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.