Con Law II Spring 2023: Assignment for Week 5 (March 2 & 3)

 Thursday March 2

Casebook p. 732-750

video:  https://use.vg/wjOAgz

 

Friday March 3

Casebook p. 768-804

video:  https://use.vg/V8HYGx

 

 

Plessy v. Ferguson: The Living Constitution Decrees Racial Segregation

If, as the Slaughter-House decision makes clear, the original meaning of the Equal Protection Clause was to prohibit laws which required racial segregation and discrimination "against the negroes as a class, or on account of their race," then Plessy is not an originalist decision. See Justice Harlan's originalist dissent in Plessy.

Rather, the Court in Plessy is acting like a common law court construing the Equal Protection Clause as evolving to meet the needs of the White-supremacist majority of Louisiana in 1896 to legislate based upon their "social prejudices." The Equal Protection Clause requires complete racial equality, but the Living Constitution of Plessy reads "separate but equal" into equal protection.

The Living Constitution can produce any result that a majority of the Court desires, anything from your wildest dreams of good policy to your darkest nightmares of bad policy. And whatever the Court says is then entrenched in the Constitution for generations. Plessy was the "law of the land" for over half a century.

Equal Protection Clause: Equality (equal opportunity) not "Equity" (equal results)

 The 14th Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

The Equal Protection Clause focuses on individual persons not groups. It protects equal opportunity for each person without regard to race, ethnicity, or gender, not equal results for any particular group. Nellie Bowles, writing in today's Free Press, reports:

"School districts across the country are taking their cues from San Francisco (where eighth grade algebra is banned) and dropping advanced courses in the name of equity. More often than not, this is a way to discriminate against Asian students, who have excelled wildly in just about any educational venue that offers unbiased, test-based entry." 

Bowles continues: "Equality is saying anyone can test into the advanced math class if they hit a certain score; equity is saying there is no advanced math class anymore."

Brown and Originalism

 Excerpt from Solum article:

Myth Number Three: Originalism Would Require that Brown v. Board be Overruled In fact, there is very good historical evidence that segregation would have been struck down under the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. In fact, Plessy v. Ferguson, the decision that established the separate-but-equal
doctrine, was a living constitutionalist decision, one of many that nullified a now almost forgotten guarantee of equal basic rights.

If the "one pervading purpose" of the Fourteenth Amendment was racial equality for the freed slaves, Plessy is obviously a total denial of that equality. Laws mandating racial segregation are a total repudiation of the one pervading purpose of the Fourteenth Amendment. Brown v. Board is an originalist decision, and Plessy is part of the non-originalist judge-made "common law" constitution.

Loving v. Virginia: Originalism and Racial Segregation

Suppose Virginia is correct and the society which ratified the 14th Amendment accepted anti-miscegenation laws (laws segregating the races in marriage) as good public policy.

Must we reject the judicial philosophy of originalism in order to strike down the miscegenation law?

Not at all. Most (probably all) originalists would actually argue that original understanding originalism requires the result the Court reached in Loving.

Let's take a closer look at original understanding.

What is the primary thrust, the "one pervading purpose" of the Equal Protection Clause--the primary value articulated there?

Racial Equality.

Virginia does not deny this--it merely argues that the framers believed that miscegenation laws were consistent with racial equality.

So even if Virginia is right, all it tells us is that two values were part of the original understanding--racial equality, and cultural acceptance of laws prohibiting inter-racial marriage.

But now let's assume that you are a judge committed to construing the Constitution in light of original understanding, and you are also a student of history, sociology, psychology, and the American culture.

Is the original Constitutional value of racial equality under law consistent with enforcement of anti-miscegenation laws?

Everyone I know would answer no, these two things are not consistent.

So you are faced with a choice--either to abandon the original constitutional principle of equality by allowing miscegenation, or forbid miscegenation in order to achieve equality. “X” and “not X”.

Since the values are inconsistent you must give up one or the other.

So what is an originalist Justice to do?

Since the primary original goal of the 14th Amendment (it's "one pervading purpose") was racial equality, since the principle of equality is expressly stated in the 14th Amendment and miscegenation is not, you must choose equality.


Here is how Bob Bork explains his view that a Justice committed to original understanding must vote to declare state-imposed racial segregation, in public schools or anywhere else, unconstitutional under the Equal protection Clause:

The Court's realistic choice, therefore, was either to abandon the quest for [racial] equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since [racial] equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the text.

Do you find this argument convincing?

Another way of looking at this is to say that the original principle of racial equality is binding on the Court, but not the subjective cultural and policy preferences of the founding generation.
 

Nebraska Civil Rights Initiative

In 2008, the People of Nebraska passed the Nebraska Civil Rights Initiative which amended the Nebraska Constitution (by adding art I, section 30) to eliminate racial preferences:

I-30. Discrimination or grant of preferential treatment prohibited; public employment, public education, or public contracting; section, how construed; remedies.

(1) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (2) This section shall apply only to action taken after the section's effective date. (3) Nothing in this section prohibits bona fide qualifications based on sex that are reasonably necessary to the normal operation of public employment, public education, or public contracting. (4) Nothing in this section shall invalidate any court order or consent decree that is in force as of the effective date of this section. (5) Nothing in this section prohibits action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state. (6) For purposes of this section, state shall include, but not be limited to: (a) the State of Nebraska; (b) any agency, department, office, board, commission, committee, division, unit, branch, bureau, council, or sub-unit of the state; (c) any public institution of higher education; (d) any political subdivision of or within the state; and (e) any government institution or instrumentally of or within the state. (7) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of Nebraska's antidiscrimination law. (8) This section shall be self executing. If any part or parts of this section are found to be in conflict with federal law or the Constitution of the United States, this section shall be implemented to the maximum extent that federal law and the Constitution of the United States permit. Any provision held invalid shall be severable from the remaining portions of this section.

Source:Neb. Const. art. I, sec. 30 (2008); Adopted 2008, Initiative Measure No. 424

Loving v. Virginia: SDP and EPC

Notice that Virginia's racially discriminatory marriage law triggers strict scrutiny under two separate theories:

1. it is a classification that relates to a fundamental right under SDP (the right to marry);
2. it uses a suspect classification under the EPC (racial classifications are suspect).


Here is what the Court said about marriage as a fundamental right in Loving:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State.

Suppose a state prohibits short people (i.e. those under 5 foot tall) from marrying. What standard of review would apply when Danny DeVito sues to challenge the constitutionality of this law?

What about laws which refuse to recognize incestuous marriages between adults (e.g., an adult son and his mother who wish to marry) or plural marriages among consenting adults? Does strict scrutiny apply to these denials of "marriage equality?"

Do we need a definition of "marriage" to apply the rule that the "right to marry" is a fundamental right?

If so, how did the Court define marriage in Loving? If fundamental rights are those deeply and objectively rooted in American history and tradition, what definition of marriage is "deeply rooted in American history and tradition?"

Class Schedule

 As the Syllabus observed, the recorded lectures for this class "will enable us to cancel 6 classes without the need for a make-up." I think I told you in class that my intention is to cancel class on March 9 & 10, the week before Spring break. I also need to cancel class on Thursday April 6 because I will be on the road speaking at B.C. Law and Suffolk Law on school choice as a constitutional right. 

We will also have to schedule student presentations for those students writing seminar papers. That will come sometime in April.

But for now, no class on:

1. March 9

2. March 10

3. April 6

Equal Protection and Levels of Scrutiny: A Hypo

14th Amendment, Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

 

Assume the State of Nebraska wishes to have a State-sponsored Fourth of July pageant which would include a drama portraying the story of George Washington at Valley Forge.

Four actors try out for the part, which pays a stipend of $5000.

The first actor (A) is a tall, slender Black male, maybe Denzel Washington.

The second actor (B) is a tall, slender White male who bears a remarkable resemblance to George Washington. Maybe Liam Neeson

The third actor (C) is Danny DeVito, a short, rotund White male who bears no resemblance to George.

The fourth actor (D) is a White woman of average height and weight. Maybe Meryl Streep.

Assume all four actors have equivalent acting ability. Suppose the casting director, a state employee, hires B and informs A that he was rejected because of his race, C that he was rejected because of his size, and D that she was rejected because of her gender.

What are the constitutional law issues here under the Equal Protection Clause?

Medium Rare Scrutiny:

We will soon be studying and analyzing the three (or perhaps more) standards of review the Supreme Court employs in analyzing the constitutionality of laws that burden protected liberty interests or which discriminate against certain groups or classes. I mentioned Mike Paulsen's wonderful (and short) article that uses the analogy of barbecuing steak to help us understand the various levels of constitutional review created by the Supreme Court. As Orwell might have said, "all constitutional rights are equal, but some are more equal than others."



Although I am not assigning the article, you may enjoy it and find it helpful.

Here is the citation:

Michael Stokes Paulsen, Medium Rare Scrutiny, 15 Const. Comm. 397 (1998)(Hein online)

Obergefell and Plural Marriage

Assuming Obergefell is good law, how would it's reasoning apply to a claim brought by two men and one woman who seek state-recognition for their plural marriage? Is two a magic number for marriage as a fundamental right? Or should a loving community of three consenting adults qualify for marriage recognition and its many benefits for them and their children? What are the arguments under Obergefell in favor of extending marriage equality for intimate and committed plural relationships? What about against marriage equality for committed plural relationships?

What result under Glucksberg as resurrected by Dobbs?

Two Questions for Discussion

 1. Dobbs seems consistent with an original meaning interpretation of the Fourteenth Amendment. But could a pro-life proponent of the Living Constitutuion have reached the same results? How so?

2. Considering the two opposing views of Dobbs I posted on the blog--link--is it possible for a deeply divided Nation such as ours to live under the Constitution? One side or the other will always believe that the existing Constitution is illegitimate and a "threat to democracy." How can a house divided against itself survive? What, if anything, can be done to help us live peaceably together with such inconsistent views of what is good and what is evil?

Real Rational Basis Review

The rational basis test requires only that the challenged law be rationally related to a legitimate state interest.

Williamson (p. 720)  and Beach Communications (p. 722) demonstrate how deferential is rational basis review.

The Court will uphold the law "if there is any reasonably conceivable state of facts that would provide a rational basis." (p. 722)

There need only be "plausible reasons" (not actual reasons) for the law. (p. 722)

The law comes "bearing a strong presumption" of constitutionality. (p. 722)

Those attacking the law must negative "every conceivable basis which might support it." Id.

The Court is especially deferential to the process of legislative line-drawing, even where those on the wrong side of the line "have an almost equally strong claim" to those on the right side of the line. Id. Line-drawing is a "matter for legislative, rather than judicial, consideration." Id.

The "precise coordinates of the resulting legislative judgment [are thus] virtually unreviewable." Id.

Legislation may proceed "one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." (p. 720)

G'Kar of the Planet Narn

                                                     Ambassador G'Kar


Is Andreas Katsulas really a citizen of Narn?

Dobbs: Two Opposing Views

 Justice Breyer, Sotomayor & Kagan:

They [the Casey controlling opinion] knew that “the legitimacy of the Court [is] earned over time.” They also would have recognized that it can be destroyed much more quickly. They worked hard to avert that outcome in Casey. The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new “doctrinal school,” could “by dint of numbers” alone expunge their rights.It is hard—no, it is impossible—to conclude that anything else has happened here. One of us once said that “[i]t is not often in the law that so few have so quickly changed so much.” For all of us, in our time on this Court, that has never been more true than today. In overruling Roe and Casey, this Court betrays its guiding principles.

 With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.  

Now consider law professor Michael Paulsen's praise for Dobbs:

Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision.

Here is a link to the article 

 Dobbs is a landmark decision, one that will be debated for many years to come. I'm glad I lived to see it.

Glucksberg and the Two-Part Test For SDP Fundamental Rights

Issue: Whether Washington state’s prohibition against “causing” or “aiding” suicide violates S.D.P. as applied to a mentally competent, terminally ill adult patient’s right “to commit physician-assisted suicide.” 

Take a look at page 686 where the Court talks about the ‟established method of substantive-due-process analysis.”

    The Court says that the Plaintiff challenging a law as infringing a fundamental right under S.D.P. must meet a two-part test as a ‟threshold requirement” – P.687

    First, he must show that the liberty he is asserting is objectively ‟deeply rooted in this Nation’s history and tradition.”  (p. 686)

    Second, a ‟careful description” of the “asserted fundamental liberty interest” (p. 686) is required to ensure that it is truly history and tradition that provide the guideposts for the Court’s analysis and to ‟rein in the subjective elements that are necessarily present in due-process judicial review.” (p.686)

    So, in Glucksberg, we ask whether ‟suicide and assisted suicide” are deeply rooted in our history and traditions, and not whether ‟personal autonomy over intimate decisions affecting one’s human dignity” is deeply-rooted.  The second inquiry is simply too vague to produce accurate historical guideposts.

    Notice however that a specific historical inquiry often may discover a fundamental right.

    ‒    Is the right to refuse invasive medical treatment deeply-rooted in our history and traditions? See P. 687

    ‒    How about the right of a terminally ill patient to obtain medical relief from intense pain and suffering, even if the pain medication might hasten death?  See O’Connor concurrence at P.691

Notice that Glucksberg was decided in 1997 and Obergefell in 2015. Apply Glucksberg to the argument that S.D.P. protects a fundamental right to same-sex marriage?  Objectively deeply-rooted in American history and tradition?

Here is how Justice Kennedy defends treating same-sex marriage as a fundamental right:

 He notes that although "it cannot be denied that this Court's cases describing the right to marry as a fundamental right presumed a relationship involving opposite-sex partners...[t]he Court, like many institutions, has made assumptions defined by the world and time of which it is a part." (p. 597) However, although the "limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest." (p. 599). Kennedy avoids Glucksberg by asserting that "it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy." (p. 599). Basically, he says Glucksberg applies to physician-assisted suicide as a liberty, but not to other fundamental rights analysis.

But here is how Justice Alito responds in his dissent:

To prevent five unelected Justices from imposing their personal vision of liberty upon  the  
American  people,  the  Court  has  held  that  “liberty”  under  the  Due  Process Clause should  be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s  history  and tradition.’ ”  Washington  v.  Glucksberg  . . . .  And  it  is  beyond dispute that the right to  same-sex marriage is not among those rights. See United States v. Windsor, . . . (Alito, J., dissenting) . . . .
For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or  even that it is contrary to long-established tradition. The Justices in the majority claim the  authority to confer constitutional protection upon that right simply because they believe that it is fundamental. (p. 610)

Which of these positions is the law today in the wake of Dobbs? Is Glucksberg a ticket for one train only--for physician-assisted suicide--or is it the governing test for discovering fundamental rights under SDP?

Obergefell, Justice Kennedy, and First Amendment Rights of Those Who Disagree

 In Obergefell, Justice Kennedy reassured those who believe in traditional marriage that their beliefs would continue to be respected and protected:

   “Many who deem same-sex marriage to be wrong,” said Justice Kennedy, “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here....The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015).

 I quote Obergefell regularly when working on free speech and free exercises issues such as those arising in Masterpiece Cakeshop and 303 Creative. When the law treats traditional beliefs about marriage and sexuality harshly, the Free Speech Clause and the Free Exercise Clause are powerful defensive protections (and these clauses are explicitly protected in the Written Constitution).

Does Obergefell Survive the Reasoning of Dobbs?

 Assuming same-sex marriage is not objectively, deeply-rooted in American history and tradition--and thus the Court's decision in Obergefell fails to validly recognize a new SDP fundamental right--does the opinion nevertheless survive under stare decisis. The Dobb's Court limited the reach of its decision to Roe and Casey and said this:

The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being."

So, the harm caused by an erroneous decision creating an abortion right is great. 

Is there any harm caused by the Court's decision in Obergefell to re-define the historic understanding of marriage and require all 50 states to recognize same-sex marriages? Think about this and we will discuss it next week in class.

Lawrence v. Texas: Some Questions and Issues

1. Is the Lochner opinion almost identical to the Lawrence opinion (if we substitute the right of consenting adults to enter into sexual relationships for the right of adults to make contracts)?

Should Lochner be revived to strike down meddlesome laws interfering with freedom of contract? Minimum wage laws? Labor laws? Employment discrimination laws?

Does the 14th Amendment codify Mr. Vatsyayana's Kama Sutra?

Apparently it does. See p. 680 noting that the 14th Amendment does indeed protect the liberty of "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." I would think it also protects the liberty of consenting adults to engage in sexual practices common to a heterosexual lifestyle. What about consensual sex among more than two consenting adults? Protected by Lawrence?
 

What about consenting adults who choose to enter into a sex-for-pay encounter? Is consensual prostitution protected by the liberty of sexual autonomy?

If not, why not? Which consensual adult sexual practices are protected by SDP and which are not? And how do we know?

2. Did the Lawrence Court recognize a new fundamental right to sexual autonomy for consenting adults under SDP? Did the Court apply strict scrutiny or a rational basis test in Lawrence? See p. 680: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Are there legitimate state interests in regulating sexual conduct? Public morality? Health?


3. If public morality is no longer even a legitimate state interest, what is the constitutional standing of animal cruelty laws which make it a crime for a person to mistreat his dog or cat?

Notice Justice Kennedy's hubristic assertion on p. 680 about if only the Founders had "known the components of liberty in its manifold possibilities" they would have written a right to sexual autonomy into the text of the Constitution. Thoughts? If their times could blind the Founders to the goodness of sexual autonomy might Justice Kennedy be blinded by the zeitgeist of his times? Should we allow the democratic process in the 50 states to speak for our times?

Con Law II Spring 2023: Assignment for 8th Class (Friday February 24)

 8. Casebook p. 711-732

Equal Protection portion of video assigned for Class #7 (starting at minute 28).

Con Law II Spring 2023: Assignment for 7th Class (Next Thursday February 23)

 7. Casebook p.675-696; p. 594-613

Video: Link

 

Notice: Starting at about the 28-minute mark the video becomes an introduction to equal protection, which we will begin studying in our 8th class. 

My Preliminary Thoughts on Dobbs

 Here are my preliminary thoughts on Dobbs:

14th Amendment provides: " nor shall any State deprive any person of life, liberty, or property, without due process of law."

The Mississippi law before the Court in Dobbs prohibits abortions after the 15^th week of pregnancy. Under Roe & Casey, was this Mississippi law constitutional?

Did it impose an undue burden or substantial obstacle in the path of the woman’s right to choose abortion prior to the point of fetal viability?

Here is what the Court ruled:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). (slip op. at 5)(linked version at p. 2)

And, even the dissent seems to agree that an abortion right is not within the original meaning of the 14th Amendment:

 The majority makes this change based on a single question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was ratified”? Ante, at 23. The majority says (and with this much we agree) that the answer to this question is no: In1868, there was no nationwide right to end a pregnancy, and no thought that the Fourteenth Amendment provided one. (slip op. at 12-13 Breyer, Sotomayor & Kagan dissenting) (omitted from edited version)

That single question focuses on original public meaning. It is arguably the only question the Court should ask if it is concerned about the rule of law.

So here are some questions for discussion:

1.  Is there a reasonable basis in the Written Constitution for Roe and Casey’s abortion decision? Could the doctrine of Roe and Casey ever—at any time in American history—been ratified by three-fourths of the states? In 1868? In 1973? In 2022?

2. What are your thoughts about Substantive Due Process? What exactly is substantive process? Is it the opposite of procedural substance? Are all liberties substantively protected by SDP? Or only certain liberties? If some liberties are entitled to substantive protection and others are not, which liberties are protected? Fundamental liberties? Which liberties are fundamental? My list? Your list? How do we know which are in and which are out?

3. What about stare decisis? Even assuming a prior decision is egregiously wrong, should it be overruled? Or should the Court continue the egregious wrong in the cause of stability?

4. Here is another passage I want you to look at:

The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimates sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.” Stare decisis, the doctrine on which Casey’s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” (slip op. at 5-6)(edited at p. 2-3)

--Do you agree that Roe & Casey are fundamentally different from cases like Griswold & Obergefell (which created SDP rights to contraception and same-sex marriage)? Even if those cases are equally wrongly decided, is the harm of allowing them to stand the same as the harm of allowing Roe & Casey to continue as the law of the land?

--What is the effect of the Court’s overruling Roe & Casey? Is abortion now illegal in all 50 states, including in states like New York and California?

 5. Equal Protection Clause: Regulating Abortion is Not a “Sex-based Classification”:

Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretex[t] designed to effect an invidious discrimination againstmembers of one sex or the other.” Geduldig v. Aiello, 417 U. S. 484, 496, n. 20 (1974). And as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus” against women. Bray v. Alexandria Women’s Health Clinic, 506 U. S. 263, 273–274 (1993) (internal quotation marks omitted). Accordingly,laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. (slip op. p. 10)(edited from linked version)

 So, a deferential rational basis test applies to abortion laws.

6. SDP again: Glucksberg test adopted by Dobbs Court:

Thus, in Glucksberg, which held that the Due Process Clause does not confer a right to assisted suicide, the Court surveyed more than 700 years of “Anglo-American common law tradition,” 521 U. S., at 711, and made clear that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition,” id., at 720–721.

Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing.”… In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. (slip op. at 13-14) (partial edited version at p. 4)

 

7. After a great deal of historical discussion, the Court concludes “that a right to abortion is not deeply rooted in the Nation’s history and traditions.” (slip op. at 25)(linked version at 5)

 8. So, assuming that Roe & Casey are egregiously wrong decisions, should the Court nevertheless allow them to stand under the doctrine of stare decisis? (see slip op. at 40-55)(linked version section III). Please think about this a bit and be prepared to defend one side or the other on stare decisis!

 9. The limited reach of overruling Roe:

And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. (slip op. at 66)(linked opinion at end of section III)

So, Obergefell & same-sex marriage are safe? Are they? Should they be? How is Obergefell similar to Roe? How dissimilar?

10. Here is the core of the dissent's reasoning about stare decisis. It focuses on reliance interests of women:

  "In Casey, the Court observed that for two decades individuals “have organized intimate relationships and made” significant life choices “in reliance on the availability of abortion in the event that contraception should fail.” 505 U. S., at 856. Over another 30 years, that reliance has solidified. For half a century now, in Casey’s words, “[t]heability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Ibid.; see supra, at 23– 24. Indeed, all women now of childbearing age have grownup expecting that they would be able to avail themselves of Roe’s and Casey’s protections.
The disruption of overturning Roe and Casey will therefore be profound. Abortion is a common medical procedure and a familiar experience in women’s lives. About 18 percent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45.22 Those numbers reflect the predictable and life-changing effects of carrying a pregnancy, giving birth, and becoming a parent. As Casey understood, people today rely on their ability to control and time pregnancies when making countless life decisions: where to live,whether and how to invest in education or careers, how to allocate financial resources, and how to approach intimate and family relationships. Women may count on abortion access for when contraception fails. They may count on abortion access for when contraception cannot be used, for example, if they were raped. They may count on abortion for when something changes in the midst of a pregnancy, whether it involves family or financial circumstances, unanticipated medical complications, or heartbreaking fetal diagnoses. Taking away the right to abortion, as the majority does today, destroys all those individual plans and expectations. In so doing, it diminishes women’s opportunities to participate fully and equally in the Nation’s political, social, and economic life. (dissent slip op. at 48-49) (mostly edited from linked version)."

Justice Alito responds at  III (E):

Reliance interests. We last consider whether overruling Roe and Casey will upend substantial reliance interests.Traditional reliance interests arise “where advance planning of great precision is most obviously a necessity.”  In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here.

 Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” But this Court is ill-equipped to assess “generalized assertions about the national psyche.”  Casey’s notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.” Payne, 501 U. S., at 828.

 When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by the Casey plurality is another matter. That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.

  Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so. In the last election in November 2020, women, who make up around 51.5 percent of the population of Mississippi, constituted 55.5 percent of the voters who cast ballots.

This is the key debate about stare decisis between the dissent and the majority. Pay careful attention to these competing arguments.