The Volokh Conspiracy
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Eugene, thank you for the opportunity to guest-blog at The Volokh Conspiracy! I'm an avid reader, I admire the work of TVC's regular bloggers, and I'm honored to join you all this week.
I'm blogging this week about the pending U.S. Supreme Court case Dobbs v. Jackson Women's Health Organization. In the next couple of months, I'll publish an article in the Georgetown Journal of Law and Public Policy about one important line of argument in Dobbs. I very much welcome feedback on these posts or on the draft article. As this post should make clear, the inspiration for the project came from oral argument in Dobbs. Since the case was argued on December 1, I've been thinking about this project for barely a month. I'm still experimenting how best to present the thoughts I hope to share, so I'll be grateful for all feedback.
As this site's readers know, in Dobbs the Supreme Court is taking another look at federal constitutional abortion doctrine. In conventional readings, Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) entitle women to elect abortions for virtually any reason until viability, the threshold when fetuses seem likely to be able to survive outside the womb. In 2018, Mississippi enacted the Gestational Age Act (here, the "GAA"), which prohibits abortions after 15 weeks of pregnancies except in cases of medical emergency or fetal abnormality. If the conventional readings of Roe and Casey are right, the GAA cannot be upheld without overruling Roe and Casey; it prohibits abortions 8 weeks before the earliest construction of viability. No surprise, then, that most of the oral argument in Dobbs focused on whether Roe and Casey should be reaffirmed or overruled.
But it's at least possible that Dobbs could be decided in a third way. On one hand, such a decision would let states restrict abortions more than federal constitutional doctrine has let them in 50 years; on the other hand, it would stop short of overruling Roe and Casey. At oral argument, that possibility was explored by at least one Justice, Chief Justice Roberts. Fairly interpreted, Roberts was exploring a theory for Dobbs like the following: Roe and Casey entitle women to a fair opportunity to elect abortion during their pregnancy; a "fair" opportunity to elect abortion does not entail a right to elect abortion up through viability; and the GAA is constitutional because a 15-week right to choose gives pregnant women a fair opportunity.
That exploratory theory goes against what the other judges and lawyers involved in Dobbs seem to think or want. The district court and the Fifth Circuit both assumed that Roe and Casey make the GAA unconstitutional. In his opinion for the Fifth Circuit, Judge Patrick Higginbottom announced: "in an unbroken line dating to Roe v. Wade, the Supreme Court's abortion cases have established (and affirmed, and reaffirmed) a woman's right to choose an abortion before viability." At oral argument, the lawyers for both parties and the U.S. Solicitor General assumed that the GAA conflicts with abortion rights as declared in Roe and Casey.
I certainly understand why these narrow readings of Roe and Casey were explored at oral argument. If those readings were plausible, it might be possible to give pro-choicers and pro-lifers each half a loaf after Dobbs. All the same, as the Chief Justice recognized in another case about overruling precedent—Citizens United v. FEC—the Court "cannot embrace a narrow ground of decision simply because it is narrow; it must also be right." In these posts, and in my draft article, I explore whether the narrow, exploratory, "fair opportunity" readings of Roe and Casey are plausible. I conclude that they're not. The doctrines declared and enforced in Roe and Casey are restated well in the quote above from Judge Higginbotham. The judge speaks well not only in what he says about constitutional doctrine but also in the tone in which he says it. If Roe and Casey were both read to guarantee a fair opportunity to abort, substantially short of viability, those readings would be rewritings.
Of course, that conclusion doesn't settle what should or will happen Dobbs. The Court may overrule Roe and Casey, and the Court may reaffirm them both as Casey reaffirmed Roe 30 years ago. This week, and in the draft article, my argument is that there is no easier way out. Narrow reads of Roe and Casey are really rewrites of them. So in Dobbs, the Court will need to make the choice most observers saw after oral argument—to reaffirm Roe and Casey or to overrule them.
I think those conclusions are fairly clear—in the sense of being required, with certainty, when one applies controlling legal principles about judgments and precedents to Roe and later abortion cases. But the conclusions are not at all "clear" in the sense of being obvious. In Roe, Casey, and other Court abortion decisions, the parties challenging state abortion restrictions all asked for declaratory judgments saying that the restrictions were overbroad and unconstitutional on their faces. As I'll show, when a court declares a statute unconstitutionally overbroad, later courts and lawyers need to set aside the principles they ordinarily use to spot and define judgments and apply ones custom-designed for overbreadth cases. Not only are these issues hard to think through, they're extremely important in practice. Again, Dobbs might hinge on these issues. If that weren't enough, in a recent concurring opinion Justice Clarence Thomas suggested that overbreadth doctrines are wrong and should be overruled. So the bar and bench might be in for a big rethink of overbreadth no matter how Dobbs turns out. In short, the topics we'll cover are important, timely, and challenging. A decade ago, the Chief Justice suggested that too much legal academic scholarship tries to answer questions like what eighteenth-century Hungarian evidence law learned from Immanuel Kant. In no way is my draft article such an article. I try to answer timely hard questions that the bar and bench need help answering. This week, I hope you'll come along for the ride.
Again, my main theses are these: that Roe and subsequent Supreme Court abortion cases announce and enforce a rule entitling pregnant women to elect abortions up through the threshold for viability; and that any interpretation of Roe and later cases that reads them not to guarantee abortion rights through viability is not a reading but a rewrite. This week, I hope to demonstrate those theses through four more specific claims:
Claim (1) restates the judgment from Roe. Roe issued a declaratory judgment about four Texas penal statutes criminalizing the performing of all abortions in Texas besides ones necessary to save a pregnant woman's life. Roe declared that those four statutes were unconstitutional on their faces.
Two reasons for decision were necessary for that declaratory judgment. Claim (2) restates the first of those reasons, the reason declaring the constitutional right at issue: Prima facie, federal substantive due process entitles pregnant women to obtain abortions before the viability threshold.
The reason restated by claim (2) was necessary but not sufficient for Roe's declaratory judgment; necessary to the judgment also was a rule about overbreadth. Hence the second reason for decision in Roe, restated here as claim (3): A state law is void on its face if it prevents many women from exercising the right to elect a pre-viability abortion, and if the number of pre-viability abortions prevented seems substantial in relation to the number of (post-viability) abortions the state could constitutionally prohibit.
The reasons for decision restated in claims (2) and (3) might be one-offs, or they might be really entrenched. To say which, an inquiring lawyer would need to know whether and how often they've been followed. That's the subject of claim (4): In Casey and 11 other cases, the Supreme Court has followed the reasons for decision stated in claims (2) and (3) to hand down judgments like the judgment restated in claim (1).
Take those four claims together, and the Mississippi GAA is in conflict with Roe's main two reasons for decision and Roe, Casey, and 11 other cases applying those same two reasons.
I'll organize my posts tomorrow, Wednesday, and Thursday around those four claims. Claims (1), (2), and (3) all apply what I've been calling here the law of "precedents and judicial authority." I'll discuss that field of law tomorrow, and I'll rely on it to demonstrate claims (1) and (2). As I warned above, though, it is trickier to figure out what the judgment was in a case voiding a law as facially overbroad than it would be in a run-of-the-mill case. On Wednesday, I'll bring in overbreadth and use it to demonstrate claim (3). On Thursday, I'll cover claim (4), by surveying Casey and the other 11 cases that relied on Roe's reasons for decision to declare other state abortion restrictions unconstitutionally overbroad. I hope to devote Friday to your reactions to my first four posts. But I'll be back tomorrow—to talk about the law of precedents and judicial authority.