The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I showed in yesterday's post, Dobbs v. Jackson Women's Health Center is currently before the Supreme Court, and the litigants in Dobbs believe that the case presents the question whether Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) should be reaffirmed or overruled. If oral argument is a reliable guide, so do many of the Justices. For those lawyers and judges, Roe and Casey entitle pregnant women, as a matter of federal constitutional law, to elect abortions up to the threshold when their fetuses are viable. During oral argument, Chief Justice Roberts explored a narrower interpretation of Roe and Casey: Maybe they entitle women to fair opportunities to get abortions, but not necessarily up to the thresholds for viability. This week, and in a forthcoming article, I argue that this exploratory interpretation does not reread Roe and Casey, it rewrites them.
But exactly how does a lawyer tell whether an interpretation of a precedent constitutes a fair reading of it or a rewriting of it? That is my focus today. In this post, I introduce the concepts on which courts rely when they identify the parts of a past precedent that are binding in later cases. I apply those concepts to Roe. And I hope that I demonstrate in this post two of the main claims I want to demonstrate this week. The judgment in Roe declared four challenged abortion restrictions unconstitutional, and unconstitutional on their faces. And one ground necessary to that judgment was this reason for decision: Federal substantive due process entitles a woman to elect abortion prima facie up to the threshold for fetal viability.
Courts need a vocabulary for "reading" and "rewriting" past decisions because judicial decisions stand in an uneasy position in a system of law. In any legal system, judicial decisions are law in that they have legal effect. In common law systems, judicial decisions are also often law in a second sense; they justify or even require specific outcomes in later cases.
But judicial decisions in early cases do not always justify or require similar outcomes in later cases. The facts in later cases can differ from the facts in earlier ones. The facts in a new case can lie at the borders of the rules of law adjudged and applied in two or more earlier cases. And sometimes several old decisions might conflict and seem to require different outcomes in a new case.
To handle problems like these, Anglo-American judicial systems have developed principles that fall in a field I'll call here the law of "precedents and judicial authority." The law of precedents and judicial authority helps lawyers prioritize different passages from a reasoned judicial opinion. Lawyers and judges rely on principles in this field of law to distinguish the central parts of a judicial decision from the peripheral parts. The central parts include the court's "judgment" and the "reasons for decision"—the propositions of law, or the conclusions about how the law applies on the facts, necessary to support the judgment. The peripheral parts are called obiter dicta—Latin for "things said in passing." Lawyers "read" a case when they respect its judgment and apply its reasons for decision in similar new cases. They "rewrite" a case when they conclude that it stands for propositions substantially different from the reasons for decision necessary to its judgment.
Most judicial definitions for judgments, reasons for decision, and dicta go in circles; they rely on concepts about as general and intuitive as terms like "judgments" and "reasons." Thus, in Cohens v. Virginia (1821), Chief Justice John Marshall observed for the Court that judicial opinions always contain "general expressions …. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision." To contrast dicta and reasons for decision, Marshall assumed that readers knew what a "general expression" was and whether it was germane to or "beyond the case." Similarly, in Seminole Tribe v. Florida (1996), Chief Justice William Rehnquist contrasted "the well-established rationale upon which [the Court] based the results of its earlier decisions" with "mere obiter dicta." Rehnquist assumed that readers knew what "earlier decisions," "well-established rationale[s]," and dicta all were. As circular as these definitions are, though, they hang together. A judgment constitutes the specific "result" and "decision" in a case. Reasons for decision constitute the "general expressions" or "well-established rationale[s]" necessary to a judgment, and dicta are the expressions or rationales not necessary to a judgment. And those definitions apply surprisingly well in practice.
We can apply those definitions to constitutional abortion rights cases, and in this post I apply them to Roe, the seminal federal abortion rights case. Let me start by recounting the propositions of law with which Roe is associated most often. Roe declared that the Constitution protects abortion rights. The Court approved of lower federal court opinions declaring that "the right of privacy, however based, is broad enough to cover the abortion decision." The Court's opinion located that privacy right in "the concept of liberty guaranteed by the first section of the Fourteenth Amendment" and in the penumbras of other rights enumerated in the Bill of Rights. Roe also announced a trimester framework for that due process right. During the first trimester of pregnancy, states could not restrict pregnant women's access to abortion for any reason. During the second trimester, states could "regulate the abortion procedure to the extent that the regulation reasonably relate[d] to the preservation and protection of maternal health." And since "the 'compelling' point" for the state's interest in fetal life "is at viability," during the third trimester the state could prohibit abortions "except when … necessary to preserve the life or health of the mother." (That framework leaves important issues unresolved—especially how broad the exceptions are for maternal "life or health"—but it still shaped how federal courts came at abortion challenges while Roe was the dominant Court case on abortion rights.)
But not all of these propositions were reasons for decision in Roe; some were dicta. To understand what Roe held, an inquiring lawyer needs to start with the complaint and the issues implicated in the Court's judgment. Roe sued the district attorney in her county, on her own behalf and on behalf of all women situated similarly in Texas. She alleged in her complaint that she was pregnant, she alleged that her constitutional rights were being violated by four Texas statutes making it illegal to perform abortions in Texas, and she prayed for a declaratory judgment declaring that those statutes were unconstitutional on their faces. The district court entered the declaratory judgment she prayed for, and the Supreme Court affirmed the district court's judgment on that score.
That background makes clear what the judgment was in Roe: The four challenged statutes were declared unconstitutional on their faces. If a statute is unconstitutional on its face, it may never be applied to anyone, in any context. So whatever reasons for decision support the declaratory judgment, they need to be sweeping enough to justify a declaration that the four Texas penal statutes could never be applied, against anyone, or in relation to any pregnancy in Texas.
That judgment needed to be supported by several distinct propositions of law. Proposition (1) consists of Roe's constitutional-right declaration. Proposition (2) consists of Roe's police powers specification. And proposition (3) consists of Roe's overbreadth proposition. (If these names sound clunky to you, you're right, and I'm sorry. People who find Robert Ludlum a pompous novelist host fake Ludlum title contests to lampoon the titles of his books, and these names sound more than a little like entries in one of those contests. But I'll need to refer back to these propositions all week, and I need some shorthands.)
Start with proposition (1), Roe's constitutional-right declaration. This proposition was clearly necessary to the Court's judgment. The Court couldn't declare the Texas statutes unconstitutional unless they violated some right. When all was said and done, the Court located that right in "the Due Process Clause of the Fourteenth Amendment."
Now turn to proposition (2), the police powers specification. Every constitutional right has outer limits, and every right can give way to higher-priority rights or state interests in some contexts. The police powers entitle states to secure those rights and community interests. When courts consider police power justifications for state laws under federal constitutional challenge, judicial review carries out two functions. Legally, review determines whether or not the federal right displaces the ordinary effect of the state law. From the perspective of the person claiming the federal right, however, judicial review backhandedly makes clear how far the right runs and where its limits take effect.
Roe took two early cuts at specifying the right it announced. The Court opinion recognized that states might, during the second trimester, regulate the credentials of abortion providers, or the conditions in which abortions were performed, to secure maternal health. In the context of Roe's actual lawsuit, however, these passages about maternal health regulations were dicta. The challenged statutes prohibited far more abortions than was necessary to protect the health of pregnant women, and Roe wanted the statutes declared unconstitutional on their faces.
Roe recognized one other possible limit on the constitutional right, the limit associated with fetuses' lives. If and when fetuses' lives acquire urgent priority, that priority limits women's rights to elect abortions. The Court acknowledged that limit in Roe when it spoke of "the State's important and legitimate interest in potential life." In the Court's settlement, the state's interest became "compelling"—meaning, it took priority higher than the interest justifying constitutional abortion rights—"at viability." And that discussion was part of a reason for decision in Roe. Since the Texas statutes prohibited most abortions, the Court needed to settle when such prohibitions furthered goals that states may pursue and when they did not. In the Court's settlement, fetal viability is the threshold when the constitutional right to elect abortion recedes before the state interest in potential fetal life.
Put that police powers specification together with Roe's rights declaration, and you have the first reason for decision from Roe: Prima facie, federal substantive due process entitles a woman to elect abortion up to the threshold for fetal viability. Roe's rights declaration supplies the right, a substantive due process, liberty- and privacy-based right to elect abortion. Thanks to the police powers specification, the right is (only) a prima facie right. The prima facie right gets overridden by constitutional interests of fetuses (or states' interests in fetuses)—at the threshold for fetal viability.
But assume that this was the only reason for decision in Roe. That reason would not have sufficed on its own to support the judgment. That reason supplied authority in positive law for a judgment that the challenged statutes couldn't be applied to women in the first or second trimesters of their pregnancies. Again, though, Roe's declaratory judgment declared the statutes unconstitutional on their faces, in all possible applications. Roe's overbreadth proposition supplied the reason for decision necessary to that judgment of facial unconstitutionality, and tomorrow's post will take up overbreadth.