Bench Memos

Law & the Courts

Law Professor Michael Paulsen on Dobbs Abortion Case

On Public Discourse, law professor (and occasional Bench Memos contributor) Michael Stokes Paulsen has published the first part in a two-part series on Dobbs v. Jackson Women’s Health Organization. Dobbs, you will recall, is the big abortion case on the Supreme Court’s docket for next Term—the case that ought to bring a decisive end to the illegitimate Roe/Casey regime that the Court has inflicted on the American people for nearly fifty years now.

Some excerpts from Paulsen’s piece:

Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes….

In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868….

In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself. In tomorrow’s essay, I will attack this craven, unprincipled reasoning. For now, my point is simpler: Roe is a relic of abandoned reasoning that almost no one—including the Court itself—any longer thinks correct on its own terms. If Roe retains any legitimacy at all, it is only because it is a precedent and for no reason moored to the text of the Constitution….

It is worth pausing briefly to reflect on just how radical the RoeCasey abortion-rights legal construct is. It is no cautious “balance” of interests. It is almost unreservedly pro-abortion. It adopts one of the most extremely lenient pro-abortion legal regimes anywhere in the world. It fails to recognize any legal rights of the unborn human fetal children, in any respect, at any stage of pregnancy. It does not recognize them as legal persons in their own right, entitled to the equal protection of the laws from private violence (a debatable but infinitely more plausible legal understanding of the common law and of the Constitution’s guarantees than is Roe’s creation of a constitutional right to abortion). Nor, short of that, does it recognize the unborn as members of the human species meriting protection by the state, whether or not they possess a constitutionally recognized legal “right to life” of their own. The living human fetus is treated, absurdly, as “potential life.”

Read the whole essay, and tomorrow’s installment on stare decisis as well.

Recommended

The Latest