Dobbs and the Holdings of Roe and Casey
The holdings in Supreme Court abortion cases after Roe.
Dobbs v. Jackson Women's Health Center is currently before the Supreme Court, and the litigants and most onlookers 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. In conventional wisdom, "Roe" and "Casey" stand for some proposition of law like this: Pregnant women are presumptively entitled, under federal substantive due process, to get abortions up to the time of fetal viability, the time when (Roe) "the fetus [is] potentially able to live outside the womb." 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. Tuesday's post introduced the concepts and principles that lawyers use to define "holdings"—judgments, reasons for decision, and dicta. Tuesday's post studied Roe, and it identified one reason for decision necessary to Roe: the proposition of law associated with "Roe" and "Casey" in the first paragraph of this post. (In the rest of this post, I'll call that reason "the abortion-rights reason.") Yesterday, I introduced the legal doctrine of overbreadth. And after it applied standard overbreadth principles to Roe, yesterday's post identified Roe's second reason for decision: A restriction on abortion is facially unconstitutional if it violates women's federal rights to get abortions pre-viability and if the number of cases in which it violates those rights seems substantial in relation to the number of cases in which it could be applied constitutionally. (In the rest of this post, I'll call this reason Roe's "overbreadth reason.")
Those two reasons constitute the "holdings" of Roe. Today's post focuses on abortion cases handed down after Roe, and specifically ones that declared unconstitutional other state abortion restrictions. And this post's lesson is fairly straightforward. In Casey and at least another 11 decisions, the Court has relied on both of Roe's reasons for decision to declare facially unconstitutional other restrictions on abortion. The Court has treated those reasons as holdings of Roe, and it has followed them as binding precedents.
The first two cases are very spare; both were summary affirmances by the Supreme Court of district court decisions holding state abortion restrictions unconstitutional. Although a summary affirmance looks a lot like a denial of certiorari, in substance it's very different. A denial of certiorari constitutes a discretionary decision not to hear a case on the merits. A decision not to hear a case has no precedential effect and it leaves no holding. But in a mandatory appeal, a summary affirmance is a ruling on the merits, and it has a holding and precedential effect (see Tuesday's post) like any other merits judgment.
In Danforth v. Rogers, in 1973, the Court summarily affirmed a judgment by a district court declaring facially unconstitutional Missouri's prohibition on abortion, which was virtually identical to Texas's. In the 1974 case Louisiana Board of Medical Examiners v. Rosen, the Court summarily affirmed a declaratory judgment holding facially unconstitutional a Louisiana statute authorizing the state's board of medical examiners to suspend or revoke the license of any medical doctor who performed or helped procure an abortion. When the Supreme Court affirmed summarily in Rosen, Justices William Rehnquist and Byron White concurred even though they had dissented in Roe—"[u]nder the compulsion of Roe."
The results in Rosen, and in Danforth, were "comp[elled]" by the two reasons for decision set forth above. Thanks to Roe's abortion-rights reason, both statutes unconstitutionally restricted the exercise of pre-viability abortion rights. And Roe's overbreadth reason "compelled" that both statutes be adjudged unconstitutional on their faces. Both statutes restricted the exercise of (pre-viability) abortion rights in substantial fractions of the cases to which they applied.
Danforth v. Rodgers and Rosen were easy affirmances because the challenged state statutes were obviously prohibitions on abortion. The other cases between Roe and Casey—and the cases the Court heard with full argument—all went beyond Roe in that regard. Those cases considered challenges to state laws that were (or so states argued) not outright prohibitions but regulations of abortion. In Doe v. Bolton (1973), the Court declared facially unconstitutional three Georgia laws that required that abortions be preapproved (by doctors) and that they be performed in hospitals. In Planned Parenthood of Central Missouri v. Danforth (1976), the Court declared facially unconstitutional a law banning abortions specifically by the method of saline amniocentesis. In Bellotti v. Baird (1979), and then again in Hodgson v. Minnesota (1990), the Court declared facially unconstitutional state laws requiring pregnant minor women to get the consent of their parents before getting abortions. And in the 1983 cases Akron v. Akron Center for Reproductive Health and Planned Parenthood of Kansas City v. Ashcroft, the Court declared facially unconstitutional two more state laws requiring that abortions be performed in hospitals.
Now, all of these seven decisions broke new ground beyond Roe. As I explained in Tuesday's post, when Roe announced that second-trimester limits on abortion might be justified as maternal-health regulations, that announcement was a dictum. But Doe and the other cases treated that announcement as controlling, and they applied Roe's "reasonable relation" standard to determine whether the challenged statutes were really regulations or were instead backdoor interferences with abortion rights. Doe made the dicta in Roe about second-trimester maternal health regulations into a reason for decision and a holding, and the later cases applied that reason and holding to other putative regulations not presented in Doe.
Even so, the two reasons for decision from Roe were necessary in all seven of those cases as well. All seven cases followed a syllogism like this: (1) Prima facie, the challenged state law violates women's substantive due process-based abortion rights. (Roe's abortion-rights reason.) (2) The challenged law cannot avoid the problem raised at step (1) on the ground that it regulates second-trimester abortion in some manner reasonably likely to promote maternal health. (Roe's dicta about maternal health regulations, as adopted in Doe.) And then (3) not only does the law violate abortion rights, it does so a substantial number of pre-viability abortions. Once the Court made the finding at step (3), Roe's overbreadth reason supplied binding precedent for declaring the law unconstitutional on its face. In short, in all seven of these the Court treated Roe's two reasons for decision as binding holdings.
We can now take up Casey. In Casey, the Court declined to overrule Casey, by a 5-4 vote. With different voting blocs, a badly-fractured Court upheld some Pennsylvania restrictions on abortions and declared unconstitutional a few others. The plurality opinion, joined by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, reaffirmed what they called Roe's "essential holdings": that women are entitled to get abortions before the viability threshold; that states may prevent post-viability abortions not necessary to protect the life or health of the mother; and that states may institute pre-viability maternal health regulations. But the plurality opinion jettisoned Roe's trimester framework. The plurality proposed instead an "undue burden" standard, to review laws that made it more difficult to get abortions incidentally without prohibiting them outright.
But many of these passages and declarations were dicta. Many went considerably beyond what was necessary to decide whether the challenged Pennsylvania laws were constitutional. Let us focus on what the Court actually did and held when it declared some of the Pennsylvania restrictions unconstitutional. In those portions of its opinion, the plurality relied on and followed Roe's reasons about abortion rights and overbreadth. The Court declared facially unconstitutional a provision that required married pregnant women to notify their husbands that they intended to get abortions. When the plurality justified that ruling, it explained that a state law is unconstitutional if and when it has the effect of "placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." That is Roe's abortion-rights reason—and the plurality assumed what Roe itself declared, that the reason has force until viability. To explain why the spousal-notice requirement was facially unconstitutional, the plurality explained: If, "in a large fraction of the cases in which [a challenged statute] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion[, i]t is an undue burden, and therefore invalid." "Large fraction" and "substantial obstacle" are the terms of art a court uses when conducting overbreadth analysis—entirely consistently with Roe's overbreadth reason for abortion challenges.
Since Casey, the Court has declared facially unconstitutional three more laws restricting abortions. All three follow the same pattern as Roe and the other cases discussed here so far. In Stenberg v. Carhart (2000), the Court declared facially unconstitutional a state ban on partial-birth abortion. In Whole Women's Health v. Hellerstedt (2016), and then again last Term in June Medical Services v. Russo (2020), the Court declared facially unconstitutional two state laws that required abortion providers to have admission and practicing privileges at nearby hospitals. In all three cases the Court relied on both of Roe's reasons for decision. For example, in Stenberg, the Court took it as an "established principle" that "before viability … the woman has the right to choose her pregnancy." Twenty-seven years after Roe, the Court assumed that Roe's abortion-rights reason was an "established principle." The Court declared the statute facially unconstitutional because "[t]he fact that Nebraska's law applies both previability and postviability aggravates the constitutional problem presented" by the fact that the law restrains abortion rights. The "aggravation" was that the Nebraska law applied to a substantial number of previability abortions—prohibited by Roe's overbreadth reason.
And now we can trace the holdings of Roe, Casey, and eleven other Supreme Court cases. Those cases all declared facially unconstitutional state laws restricting abortions. In all 13 of those cases, two propositions of law were necessary to the holdings: A state law violates due process-protected abortion rights it if restricts women's opportunities to elect pre-viability abortions without justification; and such a law is unconstitutional on its face if it violates those pre-viability rights in a substantial number of its likely applications. In all of these cases, the scope of the right and the tipping point in overbreadth analysis both turn on viability. And since all 13 cases protect abortion rights up through viability, a law that prohibits most abortions at least two months before viability (as the Mississippi Gestational Age Act does) is unconstitutional. Of course, if and to the extent that those 13 cases remain controlling precedent and withstand reconsideration under principles of stare decisis.
That is what I hoped to show before this week is over. In tomorrow's post, I'll respond to your comments. I'll also take closer looks at questions that Chief Justice Roberts asked at oral argument in Dobbs—and show how my posts this week help answer them.