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Dobbs and the Holdings of Roe and Casey

Roe and Casey—reaffirming, overruling … and rewriting.


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.

NEXT: Today in Supreme Court History: January 10, 1842

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  1. If a penalty can be a tax, all things are possible for the supreme court.

    1. But that was totally legitimate. There was an on-point 1922 case, Bailey v. Drexel Furniture, holding that a “tax” on child labor was actually a penalty and striking it down as outside Congress’ taxing authority. The case said the boundaries of the constitution’s taxing clause are set by function, not labels. It created a functional test for when a law comes within and when it remains without the constitutional taxing power.

      Roberts simply applied the case and its test to hold that functionally, the thing is a tax, not a penalty. The idea that he came up with this on his own is completely false.

      The ACA “penalty” pretty straightforwardly meets the elements of the Bailey functional test distinguishing a tax from a penalty for constitutional purposes.

      1. You know, you really should have looked at what the test was. Per Wikipedia:

        "Taft argued the law describes a set course for businesses and when they deviate from that course, a payment is enacted. Taft said, “Scienters are associated with penalties, not with taxes.” “[A] court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed.” Taft said that the court must commit itself to the highest law of the land and the duty of the court, even though it requires them to refuse legislation designed to promote the highest good. He went on to say that the good sought in unconstitutional legislation leads citizens and legislators down a dangerous path of breaching the constitution and recognized standards. In addition, Congress could take control of many areas of public interest, which the States have control over reserved by the Tenth Amendment, by enacting regulating subjects and enforcing them by a so-called “tax.” This would break down the constitutional limitations on Congress and eliminate the sovereignty of States. A tax is a source of revenue for the government, while a penalty is a regulation and punishment for a certain behavior. "

        In the ACA, the tax was imposed to stop people from going uninsured. By the Baily test it would have been a penalty even if Congress hadn't come right out and called it one.

        But Congress did call it a penalty.

        1. If you read the actual case rather than the Wikipedia summary, you'll see that the court found that, out of "respect for the acts of a co-ordinate branch of the government, [it] has gone far to sustain taxing acts as such, even though there has been ground for suspecting, from the weight of the tax, it was intended to destroy its subject", and relied on three features of the law to determine that the presumption of validity was overcome: that the tax was cripplingly large (10% of the company's revenue, regardless of the severity of the violation); it had a mens rea requirement; and it was enforced by the Department of Labor, not the IRS. As Roberts observed, the individual mandate had none of these characteristics.

          1. OTOH, it had one characteristic the tax in the Bailey case didn't have: Congress actually admitted it was a penalty.

            Whatever case there might be for the courts to be reluctant to see a penalty when Congress says they're enacting a tax, there is no case for the courts seeing a tax when Congress comes right out and says they're enacting a penalty.

  2. There is a tendency in rhetoric, when people feel really strongly about something, to create false dichotomies, insisting you must choose Option A or B and there is no Option C. Binary thinking is required for reductio ad absurdum arguments, which enables you to win a debate without having to come with a single positive thing to say in support of your position. If you can somehow come up with a way to knock out option B, then your opponent must accept your Option A, even if you yourself can’t think of a single reason why.

    But while these dichotomies tend to work really well as debate devices, they rarely hold in the real world. There are almost always more than two options.

  3. What about Chief Justice Burger’s concurring opinion in Roe, the one that assured the public that of course the Supreme Court wasn’t legalizing abortion on demand?

    Unless Chief Justice Roberts can find another Justice to support an imtermediate position nad he intends to hold that position long term, there’s no point in taking an imtermediate position temporarily if Roe is simply going to be overturned outright anyway in a year or two.

    But if Roberts wants an intermediate position that loosens Roe while claiming not to abandon it, why not go back to Burger’s concurrance as the starting point?

    This wouldn’t be consistent with what Casey held. But Casey itself was originally a compromise that loosened Roe without abandoning it. So Dobbs could be presented as simply another iteration or course correction within the Casey re-examination of Roe framework. That way, Roberts could adhere to Casey’s language that the “core” of Roe should be upheld, while defining that core down further.

  4. Here's a naive, maybe-silly, question from a non-lawyer.

    Several states are moving to forbid ownership of abortifacient medications. It's easy to imagine that states might also try to forbid ownership of instruments for doing early aspiration-abortions (manual uterine extractions), if that technique becomes popular among illegal abortion-providers (which may well happen; it's very easy to learn to do these abortions safely and effectively. You, who are reading this, could probably learn in a week or two. The "instruments" can be a 25cc or 50cc hand-held syringe (with a modification to hold the plunger extended, to maintain gentle suction), some flexible PVC tubing, and a 5-ml pipette such as is used in cell-culture, plus some gauze and sterilizing solution.)

    My question is: could such a ban be challenged under the Second Amendment? Could a plausible argument be made that ownership of abortifacient medications, and instruments for doing early aspiration-abortions, should be considered a form of "keeping and bearing arms" - certainly a special type of arms, useful only against a certain class of target-persons (unborn ones), but still, arms, weapons, useful for killing, and for no other purpose, and therefore, un-ban-able under 2A? (Of course, no state militia has used these weapons in maintaining security of a free state, and its hard to imagine how one would, but the whole militia-business doesn't seem to matter any more, in the post-Scalia age.)

    Note that I'm not asking about laws banning the use of these special arms, only about laws banning ownership of them. Using them would be an entirely different question, as it is with guns.

    Any response? Or is the question too fanciful and silly even for discussion? Please advise.

    1. Or is the question too fanciful and silly even for discussion?


    2. Yes. From an originalist standpoint, you ask, "Is this the sort of thing the government might issue to its own soldiers?" Is it, in Tench Coxe's words, part of "Their swords, and every other terrible implement of the soldier"?

      No, it does not appear that the military issue soldiers abortion tools so that they may perform abortions in the course of their duties.

      In fact, if you told a soldier, "Go perform an abortion on that member of the enemy!", I suspect it would be a war crime.

      1. RE: "Yes. From an originalist standpoint, you ask, 'Is this the sort of thing the government might issue to its own soldiers?'"

        OK, but isn't that exactly the kind of reasoning which SCOTUS (Scalia) rejected in DC v. Heller? Wasn't one of the points of Heller that henceforth it no longer matters what an army or militia would or would not use? That the right to keep and bear arms would henceforth be an individual right, not a right of any particular military or paramilitary organization and not dependent on the preferences of any?


        RE: "In fact, if you told a soldier, "Go perform an abortion on that member of the enemy!", I suspect it would be a war crime."

        What if you told the soldier: "Go ask that member of the enemy whether she wants, or would like, you to perform an abortion on her, and if she answers "yes, please", THEN do one!"? Would that be a war crime?

  5. The 4th Amendment guarantees a freedom from unreasonable searches and seizures. It does not guaranty privacy period, for any and all one's papers.
    Why cannot the abortion ruling guaranty a woman a reasonable amount of privacy and cut off abortion prior to viability? Why not at 15 weeks? According to Planned Parenthood, something over 92% of all abortions take place within this period. Few woman are obviously pregnant, their privacy would be preserved.
    This assumes an allowance for the woman's physical health, and her life being exceptions.

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