Dobbs and the Holdings of Roe and Casey

Roe, overbreadth, and the reason why the statutes in Roe were unconstitutional on their faces.


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. When the litigants and others talk about reaffirming or overruling "Roe" and "Casey," they are talking about reaffirming or overruling pre-viability abortion rights derived from federal substantive due process. During oral argument, Chief Justice Roberts explored a different interpretation of Roe and Casey: Maybe those cases 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. Monday's post recounted the Dobbs litigation and it previewed my claims this week. As yesterday's post showed, to settle whether the exploratory interpretation rereads or rewrites Roe and Casey, an inquiring lawyer would need to identify the reasons for decision necessary to the judgment in those cases. Yesterday's post identified one of the two reasons for decision in Roe: Prima facie, federal substantive due process entitles pregnant women to abort until fetal viability.

As I warned yesterday, however, that reason was necessary but not sufficient to authorize the judgment handed down in Roe. By itself, that reason would have authorized a federal court to enjoin Texas officials from enforcing the statutes against anyone who helped Roe get a pre-viability abortion. But Roe won a more far-reaching judgment—one declaring unconstitutional on their faces the four Texas statutes making it illegal to perform abortions. Roe had prayed for such a declaratory judgment. And the Supreme Court held that she was entitled to such a judgment—thanks to the doctrine of overbreadth.

Overbreadth is the focus of today's post. Here, I want to recount basic principles about overbreadth. I hope to show how the law of precedents and judicial authority applies to overbreadth judgments. I'll show how Roe's judgment relied on a rule of decision about overbreadth. And the upshot is this: That rule of decision made the standard of viability necessary—in the sense of indispensable—to the declaratory judgment delivered in Roe.

Overbreadth is a specialized exception to some more general rules in constitutional litigation. Ordinarily, parties have standing to press only their own claims and to request only the relief to which they are peculiarly entitled. So when a party argues that a state law is unconstitutional, she needs to demonstrate that the law is unconstitutional as applied to her conduct and situation. And if the law is unconstitutional so applied, it can usually still be applied constitutionally in many other contexts.

Consider Terminiello v. Chicago (1949). Father Terminiello gave an address in Chicago at a meeting sponsored by the Christian Veterans of America. His address attracted protesters. During his address he criticized the protesters, Communists, atheists, Jews, and members of other political movements or racial or religious groups, and he angered lots of protesters. Terminiello was convicted for disorderly conduct, and specifically for disorderly conduct caused by a "breach of the peace." The trial court charged the jury that, under the applicable Chicago disorderly conduct ordinance, "breach of the peace" included conduct that "stirs the public to anger, invites dispute, [or] brings about a condition of unrest."

The Court concluded that, so construed, the statute was unconstitutional; it made Terminiello criminally liable for speech that constitutionally protected as long as he didn't create a clear and present danger of some threat far greater than public unrest. That judgment rendered Terminiello's conviction unconstitutional. But that judgment focused on what Terminiello himself said. And the judgment left Chicago authorities free to enforce the ordinance later. City officers and courts could have construed the ordinance narrowly, to make actionable (only) conduct that breaches the peace specifically by inciting people in a manner likely to produce a clear and present danger.

Why keep the judgment in a case like Terminiello that narrow? The Court explained why in one famous discussion of overbreadth, Broadrick v. Oklahoma (1973): a "conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws."

When overbreadth doctrine applies, however, a party is allowed to point to the rights-violations that the challenged law might cause not to him but to others. And if the law is unconstitutionally overbroad, it is unconstitutional on its face and unenforceable. Consider the 2010 case United States v. Stevens, in which the Supreme Court heard an overbreadth challenge to a federal criminal statute penalizing the knowing "creation, sale, or possession of a depiction of animal cruelty." Stevens, a defendant in a criminal prosecution under that statute, was indicted for selling videos of pitbull dog fights and animal attacks. The Court (in an opinion written by Chief Justice Roberts) found the statute unconstitutionally overbroad. The statute seemed to criminalize hunting videos and historical or educational programming about animals—the kind one might see on the Discovery Channel. And that finding—of overbreadth—justified the Court's declaring the animal-cruelty statute unconstitutional not only in application to Stevens but on its face.

Only a few topics are covered by overbreadth doctrine—and as Stevens illustrates, free speech is one of them. When the doctrine applies, a law is unconstitutional on its face if the challenger can make two showings (which I get here from Broadrick). The statute must be overbroad, which is to say that the range of cases to which it applies unconstitutionally must be "not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." And if the statute is overbroad, it also needs to be shown that this overbreadth "could not be regulated by a statute drawn with the requisite narrow specificity."

That test has huge implications when a lawyer looks back and identifies the reasons for decision in a case about an overbreadth challenge. Ordinarily, reasons for decision hinge on what the parties themselves did, said, or meant. That focus makes sense because (Broadrick again) courts try to avoid serving as "roving commissions." That is why, in Terminiello, the reasons for decision hinged on whether Terminiello himself had said anything to trigger the clear and present danger limit on speech. But overbreadth focuses on whether and how often a statute restrains constitutionally protected conduct. So when a law is judged to be overbroad, the reasons hinge on facts and possibilities considerably removed from the person challenging the constitutionality of the state law. To borrow the Court's metaphor from Broadrick one more time, in overbreadth cases courts do not mind acting as "roving commissions." In Stevens, Stevens did not avoid criminal liability because of anything he himself did, said, or meant. The Court roved, to study how the charging statute applied to hunting videos and Discovery Channel programs that had nothing to do with Stevens's dogfight videos.

These principles matter in abortion litigation because abortion rights present another field in which federal courts apply overbreadth. In Roe the Court noted, with approval, that in abortion challenges lower federal courts had been applying the overbreadth doctrine. Later, in the part of the opinion most necessary to the Court's judgment (Part X), the Court "measured" the Texas prohibitions "against the[] standards" it had drawn via its trimester framework. The Court found that the statute "makes no distinction between abortions performed early in pregnancy and those performed later." On that basis, the Court concluded that the key statute "sweeps too broadly" and "cannot survive the constitutional attack made upon it."

Although the Court could have been a lot more direct about the rules it was applying, "sweeps too broadly" makes clear that the Court was conducting an overbreadth analysis. As yesterday's post showed, the Court demonstrated that the Texas statutes under challenge threatened a constitutional right it had just announced. The Court conducted the sort of comparison Broadrick called for when it observed that the key Texas statute prohibited both abortions "early in pregnancy and those performed later." The abortions "early in pregnancy" were the constitutionally-protected abortions chilled by the key statute; the ones "performed later" were the ones that the statute could prohibit constitutionally. But how did the Court know which intended abortions were protected and which ones were not? From the passages of Roe specifying abortion rights via the police powers. And in particular, from the passages declaring that fetuses' and states' interests in fetal life do not become "compelling" until viability.

And that account should make clear how deeply intertwined viability is with Roe's judgment. The previability abortions perform the same role in Roe as the hunting videos and Discovery Channel videos in Stevens. In Roe, it made not one difference that Roe didn't allege anything about whether her pregnancy was before or after the viability threshold. Since overbreadth doctrine applies to abortion challenges, the Court could declare a restriction on abortion unconstitutional on its face, by roving to find a substantial number of situations in which the restrictions would chill the exercise of abortion rights.

In short, Roe relied on a second reason for decision, Roe's overbreadth proposition. This proposition applies black-letter overbreadth doctrine to a state law restricting abortion rights: Such a law is unconstitutional on its face if it restricts pregnant women's federal substantive due process abortion rights unconstitutionally, and if the number of situations in which it applies unconstitutionally seems substantial in relation to the number of situations in which the law could restrict abortion rights constitutionally. That proposition also makes viability necessary—indispensable, really—to Roe's holding. Viability was the proxy the Court used to classify different possible applications of the challenged statutes as constitutional or unconstitutional. Since viability was the sorting mechanism the Court used to conduct overbreadth analysis, it is part of the reason for decision about overbreadth.

This post and yesterday's posts have traced Roe's holding—by identifying the case's judgment and the reasons for decision necessary to deliver that judgment. Roe's holding has the same force as other holdings—subject of course to the principles of stare decisis front and center in Dobbs. But we should also want to know whether later cases followed Roe's judgment and applied its reasons for decision in later cases. Those cases could cut in one of two directions. The more cases there are, the more certain lawyers can be that the Mississippi GAA at issue in Dobbs conflicts with Supreme Court case law. But other things being equal, a case's being followed regularly is one reason not to overrule it. Either way, we need to turn to Casey and the other 11 decisions following Roe and Casey. Tomorrow's post studies those decisions.

NEXT: Today in Supreme Court History: January 12, 1932

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    Judge Pitman's injunction (currently stayed by the Fifth Cir.) would appear to be a good example of overbreadth also. As to scope, that is. And judicial, not legislative. SB8 after all contains express saving & severability provisions in case the Texas Code Construction Act should be ignored in the course of constitutional and statutory-construction adjudication.  

    There has been silence about the issue (of partial SB8 validity) in the media and the commentariate generally, and the appeal of Mitchell's three intervenor client in USA v. Texas, specifically. Their core argument was/is that they only intend to file SB8 suits concerning abortions that are not protected by Roe/Casey and/or sue for other conduct other than actual feticide that is not protected, such as funding. Should they be injuncted nevertheless, and if so, on what grounds?

    Perhaps because the civil enforcement mechanism is unconstitutional irrespective of the proscription (heartbeat) portion of SB8 (as already so ruled by assigned state judge David Peeples in the consolidated MDL cases), but was that argument made in the USDC? And if not, can the Fifth Circuit address it, perhaps at least in connection with a severability analysis, and perhaps in dicta? ... Assuming that the appeal hasn't already been nixed on want-of-jurisdiction-grounds (rather than under the preliminary injunction elements) and hasn't been deemed  worthy of reporting.

    BTW, on the stateside litigation front, a copy of the interlocutory order by Judge Peeples was posted recently to the MDL Panel docket, and this version is text searchable. See Jan 10, 2021 entry here: ("Appellees’ Joint Motion to Return MDL Case to Original Court of Appeals After Inadvertent and Improper Transfer for Docket Equalization filed today in the Third and Seventh Courts of Appeal") .

    Also, the issue of what/how much (if anything) of the pre-Roe Texas abortion statutes survives to this day is currently in active litigation in the Texas Supreme Court. ---> the, generally, "writ of erasure" issue.

  2. Professor Claeys,

    I really enjoyed both your posts and draft article, and you have convinced me that Chief Justice Roberts's "fair opportunity" theory of Roe must fail as a rewrite. I am not convinced, however, that this theory is the only “third way” to avoid overruling Roe with a narrower ruling. Suppose the Chief Justice had asked: "None of our abortion cases have involved fetal personhood rights. Why couldn't we reaffirm Roe and Casey to strike down the Mississippi statute, but limit the holdings of both cases to states like Mississippi that have not in fact granted fetal personhood rights?"

    I filed an amicus brief in Dobbs on this very point, arguing that Roe and Casey could be effectively overturned without being formally overruled by cabining them to their facts, which would allow states to grant fetal personhood rights going forward (

    Such a ruling does not appear to run afoul of your rules for distinguishing when "an interpretation of a precedent constitutes a fair reading of it or a rewriting of it." Indeed, since state fetal personhood rights were not discussed in Roe (only whether the fetus was a "person" under the Federal Constitution), it is not even a question of dicta.

    Significantly, Mississippi refused to grant fetal personhood rights in a 2011 statewide referendum, but as I argue in the amicus brief, if it had recognized the fetus as a legal person under the Mississippi Constitution, then its 15-week ban would not simply be an exercise of its (weaker) police power to promote fetal life as a preferred state policy, but an exercise of its (stronger) police power in service of a more "compelling" state interest, namely protection of an autonomous individual right belonging to the fetus itself.

    I would be curious as to whether you agree with any of these points.

    1. FYI, my name is Anthony Hawks, which I thought would show up when I posted the comment.

    2. Roe v. Wade specifically addressed fetal personhood rights, and did so in some detail. Indeed, Texas made a fatal mistake in using fetal personhood as its main defense. It was a bad one.

      In Johnson v. Eisentragrr, the Supreme Court concluded that the word “person” as used in the 5th Amendment lacks “extraterritorial application.” Roe conducted a more detailed exegesis of the word “person” as used in the Constitution than Johnson did and reached a similar conclusion that the word “person” as used in tbd 14th Amendment lacks “prenatal application.”

      The Supreme Court recently reaffirmed the basic holding regarding extraterritorial aliens, again holding that non-citizens outside US territory lack any constitutional rights.

      So I don’t see why state assignments of personhood for state law purposes would have anything to do with the question. Many laws consider non-citizens outside US territory to be persons for many legal purposes, indeed, almost all. But nobody thinks that the existence of these numerous laws confers on a right to life protecting non-citizens outside US territory from (for example) being killed in a war. The two have nothing to do with each other.

      I don’t think the Supreme Court is going to be interested in the idea that if some state law declares extraterritorial aliens to be persons - and many state laws in fact declare this - this somehow crimps the ability of the United States to wage war. I don’t think the Supreme court would treat state declarations regarding fetal personhood any differently with respect to federal rights and powers, which are what is at issue in abortion. As Roe itself acknowledged, many states regard fetuses as persons for a number of purposes, for example lawsuits.

      Far from being new, it’s been gone over in detail a lot.

      1. War Powers & Domestic Womb Contents

        How are domestic fetuses extraterritorial aliens? - I mean, seriously,

        And as for killing foreign-national civilians (non-US citizens) abroad, shouldn't at least mention be made of international norms, if not international law and comity?

        Surely, no legal commentator wanting to be taken seriously will argue that fetuses are the equivalent of enemy combatants. And then we have the distinction between private terminations of living specimen of homo sapiens (homicide, femicide, infanticide, feticide, suicide, euthanasia) and state-sponsored killings (chemical-infusion executions of restrained captives in facilities such as in Huntsville, Texas) and assassinations (by drone or otherwise) and military operations actually carried out on orders of national governments.

        That remarked, there was an interesting angle in the USA v. Texas litigation, namely the issue of whether pregnant alien minors detained after having crossed the Rio Grande (and not *lawfully* admitted into the territory subject to U.S. constitution) have a federal entitlement to procure feticide in Texas (or have to be shipped to a different state for that purpose) while at the same time having their liberty restrained with less than due process accorded to citizens and resident aliens. Do abortion "rights" trump liberty rights in non-14th-amendment aliens? And where are such rights sourced when the 14th amendment does not even apply to nonadmitted aliens. Or does it?

        The additional complication regarding legal incapacity and absence of parental consent (outright inability to obtain it) and judicial by-pass didn't even come up. --Correct me if I am mistaken.

  3. I think the basic overbreadth doctrine is that a person who didn’t do anything against the law is nonetheless entitled to challenge it because the law chills legal conduct. Overbreadth is a special exception relaxing ordinary standing rules.

    Here, Roe had ordinary standing. What she wanted to do violated the law directly. So it’s not clear to me that overbreadth was anything to anything the Roe court did.

    It’s true the opinion in Roe v. Wade was a comprehensive decision that addressing the wwhole subject of abortion that covered a lot more than just Roe’s specific situation and conduct. But I don’t see that as necessarily due to overbreadth. Courts often make general statements about the law and identify general rules and standards that go beyond what’s needed for the specific case. While there was a question of mootness by the time the case reached the Supreme Court, there was no question that at the time she filed her suit Roe had ordinary standing. So I don’t see how the opinion really depended on any concept of overbreadth.

  4. Also, I think it’s a good question whether overbreadth has any place outside the First Amendment. It’s just not needed in abortion cases. Ordinary standing is very easy to come by.

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