There is no “middle way” in Dobbs

Published Date: May 9, 2022 | Topics: Civil Rights and Liberties, Constitutional Issues

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Due to a leak in Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s prohibition of elective abortions after 15 weeks’ gestation, we now know that the Supreme Court stands poised to overturn Roe v. Wade and its follow-up case, Planned Parenthood v. Casey. But Chief Justice Roberts has reportedly not joined the opinion, and some speculate that he might try to recruit a colleague to a middle path—upholding Mississippi’s law without reversing Roe and Casey. So while others have focused on the leaked Dobbs opinion, a key question for Roe’s fate is whether that middle way exists. 

It does not.

As recent legal scholarship shows, a Dobbs “middle ground” would actually destroy Casey and Roe in the name of preserving them. So the Court faces a binary choice: Strike down the Mississippi statute or overturn Roe

Roe forbade restrictions—and Casey forbade “undue burdens”—on abortion before viability, when the unborn child becomes capable of surviving outside the womb. Since that happens at about 22 weeks at the earliest, both precedents forbid Mississippi’s 15-week ban. 

At oral argument, the chief justice probed for a way around this conclusion. He floated the possibility of (1) ignoring the viability line and (2) holding that the Mississippi ban imposes no “undue burden” because it leaves enough time for pregnant women to decide to abort. And he suggested that perhaps neither step would contradict anything essential to Casey or Roe

But in truth, Mississippi’s law cannot be squared with these precedents. 

As to step (1), the chief justice suggested the viability line in Roe and Casey might be “dictum” (inessential to the judgment), rather than a holding (essential to the judgment, and thus binding in future cases). Yet the Supreme Court has called the viability line a holding. Lower courts have always considered themselves bound by it. And the chief justice himself recognized in a 2020 opinion that “the most central principle of Roe v. Wade” was “a woman’s right to terminate her pregnancy before viability.” 

Scalia Law School Professor Eric Claeys has explained why the viability line was essential to Roe and Casey. As Claeys points out, both were “overbreadth” decisions. Such decisions invalidate a law on the ground that too many of the law’s potential applications would be unconstitutional—whether or not its application to the parties in the case at hand would be. 

Thus, the Roe Court didn’t focus on how early or late in pregnancy Jane Roe had hoped to abort. Her own timing was irrelevant because the Texas law at issue was overbroad. Why? Because too many of its potential applications would block a pre-viability abortion. So Roe’s whole basis for invalidating the Texas law was the supposed unlawfulness of banning abortions pre-viability. The viability line was therefore essential to Roe’s outcome—and, for similar reasons, to those of Casey and 11 other Supreme Court cases. Thus, Dobbs could not, after all, uphold Mississippi’s pre-viability ban without contradicting Roe’s and Casey’s holdings. 

As for step (2) of the imagined Dobbs ruling—upholding Mississippi’s law under Casey’s rule against undue burdens before viability: This wouldn’t just ignore the words “before viability”; it would transform the meaning of “undue burden.” In Casey, that phrase referred to incidental regulations of the abortion procedure—like waiting periods—that would make it too hard to abort at some stage of pregnancy, preventing abortions at that stage nearly as much as formal prohibitions would. But the law in Dobbs just is a prohibition. It doesn’t make abortions harder to obtain after 15 weeks; it makes them legally impossible. So the law cannot be upheld under Casey’s rule against “undue burdens.” 

To decide otherwise would transform that phrase’s meaning from “regulation that has similar impact to a ban” to “actual ban that applies too early,” as Notre Dame Law Professor Sherif Girgis has noted. Thus, Girgis continues, “a finding of ‘no undue burden’ in Dobbs would be a play on words, employing a test that only rhymed with Casey’s.” And the new test would have “a new job, and reflect a new theory of abortion rights, that left nothing of Casey’s logic intact.” First, instead of serving to “tell us the times in a pregnancy when [functional bans] are unconstitutional,” as in Casey, the phrase would “take on the quite different function of telling us how much time a woman must have between learning she is pregnant and facing a ban.”

Second, this new test would necessitate an equally “novel constitutional rationale for the resulting abortion right.” The justification would “have to be, not [Casey and Roe’s rationale] that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages: that one way or another, pregnant women’s interests . . . entitle them to some fair opportunity to abort.” 

Claeys and Girgis establish that a Dobbs “middle ground” would be no such thing. It would have to reject every part of Casey’s and Roe’s legal tests, and no part of it could rest on either precedent. The Court can either invalidate Mississippi’s law under Casey and Roe, or consign them to the ash heap of history. 

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