Notre Dame law professor Sherif Girgis explained in this recent Washington Post op-ed that the pending case of Dobbs v. Jackson Women’s Health Organization (to be argued on December 1) 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. As Girgis puts it, there is “no intellectually honest way for [the Court] to uphold the Mississippi law without overruling” Roe and Casey.
In a Law and Liberty essay today, law professor John McGinnis, one of my favorite legal commentators, sketches a supposed middle ground (without, to be sure, embracing it):
Another possible approach would be not to overrule Roe entirely but cut it back so as to uphold the Mississippi statute. . . . The justices could argue that a rational restructuring of current doctrine also supports that result. Casey’s core requirement that states not place an undue burden on abortions is in fact satisfied by giving a fifteen-week window for seeking abortions. Roe’s additional requirement—reiterated in Casey, but not pivotal to the decision in the case—that the right to abortion be protected until viability is not necessary to give women a reasonable opportunity to terminate their pregnancy.
But what McGinnis presents as two distinct requirements are actually spelled out by the joint opinion in Casey as two elements that operate together in a single requirement.
Here is how the joint opinion in Casey summarizes its “undue burden” standard: “An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” In other words, viability defines the end of the period in which the undue-burden standard operates. So it makes no sense to read Casey as setting forth an undue-burden standard that is unmoored from an “additional requirement” of viability.
McGinnis of course knows this. That is why he presents his other “possible approach” as a “rational restructuring of current doctrine.” But such a “restructuring” is really an overruling of Roe and Casey.
What’s more, such a restructuring would compel the Court to adopt some new line that would substitute for viability to define the end of the period in which the undue-burden inquiry applies. As Girgis shows, there is no plausible new line that isn’t as arbitrary and ill-founded as viability. Further:
[I]f Dobbs declared instead that states need only leave some time to abort, it would end up reinforcing a constitutional right that the majority doesn’t believe exists. After all, the court wouldn’t be leaving part of Casey intact. It would be embracing something new to replace Casey’s test for abortion laws, as Casey replaced Roe’s.
And having justified a new abortion right in their own voices, the justices would have a hard time ruling later that there is no such right after all. That’s because they’d then be rejecting not only Roe and Casey but their own words in Dobbs. Why would the Roberts court take the heat for a decision in Dobbs that would only entrench a modestly slimmer abortion right?
(For Girgis’s fuller version of his argument, see pp. 14–19 of this article.)