As I’ve been pointing out for some time, Dobbs v. Jackson Women’s Health Organization puts the Supreme Court to a binary choice on Mississippi’s law that bars abortion (with some exceptions) after 15 weeks of gestation: Either the Court applies the Roe/Casey regime to hold that the statute is impermissible because it bars abortion before viability, or it overrules Roe and Casey and holds that the statute is permissible.
At oral argument in Dobbs, Chief Justice Roberts seemed to float the possibility of reconceiving Roe and Casey in a way that would allow the Mississippi statute to be enforced. In separate law-review articles, law professors Sherif Girgis and Eric Claeys explain why that theory sinks.
In “Misreading and Transforming Casey for Dobbs,” Girgis addresses the contention that a law that leaves women a fair opportunity to choose whether to abort—up until the 15th week, under the Mississippi law—shouldn’t count as an “undue burden” under Casey. As he explains, Casey uses “undue burden” in a “synchronic sense,” forbidding laws that make abortion too hard to get at any point before viability.
In “Dobbs and the Holdings of Roe and Casey,” Claeys comprehensively explains that the viability line (before which states can’t prohibit abortion) was part of the holdings of Roe and Casey and, contrary to what the Chief suggested, can’t fairly be characterized as dicta.