The Volokh Conspiracy

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I Anticipated Chief Justice Roberts's Lonely, Failed Saving Construction of Roe

I held the essay in reserve, waiting to see what would happen in oral arguments, but decided not to use it.


On April 27, 2022, the Wall Street Journal editorial page worried that Chief Justice Roberts was "trying to turn another Justice." At the time, I speculated on the blog that the WSJ received a leak from the Court, and was trying to affect internal deliberations. But internally, I had an inkling what could be going on. No, I did not have a leak. Rather, I know Chief Justice Roberts–and his attempts to save things–extremely well.

Back in October 2021, I wrote a draft blog post about what the Chief's preferred middle ground in Dobbs could look like. I understood that this approach would be pure sophistry, but I take that premise as a given for the Chief. Here is an excerpt from the draft post, which should look familiar. I only made slight alterations for readability:

With rational basis review the relevant line would not be based on the viability of the fetus or some arbitrary trimester framework. Rather the line will be drawn based on whether the woman knows or reasonably should have known she was pregnant. At that point, she would have had a meaningful opportunity to terminate the pregnancy. But that notice doesn't need to be the full nine months of the pregnancy. According to a 2017 study, "gestational age at time of pregnancy awareness was 5.5 weeks (standard error = 0.04) and the prevalence of late pregnancy awareness was 23% (standard error = 1 %)." And the "average gestational age at time of pregnancy awareness has not changed over the last two decades." Given these numbers, under S.B. 8 women may have an exceedingly short period of time to actually obtain the abortion. Moreover, cardiac activity may be detected before six-week mark. Or a woman may learn about her pregnancy after the six-week mark. The Texas six-week limit would not be sufficient because many women do not even know they're pregnant at that point. But the 15-week Mississippi ban would afford women the opportunity to learn of their pregnancy.

Here is what Roberts wrote in Dobbs:

I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman's right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi's law allows a woman three months to obtain an abortion, well beyond the point at which it is considered "late" to discover a pregnancy. See A. Ayoola, Late Recognition of Unintended Pregnancies, 32 Pub. Health Nursing 462 (2015) (pregnancy is discoverable and ordinarily discovered by six weeks of gestation). I see no sound basis for questioning the adequacy of that opportunity.

Yes, I anticipated–almost to a tee–what the Chief was cooking up. You're welcome. So whenever I wrote about the "blue-plate special" over the past few months, this was precisely what I had in mind. No party advanced this argument, but I deduced it based on every Roberts opinion I've ever read. I knew Roberts would have to use some line other than viability. The only somewhat objective rule would be when women learn of their pregnancies. This tweet comes to mind:

The Chief's moves are entirely predictable.

Consider this passage:

To be sure, in reaffirming the right to an abortion, Casey termed the viability rule Roe's "central holding." Other cases of ours have repeated that language. But simply declaring it does not make it so.

It doesn't matter if Congress labelled Section 5000A as a penalty. "Simply declaring it does not make it so." Ditto in NFIB:

No one would doubt that this law imposed a tax, and was within Congress's power to tax. That conclusion should not change simply because Congress used the word "penalty" to describe the payment.

Indeed, Roberts actually "excised" the viability line from Roe and Casey:

Applying principles of stare decisis, I would excise that additional rule—and only that rule—from our jurisprudence.

Just like he eliminated the requirement to purchase insurance from Section 5000A, and made the Medicaid expansion optional. Same script, different cast. But unlike with NFIB, the Chief garnered zero other votes. In Dobbs, we were left with the lonely, failed saving construction of Roe.

If you doubt me, I shared this proposal with several people who can attest that it is authentic. I held the essay in reserve, waiting to see what would happen in oral arguments, but I decided not to use it. On some level, I was afraid to write it, lest it become true. I didn't want to jinx it. Thankfully, no other Justice took the bait.

I'll discuss the Roberts concurrence further in another post.