Bench Memos

Law & the Courts

Dobbs: The Court’s Historic Moment (Part 1)

Anti-abortion protestors hold a demonstration outside the Supreme Court in Washington, D.C., November 1, 2021. (Evelyn Hockstein/Reuters )

No matter how long each member of the current Supreme Court ultimately serves, the abortion case it will hear on December 1, Dobbs v. Jackson Women’s Health Organization, has the potential to be the best remembered of any case that any of them will decide. The reason, as has been clear to those following the case over the last several months, is that it puts squarely before the Court the legitimacy of the most egregious judicial distortion of the Constitution in living memory, Roe v. Wade (1973), and its most conspicuous progeny, Planned Parenthood v. Casey (1992).

Neither Roe nor Casey has, or even seriously purports to have, any basis in the text or original meaning of the Constitution. The Roe Court took a practice that started out as a common-law crime and was widely proscribed by statute when the 14th Amendment was adopted, and it whitewashed the history as it made that practice into a new right by fiat. No line of precedent more clearly defies originalism than this one.

Some have suggested that Dobbs will be a test of the efficacy of originalism as a mode of constitutional interpretation, but they are mistaken. Roe is obviously inconsistent with originalism, and its illegitimacy is clear to any originalist.

The case is therefore teed up for a Court that has a majority of self-described originalists. Previous Supreme Court abortion decisions through Casey occasionally considered whether Roe should be overturned, but arguably did not have to, because they tended to involve ancillary regulations involving consent, notification, or physician care rather than outright prohibitions on abortion at particular gestational stages. Dobbs is a different matter. The Mississippi law at issue prohibits abortions at 15 weeks, with exceptions for medical emergencies and severe fetal abnormality. Roe as modified by Casey does not permit a ban before viability, and while viability is a malleable standard that will continue to change over time, nobody would claim that 15 weeks is ever post-viability at our current level of technology.

As Sherif Girgis has persuasively argued, upholding the law by merely chipping away at those precedents will not work. To uphold the Mississippi law is to eliminate the viability line, and to replace that line with another at some point between conception and 15 weeks would be no more rooted in text or history than the current line. In the absence of a clearly stated line, a soft-pedaling decision could simply decide to leave the question of such a line to a future case, but such a decision would still have to offer a rationale for not going farther, and such a standard would seem even more arbitrary than Casey’s undue-burden standard. To what end would the Court take either path, given that other state abortion laws that set different lines would be coming down the pike for appellate review? A muddled decision in Dobbs would leave the Court with the future task of cleaning up the mess made not just by two cases — Roe and Casey — but by Dobbs as well.

All five originalists on the Court plus Chief Justice Roberts, for all the differences among them over the years, have throughout their careers been cognizant of the need for principled judging. Several of them (most of all Roberts) have been inclined toward judicial minimalism, sometimes to a fault, but they recognize its limits. As Roberts wrote in Citizens United v. Federal Election Commission (2010), “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Do not rewrite an illegitimate precedent in order to save it. Whether or not they would say so out loud, these justices are very likely aware that the trio that produced Casey’s joint opinion — Justices O’Connor, Kennedy, and Souter — replaced one arbitrary mess of a purported constitutional standard with another.

Some who are watching the Dobbs case wonder whether the Court will avoid addressing Roe and Casey in the way it avoided revisiting its free-exercise precedent in Employment Division v. Smith (1990) when it decided Fulton v. City of Philadelphia earlier this year. But in that case, the majority opinion found issues surrounding a municipal contract and nondiscrimination ordinance to render another precedent, Church of Lukumi Babalu Aye v. Hialeah (1993), which unlike Smith granted relief to the free-exercise plaintiff, directly applicable to the case. Dobbs does not present a comparable issue that would provide the Court an escape route from considering the abortion precedents head on. Nor does it contain a procedural issue, such as the private-enforcement mechanism of Texas’s recently argued “heartbeat” law, that would obviate the need to consider the substantive issues presented by the Mississippi law.

In short, the Court cannot uphold the Mississippi law without overturning or significantly modifying Roe/Casey. Of course, the Court could decide simply to strike down the 15-week law under the sheer weight of precedent. But that would run afoul of a principal consideration articulated by Justice Kavanaugh in Ramos v. Louisiana (2020): A precedent should not stand when it is “grievously or egregiously wrong.” To uphold a constitutional travesty as egregious as Roe and Casey would be incompatible with originalism.

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