The Origin Story of Dobbs

A deep dive into how Dobbs came to be.

The New York Times Magazine published a deep dive into the origin story of Dobbs. It covers a lot of ground, and based on my own recollection, it is fairly accurate. Here, I'd like to highlight a few items.

A lead protagonist in the story is former Wisconsin SG Misha Tseytlin. Misha may not be a household name, but he has been extremely influential over the years. For example, he was the brainchild behind the Obamacare challenge that became known as California v. Texas. (See profiles from the Houston Chronicle and Vox.) Earlier, at the West Virginia's Attorney General's Office, Misha helped develop some other influential cases that did not get as much press. More recently, Misha played an important role in the road to Dobbs. Shortly after the 2016 election, Misha began to develop an idea to target Roe: states should pass a fifteen-week abortion ban. This approach would allow the Court to eliminate the "viability" line, but would not require the Court to overrule Roe and Casey.

Now Tseytlin posed a theoretical question, according to people familiar with the discussion: What would happen if a state tried to pass an abortion limit at, say, 15 weeks? A slightly earlier restriction could force the court to examine the viability rule — and shake the very foundations of Roe. Could they push the number of weeks back just to the point at which their opponents would challenge it?

Tseytlin had a hard time believing that Chief Justice John G. Roberts Jr. or Kennedy, who had come to inhabit a role as the court's swing vote, would strike down a ban that was just a few weeks earlier than 20. Many restrictions in Europe were drawn at 12 or 15 weeks.

Remember, at this point Justice Kennedy was still the fifth vote, so this incremental strategy had some value. But after Justice Barrett's confirmation in October 2020, the strategy shifted.

The article relays an internal debate about how to proceed: should Mississippi simply ask the Court to jettison the "viability" line, or should the state go all in to ask the Court to overrule Roe and Casey. I remember this debate well. Indeed, my widely-read post on the 2021 Federalist Society National Lawyer's Convention reflected this disagreement. The old guard, broadly defined, did not want to push the "overrule" Roe argument. The younger generation, broadly defined, thought this was the moment for change. Scott Stewart, the Mississippi SG, was talkin' bout my generation.

Stewart had to decide on a strategy. Fitch's petition for certiorari focused on upholding the Mississippi law and mentioned the possibility of overturning Roe only in a footnote: "If the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate, the Court should not retain erroneous precedent."

Stewart knew that a lot of lawyers would encourage him to continue down that easier path, to simply argue that Mississippi's law should be upheld. To not push for the complete overturn of Roe but to chip away — as the movement had for so many decades — and get the court to undo the viability standard. But for Stewart, these circumstances were different from those in the past. Trump had pushed their cause from the biggest bully pulpit in the land. Conservatives now had a majority on the court that seemed to be on their side.

It was not a moment for compromise, Stewart reasoned, according to people familiar with his thinking. It was a lesson he had learned from Thomas, his former boss and mentor, who was known to hold the line without deviation. He would be steadfast: Roe and Casey were wrong and must be reversed.

Even after Dobbs were argued, FedSoc lawyers over the age of fifty continuously fretted about the decision to push the Court to overrule Roe. I think it was some sort of collective PTSD from Bork, Casey, Harriet Miers, NFIB v. Sebelius, and more. They worried, correctly, about the aftermath of overruling Roe. In hindsight, Dobbs has been a political disaster for Republicans nationwide. But again, their concerns were pragmatic, and not legal. The yutes, as Joe Pesci would say, were content to let the heavens fall so justice could be done. Fiat justitia ruat caelum. And fall they did.

Finally, the articles identifies a list of cases that are primed for overruling: Employment Division v. Smith, CLS v. Martinez, and Troxel v. Granville. Seems like a good list!