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"Undue Burden" in Dobbs: A Revolution Disguised as a Tweak?

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My colleague Sherif Girgis passed along these thoughts on Dobbs, which I'm posting with his permission.

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Will the Supreme Court uphold Mississippi's ban on abortions after 15 weeks without fully reversing Roe and Casey and restoring rational-basis review to abortion laws?  Scholars like John McGinnis, Melissa Murray, and Mark Tushnet have wondered (without endorsement) if the Court might claim to do that by applying Casey's rule against "undue burdens" on abortion.  This is thought to appeal to the Court as a modest and restrained resolution of Dobbs.

But this approach would flatly misrepresent what Casey meant by "undue burden."  The phrase meant "constructive ban."  It referred to any incidental regulation of the procedure that's as harmful to abortion access at some gestational stage as a ban would be, and which should thus be treated the same as a ban.  Since Dobbs involves an actual ban, the "undue burden" concept is irrelevant here.  And trying to fit the concept to this case would transform its meaning.  In fact, Dobbs would be replacing Casey's doctrine with something wholly new, lacking even partial support in existing legal sources.  The resulting abortion right would require a new constitutional justification.  And as explained below, that new rationale would have to affirm a minimum-core abortion right that (unlike Roe and Casey) left no analytic room for later cases to permit wider bans based on new judgments of fetal worth or evidence on fetal development.  Indeed, having to justify any new doctrine without leaning on other sources would make it hard to keep chipping away at Roe, as the Justices might hope.  For that would then require them to contradict not only Roe and Casey but their own case for a new right in Dobbs.  Meanwhile, Dobbs's new test would be markedly vaguer than Casey's, leaving courts more at sea.  This would ensure serial litigation by states eager to push the line back, given that 95% of abortions occur before 15 weeks.

If my reading of Casey is right, then, the proposed Dobbs analysis would be more groundless than any abortion opinion since Blackmun's in Roe, easier to manipulate than the Casey plurality's, and harder to roll back.

Since the current Court is more formalist than this (or any other) middle ground would allow, and this proposal would have the opposite of the virtues meant to make it appealing to the Court, I think the Court will go all or nothing in Dobbs.

1. Understanding Casey.  The Justices' best hope for minimizing these effects is to rest a halfway ruling on at least part of some precedent.  That would relieve them of inventing a new rule and defending it on their own say-so.  Hence the proposal to apply Casey's rule against undue burdens on abortion.  But the proposal misreads what Casey meant by that phrase.

Some critics say Casey's "undue burden" test can mean anything you want it to.  That would have been true if the word "undue" as used in Casey meant no more than "unconstitutionally restrictive" (or "unconstitutional").  For then the "undue burden" test would simply be telling judges to determine if abortion laws are unconstitutional—without telling them how to.  But that's not what "undue burden" means; it has a more specific and concrete sense given below.  And in any event, whatever vagueness plagues the word "undue" is irrelevant to Mississippi's ban, which is excluded by another, perfectly sharp rule that Casey held onto from Roe.  (By contrast, a Dobbs "middle ground" would preserve nothing of Casey and have no sharp edges.)

To see why, start with Roe's holdings:

a. All abortion regulations trigger strict scrutiny, and thus require a compelling justification.

b. The interest in protecting the woman's safety becomes compelling only in trimester two.

c. The interest in protecting fetal life becomes compelling only after viability.

These premises produced three rules:

d. No abortion regulations in trimester one.

e. Only incidental regulations—for women's safety—in trimester two.

f. No prohibitions (which can be justified only as protections of fetal life) until after viability.

Casey reaffirmed premise C and hence result F (making Casey an actual middle ground between partial and full reversal of Roe).

Casey did reject premise A's insistence on strict scrutiny of all abortion laws.  As Casey said, drawing analogies to voting rights, not every law that "makes a right more difficult to exercise" should be lumped in with bans.  With abortion, some incidental regulations—e.g., credentialing requirements for providers—might not curb access by much.  So Casey needed a way to pick out which regulations "touching upon" abortion were severe enough to require a compelling justification, just as prohibitions do.  These would be laws that posed a "substantial obstacle" to abortions at a given stage, "deterr[ing]" them "as surely as" prohibitions would.  And the label Casey picked for them was "undue burdens."  The phrase thus refers to constructive prohibitions:  incidental regulations similar—in their impact on abortion at some stage—to actual prohibitions.

Note, finally, why Casey devised this test:  to implement the rationale for abortion rights that Casey repeatedly embraced as Roe's "central holding" (premise C above).  That rationale is all about when a fetus gains enough moral status to provide a compelling justification for abortion bans.  As Casey put it:  "Before [the fetus attains] viability, the State's interests are not strong enough to support a prohibition or the imposition of a substantial obstacle to" abortion.

Casey's resulting rules:  

  • No prohibitions until viability (since they still require a compelling interest).
  • No incidental regulations that amount to prohibitions ("undue burdens") until viability (same reason). 
  • But laws that do not actually or constructively ban pre-viability abortions now face rational-basis review.  (This is the only change from Roe.)

This shows why Dobbs can't exploit the vagueness of "undue."  True, it's vague which regulations are harsh enough to be undue—i.e., constructive prohibitions.  But it isn't vague what rule applies to laws held to be constructive prohibitions:  forbidden until viability (long after 15 weeks).  And since the undue-burden concept only tells us which regulations to treat like bans, it isn't needed for analyzing actual bans (like Mississippi's).  Those are all forbidden until viability.

To sum up:  Casey's test would have been plastic enough for use in Dobbs if "undue burden" conveyed no more information than "unconstitutional."  Call this the conclusory sense of "undue."  But in fact Casey used "undueness" as a premise—as a way of capturing some independent feature of abortion laws that would serve as an input for courts' analysis of whether those laws are undue in the conclusory sense (i.e., unconstitutional).

In the conclusory sense, every constitutional rights case is about which laws are "undue."  (We could say Janus found undue burdens on the First Amendment, Heller on the Second.)  But in that sense, "undue" isn't doing analytic work; substantive doctrines are.  Whereas in Casey, "undue" was clearly meant as an input.  (For one thing, Casey declared two things invalid but called only one "undue":  pre-viability prohibitions and pre-viability undue burdens.  And the fact that Casey rejected undue burdens not at all stages, but only until viability, also proves that "undue" was not just another word for "unconstitutional.")  What Casey meant by "undue burdens" was constructive bans, which aren't at issue in Dobbs.  So even if Dobbs were to say it was testing for "undue burdens," its analysis would be driven by something new.  Merely using the word "undue" wouldn't give Dobbs overlap with Casey beyond what's common to all constitutional rights cases:  a search for what's undue in the conclusory sense (unconstitutional).

2. Casey and Dobbs.  It would therefore take lots of rewriting to uphold a 15-week ban for imposing no "undue burden."  First, the Court would have to erase Casey's "no prohibitions before viability" rule.  (Never mind that it flows from the same holding about fetal worth as the undue-burden rule.)  Next the Court would have to white-out a part of the "no undue burdens until viability" rule itself—the "until viability" part.  This would be intended to leave a freestanding "no undue burdens" rule.  Then the Court would say it was upholding the 15-week ban without endorsing or rejecting this "no undue burdens" rule since it wouldn't have to:  Either way, the ban would stand because it leaves ample time to abort (up to the 15th week).

Yet even this last move would raze the remaining stump of Casey.  So the proposed "middle ground" would retain nothing of Casey.  Though stealing a trademark phrase ("undue burden"), Dobbs would intend by the phrase something with a completely novel (a) meaning, (b) doctrinal function, and (c) underlying constitutional justification or rationale for abortion rights.

First, the analysis above shows that under Casey, avoiding "undue burdens" is not about leaving women enough time to decide to abort before bans kick in.  Rather, "undueness" is based on the law's impact on abortion access at a given point in pregnancy.  An unduly burdensome law sets too high a hurdle for aborting at some stage.  And since "undue burden" just means "law as harmful as a prohibition," a rule against undue burdens could never allow actual prohibitions, as in Dobbs.  (If constructive bans are high hurdles, real bans are brick walls.)

Second, it would defeat the whole function of the undue-burden rule for Dobbs to erase from it any mention of a timeframe.  After all, the rule's entire job is to tell us the times in a pregnancy when constructive prohibitions ("undue burdens") are unconstitutional.

Third, without a rule to serve this time-related function, Dobbs could never implement Casey's (and Roe's) "central" rationale for constitutional abortion rights.  For that rationale, again, focuses on a key moment in fetal development.  It says "the State's interest in fetal life" is not "constitutionally adequate to justify" (effective) bans until the fetus has matured to the right age.

Concretely, then, if Dobbs upheld Mississippi's ban for imposing no "undue burden," the phrase would no longer mean "regulation that has the same impact as a ban," but "actual ban that applies too early."  This new concept's doctrinal function would be to tell us how much time a woman must have between learning she's pregnant and facing an abortion ban.  And the constitutional rationale would thus have to be, not that the woman's interest trumps the fetus's until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages:  that one way or another, the Due Process Clause—at a minimum—entitles a pregnant woman to some fair opportunity to abort.  (An opinion simply re-calculating the point at which fetal life trumps women's autonomy would seem especially unlikely here, since such calculations were rejected by the Chief last year as incoherent weighings of incommensurables.)

Likewise, despite a passing suggestion by Mississippi, Dobbs cannot rely on the "large fraction" test used in Casey and later cases by upholding this 15-week law as not affecting a "large fraction" of women seeking abortions.  The large-fraction test doesn't purport to tell us when a woman's access to a pre-viability abortion is unduly burdened.  It tells us how many women's access must be unduly burdened before a law can be held invalid facially, rather than as-applied.  And we already know how large the unlawful fraction is for actual bans like Mississippi's:  100% of their pre-viability applications are invalid under Casey.

3. Upshots.  Embracing a test that only rhymed with Casey's would have unintended effects.

First, lacking a toehold in Casey (or other legal sources), the Court would look arbitrary and legislative on a highly charged issue.

Second, Dobbs's new rule would bring in tow a new constitutional rationale for an abortion right staked on the Justices' own authority, making it harder for them to later scale back.  True, the Roberts Court has often overruled a precedent in part, or refused to extend it "to situations where it does not squarely control," only to scrap it later.  But it's another thing to reject a precedent's doctrine on a legal question (Casey/Roe's on abortion bans), and so have to justify a brand-new replacement (in Dobbs), before coming back to reverse your own replacement.  (Imagine if the Casey plurality—after replacing Roe's "no first-trimester regulations" rule with a "no pre-viability undue burdens" rule—later declared even those undue burdens lawful after all.)

Third, scaling back would be hard also because Dobbs—unlike Roe/Casey—would've affirmed an absolute minimum right that isn't pegged to evolving judgments about the interest in fetal life at different stages.  This would leave no room to later uphold more-sweeping bans based on greater deference to state judgments on that interest, or new discoveries in fetal development.

Fourth, unlike Casey, this Dobbs proposal would apply no bright-line rule to bans or anything else.  It would presumably use "undueness" to determine both when a regulation is like a ban and when a ban (or constructive ban) starts too early.  The resulting test:  "No unduly early 'undue burdens' on access."  The second layer of vagueness would invite serial litigation of how much time is constitutionally required—15 weeks? 12? 10? 8? 6?  A law now before the conservative Sixth Circuit has severable provisions banning abortion from each of these points. 

*   *   *

The "undue burden" concept's meaning, its doctrinal function, and the rationale for the resulting right announced in Roe and reaffirmed in Casey are of no use to a lukewarm Dobbs.  Even if the Justices borrowed Casey's signature phrase ("undue burden"), they would have to give it a job, and adopt a corresponding rationale for the resulting abortion right, that contradict precedent, find no support in other sources, confuse courts, and rest little on states' interest in fetal life.  Dobbs would be more slippery than Casey, less grounded, and harder to disown.

NEXT: Charles Fried's Hat and Sweater

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  1. In modern, mainstream academia, competent adults neither advance nor accept superstition-based arguments in reasoned debate, particularly with respect to public affairs.

    Those who disregard this point tend to be among our vestigial, gay-bashing bigots.

    The Volokh Conspiracy, a private forum, is and should be entitled to publish whatever and whomever it wishes, of course.

    1. Are you saying that it is superstition-based to argue that the U.S. Constitution does not address the subject of abortion?

      1. I think he's saying the motivation to make the argument is more likely superstition-based than any kind of flaming to desire to find the objectively most reasonable interpretation of the constitution, whatever that may be. That can be true even if their preferred interpretation of the Constitution is in fact the most reasonable one.

        1. Interesting. So this is the viewpoint that only an irrational person can believe that a fetus is morally distinguishable from a wart?

          1. I can't say how AFK would answer that question, but I assume it would be insulting than informative, so I'll just tell you what I think.

            I don't think that your conclusion necessarily follows from my (interpretation of AFK's) assertion.

            And even though I personally think the government should outlaw abortion, I don't think you necessarily have to be irrational to have an opposing viewpoint. I don't even think you have to be irrational to reach the opinion that a fetus is morally indistinguishable from a newborn.

            I also don't think vegans are necessarily irrational to believe that cows are morally indistinguishable from humans. It's a perfectly sound and internally consistent world view, needing no irational belief in magic or an invisible sky wizard to make it all hang together. But if they try to get the government to impose their world view I would be against that too.

            1. Damn. Of all the errors I could have made, I made the one that coveys the opposite of my position.

              I meant to write that I personally do NOT think the government should outlaw abortion.

          2. I contend that nearly all opposition to abortion is religion-based. Many anti-abortion absolutists have never considered -- and sometimes seem bothered by -- the cases of the jogging-induced miscarriage, the frozen embryos, and the like. Their analysis begins and ends with dogma and superstition.

            I also contend that sensible adults neither advance nor accept religion- (or superstition-)based arguments in reasoned debate with respect to public affairs. If "just because" is a portion of one's argument -- which seems necessary in the context of supernaturally derived positions -- that argument is not a legitimate element of reasoned debate.

            People are entitled to believe as they wish, but the contention a position in public affairs should prevail 'because an illusory god prescribes it, right here in this book of fiction' is nonsense. It is not entitled to respect among adults -- except to the extent we should respect any person's entitlement to believe it.

            Remove the role of stale, misogynistic, old-timey religion, and most of the opposition to abortion in America would vanish as if my miracle.

            1. Remove the role of stale, misogynistic, old-timey religion, molecular biology, genetics, physiology, biochemistry and physics and most of the opposition to abortion in America would vanish as if my miracle.

              FTFY

              Life is defined by the physiological, biochemical, genetics, molecular biology and physics that begin upon the sperm fertilizing the egg, and continue daily, hourly, minute by minute until death.

              Fun fact: When the body ceases to synthesize ATP, and ATP levels reach approximately 85% of a normal, rigor mortis occurs.

              ALK likely has rigor mortis or perhaps anencephaly.

              Father Gregor Mendel, Pray for us.

              1. You like to peddle your childish superstition with a side of science, clinger?

                Are you also among the disgusting bigots who figure a cloak of superstition somehow improves their gay-bashing?

            2. Remove the role of stale, misogynistic, old-timey religion, and most of the opposition to abortion in America would vanish as if my miracle.

              Don’t you think that there are many pro-life people with weak or non-existent religious beliefs who, as a point of secular logic or morality, believe that a fetus is morally distinguishable from a wart, particularly after it has a discernable heartbeat or can experience pain? If not, is that because you believe that, absent a religious reason, no rational person would believe so?

  2. Contrary to popular belief, before Roe v. Wade, coat hangers were (almost) never used as ad-hoc surgical tools for doing illegal abortions. They way they were commonly used was to induce light (hopefully) bleeding, so the patient could then go to an emergency room for a dilation-and-curettage, which was the standard treatment for a miscarriage-in-progress.

  3. As a former member of the California Supreme Court once said in private, "we're the Supreme Court- the law is what we say it is".

    They're the Supreme Court. They can announce any legal rule they want. That over-quoted Bush 43 Administration quote ("We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out.") didn't really apply to the executive branch, but it definitely applies to the Supreme Court.

    1. Indeed. If Girgis is right in his analysis, and if SCOTUS decides to refashion "undue burden" so as to arrive at a result SCOTUS likes, then such a judgment in Dobbs would then seem to befully compliant with Supreme Court precedent in abortion cases. The precedent that the constitutional right to abortion is fashioned in the judicial colon, and plucked from the judicial rear end as required.

      It's a real puzzle to follow the Chief Justice's reasoning - "here we find a steaming pile of ordure, deposited by our judicial forbears. Now we must reverence it and bow down to it. For to add our own deposit would be sacrilege."

      1. [A phrase to be copied.]

    2. I actually thought that Bush administration quote was perfectly reasonable. It encapsulates the difference between passively studying reality, and actively intervening. Science, and engineering.

  4. Mr. Girgis is reverse-engineering - yet again. Girgis is a Defender of the Faith. His opinions are shaped, first and foremost, by the teachings of the Catholic Church. Then he finds arguments to fit the predetermined conclusion. Argument ad hominem? Sure but warranted. Girgis tried the same nonsense with marriage equality, along with his good buddy, Ryan T. Anderson.

    There are NOT two equal sides to the debate over abortion. Pro-choice people want to make those choices without affecting anyone else. Anti-choice people are determined to impose their religious beliefs on everyone else. Those are vastly different objectives.

    1. I'm pretty sure the killed children are impacted by the abortion, just for one example.

      1. Assuming the conclusion. Whether they are children before birth is one aspect of the debate.

        1. Indeed.

          But just out of interest, why did Toranth's assuming his/her/its conclusion excite you sufficiently to require your intervention, but David Cary Hart's assuming his conclusion - "Pro-choice people want to make those choices without affecting anyone else" failed to do so ?

          1. Confirmation bias, which I readily acknowledge. The inaccurate use of language in the abortion rights debate is a pet peeve of mine.

            1. I sympathise with your pet peeve, up to a point. However, what is characterised as inaccurate use of language is often a genuine semantic difference (eg the typical pro-choicer's meanings of conception, contraception, pregnancy, abortion, human being, person etc describe different things from the typical pro-lifer's meanings of the same words. Neither side is using inaccurate language - they are just employing different usages.)

              Likewise there are differences of framing - such as that in David Cary Hart's post and Toranth's reply. DCH frames the issue as involving no one but the woman. Toranth frames it as involving two people. Also in DCH's "pro-choice" and "anti-choice."

              So, given the dangers of confirmation bias, we should avoid leaping to the concluion that a framing or a semantic usage that people on the other side may use is "inaccurate" when it is merely "different."

              And while we are on the hunt for inaccuracies :

              "Anti-choice people are determined to impose their religious beliefs on everyone else."

              we should note that by no means all "anti-choice" people are religious.

          2. That is an accurate statement of what pro choice people want.

            It just may not be an accurate statement of what they would get.

            1. 🙂

              It's an accurate statement of what pro choice people want....that David Cary Hart agrees with. And even if he didn't - which he obviously does - not guilty would have been picking up on "what people want" as an assumption of their conclusion, if he/she/it were not suffering from confirmation bias.

              As he/she/it properly and honestly concedes.

              1. Yeah, that's a fair inference to make.

          3. But just out of interest, why did Toranth's assuming his/her/its conclusion excite you sufficiently to require your intervention, but David Cary Hart's assuming his conclusion - "Pro-choice people want to make those choices without affecting anyone else" failed to do so ?

            David may have assumed that a fetus or embryo is not a person with rights, but it isn't necessary to assume that to arrive at a pro-choice conclusion. The essence of the pro-choice position is better described as leaving the decision over the value of that life to the pregnant woman and her doctor, rather than a majority of society. The anti-abortion position, on the other hand, does require an assumption that it has a right to life equal to a person.

            1. The essence of the pro-choice position is better described as leaving the decision over the value of that life to the pregnant woman and her doctor, rather than a majority of society.

              It may be "better described" so, but does that position not entail the presumption that that life is not to be valued equally to that of other humans ?

              For other humans we do not leave the decision about the value of the life in question to those who are planning to end it. Rather we tend to get all hot and bothered, in the case of other humans, when folk say "None of your business, none of the government's business - this is just a private matter between me and the chap I plan to kill. Now, where's my noose ?"

              1. I put the decision over the value of that life with the woman and her doctor because the dispute is over whether it is a person. And that this question cannot be settled objectively. We all get “hot and bothered” over people killing other people when there is no dispute about the victim being a person with rights. Notice that only pro-life people get “hot and bothered” over abortion. Not everyone gets upset over euthanasia, either. Or over eating meat, or killing unwanted cats and dogs.

                The pro-life position ultimately rests only on emotional considerations or religious beliefs. Scientifically, everything I’ve ever read about brain development says that consciousness simply can’t exist until at least weeks after viability. What value to place on an embryo or fetus that has never been conscious is always going to be entirely an emotional or religious matter that we could never get a level of agreement upon that even comes close to how we value the life of a conscious person.

                1. I put the decision over the value of that life with the woman and her doctor because the dispute is over whether it is a person.

                  No, not really. As mentioned above definitional games with "person", "human being", "child" etc are really just a way of avoiding the question directly at issue - which live humans deserve protection from being killed, and which do not, and why ? Doesn't matter what you call them.

                  And that this question cannot be settled objectively.

                  True - it's a value question, but a value question that is nevertheless informed by the facts - eg you suggest that consciousness is a marker of moral value, and so the factual question of when consciousness arises is relevant to your determination of fetal value.

                  Consciousness, of course, is not the only possible candidate as a marker of moral value. What about "usefulness to the community" ? Not good news for the parasites among us. Or why should we not forfeit our moral value when we commit a serious crime ? Why should we accept consciousness as relevant to value ? Particularly if the creatures currently lacking it are almost certainly going to acquire it very shortly.

                  We all get “hot and bothered” over people killing other people when there is no dispute about the victim being a person with rights.

                  No. this is obviously wrong. See slaves, Jews, blacks, the Hutu, the Tutsi, the kulaks, the Injuns, the serfs, the villeins, the common people, the mentally and/or physically disabled, the tribe next door and so on and on. The folk who think these humans deserve rights get hot and bothered when they're killed, whether the folk who are killing them think they deserve rights or not.

                  And for the last five hundred years or so at least, the appeal to stop killing slaves, Jews, blacks, the Hutu, the Tutsi, the kulaks, the Injuns etc has always been the same - they are humans too. Just like us.

                  That is why Toranth's insistence on the biological fact that the abortee is a live human is rhetorically powerful, For it requires you to explain - why not these live humans ?

                  It's not an impossile task - eg you have come up with consciousness and with further hard work you will flesh out an argument as to why you believe consciousness to be morally important. But it is hard work. Much harder than simply saying "these humans are not people." That's just lazy sloganising - for it leaves us to guess what a person might be, and anyway why would we think it relevant to the real question which is - what is it about these live humans that means that we should not put a moral value on their lives.

                  Without causing a breach in our traditional principle of equal value. If these humans are worth nothing, eg because they lack consciousness, then what about those humans, who may have a form of consciousness but it seems to be very rudimentary as they can barely reason at all. Maybe they only count halvsies. It's dangerous ground.

                  1. No. this is obviously wrong. See slaves, Jews, blacks, the Hutu, the Tutsi, the kulaks, the Injuns, the serfs, the villeins, the common people, the mentally and/or physically disabled, the tribe next door and so on and on.

                    I said "we" assuming a reasonable modern American, not medieval lords, Nazis, or Southern slave owners. That is the only context that matters, since we are talking about modern American law. To a reasonable modern American, there are virtually no disputes over which categories of born persons deserve a right to life. The one area where there is some disagreement is over those who have become brain dead or are in persistent vegetative states (see Terry Shaivo).

                    And that brings up why I view consciousness as a factor. A human body with no consciousness or hope of regaining it doesn't have a meaningful life. And while an embryo or fetus may gain this (it is not 100% guaranteed, however), "very soon" is relative. Especially when you consider the risks and burdens of pregnancy, which is what this is all about. I still can't think of any comparable situation where someone would be required to endure that level of risk and physical burden to benefit someone else. To require it to benefit a potential person, rather than someone already with a life, memories, and loved ones is not reasonable, to me.

        2. No, it isn't.
          They are human, they are direct descendants of the mother. This is, by definition, a child.

          Are you claiming that they are not human?
          Are you claiming these are not direct descendants of the mother that is pregnant?

          Biology settled this a long time ago. Trying to redefine terms just because using accurate ones makes your position sound bad is just dishonest.

          1. An embryo or fetus represents nascent human life. Childhood begins at birth.

            1. "nascent" is an amusing word selection in this case.

              An embryo or fetus does represent "nascent" human life, in the :

              https://www.merriam-webster.com/dictionary/nascent

              "having recently come into existence" rather than the "coming into existence" sense, since a human embryo or fetus (or blastocyst or zygote) is unmistakeably a human life that is already in existence.

              So while your choice of "nascent" isn't inaccurate - one of its meanings is accurate in this context - my own feeling is that it comes across as somewhat framey. It adds nothing but possible confusion, inviting readers to imagine you mean the "coming into existence" (incorrect) meaning, whereas in the correct "having recently come into existence" meaning it doesn't advance the ball - since it merely confirms Toranth's assertion that an embryo / fetus is a human life in being, rather than a human life yet to come.

              As for "child" , yes the idea that childhood begins at birth is a very common usage. But the notion that something can be a child in utero is also common usage. "Unborn child" has been used forever, "with child" is now somewhat archaic, but was in its time very common.

              So in substance, your disagreement with Toranth amounts to no more than a difference in usage of the word "child" - where neither party is using the word inaccurately.

          2. This isn't even an argument, it's just insisting 3 different times and confusing human and person.

            Which makes sense, since this is not a scientific or factual question.

            Acknowledging that doesn't really discharge the debate. But refusing to acknowledge the playing field is philosophical is just leaning into emotion writing reality.

            1. Strictly, no one has mentioned "person" or "people" except in the expressions "pro choice people" and "anti-choice people."

              Toranth's mention of "children" came in response to DCH's claim that abortion didn't affect "anyone else" besides the woman. So it's really a question of whether an unborn child can be described as "anyone else."

              So this is indeed a semantic + philosophical question, but it is a question inevitably informed by the scientific facts on the ground. Toranth is perfectly at liberty to insist that abortion involves killing another human's life in being, and to insist on it as a scientific fact.

              Whether the abortee is "anyone else" though is a bit of blind alley, ditto whether it's a "person" or a "human being" or a "child" - since the real question is whether the abortee is the sort of live human whose life morally and/or legally merits some kind of protection, similar to that afforded to older humans.

              Whatever we call it, it would still be a rose.

      2. " I'm pretty sure the killed children are impacted by the abortion, just for one example. "

        If you have legitimate information concerning the killing of a child (let alone children), the sole responsible, moral course for an adult would be to report that information to the relevant law enforcement authority without delay.

        If you do not have such information, however, the sole responsible, moral course for an adult would be to stand aside, stop spouting superstition-laced nonsense, and let the competent adults conduct the debate.

    2. I think it's a mistake to mischaracterize your opponent's actual position and motivation. It's even worse if you genuinely convince yourself that your worst possible intuitions about them are factually true. It's also bad strategically to fall into that trap because it detracts from your ability to persuade others that your position is better than the absolute best possible argument from opponents who could have the absolute best possible intentions.

      I'm about as pro choice as they come, but I can reach the conclusion that I have the superior policy position while at the same time acknowledging that my opponents hold a very sincere belief that abortion is murder. I'm sure most of these people do have the very best of intentions. Why wouldn't they?

      No one would argue that outlawing what we consider to be premeditated murder is nothing more than a determination to impose our world view on others. And that those who advocate for the state to not impose murder prohibition on everyone else are the only ones with a legitimate argument in the debate.

      As libertarian as I am, I do believe that there are some moral justification for state force. Preventing and deterring murder is pretty near the top of that list.

      So I need to believe that I have the better policy on its merits than the people who want to prevent what they believe is mass murder. If I don't, then I also don't have the better argument vs a bunch of theocrats who secretly hate babies and jerk off to the the Handmaid's Tale.

      At least that's how I prefer to approach it.

    3. Anyone who figures the Catholic Church has not been entirely discredited should leave the public debates to others.

      Bigotry, superstition, and backwardness - especially in the context of an organized religion revealed to be corrupt to its core, wrong on nearly everything, and hypocritical beyond belief -- had their day. That day has passed.

      1. I am puzzled that any moral person would take instruction from the most prominent institutional enabler of child sexual abuse in the history of the world.

        1. No moral person would. Some confused, gullible, low-character people do, though, often as a consequence of childhood indoctrination they just couldn't shake during ostensible adulthood.

        2. It says a great deal about your prejudices that you would a) makes such an unprovable claim, and b) think that the Roman Catholic Church is the only reason anyone would oppose abortion.

  5. Professor Bray....Thanks for the detailed, and very timely, blog post. Over time, I have come to appreciate your writing more and more. I learn a lot.

  6. The Caucus on the Court, those justices who want to render unpopular opinions without rendering unpopular opinions will not "go all or nothing in Dobbs". Instead they will somehow find that they do not allow undue burdens on abortion rights but also find that there are no state laws or regulations that place an undue burden on obtaining an abortion.

    That way they can say they have preserved abortion rights while destroying abortion rights. Seems hypocritical? Well that's what cowards do.

  7. I'm not a Supreme Court junkie, so this might seem like a naive question, but if they honestly believe this law is constitutional, why bother being deceptive with intentionally insincere word play? I don't know the specific legal arguments in favor of Dobbs but I assume its proponents believe that interest in protecting a fetus starts before viability. Either they think 15 weeks is the right point when that interest should begin or more likely they think inception is the real starting point and they just picked 15 for strategic reasons.

    Regardless, if that is in fact the justification for Dobbs, and the Supreme Court agrees with them, why not simply say so and explain why it's a better interpretation of the Constitution than Roe and Casey?

    If the more compelling legal argument is that all this talk about when exactly the interest of the fetus becomes a compelling interest or what undo burden means is immaterial because the Constitution doesn't prevent states from regulating abortions at all, then why not make that argument. If the Supreme Court agrees with that constitutional interpretation, then what is the actual downside of pretending they don't?

    I have to believe that the justices will not honestly misinterpret what due process means in Casey. So if they use it anyway then they are probably being dishonest, and given that their dishonesty would be pretty transparent, what is the big upside to this strategy?

    They either believe that Roe and Casey reflect the constitution as they interpret it, or they don't. Or I can also buy that they don't believe Roe is necessarily objectively correct, but it isn't so nutty of an interpretation that it warrants overturning precedent.

    But either way, there seems to some kind of major incentive to avoid deciding based solely on their actual legal opinion that I'm trying to understand.

    Are they worried about riots on the streets? Or some kind of tarnish to their legacy? They all knew they'd face this decision at some point. Isn't this what they signed up for?

    1. I meant, what's the upside of pretending they don't. But the mistake was probably obvious in context.

      1. Damn. I also said due process instead of undue burden. Anyway, I won't bother correcting any other mistakes out of protest for the lack of an edit function.

        1. Roman Moroni : "...out of protest for the lack of an edit function"

          Yep. I've long proposed we should all boycott this forum, wild-eyed liberals & zombie-undead conservatives alike, until management caves to our demand for an edit function. A few days of tumbleweeds rolling thru empty comment sections, and the Man will see he can't oppress us any longer.

          (My only fear is this Volokh guy will bring in scab commentators)

          1. I'm sure Eugene has his mob of union busting goons at the ready to keep that from happening.

            1. I want you on my side in any scuffle, Mr. Moroni.

    2. I have to believe that the justices will not honestly misinterpret what undue burden means in Casey. So if they use it anyway then they are probably being dishonest, and given that their dishonesty would be pretty transparent, what is the big upside to this strategy?

      Ever since Roe there has been a robust legal viewpoint that the decision was without foundation in the Constitution and a dishonest attempt to legislate while denying doing so. Renowned legal scholar John Hart Ely referred to Roe as “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” You can read his remarks in The Wages of Crying Wolf: A Comment on Roe v. Wade. So from this viewpoint what’s the basis for your supposition that the Supreme Court would certainly not do anything that would be transparently dishonest, or that dishonesty would not permeate all subsequent cases in which it serves as a foundation?

      Beyond that, I’m a little confused about what you’re asking. Are you asking why Dobbs supporters would ask for half a loaf even though they think they’re entitled to the whole, in order to avoid ending up with nothing? Certainly if they ask for half the court might spontaneously give them the whole.

      They either believe that Roe and Casey reflect the constitution as they interpret it, or they don't.

      But that’s not all that they need to consider. Those who would not have voted in favor of Roe (6 of the 9) must then consider whether stare decisis allows them to overrule/modify the precedent. Maybe you could clarify the question.

      1. I'm not saying that they wouldn't necessarily do something dishonest if the downside of appearing dishonest was better than the downside of not being dishonest. I'm just trying to understand the calculus here. If they aren't afraid of appearing disingenuous or cowardly, what ARE they afraid of?

        (Almost) nobody is dishonest if there's no downside to being honest. Honesty is easier. And nobody is cowardly unless there's something to be afraid of.

        I'm asking what is incentivizing them so strongly to not just do whatever it actually is that they genuinely believe they should do. What is this great upside vs downside incentive structure that leads people to assume that their desired goal is some kind of bullshit half measure that they know requires them to misinterpret words, and risk the scrutiny that comes with that for... reasons?

        I acknowledge that there is a tension between what they would have voted for themselves and their allegiance to precedent. That part is uncontroversial to me. Part of their job is making those judgement calls, and if they decide to uphold Roe for that reason, there's nothing dishonest or illegitimate about that. If they decide that overturning it is the legitimacy right thing to do, then so be it. These are the tough calls that they should live for. Unless they have some really good reason not to.

        I'm asking how is not having to either uphold or overturn Roe objectively better for them than actually making the decision to either uphold or overturn Roe? I don't understand the incentives that are strong enough to make people assume that the last thing these judges want to do is, you know, judge.

        1. What is this great upside vs downside incentive structure that leads people to assume that their desired goal is some kind of bullshit half measure that they know requires them to misinterpret words, and risk the scrutiny that comes with that for... reasons?

          With Dred Scott Justice Taney intended to settle certain contentious national issues concerning slavery by saying that slaves were property and that it was beyond the power of legislatures to declare them otherwise in “free” states. Some believe that such a motivation to settle a contentious national abortion issue has been the primary motivation for certain supreme court justices. They just want to do what’s necessary to try to make the problem go away, even bullshit half measures. Furthermore, if a justice thinks that the original decision was bullshit then how is substituting some other more politically acceptable bullshit any worse from a constitutional standpoint?

          I'm asking what is incentivizing them so strongly to not just do whatever it actually is that they genuinely believe they should do.

          There is considerable evidence that the Supreme Court feels vulnerable to certain types of threats, such as the one by Roosevelt. Especially where, as here, there is a credible claim that the Court has invaded the province of legislatures, one can understand their concern when there are rumblings of retaliation emanating from the legislature if the Court refuses to “vote” on this “legislation” in the desired way. After all, if a justice believes that the Court has entered the political realm, then it would be natural for him or her to believe that the Court will be subject to hardball politics causing injury to the structure of the Supreme Court. Another term for “bullshit half measure” is “political compromise.” But even if things don’t go that far, the justices want to avoid appearing to be just another set of politicians. This would cost them much of the good will that the Court has built up and which causes people/other branches to accept their decisions, if grumblingly. When these things are at stake one can appreciation the Court’s caution.

          1. That's unfortunate, but I suppose it makes sense. In theory the Supreme Court is supposed to be immune from political repercussions, but with threats of court packing and whatnot I guess that isn't the case.

            It seems like the safest political move would be to kill Dobbs and uphold Roe and Casey, justifying it on the weight of precedent. Republicans would be mad, but what are they going to do other than cry and campaign to their base that they must retake the White House in order to get a REAL conservative on the court?

            I can't see a half measure that would somehow appease both parties in way that leaves the Court in good spot. In fact, if the court upholds Dobbs by obviously and intentionally misinterpreting the idea of undue burden, it will give the Dems a legitimate claim that the court is corrupt, politically motivated, and in need of an overhaul.

    3. The only way to avoid replacing Casey's "just because we say so", with their own "just because we say so" it to repeal Roe and send abortion regulation back to the states where it belongs.

      1. Roe was a result oriented opinion, and in all likelihood Dobbs will be a result oriented opinion. I hope that the Court will give appropriate weight to the reliance interests that Roe and its progeny have engendered.

        One out of four American women of childbearing age have had or will have at least one abortion. Society has structured itself around women having control of their fertility. Upholding a 15 week ban while continuing to recognize abortion rights as fundamental would result in lesser societal upheaval than giving the states authority to criminalize abortion altogether.

        1. There's been a lot of writing on Justice Blackman and Roe, and I don't think it's at all clear it was results oriented. In fact, the evidence seems to go the other way.

          1. Are you saying that the constitutional interpretation they reached was so objectively correct that as badly as they wanted to give states the right to ban abortions, they simply couldn't do it without appearing to be constitutionally illiterate? Or probably not quite that.

            Don't get me wrong, I want abortion to be a constitutionally protected right. But I don't know that it's necessarily the most reasonable interpretation of the constitution. Maybe it is. All I know is that is that anyone with a preferred outcome wouldn't be too worried about defending their vote.

            1. You may not like how Roe was written, but that doesn't mean it was written in bad faith. Especially given how the given and take of opinion writing goes.

              Blackmun served as resident counsel for the Mayo Clinic, and really seemed to have been initially motivated by the doctor-patient relationship more than any gender equality idea.
              That is not how the rationale behind the right has evolved, but that absolutely checks out as the attitude in the 1970s.

              1. I suspect that Chief Justice Burger concurred in Roe to prevent Justice Douglas from assigning the opinion of the Court to himself. The Douglas concurrence in Doe v. Bolton is better reasoned than Justice Blackman's opinion in Roe.

              2. I don't presume bad faith. I think it's possible to be a totally ethical Supreme Court judge and still want certain results. If they honestly believe that they can a find a legitimate constitutional interpretation to reach that result, they probably will.

                I'm just saying, in a case like Roe, which I'm not arguing was an objectively incorrect decision, it seems like it's a novel enough constitutional interpretation that I can't see a judge who didn't want that result ruling in the majority simply because to do otherwise would be an objectively incorrect ruling that would betray their own ethical standards.

                Whether Blackmun was motivated by women's rights or doctor-patient rights or whatever, he still had a preferred outcome, yes? I am fully willing to assume that if he didn't believe that he had a legit constitutional interpretation to achieve that result, he wouldn't have betrayed his oath just to achieve it. But if he wanted the opposite result, I have a hard time believing he wouldn't have been content with a different, but equally defensible, interpretation of the constitution.

    4. Fifteen weeks´ gestation is what the Mississippi legislature hopes it can get away with. Mississippi is among the states with trigger laws that outlaw abortion immediately if and when Roe v. Wade is overruled.

  8. Casey modified Roe somewhat, moving from trimesters to viability as the basic cutoff, which moved the cutoff back a bit.

    It doesn’t seem impossible that the court wouldn’t do something similar with Casey, modifying it to move the cutoff back a bit.

    If could be argued they shouldn’t do that. It could be argued, for example, that any new standard or cutoff would be just as much made up as the older ones. But I don’t see how it could be argued that they CAN’T do it. The fact that they did it before tends to suggest they can do it again.

    1. ReaderY....is 'moving the cut-off back a bit' moving the cut-off to quickening? Is this what you meant?

      Weren't there laws in the colonial times defining 'quickening' as the point where legal sanction or compensation came into play? As I understand it, quickening happens pretty early.

  9. The only way to avoid replacing Casey's "just because we say so", with their own "just because we say so" it to repeal Roe and send abortion regulation back to the states where it belongs.

  10. Melissa Murray, a professor of law at the New York University School of Law, appears to have committed one of the most dreadful sins of quotation. In her piece she writes:

    "Although the court ultimately preserved the right to choose an abortion before viability in Casey, in a 1989 challenge, it echoed O’Connor’s skepticism, musing that there was no reason “why the State’s compelling interest in protecting potential human life should … [come] into existence only at the point of viability.”"

    The quotation comes from Webster v. Reproductive Health Services (1989). But, the quote is taken from the syllabus, not the actual opinion. The word "compelling" does not appear in Rehnquist's statement on page 519, rather it was added by the Reporter when writing the syllabus. I presume Murray read the syllabus, quoted the specific statement, and then attributed the quote to the Court. Uggg.

    But, even worse, is that The Court never actually said what Murray claims (the petitioner makes the same erroneous claim in the Petition for Cert.). Rather, Chief Justice Rehnquist said it, in a section of Webster that was only joined by White and Kennedy (section II-D). To attribute the quote to The Court, rather than to a three-justice plurality, imbues it with more authority than it warrants.

    Don't quote directly from the syllabus and attribute it to the Court. Also, don't quote from a section of an opinion which only two other justices joined and attribute the quote to the Court.

    oh yeah .... something something ABORTION something something

    1. I've never been very fond of reading the syllabus, for this very reason: You can never be sure how accurately it reflects the actual decision.

  11. Why is here not more discussion of the 21st versus the 18th?

    There is no Constitutional right to abortion. There can easily be such a right -- and, if ever enacted by amendment, such a right can be repealed as easily as any right granted by the 2nd or 13th Amendment.

    So why does the Court need to consider the hogwash spewed by previous Courts? There is no right to stare decisis.

    1. Argument by ipse dixit assertion. The right to choose abortion prior to viability has been recognized to be of constitutional magnitude for two generations -- like it or not. During that time, American women have structured their lives around having control of their fertility. To upset that state of affairs would result in societal upheaval. Viability as the point where a state may criminalize abortion (subject to an exception for maternal health) has been workable and engenders stability and predictability in the law. Stare decisis is a well established rule of decision, which should not be abandoned casually.

  12. From the point of view of a woman who has to travel more than an hour to an abortion clinic, and is constrained by family or work obligations or the need to keep her travel secret, "Come back tomorrow!" is an an extreme burden that in many cases means that there's no way to accomplish her goal. For her, it's a constructive ban. If only "Come back tomorrow!" was the strictest law. The Guttmacher Institute has a Counseling and Waiting Periods for Abortion that lists the waiting period by state. Four states (Arkansas, Missouri,South Dakota, and Utah) require in-person counseling followed by a 72-hour waiting period, and in South Dakota, "The law prohibits the inclusion of weekends and annual state holidays as part of the waiting period." Show up at Noon Thursday, 72 hours not counting the weekend brings you to Noon the following Tuesday, five days later. The only abortion provider in South Dakota is in Sioux Falls, close to the eastern border of the state, which is 380 miles east-to-west. How any of this is not an undue burden is beyond me.

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