Roe v. Wade and Planned Parenthood v. Casey have been widely understood to forbid prohibitions on abortion before viability. That is so for one very good reason: that is exactly what they say and hold.
In a forthcoming law-review article and an ongoing series of guest blog posts at the Volokh Conspiracy, law professor Eric Claeys systematically dismantles an alternative theory of Roe and Casey that Chief Justice Roberts “seemed to suggest” at oral argument in Dobbs v. Jackson Women’s Health Organization: namely, that Roe and Casey instead entitle women only to “fair opportunities to obtain abortions sometime during their pregnancies.” (The quoted language is Claeys’s interpretation of what he calls the Chief’s “exploratory theory.”) If this reconception of Roe and Casey were sound or even plausible, the Court could vote to uphold Mississippi’s ban on abortion after 15 weeks of viability without also overruling Roe and Casey.
As Claeys compellingly and exhaustively demonstrates, this alternative theory badly misreads Roe and Casey. In his post today, Claeys reminds readers that Roe declared a statute unconstitutional on its face. He explains how “Roe’s judgment relied on a rule of decision about overbreadth” that “made the standard of viability necessary—in the sense of indispensable—to the declaratory judgment delivered in Roe.” An excerpt:
In Roe the Court noted, with approval, that in abortion challenges lower federal courts had been applying the overbreadth doctrine. Later, in the part of the opinion most necessary to the Court’s judgment (Part X), the Court “measured” the Texas prohibitions “against the[] standards” it had drawn via its trimester framework. The Court found that the statute “makes no distinction between abortions performed early in pregnancy and those performed later.” On that basis, the Court concluded that the key statute “sweeps too broadly” and “cannot survive the constitutional attack made upon it.”
Although the Court could have been a lot more direct about the rules it was applying, “sweeps too broadly” makes clear that the Court was conducting an overbreadth analysis. As yesterday’s post showed, the Court demonstrated that the Texas statutes under challenge threatened a constitutional right it had just announced. The Court conducted the sort of comparison Broadrick [v. Oklahoma (1973)] called for when it observed that the key Texas statute prohibited both abortions “early in pregnancy and those performed later.” The abortions “early in pregnancy” were the constitutionally-protected abortions chilled by the key statute; the ones “performed later” were the ones that the statute could prohibit constitutionally. But how did the Court know which intended abortions were protected and which ones were not? From the passages of Roe specifying abortion rights via the police powers. And in particular, from the passages declaring that fetuses’ and states’ interests in fetal life do not become “compelling” until viability.
And that account should make clear how deeply intertwined viability is with Roe‘s judgment…. In Roe, it made not one difference that Roe didn’t allege anything about whether her pregnancy was before or after the viability threshold. Since overbreadth doctrine applies to abortion challenges, the Court could declare a restriction on abortion unconstitutional on its face, by roving to find a substantial number of situations in which the restrictions would chill the exercise of abortion rights.
In short, … [Roe‘s overbreadth] proposition applies black-letter overbreadth doctrine to a state law restricting abortion rights: Such a law is unconstitutional on its face if it restricts pregnant women’s federal substantive due process abortion rights unconstitutionally, and if the number of situations in which it applies unconstitutionally seems substantial in relation to the number of situations in which the law could restrict abortion rights constitutionally. That proposition also makes viability necessary—indispensable, really—to Roe‘s holding. Viability was the proxy the Court used to classify different possible applications of the challenged statutes as constitutional or unconstitutional. Since viability was the sorting mechanism the Court used to conduct overbreadth analysis, it is part of the reason for decision about overbreadth.
Claeys soundly concludes that there is no middle ground in Dobbs between overruling Roe and Casey, on the one hand, and re-affirming them, on the other. If the Court is to allow the Mississippi 15-week law to operate, it must overrule Roe and Casey.