The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Janus and Dobbs
The leaked opinion places the public "on notice . . . regarding this Court’s misgivings about" Roe.
In Janus v. AFSCME (2018), the Supreme Court overruled Abood v. Detroit Bd. of Ed. (1977). Justice Alito's majority opinion ruled that the principles of stare decisis did not justify retaining Abood. One aspect of his decision has some relevance for the present moment. In Janus, Justice Alito addressed reliance interests. Specifically, he wrote that the unions should have been on notice that Abood was on the chopping block. After all, recent decisions like Knox, Harris, and (in a way) Friedrichs chipped away at Abood.
Justice Alito wrote:
For another, Abood does not provide "a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced." South Dakota v. Wayfair, Inc., ante, at 20; see supra, at 38–41.
This is especially so because public-sector unions have been on notice for years regarding this Court's misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment "anomaly." 567 U. S., at 311. Two years later in Harris, we were asked to overrule Abood, and while we found it unnecessary to take that step, we cataloged Abood's many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood. Friedrichs v. California Teachers Assn., 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) (per curiam). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain.
This passage from Janus, which does not appear in Justice Alito's draft opinion, does have some relevance for Dobbs. (And remember, the Chief Justice assigned Alito to write Dobbs.) In 2020, June Medical placed everyone on notice that five members of the Supreme Court had "misgivings" about Roe. Justice Barrett's confirmation no doubt expanded those "misgivings." And now, in light of the leaked opinion, we know that five members of the Supreme Court were willing to overrule Roe altogether. In light of Janus, those who facilitate abortion should understand that their potential constitutional defenses are "uncertain."
Seth Barrett Tillman, my frequent co-author, makes this point on a different level. He writes that in-house counsel now have a duty to provide timely legal advice in light of the leaked draft opinion.
The leak of the draft Supreme Court opinion in Dobbs v. Jackson Women's Health Organization did not overrule Roe. But counsel cannot blind him/herself to what the whole world now knows—that there is a substantial likelihood that Roe will be overturned. . . . More importantly, counsel should also put their clients on notice in regard to the risk of retrospective liability for acts committed while Roe was still in effect. The period of time we are now in may be such a period, particularly as the Dobbs leak has warned one-and-all of likely legal change. . . . In these circumstances, counsel should forewarn clients that their continuing to provide all or some abortion services going forward might lead to liability or, more likely, additional liability—civil and/or criminal—in states that have enacted statutes restricting the provision of abortion services.
We are all on notice.
