions in general and usually driven by personal tragedy. In short, it’s your side selling a fraudulent bill of goods, not mine. The Right is trying to make 1.3% stand-in for 98.7%. The Left doesn’t need to run a bait & switch con. They have 66% percent support for almost all abortions.

          But let’s say you win your jihadic victory and women are told they must carry a fetus to term that can’t survive delivery. Then we’ll see how much cover your third-trimester fig-leaf provides. Please remember, your late-abortion shtick is just another scam: Let’s sell the chumps a story that women decide on late abortions as a light-hearted whim, not the result of horrible medical decisions. And those Liberals are trying to help them do it!

          That kind of agitprop distortion is easy to pull off while late-term abortions are still legal, even if rare. But we’ll hear real stories from real people after they’re banned. Expect your polling numbers to shift radically then….

      2. So you drop a four paragraph screed basically proving my assertion right. Thanks!

    2. The United States has a federal system. I Roe wwre overturned, some states would have completely legal abortion, some would have significant abortion restrictions, and some would lie in between.

      The fact that a national majority goes one way or the other is basically irrelevant. There’s a significant geographical variation in opinion. It’s the local majority, not the national one, that matters.

  10. The legal argument is not valid. If a majority of the Justices want to overturn Roe, they will and they will find the legal basis afterward. If a majority of the Justices want to limit abortion rights to the first trimester, they will and they will find the legal basis afterward. In this case there would no better example of ‘legislating from the bench’. If a majority of Justices wish to uphold Dobbs, they will and they will find the legal basis afterward.

    The law of the land is whatever the Supreme Court says it is. (no, not an original concept with me). Ultimately though Roe is gone, if something cannot survive, it will not survive (a version of Stein’s law).

  11. How about no facial challenges to abortion laws unless they do not pass the rational basis standard? Undue burden is then applied to particular circumstances of person seeking it? After that proves unworkable, Court simply states there is no justifiable standard and overturns right? I would prefer they just say, oops Roe is overturned as it was wrong; everyone saw this coming so no reliance interest is implicated; Roe hurts political system as this is quintessential legislative issue and whole elections turn on this issue; and State has interest in protecting unborn.

    1. Almost everybody agrees that pretty much any abortion law passes rational basis. There were a couple of justices at the left end, back when the court was more liberal, who took the position that an interest in pre-viability fetal life is not a rational government interest, it’s an establishment of religion or something like that. But the court never came close to ruling that way. I don’t think any of the court’s current liberals would be prepared to do so today.

  12. This may be the single most thoughtful post on the constitutional issues regarding abortion that I have read; certainly one of the most thoughtful posts on any subject I’ve read on this blog (which I’ve followed through several hosting platforms.)

    Some quibbles:

    Both sides grant that an embryo or fetus is a living member of Homo sapiens—whatever its moral status—from day one, not week 16.

    Peter Singer, while a powerful thinker, is not one of “both sides” of this debate. The view that an embryo is human, in the same way that, say, a fetus one day away from its normal delivery date is human – is not widely held amongst proponents of abortion rights. I suspect the view that a blastocyte is a human being is quite uncommon in that community – as it was throughout most of human history.

    When the fetus can live outside the womb, it said, “the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman.” In other words, a viable life can justify banning abortion because … viability can fairly justify banning abortion. As John Hart Ely wrote of Roe’s identical case for viability, this “seems to mistake a definition for a syllogism.”)

    I don’t think this is correct. Viablity matters because it’s the point at which the fetus can truly be said to have an existence independent of the mother. What, after all, is the basis of the state’s interest in fetal life at all? The only basis that I can see that makes sense is that the fetus, while not as fully developed (or independent of the mother’s body) as a neonate, has achieved some independent status by virtue of viability.

    1. The Supreme Court explicitly rejected the idea fhat “the well-known facts of fetal development” is relevant to determining whether the word “person” as used in the Due Process Clause has prenatal application. Why should it be relevant to determining the legitimacy of the determination of the governemnt interest?

      It’s not like the court vigorously polices laws protecting foreigners to see if the government interest in their life is legitimate or not. It accepts pure morality as reason enough and doesn’t think there had to be some sort of independent reason for an interest to exist. It doesn’t even worry about whether basing laws on this kind of morality establishes religion or not.

  13. I predict three things.

    1. They will uphold the restrictions at issue and say their holding is narrow.
    2. They will not overreturn Roe v. Wade.
    3. They will reframe the fundamental meaning of the key phrase “the word ‘person’ in the Due Process Clause lacks prenatal application” to mean what the Eisentrager lines of cases (regarding extraterritorial aliens” interpreted the idea that the Due Process Clause lacks “extraterritorial application.” Not “a fetus isn’t a person” but “the Judiciary lacks the constitutional power to recognize or protect fetal rights.” Roe can remain nominally completely intact with that reframe. And yet everything changes. And the game after that doesn’t have to be very long.

    In doing so, it will doubtless take cognizance of its decision to use the term “noncitizen” instead of “alien” to emphasize that the Court’s holding that extraterritorial aliens lack constitutional rights should not be interpreted as meaning it thinks they should be regarded as objects. It will perhaps similarly change the nomenclature for fetuses to avoid a similar confusion.

    Indeed, I suspect that the Court’s change in terminology for removing aliens was a warmup for the forthcoming change in terminology tor aborting fetuses.

    I suspect the Court will explicitly analogize the two. I suspect it will say that although sentiments opposing aborting fetuses and removing aliens happen, in the current political framework, to come from opposite sides of the political spectrum, and although proponents of each generally disagree with the other, nonetheless from a constitutional viewpoint both come from a similar place, a respect for the unity of human life that transcends the boundaries and limits the Constitution has erected to preserve American sovereignty and freedom of action.

    1. I’ve been commenting on this blog for a number of years. I suspect that when I started many Conspirators thought this idea that the constitutional status of fetuses and foreigners, scraping off the surface and looking at the depth, has a remarkable similarity, was so off-the-wall crazy it could only be the work of a troll.

      The longevity of the pro-life movement which was predicted to simply peter out and go away, together with an administration willing to do things to foreigners previous governments weren’t willing to contemplate and hence actually scrape off the surface and face what lies beneath, have led to a remarkable tendency, and opportunity, for the two jurisprudences to converge.

  14. Most problematic, as seen below, a pain-prevention rationale would be incoherent, contradicting its own premise that abortion is a fundamental right.

    Owning property, including animals, is a fundamental right. Yet we have laws against deliberately causing pain to them.

    Yet all this suggests is modified techniques to stop pain when ripping live babies to pieces, not bans.

    Now, having pissed off both sides, my work here is done.

    1. Now, having pissed off both sides, my work here is done.

      Yup, making a logical remark about abortion is liable to land you, a la Red Skelton, marching between the opposing armies, awaiting an unfortunate gust of wind.

  15. “But then it would have to permit emergency (very emergency) as-applied challenges brought by women who couldn’t learn of their pregnancy in time to get the fair opportunity to which they’d now be constitutionally entitled.”

    Women have a period roughly every four weeks. By six weeks after your least period, if you’ve had sex in that time, you’re aware you could be pregnant. If you chose not to get a pregnancy test at that time, it’s your problem, not the State’s.

    So, unless you were physically prevented from getting a pregnancy test for reasons outside your control, ball’s in your court

Please to post comments