The Volokh Conspiracy

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SG Argues There Is No Middle Path in Dobbs

"Both of petitioners' alternatives would still require the Court reject the viability rule, which is 'the most central principle' of Roe and Casey.'"


Today the Solicitor General filed a brief in Dobbs. The government argues that there is no middle path. According to the United States, there is no way to uphold the Mississippi law without overruling Roe and Casey.

Petitioners devote most of their brief to urging the Court to repudiate all constitutional protection for abortion. In their view, a woman's interest in deciding for herself whether to carry a pregnancy to term merits no greater constitutional protection than social and economic rights that trigger rational-basis review. But petitioners also briefly assert (Br. 45-49) that if this Court "is not prepared to reject heightened scrutiny" altogether, it should uphold the Act on one of two purportedly more modest "alternative[]" grounds.That modesty is illusory. Both of petitioners' alternatives would still require the Court reject the viability rule, which is "the most central principle" of Roe and Casey. June Medical, 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Taking that step would carry all of the stare decisis harms identified in Casey.

This strategic choice is significant. Indeed, the SG seems to agree with Sherif Girgis that there is no half-loaf approach. The government is putting the Roberts Court to a choice: uphold the Mississippi law or uphold Roe and Casey; it can't do both.

On the merits, the United States also attempts to make something of a historical argument. Who knew that Blackstone and Thomas Jefferson provide support for a right to abortion!

First, this Court's decisions recognize a right to "bodily integrity." Casey, 505 U.S. at 857. At the Founding, a person's "uninterrupted enjoyment of his life, his limbs, his body, [and] his health," and "[t]he preservation of [his] health from such practices as may prejudice or annoy it," were considered to have been "vested in [him] by the immutable laws of nature"; "the principal aim of society" was to protect "individuals in the enjoyment of " these and other "absolute rights." 1 Blackstone 120, 125, 130. The "equal right of every citizen" to the "management" of "his person" thus was considered a "foundation of republican government." Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816).

These citations are not helpful. In the letter, Jefferson addresses a proposal for equal representation in the House and the Senate. Here is the full passage:

The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management. Try by this, as a tally, every provision of our constitution, and see if it hangs directly on the will of the people. Reduce your legislature to a convenient number for full, but orderly discussion. Let every man who fights or pays, exercise his just and equal right in their election.

Jefferson said nothing at all about "bodily integrity." The SG spliced words completely out of context to create a false impression.

The Blackstone citation fares no better. Indeed, these references should be familiar. Justice Thomas cites these very pages in his Obergefell dissent that lambastes the notion of substantive due process:

After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the "absolute rights of every Englishman." 1 Blackstone 123. And he formulated those absolute rights as "the right of personal secu-rity," which included the right to life; "the right of personal liberty"; and "the right of private property." Id., at 125. He defined "the right of personal liberty" as "the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law." Id., at 125, 130.[2]

The key phrase, which is omitted from the SG's brief, is that a person could be restrained pursuant to the "due course of law." And, as argued by Blackstone, the due process of law concerned procedural rights, and not substantive rights.

Later in the brief, the SG writes:

The core holding of Roe and Casey follows naturally from these long-established principles.

What are these "long-established principles"? In the prior paragraph, the Court cites cases like ObergefellEisenstadtBaird, and Griswold! After nearly 50 years of Roe, the government could not come up with anything better. This attempt at originalism failed.

Finally, the SG sought leave to participate in oral argument. At present, the Acting SG is Brian Fletcher. I do not know if Elizabeth Prelogar will be confirmed as SG prior to the December 1 argument date. I suspect the Biden administration would prefer the optics of having a female argue this case.