Roe and Dobbs, and Everything in Between: A Guide for the Perplexed (PART II)

By ALMA DIAMOND

This is part two of a two-part series on the United States Supreme Court decision to overrule Roe v. Wade. You can read the first part of the series here.

Part I of this series concluded with Justice Ginsburg’s scathing dissent in Carhart v. Gonzales, in which she implied that changes on the composition of the bench, rather than in the facts or the law, were driving decisions about abortion. This trend would characterize the next twenty years of abortion jurisprudence.

Whole Women’s Health v. Hellerstedt (2016)

When President Barack Obama came to office, abortion availability differed widely between states. On the 38^th anniversary of Roe v. Wade, President Obama pledged his support to protecting reproductive freedom and constitutional right to obtain abortions. During his first term in office, he appointed Justices Sotomayor and Kagan to the Supreme Court.

In 2013, Texas enacted a statute requiring that physicians performing abortions have admitting privileges to hospitals within a 30-mile range of their clinics, and that abortion clinics comply with medical standards set for ambulatory surgical centers. While these measures were facially justified as protecting women’s health, they would clearly have the effect of severely curtailing access to abortion care. It was estimated that the statute would force 75% of clinics in the state to close. In a 5-3 decision (Whole Women’s Health v. Hellerstedt) the Court ruled that the undue burden standard required a balancing of imposed obstacles with expected health benefits. On this ground, it found that the measures amounted to an undue burden and were therefore unconstitutional. The decision was only decided by 8 Justices because, in February of 2016, Justice Antonin Scalia had unexpectedly passed away.

Judicial Politics

2016 was an election year, with Donald Trump running against Hillary Clinton. Trump made no secret of his position on abortion. During his campaign he promised to appoint justices to the Supreme Court who would overturn Roe v. Wade. Meanwhile, though President Obama had nominated Merrick Garland to replace Antonin Scalia, the eleven members of the Senate Judiciary committee’s Republican majority refused to advance his nomination to the Senate floor for confirmation. His nomination was thus obstructed for an unprecedented 293 days, after which it expired. Justice Scalia’s seat on the Supreme Court remained vacant for 422 days while Republicans refused to vote on President’ Obama’s nomination. The justification put forward was that a judicial seat should not be filled in an election year.

After Trump won the presidential election, he nominated Neil Gorsuch to the Supreme Court. Democrats filibustered the vote, and in response Senate Republicans invoked the so-called nuclear option to rule that the vote on cloture for judicial nominations to the Supreme Court is by majority vote (Democrats had done the same for judicial appointments to other levels of the judiciary in 2013, in response to Republican filibusters of Obama’s nominations to the D.C. Circuit). Whereas previously 60 votes were needed to confirm a justice to the Supreme Court, now only 51 would be needed.

Gorsuch was confirmed by a 54 to 45 vote. When Justice Kennedy retired in 2018, Trump nominated Brett Kavanaugh, who was confirmed to the court by a 50-48 vote, after a bitter and divisive confirmation hearing centering on allegations that he had committed sexual assault. Only one Democratic senator voted for his confirmation. Both Gorsuch and Kavanagh affirmed during their confirmation hearings that Roe v. Wade was settled precent, and in Kavanaugh’s words, “entitled to respect under principles of stare decisis”.

A year after Texas, Louisiana passed a statute nearly identical to the one struck down in the Hellerstedt decision. The US Court of Appeals for the Fifth Circuit found that this statute did pass constitutional muster, despite the decision in Hellerstedt. The facts, they argued, were different: no clinics would have to close because of the provisions. In a 5-4 decision, with Chief Justice Roberts joining the Democratic appointees, the Supreme Court reversed the Fifth Circuit decision (June Medical Services v. Russo), affirming the undue burden standard as set out in Hellerstedt.

And then, in 2021, Texas passed SB-8, the so-called Heartbeat Bill. This bill banned all abortions after a fetal heartbeat can be detected–on average, around the sixth week of pregnancy (well before many women know they are pregnant). The statute was clearly and undeniably unconstitutional under Roe and Casey (and Hellerstedt). But it also prohibited state officials from taking any enforcement action. Instead, members of the public could file civil lawsuits against anyone who performed or facilitated an illegal abortion. The statute provided for $10,000 in statutory damages as well as legal and litigation costs. The measure was a blatant attempt to circumvent the federal Constitution: if no state officials could enforce the measure, there were supposedly no one to sue in a pre-enforcement challenge. The Supreme Court would have nobody to enjoin from enforcing the statute. And, of course, once the statute went into effect it would have achieved its goal: deterring providers from offering abortion care with the threat of exorbitant legal fees and fines.

Prior to September 1, the day that the statute was set to go into effect, abortion providers filed an emergency application to the Supreme Court, seeking to block the law. The Court remained silent, letting the law go into effect. After it had already gone into effect, the Court rejected the request in a 5-4 vote. Abortions in Texas fell 50% in the first 30 days. The case reached the Court in a non-emergency posture in Whole Woman’s Health v. Jackson, where the Court held that pre-enforcement challenges can be pursued only against state licensing officials.

Dobbs v. Jackson Women’s Health (2022)

This brings us to Dobbs v Jackson Women’s Health. In March 2018, Jackson Women’s Health Organization, the only abortion clinic in the state of Mississippi, challenged the constitutionality of a state law which banned most abortions after the first 15 weeks of pregnancy. When the State of Mississippi initially filed, it claimed that the statute complied with the undue burden standard. But before the case was argued, on September 18 of 2020, Justice Ruth Bader Ginsburg passed away–38 days before the presidential election. In an apparent reversal of earlier reasoning, Senate Republicans pushed forward and confirmed Amy Coney Barrett to the Supreme Court one week before election day. After the composition of the court changed, Mississippi amended its pleadings to ask for the overruling of Roe and Casey.

The Dobbs decision was officially handed down (though a substantially similar draft opinion was leaked earlier) on June 24. The majority decision, authored by Justice Alito, holds that the Constitution does not confer a right to an abortion, and that Roe and Casey are overruled. It upholds the Mississippi statute, and sets a “rational basis” standard of review for abortion regulations going forward. Under this standard, any legislation which has a possible or plausible rational basis would be deemed constitutional. As legal commentators often point out, only somewhat hyperbolically: rational basis means the state wins.

Justices Gorsuch and Barrett concurred. Justice Thomas wrote a separate concurrence to express his view that all substantive due process cases should be reconsidered, mentioning the right to same sex marriage and contraception. Justice Kavanaugh wrote a separate concurrence to affirm that no other substantive due process rights would require reconsideration. Many wonder what to make of these contradictory concurrences. Justice Roberts concurred in the judgment but objected that the Court had no need to overrule Roe v. Casey, as that was not necessary to decide the case at hand. The only Justices appointed by Democratic Presidents–Kagan, Sotomayor, and Breyer–authored a joint dissent.

The Dobbs decision raises a range of important and difficult questions. One is about the role of history, text, and tradition in Constitutional jurisprudence. Another is about precedent and the doctrine of stare decisis. Another is about substantive due process and unenumerated rights. All these questions are, I believe, about constitutionality and constitutionalism.

The Dobbs Debate

First, the role of history, text, and tradition. The Supreme Court had over the years taken different approaches to determining the scope of “fundamental” liberty interests protected under the Due Process Clause. Generally, the animating idea has been to determine whether the liberty in question is deeply rooted “in the Nation’s history and tradition” (Snyder v. Massachusetts) or whether it is “implicit in the concept of ordered liberty” (Palko v. Connecticut) – presupposed by or fundamental to the constitutional legal order.

But within this broad approach, the details matter. It matters, significantly, how the narrowly or broadly, concretely or abstractly, the right in question is described. Is it a right to make decisions about those most intimate and consequential aspects of a person’s life, or is it a right to procure an abortion? Is what is at stake women’s rights to determine the course of their lives and careers, and structure their intimate and family lives according to their own lights, to dignity and bodily autonomy? Or is what at stake a woman’s right to procure an abortion? And, importantly, are fetal interests or society’s interests in fetal life at stake? Should one be even more specific about the stage of pregnancy or the circumstances under which the right to abortion should be recognized? This question also recurs in other contexts. In terms familiar to the Second Amendment debate: is what is at stake the right to bear a nineteenth-century musket, or a modern assault rifle? What constrains the determination of these right-descriptions?

The majority decision in Dobbs concludes, unequivocally, that there is no legal history or tradition of a right to abortion in the United States. Such a right, Alito writes, had been “entirely unknown” in the country until the latter part of the 20^th century. The dissent disagrees with some of the majority’s historical analysis, and other authors have also raised counter-examples.

But a deeper problem is that of justifying or making sense of the historical test. Are all rights which are not deeply rooted in history, text, and tradition for that reason suspicious? This reasoning casts doubts upon vast swaths of contemporary constitutional law and governance. But more importantly, as the dissent also points out: why are we bound by that history? The ratifiers of the Fourteenth Amendment were men. The framers of the original Constitution were white men, many of them slave-owners. How would one even begin to make sense of the legal validity, in the 21^st century, of the traditions of that time? How does a nation vindicate its commitments to a presumably ever “more perfect union”, to moving beyond its past injustices, while that past remains the standard for justice? This is especially hard to square with the history and tradition which underpins the Fourteenth Amendment. As one of the Reconstruction Amendments its purpose was to, well, reconstruct. It is hard to not read the text of the Fourteenth Amendment in its historical context as aspirational, stretching beyond the spirit of the times, as transformative.

The counterargument is that Justices are only authorized to apply rights as rooted in history, text, and tradition. Doing more would be judicial overreach, it would amount to legislating from the bench. But the difficulty for those relying on this argument is to demonstrate how historical analysis constrains the reasoning of the Court. As historical analysis almost invariably seems to yield conclusions that favor the policy preferences of the Republican party (on gun rights, on religious freedom, on corporate speech rights, etc.) the argument for its constraining value becomes less convincing.

A second area of debate is on stare decisis. In principle and in terms of all the Justices’ assurances at their confirmation hearings, the Court is bound to honor its previous holdings. It is a core principle of the rule of law, and as the dissent points out, a key part of the Court’s claim to legitimacy. The principle that courts are bound by a duty of fidelity to past decisions demands respect in a society governed by the rule of law.

The majority in Dobbs held that Roe demanded no such fidelity, since it was “egregiously wrong”, supported by weak reasoning, had presented an unworkable standard, and had distorting effects on other fields of law. But as the dissent pointed out, what had changed since Roe had been affirmed and reaffirmed previously was nothing about the standards, or the facts, but only the composition of the Court. Whereas the traditional conception of judicial duty is that of a Court working within a broad frame of constitutional doctrine, deciding only what comes before it and doing so in line with past decisions as far as possible, the image is now different: a Court ruling on the basis of its own determinations of correctness.

To be sure, overruling past precedent is not unheard of. The majority emphasizes that the Court has in the past overruled its own precedent. To illustrate, Jusitce Alito points to infamous examples such as Plessy v. Ferguson, which had ruled that racial segregation did not constitute unlawful discrimination. But as the dissent points out, the Casey decision had considered the same argument as grounds for overruling Roe and found no such support. Cases like Plessy v. Ferguson were overturned because society, and its understandings, had changed. Here, all that had changed was the composition of the court.

This seriously undermines the Court’s claims to the public’s trust: why rely on any particular decision, even ones handed down by this court?  Who is to say it will be regarded as sound by the next Justice? A laxity toward the doctrine of stare decisis not only undermines our reasons for fidelity towards past decisions, but also to present ones, in other words. It also leaves open a much broader question: what else will this Court overrule?

Justice Thomas’s separate concurrence leaves no illusions about his view on the matter. He believes the entire doctrine of substantive due process is constitutionally suspect, and would reconsider all the other cases decided on this basis: those protecting same-sex marriage and relations, the right to use contraception, and against forced sterilization. Justice Kavanaugh wrote separately to make his view on the matter equally clear: the abortion case is different, none of these other cases are in danger. The majority decision by Alito also makes clear that none of the other substantive due process cases are at stake, that the Dobbs decision is only about abortion.

But this is hard to square with the logic of the decision. If the test for fundamental rights under substantive due process is “text, history, and tradition”, then surely rights to same-sex intimate relations and marriage are in peril. One could argue that the stare decisis analysis for these cases would be different: even though the decisions might have been wrong by this Court’s lights, the standards had proven more workable. It might also be that these other rights could find a home elsewhere in the Constitution, under the Equal Protection Clause rather than the Due Process Clause, for instance. But the Court considered, and summarily dismissed, the possibility for the right to abortion.

The question, of course, is why anyone should take the Court, and the politicians appointing them, at their word. And that, really, is what the legal legacy of this decision is about: trust. Trust in the Court is at an all-time low. This is a political fact–about the health and wellbeing of the judicial branch. But it is also a legal fact–about the pathology of constitutionalism in the United States. It is hard for legal subjects to make sense of the Court and its work as legal.It is hard for citizens to understand themselves as legal subjects, as bound in common by a core principled practice. The boundaries between law and politics are never sharp. But when they are no longer intelligible, constitutionalism and constitutional order wavers.

Bibliography

Ginsburg, Ruth Bader. 1992. Speaking in a Judicial Voice. New York University Law Review Vol. 67 No. 6.

Gold, Rachel Benson. 1990. Abortion and Women’s Health: A Turning Point for America? New York: The Alan Guttmacher Institute.

Reagan, Ronald. 1986. Abortion and the Conscience of the Nation. The Catholic Lawyer Vol. 30 No. 2.

Center for Reproductive Rights & Ibis Reproductive Health. 2017. Evaluating Priorities: Measuring Women’s and Children’s Health and Well-being Against Abortion Restrictions in States.

Court Decisions