In Roe v. Wade, the Court declared:
With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Conversely, the Court opined that a state could not enact measures “protective of fetal life” before viability.
Two decades later, the majority in Planned Parenthood v. Casey identified Roe’s “central holding” as the proposition that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”
At oral argument in Dobbs, the Chief Justice seemed to posit that viability wasn’t actually “an issue” in Roe (transcript at 18:23) and that the Court’s declaration on viability in Roe might be nothing more than dicta:
In fact, if I remember correctly, and I — it’s an unfortunate source, but it’s there — in his papers, Justice Blackmun said that the viability line was — actually was dicta. And, presumably, he had some insight on the question. [19:15-20]
I find the Chief’s suggestion very puzzling. For starters, it would appear that he does not in fact “remember correctly” what Justice Blackmun’s papers say on the matter. Blackmun indicated that the viability line was “arbitrary,” not that it was dicta:
You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary.
(Blackmun did state that his draft opinion “contains dictum,” but I see no reason to read that as a reference to the viability line. If the draft is anything like the final opinion, there are lots of other passages that would merit the dictum label.)
Further, the Texas abortion ban at issue in Roe applied throughout pregnancy, so its application before and after viability was very much at issue in the case. By ruling that the statute was unenforceable before viability, the Court made viability central to its holding. (Doe v. Bolton, the companion case to Roe, is widely understood to have turned the post-viability health exception into a limitless loophole.)
Blackmun of course was correct that any line, including a line at “the end of the first trimester,” would be “equally arbitrary.” So any search for a principled new line to substitute in place of viability will come up empty. The Chief Justice was right when he insisted in his concurring opinion in Citizens United v. FEC that the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” That wisdom should guide him in Dobbs.