The Volokh Conspiracy

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The Final Epicycle? A Reply to Blackman

I'm not sure how Dobbs could be the last word.


There's a lot to discuss about the leaked Dobbs draft, but I wanted to respond to my co-blogger Josh Blackman's suggestion that Dobbs could be the end of abortion-related law at the Supreme Court.  I'm not sure how that could be, for two reasons.

First, in the short term, if Dobbs overturns Roe/Casey, you'll presumably have a lot of abortion-related legal issues at the Supreme Court and elsewhere about the scope of legislative and executive powers.  For example, how much power does Congress have to impose national rules relating to abortion?  What are the powers of federal executive agencies to influence abortion-related practices?  What are the powers of states to prohibit out-of-state abortions?  Dobbs could settle some questions, but I would guess it would shift the debate rather than end it.

Second, in the long term, changes in Supreme Court personnel work both ways.  As far as I can tell, those who think Roe/Casey should be maintained also believe that, if Dobbs overturns Roe/Casey, then the Supreme Court should overturn Dobbs at its first opportunity.  That doesn't seem likely in the next few years, as the votes aren't there now. But it's hard to predict the future.  And presumably, someday there will be a Court with a majority of Justices appointed by Democrat-party Presidents.  When that happens, another cycle might begin.

I understand that whether Dobbs would end the debate or merely shift the debate to the next stage isn't the most important question raised in the case and the leak.  But for those interested in that particular issue, I thought I would say why I think the latter is more likely.