Dobbs, Finally
The Supreme Court decision overturning Roe: Finally, What Manner of Thing Is It? (And in which is found Justice Kavanaugh's little dictulum.)
If you prefer to listen, the podcast of this piece is here:
I have read with care all the opinions in Dobbs v. Jackson, overturning Roe v. Wade.
The most essential question about the decision in the case is, finally: what manner of thing is it?
All other important questions follow from that. Is this the act of a Supreme Court of Jesus Christ? Is it the political machination of a vengeful, heaven-loving Right? Is it plain old misogyny? A tsunami of Originalism? Of Federalism? Is it, on the other hand, a return to constitutional interpretation as it ought to be and ought to have been all along? What does the decision purport to be? And how does it mean? Like you, I have read many flavors of answer, many sober and hysterical insights. Probably some sage person or another out there has written le mot juste. But so far, I haven’t found it.
Dobbs overturns Roe, utterly. Not a shred of it is left. Not a morsel of its reasoning survives. It is as if Roe was never decided.
Planned Parenthood v. Casey, which all but gutted Roe in 1992, was also eviscerated. It was easy to wonder, back in law school, at Casey’s point of view about itself. Roe had found that the Due Process Clause of the Fourteenth Amendment guaranteed a woman’s right to an abortion and outlined the famous three-trimester schedule by which legislative restrictions could be scrutinized. Two decades later, after the trimester blueprint was shown to be scientifically unsound, the Supreme Court cast it out. In its place, the Casey Court established a new rule that prohibited, constitutionally, any restriction imposing an “undue burden” on access to abortions before the fetus reached “viability.”
It is easily forgotten that, in the nineteen years between Roe and Casey, the Supreme Court of the United States heard arguments in no fewer than a dozen abortion cases, one of them twice. Not all of these directly addressed the question whether access to abortion was constitutionally protected in some absolute sense. The cases were about the detailed nature of that access, such as whether parental permission was required for minors to access abortion (it wasn’t); whether parental permission was required for minors under fifteen years old for the same (it wasn’t); whether mere parental notification was required for minors planning an abortion (it wasn’t); whether government funding for abortion access was constitutionally required in order to perfect a woman’s right to abortion (it wasn’t); whether a state could prohibit advertising abortion services (it couldn’t); whether a second trimester abortion needed to be performed in a hospital (it needn’t); whether a state could compel abortion-seeking women to listen to an anti-abortion speech before securing the procedure (it couldn’t); whether a state could impose a waiting period between seeking and obtaining an abortion (it could); whether a state could require that a woman receive detailed medical information about an abortion before one was performed (it could); whether a state could require a woman to produce a signed statement from her husband that he was aware an abortion was planned (it couldn’t); whether a state was required to permit its employees and public facilities to perform abortions (it wasn’t); and whether the federal government was required to permit abortion-related services to be provided in federally funded family planning clinics (it wasn’t). But, in every case, and more and more over time, rumblings about Roe itself were distinctly audible. Over these two decades, the Supreme Court polished and refined its understanding of what was inside and outside the bounds of the constitutional right to abortion. Throughout, the majorities emphasized the importance of stare decisis — let us not revisit the central holding of Roe, the opinions whispered, even as we give shape to it. Meanwhile, concurrences and dissents asked why, if Roe and its conclusion were so obvious, did the Court continue to tinker with its boundaries.
This initially quietist debate spilled over into a more colorful public display of judicial temper in Webster v. Reproductive Health Services, the case which appears to be the missing link in most of the national analysis that has followed Dobbs. Decided three years before Casey, in 1989, Webster considered a Missouri statute prohibiting state funds, facilities, and personnel from being used to perform abortions, assist with abortions, or even provide counseling services about abortions. The Supreme Court, ruling 5-4, upheld the statute. Chief Justice Rehnquist delivered the majority opinion.
Now comes the shot across the bow. The Chief wrote, in a portion of the Webster opinion that was not quite joined by a majority, that Roe’s “rigid trimester analysis has proved to be unsound in principle and unworkable in practice.” In the intervening sixteen years, understanding about a fetus’s “viability” had become part of the medical, legislative, and public consciousness. Viability did not conform to a trimester schema. Therefore the test provided by Roe was no longer apt and should be acknowledged formally as inoperative. It is worth reading one paragraph in particular (I have removed the citations throughout this essay for readability):
[Rehnquist] The doubt cast on the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that Roe’s rigid trimester analysis has proved to be unsound in principle and unworkable in practice. In such circumstances, this Court does not refrain from reconsidering prior constitutional rulings, notwithstanding stare decisis. The Roe framework is hardly consistent with the notion of a Constitution like ours that is cast in general terms and usually speaks in general principles. The framework’s key elements—trimesters and viability—are not found in the Constitution’s text, and, since the bounds of the inquiry are essentially indeterminate, the result has been a web of legal rules that have become increasingly intricate, resembling a code of regulations rather than a body of constitutional doctrine. There is also no reason why the State’s compelling interest in protecting potential human life should not extend throughout pregnancy rather than coming into existence only at the point of viability. Thus, the Roe trimester framework should be abandoned.
We begin to see the utterances of what Dobbs came to echo.
Justice O’Connor, arguing for some judicially minimalist restraint, joined the substance of Rehnquist’s opinion but not the trimester-viability part, saying it was not necessary to reach any such conclusion in the case and that she saw no reason to disturb the Roe framework. (You’ll see more like this from Chief Justice Roberts in Dobbs.)
Justice Scalia, punting from the right, stewed. Why the hell are we pretending, he wrote, that Roe is still intact when we have just obliterated its central tenet of the trimester analysis? The Court is lawyering its way around the fact of what it is doing. Upholding the Missouri statute requires ignoring the trimester-viability nexus. It must therefore follow that the trimester test is dead. Let us have the good faith, dignity, and office to admit it. This was his opinion. He then went on to muse about the nature of the Court’s role. His musing was not what you might think, at least not only that. He did not merely protest that the Court was continuing the legislative function it had begun in Roe — beyond its authority of judicial review. He lamented that the Court was seeking somehow to weave its way between a Scylla and Charybdis through a kind of diplomatic pirouette. On the one hand, the Scylla was the robust public debate on abortion. On the other hand, the Charybdis was of the Court’s own making — its participation in this debate through its increasingly complex quilt of precedents. Suddenly the Court was laboring under a mountain of its own devising. Thanks to the departure of Justice O’Connor from the Chief’s controlling opinion on the particular question of Roe’s trimester analysis, the Court could imagine itself holding its head high for having achieved a legally impossible thing: maintaining a pretense that its own Past Law remained untouched even as it was being ignored by the Court’s Present Self.
[Scalia] The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical — a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
Statesmanship was no business of the Court, and the Court was no Statesman. The Court, like an oily-haired herald, was smiling as it lied about what it was actually doing. Thus spake Scalia.
In this, Justice Blackmun agreed. The lion of the left, writing also for Brennan and Marshall, shared Scalia’s bald assessment of the Court’s dishonesty. Though he dissented from the Court’s holding, he concurred with Scalia’s scathing review of their colleagues. He explicitly accused the Chief and co-signers of duplicity:
[Blackmun] Nor in my memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute, to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe “undisturbed,” albeit “modif[ied] and narrow[ed].” But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly . . . . The simple truth is that Roe would not survive the plurality's analysis . . . .
Blackmun saw the future. In one of his more famous turns of phrase, among his many famous turns of phrase, he wrote:
[Blackmun] For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.
In the hushed tones of which day-to-day judicial chamber life consists, this is a pair of Justices who are fairly losing their minds. Imagine walking down the hall, past the other fellow, who has just accused you of lying. The acrimony must have been mustily in the air.
So now back to Casey, which followed close on the heels of Webster.
In this case, three Justices — yes, three of nine sitting Justices — announced the opinion of the Court. This threesome, of Justices O’Connor, Kennedy, and Souter, is referred to as the Casey plurality. This sounds strange, and it is, though not magically so.
Here’s how it went.
These three Justices announced the substance of the decision vis à vis the various five provisions of the underlying Pennsylvania statute at issue. In respect of this substantive judgment — in other words, as to whether each those provisions would survive or be ruled unconstitutional — the Court got enough votes to provide clear legal guidance. For our purposes, it doesn’t really matter what those provisions were or what happened to them, because the constitutional import of Casey was far greater than the sum of their parts and had, actually, little to do with them.
What was that constitutional import? This is where you might be forgiven for having some dissonance, as many law students would have had over the past decades.
This Justice triumvirate — again, O’Connor, Kennedy, and Souter — ruled that:
1. Roe’s trimester analysis was no longer operative. It was no longer the law. “We reject the trimester framework,” O’Connor wrote.
2. Roe’s legal standard for analysis — the “strict scrutiny” test that is very familiar to any law student — was no longer operative.
3. Constitutional analysis, under Casey, now required an inquiry as to whether a challenged statute placed an “undue burden” on a woman’s right to access abortion before the fetus reached “viability.”
4. The right to an abortion was located at least as much in the Fourteenth Amendment’s guarantee that one not be improperly deprived of “liberty” as it was in a penumbral right to “privacy.” I think it is worth observing that Justice O’Connor’s opinion mentions liberty almost fifty times and privacy five. That is an inverted ratio from the one found in Justice Blackmun’s majority opinion in Roe. This shift from an emphasis on “privacy” to one of “liberty” is neither cosmetic nor of mere academic interest: it signals a discomfort with the comparatively novel discovery of penumbral rights and an intent to move the abortion access right closer to the core of what the Fourteenth Amendment protects. The plurality understood rather well, it appears, that their case in Casey was growing weaker.
5. (And here’s the part that caused a number of people to become unhinged.) Roe was to be considered upheld, because its rejected parts — the trimester analysis in particular — “we do not consider to be part of the essential holding of Roe.”
Before we entertain the objections to the Casey plurality’s analysis, we must first seek to understand its point of view of itself. Justice O’Connor wrote that Roe had an “essential holding” — a phrase repeated seven times in her opinion — that did not include the trimester analysis or the strict scrutiny legal standard it had established.
[O’Connor] It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger a woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.
This, my friend, was new. Until that time, the trimester analysis was clearly important, even if not, per se, “essential.” It shows up in all the key cases that follow Roe, as it should: it was part of the Court’s law and the primary or first yardstick by which restrictions would be adjudged. But suddenly, the trimester analysis was non-core, non-essential. Quite the contrary, there was a set of precepts, now delineated, that had always and obviously been the essential holding, if one had only been paying close enough attention. But the concept of “essential holding” — while intuitive enough at first blush — would itself not have been familiar to Court watchers, lawyers, judges, or litigating parties. It is not as if every case in American history was understood, in law school or otherwise, to have an “essential holding.” The expression “essential holding” was not familiar. In fact, it was, nearly, a Casey invention. The formulation “essential holding” had appeared, before Casey, only half a dozen times in the entire two hundred year prior history of the Supreme Court. One of those was in the abortion case Danforth (1976), in which Justice Stevens, in a partial concurrence, used the phrase “the essential holding of Roe v. Wade” without defining what he meant. Now the triumvirate, interpreting the Court’s own recent jurisprudence, came to observe (or discover) what the “essential holding” had been in Roe. Justice Stevens did join the part of Justice O’Connor’s opinion in Casey that used the formulation, so we must at least provisionally assume he meant to agree with what she proposed was Roe’s “essential holding.” Yet he dissented from the all-important Part IV of her ruling, the section that expressly rejected the trimester analysis and concluded instead that “the line should be drawn at viability.” This causes some kind dissonance, even if it is not insurmountable. On the one hand, Stevens believed the trimester analysis to be “essential” enough to Roe that he would have preserved it. On the other hand, he signed the part of the Casey ruling that rejected it as inessential. On these twin points, in his separate opinion, Justice Blackmun did exactly the same. Because Justices Stevens and Blackmun concurred and dissented in Casey in these particular ways, the previously settled trimester analysis — perhaps, in their view, workable and useful if not quite essential — became well and truly dead.
What remained was the “essential holding” of Roe that now hinged upon the new inquiry into a fetus’s viability. This, the Court’s opinion insisted, was no actual change from the precedent of Roe. Roe’s specific test was eviscerated but its value system was affirmed. You just had to look carefully enough through the plurality’s proffered lens, and you could see all this clearly for yourself. This lens was that which revealed the presence of an “essential holding,” a perceptive tool almost entirely invented by the judicial triumvirate in this case. The triumvirate fairly conjured a precept of legal analysis — “Find the Essential Holding, Young Lawyer” — and used it to aver that its substantial revision of its prior constitutional analysis was not, in fact, essentially material. This invented lens of an “essential holding” was a device of discernment, which allowed even the casual observer to perceive that the Court was ruling in a manner consistent with its precedent.
And that was exactly and precisely and importantly the entire damn point. This invention of an “essential holding” was needed to protect stare decisis. It was needed to protect the impression of stare decisis. Said a different way, it was needed to preserve the plurality’s argument — or mirage — that, no matter what had had happened in Webster, no matter how the votes were counted in Casey, and no matter even what the Casey plurality opinion itself said about how it was changing the actual law, the Court was respecting the principle of stare decisis.
Why? Because, after the initial reasoning of Roe came swiftly under attack by litigants, by much of the public, by much of Congress, and by a number of the Court’s own members, the strongest bulwark against its revocation was stare decisis. You can see it over and over again in the Supreme Court’s majority, minority, and separate opinions. The major legal rationale for stare decisis arises from the value in predictability, the accumulated wisdom of precedents across time, and the principle that, as the Casey plurality wrote, “Liberty finds no refuge in a jurisprudence of doubt.” The major “policy” argument in favor of not disturbing Roe and Casey has always been that a generation and later generations of women and families planned their entire lives around the background assumption of lawful access to abortion. Disrupting this settled expectation is a terrible change that can bring with it massive life consequences. None of these is itself a policy argument in favor of access to abortion per se — those arguments are also important but come either before or later. The arguments in favor of stare decisis are of their own special nature. And they have appeared explicitly in virtually every set of opinions from almost immediately after Roe was decided up and through Dobbs. In fact, a rough counting up of the lines suggests to me that the pro-choice parts of the Supreme Court have, post Roe, spent more ink arguing for stare decisis than they have relitigating the sourcing of abortion rights in the Fourteenth Amendment.
This, then, is why it was so essential to the Casey triumvirate to insist that they were not unsettling the “essential holding” of Roe. A twenty year precedent is far more powerful to future stare decisis than an admittedly major reset of that precedent. Accumulate the years, and eventually you have to face half a century of precedent, as the Dobbs Court did. Overcoming such freight is a difficult task indeed, and it should be. This is why both the majority and dissent in Dobbs devoted so many pages of their opinions to it. We can see now, as many saw back in 1992, that the Casey plurality triumvirate knew exactly what was at stake and that they had to — just had to — hold forth that, even as they removed the trimester / strict scrutiny test and replaced it with a viability / undue burden analysis, they were simply adhering to precedent and that Roe remained undisturbed. The triumvirate pounded the table in their insistence that their new jurisprudence was consistent with a revisionary understanding of what Roe had held; that there had been, all along, a core component of Roe that hovered in constitutional abstraction above the famous trimester test; that this was plainly visible to anyone who read Roe properly; that it was visible through the lens of “essential holding” analysis; that there was such a thing as an “essential holding” in Supreme Court case law; that Roe had such an “essential holding,” which was different from what you had probably imagined had been essential about Roe without the benefit of that explanatory lens twenty years later; that this, and not that, was the precedent embodied in Roe that was now under review in Casey; and that, yes, there was a decisis to stare.
This was the strategy. Throughout the opinions that follow Roe, the left-ish wing of the Supreme Court has repeated, without fail, stare stare stare. This makes all the sense in the world — jurisprudential sense, policy sense, even just good manners — until, finally, it doesn’t. Stare decisis is an ancient and yet still vital principle of judicial decision making because it should be. Without it, there is basically no law. Lawyers and judges cite it as decisive — indeed, dispositive — because it is an extremely good idea to do so. Almost always.
Here, in the cases that followed Roe (never mind in the dissents to Roe, as there are always contemporaneous dissents that say such and such a case should never oughta hadda been done thataway, so we must discount those for this analysis), it became clear very fast that the trimester / strict scrutiny test, separate and together one or two of the core elements of Roe — perhaps the most famous sub-headline components of its headline holding that abortion access was a right — was not well conceived. Very quickly, in Supreme Court time, the trimester test was reconsidered and then explicitly abandoned. And then it was refashioned, ex post, as nonessential to the original Roe ruling. All because failing to do so would be tantamount to discarding the precedential power of the landmark abortion case and, with it, the nearly unique advantage in jurisprudence of stare decisis.
Many saw the writing on the wall in realtime. Justice Blackmun was one, as he wrote in Webster that he saw what was on the horizon as Roe and its trimester test were nearly overturned: “I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court.” He knew that even another half-step in the direction in which Webster pointed would almost certainly prove fatal to Roe’s central test and to the case itself.
He underestimated the tenacity of the Casey triumvirate. Their three-person opinion insisted that they were reaffirming the “essential holding” in Roe. Stare decisis! they declaimed. The loudness of their insistence leads me to believe even they, even then, knew that they were stretching the fabric of continuity between Roe and Casey ever so thin. As we have seen above, even the two most liberal Justices then on the Court, Stevens and Blackmun, could not fully sign up to this claim.
The dissents were harsh. Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, called a spade a damn shovel:
[Rehnquist] This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to “strict scrutiny” and could be justified only in the light of “compelling state interests.” The joint opinion rejects that view. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decisionmaking for 19 years. The joint opinion rejects that framework.
Stare decisis is defined in Black's Law Dictionary as meaning “to abide by, or adhere to, decided cases.” Whatever the “central holding” of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.
For his part, Justice Scalia was apoplectic. He wrote a separate opinion joined by the other conservative Justices. You can nearly hear the tremble in his voice:
[Scalia] I must . . . respond to a few of the more outrageous arguments in today’s opinion, which it is beyond human nature to leave unanswered.
. . .
The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of “reasoned judgment”; merely that it must be followed, because of stare decisis.
. . .
The emptiness of the “reasoned judgment” that produced Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in this and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions”; it involves a “most intimate and personal choic[e]”; it is “central to personal dignity and autonomy”; it “originate[s] within the zone of conscience and belief”; it is “too intimate and personal” for state interference; it reflects “intimate views” of a “deep, personal character”; it involves “intimate relationships,” and notions of “personal autonomy and bodily integrity”; and it concerns a particularly “important decisio[n]”. But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U.S. 186 (1986)) has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision; only personal predilection.
He then took aim at the plurality’s claim to stare decisis. He derided their opinion’s tone-setting declaration that “Liberty finds no refuge in a jurisprudence of doubt.”
[Scalia] One might have feared to encounter this august and sonorous phrase in an opinion defending the real Roe v. Wade, rather than the revised version fabricated today by the authors of the joint opinion. The shortcomings of Roe did not include lack of clarity: Virtually all regulation of abortion before the third trimester was invalid. But to come across this phrase in the joint opinion—which calls upon federal district judges to apply an “undue burden” standard as doubtful in application as it is unprincipled in origin—is really more than one should have to bear.
The undue burden test, he pointed out, was crafted by Justice O’Connor in a dissent in the 1983 abortion case known as Akron, and it was now magically elevated into a formally recognized perfection of the Roe trimester test, which it replaced. He continued:
[Scalia] The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the “central holding.” It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep what you want and throw away the rest version.
. . .
I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means. I must confess, however, that I have always thought, and I think a lot of other people have always thought, that the arbitrary trimester framework, which the Court today discards, was quite as central to Roe as the arbitrary viability test, which the Court today retains. It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the “undue burden” test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe “has in no sense proven ‘unworkable.’” I suppose the Court is entitled to call a “central holding” whatever it wants to call a “central holding” — which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis.
He went on to accuse the Court of behaving as an “Imperial Judiciary,” of laboring under a “Nietzschean vision of us unelected, life tenured judges — leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’ — with the somewhat more modest role envisioned for these lawyers by the Founders.” As he saw it, the Court quite plainly propounded a lie (that it was upholding precedent) to perpetuate an error (that precedent) and then defended its deception with a moral breast beating declaration that to do otherwise would be to let down the American people. Stare decisis must be followed even in the face of intense public discord. All this, he wrote, “acquires a character of almost czarist arrogance.”
He was, as you can see, pissed.
When studied, Casey provides a picture that is missing from much of the public discussion that has followed Dobbs, which was, after some comparatively minor hops along the way, the next major step in abortion adjudication by the Supreme Court.
First, the scope and import of the ruling in Casey were not crystal clear. Not nearly as clear as one would customarily see in the vast majority of Supreme Court decisions. There was at least a 5-4 vote on various elements in the case. But teasing out that majority was easy only in regard to the portions of the Pennsylvania statute that was under review. The constitutional import of the case — the general principles outlined by the Court to allow lower courts to adjudicate more cases without the Supreme Court’s explicit review — was more muddled. The new test promulgated by Casey — the undue burden / viability test — was set forth in a portion of the triumvirate’s opinion that was nominally joined by Justices Stevens and Blackmun, so it must be considered the law of the land after the decision was handed down. But, as we have seen, neither Justice Stevens nor Justice Blackmun can be said to have fully signed on to the plurality’s analysis in that they would have preserved Roe’s trimester framework as central and core to the jurisprudence on abortion. At the very least, even if we allow that the Supreme Court had five un-asterisked votes for the new undue burden / viability test, we can acknowledge that its major lever of ratiocination — the promise and power of stare decisis — that the Court was just following the science of precedent — was belied by the half-hearted concurrences of Justices Stevens and Blackmun. Therefore, even while we acknowledge that Casey kept access to abortion greatly constitutionally protected throughout the United States, we can and should acknowledge that the Fortress of Precedent was far less impregnable than it might at first appear. Twenty of the fifty years of stare decisis between Roe and Dobbs are shaved off. And these are, probably, the most foundational twenty years.
Second, a pattern emerges in Webster and Casey that is similarly visible in most of the Supreme Court abortion rulings that followed Roe. There are areas of constitutional jurisprudence that are well settled. There are bodies of law that remain subject only to minor or marginal debate as to application, scope, details, or nuances that emerge from novel fact patterns, technological advance, or, famously, circuit split, when the appeals courts in the West don’t quite read a federal statute and prior Supreme Court rulings the same way that they do over there in New England. The Supreme Court of the United States is prone to internal disagreement. In the cases it agrees to hear — in other words, in the cases that its members deem to be worthy of its attention, which implies that there are meaty issues at stake — the Supreme Court rules unanimously at least one third of the time and sometimes as often as sixty percent of the time. But at nearly all moments in history, there is plenty of internal debate on the Court as to how it should rule. This leads to majority opinions, dissents, concurrences, concurrences only in the judgment, joint opinions, etc.. But almost all of the time — almost all of the time — even the strenuous disagreements that are found in separate opinions are on application of law or constitutional proviso, not on the underlying questions of constitutionality or the existence of rights or whether, as undergraduates might read about in courses of political philosophy, the Constitution is a Living or Dead Instrument. It happens, but it is rare. And when it happens, the majority is usually rather unified, and the dissent is usually rather unified, with only minor disagreements within each camp. Lo and Behold — the abortion line of cases was never, ever, ever like this. Roe’s progeny swelled the United States Reports, to coin the phrase used by one Justice in one such opinion therein, with Majorities, Partial Majorities, Pluralities, Cross-Voting Majorities, Joined Dissents, Partial Concurrences and Partial Dissents, Partial Dissents, Concurrences in Judgment Only, Section-Selecting Concurrences, personal recrimination, professional recrimination, hair-pulling, and accusations of intellectual fraud. Due to the web created by this panoply of decisions, it is sometimes frankly hard to tell what is the Court’s ruling and what is merely dictum. Literatures have appeared to parse these questions. The Justices dispute not only application and scope of law — they do this throughout the Roe line, as they do in other areas of jurisprudence — but also, year after year and sometimes twice in one year, what the law is; what the Fourteenth Amendment says or might say about privacy and liberty and abortion; how abortion is or isn’t different from possibly analogous life matters such as contraception and marriage; whether abortion rises to the level of constitutional guarantee; how the State’s interests in protecting fetal life may or may not permissibly be weighed against it; whether fetal life is life or potential life; whether the abortion protection afforded by Roe requires certain ancillary protections and how far those extend; the nature of precedent; the definition of stare decisis; the difference between principle and predilection; the tools of jurisprudence; the priority, order of precedent, power, and weight of those tools; and whether the other Justices over there are even reading the text of their own opinions. Nothing about the Roe line of cases reads as settled. There was no time when the storm calmed.
Third, it would be inaccurate to say that the storm never calmed because Rightwing Conservative Justices, acting alone or in concert and certainly without principle or shame, declined to accept clearly settled precedent. We have seen already that the same judicial reasoning that antagonized Scalia so much that he called his colleagues liars led Blackmun to do the same. Neither Justice O’Connor nor Justice Kennedy was a liberal. It is true that they voted with the liberal wing of the court in some high profile cases, but so did the rest of them, including, in some famous criminal cases, Scalia. Upon examination, the outer shell of the abortion line of cases remained intact, but its internal mechanisms did not. Access to abortion was constitutionally protected from 1973 until 2022. Underneath the hood, the nature of that protection shifted seismically. This follows, of course, the pattern of change from Roe to Casey, in which the Court’s triumvirate insisted that there was no material change even while authoring major revision. This continued in the years following Casey, even though the volume of abortion litigation that reached the Supreme Court slowed. In Stenberg v. Carhart (2000), the most signal abortion case after Casey, which addressed partial birth procedures, there are eight opinions across nine Justices. According to my research, that includes somewhere between four and seven times the average number of separate written opinions in Supreme Court merits cases over the past decades of the modern era, when separate written opinions began to proliferate. The substance of the case was decided 5-4: Nebraska was not permitted to prohibit partial birth abortions unless an exception was made for the health of the mother. Seven years later, in Gonzales v. Carhart (the abortion doctor LeRoy Carhart appeared as a named party in both cases), the Supreme Court more or less reversed itself and permitted a federal ban of partial birth abortions to stand even though the statute lacked an exception for the mother’s health. The decision was, again, 5-4. This is not what comfortably settled case law looks like.
Fourth, this helps explain why the Court’s advocates for abortion rights have pounded the table so damn hard on stare decisis. It was simultaneously their strongest suit and their Achilles heel. Every year that passed after each of Roe and Casey, pro-choice advocates could say that protection for abortion access was, by and large, the law of the land. But the wire by which stare decisis hung has been, for decades, frayed. Back in the time of Webster and Casey, it seems just about all the Justices knew it. Now it seems to come as some kind of surprise.
Fifth, throughout the jurisprudence, no Justice, no opinion, ever cast doubt on the proposition that a State had an important interest in protecting unborn life. (I can find the feeling of such a doubt in at least one opinion of Justice Stevens, who, at least and perhaps just that once, expressed skepticism that it was possible to locate any such interest in a source other than religion, but I do not think even he was close to explicit, and elsewhere, in Casey, for example, he recognizes that it comes from “humanitarian and pragmatic concerns.”) Recognizing this state interest is not new. It is not a recent innovation. It was never a subject of major debate. The pro-choice decisions hinged on whether a State could decide that its interest in protecting unborn life was so great that it overwhelmed the important interests — also never disputed — of a woman’s rights to determine the course of her own life.
The Supreme Court granted cert in fewer abortion cases in the years that followed Casey. The pace of high court disputation slowed. But its ferocity did not. The pair of Carhart cases, about partial birth abortion, and an adjacent speech case, Hill v. Colorado, in which the dissenters fulminated about restricting abortion protestors from coming within eight feet of another person near an abortion facility, showed as much. But the fact that the Supreme Court did not grant cert in many more cases in the intervening years until Dobbs is probably the best argument in favor of the proposition that the Court really started to treat Roe — or, probably more accurately, Casey — as finally settled law.
I can not reach that conclusion. The trench warfare continued unabated, even if with less frequency. In the second Carhart, the Court upheld a significant restriction on abortion of nearly the same type it had prohibited just a few years earlier, and it paid no great compliment to precedent even while indicating that its judgment was consistent with it. In Whole Woman's Health v. Hellerstedt (2016), the Supreme Court considered a Texas statute which put up a number of practical obstacles to women seeking abortions. Ruling 5-3 (Justice Scalia’s death had reduced the Court’s number), they struck down the restrictions as constituting an “undue burden” that violated the Casey test. The dissent accused the majority of pulling a Casey. They were moving the goal posts on what constituted an “undue burden” and were, in effect, replacing it with a burden-vs.-benefit test. This was the same type of move that the Casey plurality had made when it purported to affirm Roe: there, too, the Court’s speaking Justices had claimed they were upholding precedent while, in fact, modifying it. More recently, in 2021, the Supreme Court heard a more technical jurisprudential case called Whole Woman’s Health v. Jackson, which weighed what is called a “private right of action.” The State of Texas, basically seeking to limit abortions however it might lawfully do so, equipped private citizens with new powers to sue abortion providers who violated a highly restrictive statute. This was a methodological workaround, as it prohibited state officials from enforcing the law but empowered private citizens to do so in civil actions. The question taken up by the United States Supreme Court was whether abortion providers could sue to enjoin state officials to prevent the lawsuits against them from proceeding. The Court decided against the abortion providers on this point. However, the Court did allow the abortion providers to sue some state licensing officials in particular. This split decision was impassioned, with the usual myriad opinions, partial dissents, and partial concurrences, that has come to mark this field of Supreme Court law, even though the substance was the technology of litigation, not the underlying matters of abortion access. The case was, finally, about abortion access, and this was enough for the Court to be deeply divided.
Meanwhile, in the lower courts, as among the American people, the storm never abated. State after state sought to restrict abortion access in practical ways that made it difficult for clinics to stay open and for abortion-seekers to secure appointments and procedures. States also sought to prohibit abortions on novel and sometimes controversial medical theories. For example, one theory held that, after so many weeks, a fetus could feel pain, so roughly ten states passed laws forbidding abortions that caused such pain. Some states also sought to limit abortions by amplifying the meaning of informed consent, which had been explicitly upheld, in concept, by the Supreme Court. Perhaps the most important example was the ultrasound requirement, which mandated that a woman seeking abortion listen to the heartbeat of her child before confirming her assent that the fetus be aborted. Another version required that the woman look at an image of the fetus before confirmation. The Supreme Court typically denied cert in these cases, letting the judgments of the courts stand. Most of the lower court judgments concluded that the provisions were unconstitutional. But not all of them. In 2019, the Supreme Court’s denial of cert to an appeal by EMW Women’s Surgical Center in Louisville, the last remaining abortion clinic in Kentucky, allowed the state’s ultrasound requirement to stand.
Finally, after all this Sturm und Drang, in the October Term of 2021, the United States Supreme Court took up the matter of Dobbs v. Jackson Women’s Health Organization.
The State of Mississippi enacted into law, in the year 2018, a statute that prohibited abortion after the first fifteen weeks of pregnancy in nearly all cases. Mississippi, which has not only an official flower (the magnolia), and tree (the southern magnolia), but also beverage (milk) and an official state toy (the Teddy Bear), had, at the time, only one clinic that provided abortion services. This clinic, called Jackson Women’s Health Organization, sued the state health officer, Tom Dobbs, to enjoin enforcement. In the lower courts, they succeeded.
Mississippi, doubtless aware of the ideological shift on the Supreme Court signaled by the succession of Justice Ruth Bader Ginsburg by Justice Amy Coney Barrett in October 2020, pressed the case. The Court granted cert. The results are now widely known.
The headline ruling was 6-3, and it was an explicit total overturning, root and branch, of Roe and Casey. Chief Justice Roberts concurred only in the judgment, for reasons we shall shortly elucidate. But even without his vote, even without his signing up to the majority’s rationale, the overturning was and would have been a decisive — if not overwhelming — five votes to four. Justice Alito wrote for the Court, and Justices Thomas, Gorsuch, Kavanaugh, and Barrett signed on to his controlling opinion. The dissent was notably unified: Justices Breyer, Kagan, and Sotomayor signed their opinion together.
We begin nearly at the end, with the Chief.
Chief Justice John Roberts, the Court’s Seventeeth, was confirmed by the Senate in September 2005, the first of President George W. Bush’s two Supreme Court appointments while in office (the other was Alito). During and after his appointment, he was the subject of much kremlinology in my circles. I can recall acquaintances who served as Supreme Court clerks commenting on his character and personality. “He has no interiority,” a very sober and insightful clerk told me years ago at a wedding we were both attending. A professor of constitutional law — a giant in the field — noted in a lecture that Chief Justice Roberts’s only actual philosophy appeared to be a desire to achieve maximal unity in Court decisions by finding the narrowest possible grounds on which to rule. He coined the phrase “Minimum Viable Decision” to describe the judicial approach Roberts appeared to take.
Roberts, more than perhaps any Justice appointed since my consciousness on such matters began, elicited the great interest of the smart people who were worried about the direction of the country. It was President George W. Bush’s overt religiosity that worried them, I think. You may or may not remember that one of President Bush’s more visible and important decisions was announced, on public television, from the White House, on August 9, 2001, in which he explained his direct decision to limit the use of stem cells in federally funded research. His Solomonic determination was that embryonic stem cells already available could continue to be used but that he would not permit research done with freshly harvested cells. Speaking directly into the camera, he explained his conclusion as a compromise that acknowledged the great scientific value that could be derived from such research as well as the deeply held traditional beliefs that persuaded him to prevent what he perceived to be additional destruction of potential life. I can recall my father looking at the television with his directorial eye, commenting aloud in wonderment that “this guy thinks he got the answer straight from G-d.” The reaction was the same from many quarters. Many people, in short, thought Bush was a religious fanatic. It is probably very easy to forget that this was the absolutely most important public act and profile George W. Bush had before 9/11. The War on Terror, including the war in Iraq, came to define his presidency more than anything else. But only five weeks before the hijackings, he was, most of all, the first genuinely Christian revivalist evangelical president ever.
This strongly held view of President Bush rubbed off on the Roberts nomination. Due to the Transitive Property of Politics, Bush’s rapture was transferred onto Roberts’s neutral mien. Every word Roberts wrote or spoke and every attitude he struck was examined for evidence that he, too, was a religious lunatic. His Catholic church-going was a matter of close reading, as was his marriage to a pro-life wife. What do these tea leaves tell us, many of my friends wondered. The Bush presidency — the culmination of an evangelical movement within conservatism that remains, to this day, its national apex — felt to many like a dark turn away from the enlightenment’s dispassionate reason and toward the injudicious star-gazing of a distant biblical desert epoch. Educated people had, by and large, come to assume that the age of G-d was over and that science was the paradigm by which important national decisions would be made. The arrival of George W. Bush — whose presidency itself hung by a handful of chads — was a shock to the system. Chief Justice Roberts was the harbinger of a re-religious doom.
Now, in the cold light of Dobbs, not to mention the sundry other decisions the Chief has written or signed over the past eighteen years, I am reminded of a billboard that some saucy citizen hung over a highway in the heartland some time after 2008. A giant photograph of President George W. Bush presided over the caption that read, simply, “Miss Me Yet?”
How mild, how moderate, how achingly, heartbreakingly reasonable Chief Justice Roberts and President Bush must seem now! As a noted legal academic quipped recently, “President Trump is the best thing that ever happened to George W. Bush.” As Trump to Bush, so must the clutch of later conservative appointments be to Roberts. One can almost hear the hue and cry: “A Roberts! A Roberts! My Kingdom for a Roberts!”
Chief Justice Roberts’s concurrence in Dobbs is on brand. We recall that, in Webster, three years before the major revision in Casey, Justice O’Connor sought the judicially minimalist move in her own concurring opinion. She did not agree with Chief Justice Rehnquist’s view in that case that Roe’s trimester-viability framework should be discarded. She opined that such a far-reaching jurisprudential conclusion was unnecessary and that Roe’s basic schema should remain unimpaired. In Dobbs, Roberts picks up this thread nearly exactly. He emphasizes, quite simply, that the Court granted certiorari (review) on “one question: ‘Whether all pre-viability prohibitions on elective abortions are unconstitutional.’” After the Supreme Court granted cert on that question, Mississippi tacked and submitted its briefing on the broad question of whether Roe and Casey should be overruled. But the grant of cert was on the much narrower question, and the Chief insisted that this be the basis — and extent — of the Court’s decision. Since the Court correctly concluded that the Mississippi statute afforded ample opportunity for elective abortion; since the straight viability test made no sense; and since even the State of Mississippi had not argued that the law could be upheld without overturning Roe, the Court should simply uphold the law and decide that no, not all pre-viability prohibitions on elective abortions are unconstitutional.
For Chief Justice Roberts, judicial restraint is far more of a religion than it was for Justice O’Connor. The precept of Minimum Viable Decision has come up repeatedly over the years, and he articulates it as a virtual requirement in his concurrence in Dobbs. He would uphold the Mississippi statute, he writes, . . .
[Roberts] . . . [b]ut that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them.
The viability rule should be discarded; the skein of stare decisis should continue to obtain insofar as Roe and Casey provide constitutional protections, in principle, for abortion access; and the extent of those protections should be subject to further judicial review, over time, without the unwieldy and unwise yardstick of viability. The Court does not need to do more, and therefore the Court need not do more. He cited Justice Frankfurter, one of the more widely politically unassailable past jurists (a liberal, a founder of the ACLU, and yet judicially conservative) for the proposition that the Supreme Court should do as little as possible when faced with a thicket as complicated as the one now before them:
[Roberts] Both the Court’s opinion and the dissent display a relentless freedom from doubt on the legal issue that I cannot share. I am not sure, for example, that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks. A thoughtful Member of this Court once counseled that the difficulty of a question “admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”
It was only after reading the Chief’s concurrence that I better understood why Justice Alito’s opinion for the Court was so emphatic on the question presented by the case. The Supreme Court — for better or worse — can use nearly any case to make nearly any decision it wants at just about any time it chooses. The Supreme Court could rule, in a case about forest management, that Georgia voting districts have been improperly drawn. But it does not do this, ever. The fact that it doesn’t go beyond the bounds of the parties’ pleadings is a testament to the American way. Our common law system observes, in its background, profound traditions that are at least as powerful as the written words of the Constitution. One of these is judicial restraint. In a parallel universe — or in many real countries throughout the world — the highest court in the land could rule on unexpected topics whenever it felt like doing so. This would be a kind of judicial tyranny. Judicial restraint — which really means judicial self-restraint — is a bedrock assumption of our daily lives, and the only occasional debate is exactly how far it goes. Our current Chief Justice is one of those advocates for the higher caliber kind.
Justice Alito, writing for the Court and for Justices Thomas, Gorsuch, Kavanaugh, and Barrett, goes out of his way to explain that the Question Presented to the Court was whether Roe and Casey should stand. This did not make exact sense to me when I first read it, especially since it comes, as it does, near the start of the opinion. Notice how he frames it:
[Alito] In defending this law, the State’s primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. On the other side, respondents and the Solicitor General ask us to reaffirm Roe and Casey, and they contend that the Mississippi law cannot stand if we do so. Allowing Mississippi to prohibit abortions after 15 weeks of pregnancy, they argue, “would be no different than overruling Casey and Roe entirely.” They contend that “no half-measures” are available and that we must either reaffirm or overrule Roe and Casey.
Alito says it twice. A couple of pages later, he repeats the formulation, almost verbatim. With the same citations. (I have included the citations this time to be clear.)
[Alito] Respondents answer that allowing Mississippi to ban pre-viability abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They tell us that “no half-measures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.
I was struck by this when I first read the Court’s opinion. Why would Justice Alito go about emphasizing this point so strenuously? What charge is he preemptively answering? It felt like he was shadow-boxing.
The penny fell when I read the Chief’s accusation that the Court had reached beyond its initial grant of cert. Instead of ruling that this particular Mississippi statute was constitutional, the Court decided to invalidate Roe and Casey altogether. Alito seems to have taken this counter-argument seriously enough that he felt compelled to credit the briefing of the parties for the scope of the Court’s opinion. It could only be thus, he seems to say: we had to reach the broader conclusion, because the parties would allow no “half-measures.”
And the Court did not. The majority decided that Roe and Casey were overruled; that exactly none of those cases’ legacy jurisprudence remained in force; that they were “egregiously wrong” from the jump; that stare decisis is an important legal principle but not an “inexorable command”; that stare decisis can not be seen to have fully materialized in the abortion cases, anyway, because of the “parodoxical” overruling in Casey by a plurality that simultaneously mouthed the words “stare decisis” in order to lay claim to a continuing jurisprudence while vitiating much of it; that the doctrine of stare decisis was therefore not powerful enough, whether as applied or in absolute terms, to save Roe and Casey; that the Fourteenth Amendment’s Due Process Clause provides essential protection only for those rights that are either explicitly enumerated in the Constitution’s first Eight Amendments or that are “deeply rooted in the Nation’s history and tradition” and essential for ordered liberty; that the first test for whether asserted rights fall into the second category is whether they were considered deeply rooted in approximately 1866-1868, when the Fourteenth Amendment was passed and then ratified; that the putative right to access abortion clearly fails this test, as the great majority of statutes, ordinances, customs, and other forms of Anglo-American and American law that predate the United States, the Fourteenth Amendment, and even all the way up to time of the decision in Roe, severely limited or criminalized abortion in most fact patterns; that, on this basis, at least, Roe was incorrectly decided; that Roe and Casey were, further, ineptly decided because, inter alia, they provided no clear or workable guidance as to what, for example, posed an “undue burden” on abortion access; that the legal and political question of abortion remained thoroughly unsettled in the United States, despite the assertion that Roe and Casey had successfully settled the law; that abortion access was intrinsically a political question that belonged in the hands of voters; that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history”; that “rational basis” review — the Court’s lowest form of review for regular statutes, the one by which nearly any statute is upheld when nearly any intelligible reason is put forward by the enacting state — would now be the standard for judges to consider the constitutionality of restrictions on abortion; and that, just in case you weren’t clear, Roe and Casey are completely and totally overruled.
Our main answer to the question “What manner of thing is the Dobbs decision” should now be apparent: it is, most of all, backward-looking. Those who admire it should do so on that basis. Those who don’t should likewise understand that to discredit Dobbs is to discredit — or it is necessary to discredit — its principal mechanism of ratiocination. The Dobbs Court looks to the distant past for its answers. Most simply, this is Originalism: the Constitution does not change unless it is changed by Amendment. The best argument for this principle of constitutional interpretation is that the past changes much less than the present, the past is far more known and knowable than the future, and “back then” is far easier to agree on (though imperfectly so) than either “now” or “what’s to come.” In cases presenting novel fact or questions of law, judges can far more reliably comprehend, by looking at the past, what their conclusions ought to be. It may strike you, as much as it strikes me, how much this sounds like stare decisis: the predictability of the past is exactly what makes it so useful — and therefore so important — as a legal guide today. But Originalism’s understanding of itself is that it trumps other principles, even ones that look like it. When it comes to the Fourteenth Amendment, if the Constitution’s Bill of Rights makes no mention of an asserted right, then a court can look no further than America’s deep history. If the asserted right does not appear in its deep history, then the inquiry ends, and the putative right is no right at all.
Only a willfully blind person could not entertain the possible shortcomings of such a backward-looking ethos. Surely the past was not as enlightened as the present. Surely the leaders of the Nation behaved in ways we would never countenance today. Surely they reached poor conclusions, some awful conclusions, that would not survive intelligent examination in the 21st century. Surely they were burdened by their lack of understanding, by their scientific myopia, by the baggage of their time. For crying out loud! Women could not vote in the United States until 1920. How, on earth, can the Supreme Court’s jurisprudence on an essentially and intimately female matter such as abortion not consider that America continued to evolve in fundamental ways in the decades that followed the ratification of the Fourteenth Amendment? Isn’t it proper and necessary and just for the Supreme Court to incorporate its knowledge of manifestly obvious developments such as the rise of women’s rights and the recognition of a private sphere of personal intimacy that is essential to the realization of ordered liberty? Shouldn’t such incorporation heavily influence the Court’s decision-making?
This is the dissent in Dobbs, and it had been the animating spirit of the Roe and Casey Courts. This is what they have to say and how they say it. We live here, too, the wise Justices explain, and the world and the country have changed in ways that would make them correctly unrecognizable to a voter in 1868. Our ways evolve, and so do our rights. Failure to understand this is a failure of judgment.
But it is important, now that we are here, even as we are exactly here, to realize what the dissent in Dobbs does not say. Justices Breyer, Kagan, and Sotomayor barely address deep history. They do, just a little, enough to mock the Court for its citation of 13th century authorities, but their disagreement as to points of history is mostly hand-waving. Barely disguised hand-waving at that, because the dissent does not think deep history should be an essential guide to today’s adjudication. More recent history — that of Roe and of Casey, and that of women’s suffrage and women’s liberation — is more important. The Constitution is a living document that must be interpreted in light of what has been happening for decades in the lives of women all around the United States. The Dobbs dissent does not argue deep history because it must realize that it must lose that debate. It does not wish even to enter it.
The Court, for its part, calls the minority to the carpet on exactly this point. Our chosen yardstick is history, says the Court, and the dissent declines to take that inquiry seriously.
[Alito] The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “ ‘deeply rooted in this Nation’s history and tradition’ ” before it can be recognized as a component of the “liberty” protected in the Due Process Clause. But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.
The Court goes further. American history even after 1868 continues to persuade them that the asserted rights to abortion access remained outside the scope of a national tradition that would be cognizable under the Fourteenth Amendment right up until Roe in 1973 and, even, till today.
[Alito] As explained, for more than a century after 1868 — including “another half-century” after women gained the constitutional right to vote in 1920 — it was firmly established that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regulatory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.
Even where the dissent feels it is standing on its strongest ground, Justice Alito writes for the Court, its feet are planted in quicksand. There can not be found, anywhere, a nationally agreed-upon recognition of a constitutional right to abortion access. The Supreme Court’s own precedent provided, for some time, the impression of a consensus. But that precedent was itself rooted in nothing more than the opinions of the Supreme Court’s accidental majority in 1973. The Supreme Court must not conjure or recognize rights from thin air. Because it did so in Roe, it failed to do its job. The Court therefore undoes what should never have been done.
And that is the way of the Dobbs Court, the manner in which the Alito majority speaks and how it communicates what it decides. A great bulk of the Court’s controlling opinion is a meticulous history of more than half a millennium of abortion law, more or less all of which contained restrictions, limitations, prohibitions, and criminalizations of the procedure. A second solid bulk of the opinion is a piecemeal removal of every element of the scaffolding that favored the remaining thread of stare decisis in the Roe cases. The tone of the decision is calm. We get none of Scalia’s old spleen and expletive here. The opinion contains not a single exclamation point.
And that is how the Court means in this case. The Dobbs opinion has the quiet sound of adults taking away the toys. It is the self-assured and dispassionate explanation of a majority so confident in its authority that it need not bother with resplendence. This experiment in constitutional interpretation and in judicial lawmaking went on long enough; you tried it out and did your best to make it work, but it did not work, and the grown-ups are back now to tell you that the game is over. There is no reproval, no upbraiding, no expression of victory. The temper and resonance are far more relaxed and successful.
Nor is the opinion religious. Court watchers will continue, forever, to point out and pore over the church attendance and Christian affiliations of this majority. They are a religious bunch. Probably all of them are more religious than all but one of the seven justices who voted as a majority in Roe. In my own personal observation, which at least some of my readers will share, one of the Justices in the Dobbs majority evinces the kind of persistent blank stare that might fairly be associated, sometimes, with unconsidered religious conviction. But all of this is armchair theorizing. It may be interesting, and it may be fun, but it is not really useful, fair, or germane.
The Dobbs opinion is not theological. It is void of any overt or covert religious language or reasoning. The singular reference to religion is both a stray mention of a historical question about old statutes and, if anything, a tacit acknowledgment that a discriminatory religious rationale for a statute would not necessarily be supportable. The Court specifically lists the legitimate State interests that are the basis of its upholding the instant Mississippi law: “respect for and preservation of prenatal life at all stages of development . . . ; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.” Even the potentially most controversial of these — whether there is such a thing as “life” before birth, is noted only as one of multiple State interests and only as a phenomenon that a State may elect to recognize, for any reason. The Court does not say the life or putative life of an unborn child is of paramount importance relative to that of the mother. The opinion does not say or suggest that abortion access can not be protected by States. The Court says, instead, that the authority to regulate or prohibit abortion is returned “to the people and their elected representatives.”
Justice Thomas, in his concurrence, does sound a religious note. He continues his long-term campaign against the concept of “substantive due process,” which he loves to describe as an “oxymoron.” To summarize his philosophy ever so briefly, he has urged the Court to reconsider its practice of ever having protected nearly any unenumerated rights through its jurisprudence. The Constitution guarantees process when state actors limit unenumerated asserted freedoms. The Constitution does not protect the asserted freedoms themselves. He writes in his concurrence that the reviled decision in Dred Scott v. Sandford (1857), which upheld slavery and was one of the final stops along the road to the Civil War, “invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.” This claim is at least colorably ahistorical, but it is defensible. There is some received wisdom in legal circles that the doctrine of substantive due process first appeared in Dred Scott. At issue was whether a man who had been legally a slave in Missouri had been freed automatically when he arrived in Illinois, where slavery was prohibited. The theory of the case was that no measure, including Congress’ Missouri Compromise of 1820, could recognize a black man as a citizen of the United States. In his Dobbs concurrence, Justice Thomas laments Dred Scott as an improper overreaching of constitutional authority that led to the Civil War and to “immeasurable human suffering.” His opinion on this particular begs the obvious question whether the Civil War would have or could have been avoided had slavery been allowed to continue under the operating commands of the Missouri Compromise. But the chief point here is not really about that but instead about the analogy Thomas leverages his reading of Dred Scott to make. He says that Roe v. Wade likewise led to “immeasurable” harm because “more than 63 million abortions have been performed.” He doesn’t quite say that these have all been performed after Roe or that they were all performed in states that had sought to limit abortion before Roe, but either or both are implied, and the basic fact is he laments abortions as “immeasurable harm” comparable to the Civil War, comparable to the slavery that the War ended, and comparable to the human suffering catalyzed by both. He doesn’t quite finish his paragraph with “in nomine patris,” but only an imbecile would miss or deny the feeling. He does not qualify his dirge in any way. He shows his hand, and it is a Christian one.
However, even he — even Justice Thomas, even as he reveals his personal feelings about abortion in his concurrence — does not hint at all or in any degree that States are anything but free to protect abortion access even as they are to restrict it.
Nor is Dobbs plain old misogyny. Access to abortion affects women more than it does men. We can perhaps talk our way around this conclusion (rights of fathers, rights of putative fathers, rights of men who have been misled by women), but I don’t think there is any way to escape it, and, broadly speaking, I don’t see why we should try. But to reach to the corollary conclusion that Dobbs is misogynistic, you’d have to reach some other intermediate conclusions that just don’t hold up. For example, you’d probably have to conclude that women in America are a monolithic or nearly monolithic block on the topic of abortion access. They are not. Of course they are not. They have not been since polling has become available. Top national survey organizations like Gallup and Pew consistently show that opinions on abortion access have remained relatively stable over the past many decades. This is true for nearly all demographic subsets, including women and men. Women have tended to support abortion rights about five to ten percent more often than men over many years. A recent spike, most likely in the wake of the Dobbs leaked opinion earlier this year, seems to have broadened support for abortion rights among both women and men by about five percent. But a distinct minority of Americans — both men and women — support the legality of abortion in all cases. Opinions about abortion remain nuanced for most people in our country. The earlier in a pregnancy, the more people support absolute choice. The later in a pregnancy, the smaller the number support it. I don’t see how Dobbs can be considered misogynistic in light of these perennial numbers. It can be argued that any permission of any restriction of a fundamental right on one group or another, or any permitted burden on one group or another, could or should be deemed impermissibly discriminatory against that group and therefore an expression of a hatred towards that group. But this is hard-pressed. Counter-examples and “whatabout” examples abound. And even if we acknowledge that there is a hugely differential impact on one group or another (here, women, as we should), it requires another argument entirely to level the accusation of women-hatred and to make it stick.
By contrast, it could well be more justified to claim that states that severely limit access to abortion might be engaging in discrimination that could, in some analysis, at least appear to be misogynistic. (There are a lot of qualifiers in that sentence, I know. Here’s why.) Unlike the Supreme Court, those states are enacting severe restrictions. Unlike the Supreme Court, they are not saying that abortion access can also be quite broad. But women in the states that pass these statutes are provably far more supportive of such restrictions than women in other parts of the United States. It is very possible that their opinions will shift — and that the opinions of their daughters, and of their sons, will shift — and that, soon enough, the people of those States, animated perhaps by experiencing and witnessing the results of the severe restrictions on abortion that their states have ratified, will demand changes to those laws and that those laws will reflect more moderated or liberal attitudes towards abortion access. It is also possible that their elected representatives have already misstepped. Very likely, few voters were really paying attention while various “trigger laws” were passed over recent years. Voters rarely have incentive to pay attention until they are presented with appealing or unappealing facts. Not theories, facts. Elected officials who voted for or signed such laws would have had the double political benefit of winning support from impassioned pro-life constituents while not really attracting the ire of more moderate or pro-choice voters because, well, the statutes did not yet matter in those states because they had not yet taken effect or would simply be estopped by federal courts. But now they do! Voters in those states are wide awake, and they should be. Some will be delighted by the Dobbs ruling. Others will be furious. Others still will be somewhere in between. Next, they will undoubtedly look at their home states’ rules, and they will begin to debate, agitate, and organize around defending or overturning the newly operative statutes that govern abortion access. The issue of choice, which has for a long time been a dormant political topic of mostly hypothetical interest in nearly every campaign in America, will become a central matter of exceptional concern for voters in important marginal races for state assembly seats across the country. You can expect to see more money spent, more get out the vote efforts, more funds raised, more first-timer candidates, and more organizations joining campaigns in previously quiet districts. You can also expect to see new incendiary battles over districting, as the citizens of states realize that the shapes of their voting jurisdictions will impact how their states govern abortion. All of this is coming down the pike, and fast. If women — or men — perceive misogyny in the knock-on effects of Dobbs, we shall soon know about it.
And that the best reason to be hopeful. This is the gift of Dobbs. Depending on where you sit, it is the silver lining surprise or the explicit legacy of the decision. For such a long time, we have relied more and more on the Supreme Court to adjudicate questions of intensely important policy. We have asked the Supreme Court to approve our value preferences. We have petitioned the Supreme Court to enshroud our political preferences in constitutional armor. Ask, and ye shall receive. This strategy has worked out very well for decades. The Supreme Court has often obliged. For those of us who grew up on the left, the strategy was especially excellent. We were able to overcome perceived (often very erroneously perceived) thuggery and ignorance by right-wing local governments to liberate their citizens not only from the burdens of the political process but also from substantively unappealing outcomes.
Winning in the courts had unexpected effects. The nature and scope of the political debate in the United States, and in its various parts, narrowed. The courts cut off certain avenues of discussion, so the playing field became smaller. Candidates started to look more and more alike, even as they strained to differentiate themselves. On some level, this is the welcome and the explicit goal of constitutionalism: some things should be off-limits to debate, because the consensus is so very strong on those topics that the outer bounds have been promoted into permanent or semi-permanent guardrails. But adding to the taboo list year after year, by Court fiat, changes the ground rules at a faster pace than one we might ultimately like, through a mechanism that we can ultimately trust less than we would prefer.
Over time, the net result is that the big topics of national debate get funneled into a handful of federal elections. The presidential election, to be sure, because the president gets to nominate the Supreme Court justices and lower court judges, but also the marginal Senate races, where the seat is actually up for grabs, because the Senate gets to approve those nominations. A corollary outcome is that these sensational issues take on perhaps additional significance — beyond what they otherwise would and perhaps beyond what they “should” if we were designing the system from the ground-up — in national elections, because these elections are the only places in which voters can express those particular preferences with any hope for actual effect.
Not only this, but when the courts do the job for us, we understandably disengage. Everyone knows that American voters don’t show up to the polls in exciting numbers. Voter turnout has generally been low for a long time. If we compare the American voter turnout among eligible voters from the 19th century to the 20th, we pretty much see a decline of 20% to 25% in both presidential and midterm elections, from the mid-to-high-70%s to the mid-to-high-50%s in presidential elections and from the mid-60%s to about 40% in midterms. You can’t lay all of this at the feet of reliance on courts to do our work for us. But some measure of it, surely. I bet we will see a rise in voter turnout if and as the Supreme Court continues to rule as it did in Dobbs. When the courts did the heavy lifting of putting to bed the debate on many of our most important questions, many voters would have been, understandably, turned off. On many topics of the broadest social significance, litigation firms demanding change in courtrooms took over the roles previously played by self-organizing citizens demanding change through the ballot box. The worst part was that narrowly motivated organizations — we usually call them special interest groups — usually seeking rents or other financial gain, did not stop showing up to vote, to turn out the vote, or to fund campaigns. As other Americans declined to vote, these special interest groups were given proportionately more room to maneuver and succeed in elections up and down the ballot.
If you grew up on the left, as I did, all of this was more or less okay until the conservative parts of the United States got their act together. They started winning more elections. They initiated sustained campaigns from grass roots on up to appoint judges and approve nominations; to seek rulings that would provide exceptions to the liberal Supreme Court decisions; to enact laws that would provide more; to develop, slowly at first and later, quickly, theories of constitutional interpretation that could yield different judicial outcomes; and then, finally, to overturn them.
The right was using nearly the same playbook devised by the left. (Yes, there were differences. Yes, in the middle of the 20th century, somewhat more Republican judicial appointees voted liberally than Democratic appointees voted conservatively. But so far I have found no real evidence that changes the clear conclusion.) Suddenly, for those of us raised on the left, the selfsame moves were outrageous abuses of power. Not only that, but they were part of some dark conspiratorial machination. You are familiar with the accusations. The rhetoric was in direct proportion to the sense of helplessness. The right was here to re-enslave. Their evil intrigue was white supremacist in origin, misogynist in effect, racist in intent, fanatical in design, rabid in style, and abusive in authority. History, the left proclaimed and later yelled, could bend only our way, the correct way, and any other way was wicked this way come.
Except it wasn’t. Not here, not in Dobbs. The Dobbs Court did not do what one might have feared. The majority did not make abortion illegal or severely restricted everywhere in the United States. It did not use its enormous judicial power to limit access to abortion after so many weeks or so many heartbeats or so many detectable brainwaves. It overturned Roe and Casey; it did not invert them. It did not assert a fetus’s right to life. It did not pretend, seek, or aim to do any of those things. Not even close. In Dobbs, the conservative Court has taken the decision that the liberal Court would not have: to limit its own power and to ensure — and require — that the voters decide this terrible issue for themselves.
This, finally, is right.
Then there is Justice Kavanaugh. In an odd concurring opinion, Kavanaugh reveals his little dictulum. Apparently campaigning for some imaginary office that has not been created and which he will never hold, like the Lord of Lords in Judiciary or the Chairmanship of the Office of Great Esteem He Shall Never Ever Receive, never mind the Chief Justiceship, which is an office he shall also never hold, Justice Kavanaugh adds a concurrence that has surely got to be the most needless, substance-free expression of political hackery any poor Supreme Court clerk has ever been forced to pen. Kavanaugh recites what the Supreme Court has already said but which he feels some need to say again, less well. Abortion is a difficult issue that is personal and important to many. Americans have different opinions on it. Kavanaugh emphasizes several times in short space, as if in a Senate hearing that is not going well, that the Constitution is “neutral” on the topic of abortion, neither pro-life nor pro-choice. Roe was wrongly decided. The Dobbs decision does not prohibit abortion. “To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.” The Court is the incorrect venue to debate and decide these weighty matters. “The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.” Stare decisis is important. Here it fails to sustain Roe and Casey because they were wrongly decided and because they visited unworkable impracticalities upon the political and judicial landscape. He has a cloying affection for the Justices of the past, especially those like Justice Kennedy, for whom he clerked. “I have deep and unyielding respect for the Justices who wrote the Casey plurality opinion.” Yeah, he actually wrote that line in his Supreme Court merits concurrence. But we can now confirm that Casey (on which he had worked as a clerk in a lower court) was wrongly decided. The decision in Dobbs today does not affect or imply any future effect on contraception or marriage cases. Let me say it again: the Constitution is neutral on abortion. Thus endeth the reading.
I looked hard, but I could find no element in Kavanaugh’s short but still too-long opinion, apart from cutesy wheedling, that made it stand out or additive in any particular. Reading his concurrence really does give one the impression that he is continuing to seek a personal respect and approval from the United States Senate or the American public or the legal academy that he will probably simply never get. Certainly this entirely unnecessary and hapless opinion will not help him. What a little dictum.
A few weeks ago, I had the chance to sit in the backyard of one of my heroes. She is, without naming her, a famous and senior legal mind, still active in the field. At one point in our long and discursive conversation, she paused and then reflected on her life’s work. “Michael, I have been teaching Constitutional Law my whole life,” she reported, quietly. “Now I am not sure there is anything there to teach. Maybe I should teach history instead.” “Why so?” I asked, figuring I could guess at the answer but that it was both more polite and more useful just to inquire. “I used to think there was law. Law that was coherent and consistent over time. Now I am not so sure.” “Was it ever true?” I asked. She paused again, looked first at her hands and then at the table between us for a long minute, and then up at me. “Well,” she sighed, “there was the ambition.”
It was a blow to hear her conclude that the dream of a coherent American jurisprudence was dead. She is an impeccably serious and brilliant person and scholar. Her opinion weighed heavily on me. It was this encounter with her that prompted me to read Dobbs and then to re-read the abortion cases since Roe so as to earn the right to an opinion of my own. It then became necessary to write down my understanding in order to organize my views. After some weeks of research and writing, I have come to agree with her. Dobbs, not by itself but loudly, signals a change. The political winds have blown, and we can no longer maintain the expectation that the body of law that accumulated for the past hundred years will continue to move, inexorably, in one direction. But the Dobbs decision is both internally coherent and externally directionally clear in a way that Roe and Casey were not. And in this, I disagree with my hero and her opinion. The ambition for a consistent American constitutional law is right on. I would go further and say that, in the wake of Dobbs, it is back on. The decision in this case represents a reset, a restoration, a revival. But, finally, Dobbs will serve us and our jurisprudence longer and better than what it replaced.
Dobbs holds the state has a legitimate interest in “fetal life,” the “unborn,” which the constitution somehow cannot interfere with but yet the constitution also places no negative limitation on the state’s right to legislate a woman’s body in the service of this so called interest.
So women’s bodies can now (well they were already let’s be clear but Roe provided at least some framework of protection though in my view it did not go far enough and did not crystallize the issue or the stakes properly in constitutional terms) be subject to all manner of ignorant, cruel, and crude legislation in the service of this so called interest. If that’s the price of reinvigorating politics sorry but it is not acceptable. I can think of lots of conceivable state interests in regulating the body that the Supreme Court has or would find some negative limit for in the constitution (even if the debate is not framed as one about the body). The ramifications of finding zero protection in the constitution for the bodies of women is a pretty profound form of erasure and I don’t even know if I can continue being a lawyer after this. I practically do not exist.
Michael, thank you for this body of work and your opinion. It has shone light on the essential issues and, as an enthusiastic visitor to your country, I am very grateful for having had the benefit of your scholarship.