SCOTUS IN REVIEW, WEEK 7
By: Colin Jung
1. Dobbs v. Jackson Women’s Health Organization
i)
In 1973, the Supreme Court in Roe v. Wade found in the Constitution a right to elective abortion. In 1992, the Supreme Court in Planned Parenthood v. Casey said that states could not prohibit abortion prior to viability.
Mississippi’s law, which bans all abortions after 15 weeks, is clearly in contravention of the latter case, as 15 weeks is before the point of viability. Mississippi asks the court to overrule Roe v. Wade, or at least overrule Planned Parenthood v. Casey’s viability line.
The 14th Amendment reads: “No state … shall deprive any person of life, liberty, or property, without the due process of law…” Some jurists, using the doctrine of “substantive due process” have deemed some liberties so fundamental that no process of law would be sufficiently due for the state to justifiably deprive individuals of them. Roe v. Wade, and Respondents say elective abortion, being essential to the personal autonomy of women, is one of these liberties.
Mississippi says that this reading is unreasonable. Even if the court accepts the doctrine of “substantive due process,” Mississippi mentions the court’s stance that only the rights with a deep basis in the nation’s history and tradition can be deemed fundamental in this manner. Mississippi says abortion is not one of these liberties, and states had wide leeway to restrict or prohibit it throughout the nation’s history.
Jackson Women’s Health Organization (JWHO) – the respondents – rested their case mainly on the doctrine of stare decisis. This doctrine says that prior decisions should stand, except in exceptional circumstances. The doctrine does not have clear parameters, and is defined differently by different jurists. Respondents say that unless there has been a significant change in facts or law since the initial decision, the decision should stand. Respondents say this is a strong safeguard against the changing composition of the court to constantly change the court’s position on important legal questions. As the facts and law regarding abortion remain the same as they did in 1973 or 1992, Respondents say that Roe v. Wade and Planned Parenthood v. Casey should stand. Respondent says that particularly in politically charged cases like this one, stare decisis is important to maintain the political neutrality of the court.
Mississippi says that stare decisis allows for overruling a case when it is “egregiously or grievously wrong,” even if facts or law do not change. Mississippi also says that if a standard is unworkable or creates negative consequences, it should be overruled. Mississippi says that viability is an unworkable standard because it varies from case to case depending on available medical facilities and the health of both the fetus and the mother.
The legal definition of viability has moved from around 28 weeks to around 21 weeks since 1992. Mississippi points to the politicization of the judicial confirmation process, the loss of foetal life from abortion itself and the infringement of the sovereign rights of states to regulate abortion as negative consequences of Roe and Casey. Mississippi further says that even under JWHO’s standard of stare decisis, Roe and Casey should be overruled. Mississippi points to nationwide safe haven adoption laws, criminalization of induced miscarriage (i.e. causing a woman to miscarry through assault), among other changes.
The fundamental legal question is:
Should the Court overrule Roe v. Wade and Casey v. Planned Parenthood?
ii)
I would rule in favor of Mississippi.
Stare decisis is a judicially created rule that cannot supersede the Constitutional mandate to faithfully interpret the law. If a decision, like Plessy v. Ferguson, Dred Scott v. Sanford, United States v. Korematsu or Roe v. Wade is so egregiously contrary to the law (i.e. text and history of the Constitution), it must be overturned without regard for precedent.
Roe v. Wade and its progeny are clearly not faithful interpretations of the Constitution. Looking at the history of the 14th Amendment, it is clear the entire doctrine of substantive due process is bankrupt; the due process clause was clearly read to be a procedural guarantee to protect those accused of a crime. But even if one does not use text and history, no fair-minded jurist could possibly see the 14th Amendment’s due process clause as a free invitation for nine unelected jurists to enshrine their political beliefs into Constitutional law.
Even if we allow for substantive due process, abortion is clearly not a fundamental liberty protected by the Constitution. Fundamental liberties are few and far between and must be deeply rooted in the history and traditions of the nation. Every other issue should be decided by democratic choice.
There are indeed compelling reasons to allow elective abortion, as there are compelling reasons to prohibit it. The court was right to identify the conflict between the woman’s right to personal autonomy and the fetus’s right to life. But it gravely erred in attempting to balance the two by itself rather than leaving legislation to the people’s elected representatives.
iii)
Oral arguments are in the format of one attorney from each side giving a short (one-minute) speech, then answering questions from the justices for about 30 minutes. The arguments took place on Dec. 1 and lasted over an hour. Your “SCOTUS in Review” writer watched the arguments in full live, then read the full transcript afterward. He did not consult other media before writing this article.
Scott Stewart, Solicitor General of Mississippi, argued in favor of the state. The abortion clinic was represented by two attorneys: Julie Rikelman of the Center for Reproductive Rights and Solicitor General Elizabeth Prelogar for the Biden Administration’s Department of Justice.
The court has three options. It can overrule Planned Parenthood v. Casey in its entirety, returning the abortion question to the states and upholding the Mississippi law. It can uphold Planned Parenthood v. Casey in its entirety and strike down the Mississippi law as unconstitutional. It can also take a “compromise” approach, and create a new line, upholding the Mississippi law, but not returning the issue completely to the states. I will explain the last option further.
I will go justice-by-justice to see what kind of opinion each justice would be willing to sign.
Justice Clarence Thomas is the strongest advocate for overruling Planned Parenthood v. Casey among the justices. He has made no secret of the fact that he believes Planned Parenthood v. Casey and Roe to be bad law, and was one of the original justices who dissented from Planned Parenthood v. Casey in 1992.
Justice Samuel Alito also seems strongly in favor of overruling. At oral arguments, he compared Roe and Planned Parenthood v. Casey to Plessy v. Ferguson, which upheld racial segregation, and called Roe and Planned Parenthood v. Casey “egregiously wrong” decisions.
Many court watchers thought before oral arguments that Justice Brett Kavanaugh might take a moderate stance on the issue, but his questioning during oral argument strongly suggests otherwise. Kavanaugh strongly suggested that Roe and Planned Parenthood v. Casey had no basis in the Constitution, and also suggested that the issue be returned to the states. It appears he will vote to overrule Planned Parenthood v. Casey in its entirety.
Justice Sonia Sotomayor will almost certainly vote to uphold Planned Parenthood v. Casey. She strongly criticized the effort to overrule Planned Parenthood v. Casey at oral arguments, saying that it was inspired by political and religious views, and undermined the institutional credibility of the Court.
Justice Elena Kagan is also very likely to uphold Casey. She echoed Justice Sotomayor’s concerns about institutional legitimacy, as well as emphasizing the importance of reliance interests (women who rely on Casey when making life decisions) and precedent.
Justice Stephen Breyer will also very likely uphold Casey. He gave a long and rather compelling monologue on the importance of stare decisis, the legal principle that courts should be wary of overruling previous decisions.
Justice Neil Gorsuch said very little during oral arguments. He questioned the workability of any “compromise” solution between completely upholding and completely overruling. It would be difficult to imagine a conservative originalist like Gorsuch upholding Casey in its entirety. Combined with Gorsuch’s doctoral thesis against assisted suicide and his general philosophy of law, I believe it is quite likely that he will vote to overrule Casey in its entirety.
Chief Justice John Roberts questioned the viability standard, suggesting that it was arbitrary. He appeared to be willing to uphold the 15-week law, but seemed to prefer the “compromise” of a “reasonable chance standard”. (The “reasonable chance standard” says that states may ban abortion as long as they give women a “reasonable chance” to obtain an abortion.) This compromise was disfavored by both sides (the state and the abortion clinic) as unworkable and unreliable. However, the court’s abortion jurisprudence frequently creates compromises that leave no one happy, and it is very likely that Justice Roberts would prefer a compromise rather than the sweeping move of overruling Planned Parenthood v. Casey entirely.
Justice Amy Coney Barrett appears to be the swing vote in this case. It is very unlikely that she would vote to uphold Casey. However, she could either join Justice Roberts’ compromise opinion or vote to completely overrule. Justice Barrett did not make obvious her intentions in either direction. Her oral argument questioning focused on “safe haven laws”, first passed in the 1990s, which allow mothers to anonymously put their infants up for adoption by leaving them at designated locations. This suggests that Justice Barrett may believe the premises of Roe and Casey, which largely focused on the duties of parenthood, no longer apply with quite the same force. And lastly, although I ordinarily have an intense distaste for this kind of reasoning, it is impossible not to mention that Barrett’s strong Catholic faith and personal opposition to both abortion and Roe may make her more willing to overrule in full.
I see three possibilities. Judging from oral arguments and the jurisprudence of the Justices, I would be shocked to see the reversal of the Mississippi law in any capacity.
In order of likelihood:
A court divided 6-3 overturns Casey in full. Justice Alito (or possibly the Chief Justice) delivers the opinion of the Court. Justices Thomas, Kavanaugh, Gorsuch and Barrett join him. Any one of them may also write a concurring opinion; Thomas, Gorsuch and/or Alito may write that they do not prejudge the possible interpretation that the Constitution forbids abortion, (though this is unlikely), Thomas will almost certainly write that stare decisis should be given less emphasis and Kavanaugh and/or the Chief Justice may emphasize the uniqueness of the case, saying it does not impact other precedents like Griswold and Obergefell. One or more of justices Breyer, Kagan and Sotomayor write strong dissents, to which the others join.
If five Justices express that they are not willing to compromise, the Chief Justice will join them rather than writing a compromise opinion on his own. This has the benefit of giving the decision more legitimacy, as well as the Chief Justice determining who writes the opinion. He may write it himself, wishing to moderate the tone of the argument, but too moderate of an opinion runs the risk of Thomas, Gorsuch and Alito only joining the opinion in part, creating the image of a fractured court. More likely, in my view, the Chief Justice will assign the opinion to Justice Alito. Justice Alito is one of the longer-serving justices and his self-described pragmatism, as well as his mainstream views on stare decisis, will make him ideally positioned to write an opinion that all six Justices could get behind.
The same outcome as number one, but the Chief Justice does not join the majority, rather, writing a solo opinion concurring-in-part and dissenting-in-part. In this scenario, I can imagine Justice Thomas delivering the opinion. After all, this will be a landmark case studied by law students for generations to come, and Justice Thomas has had a leading role in the build-up to this point. But his unorthodox view of stare decisis may make the opinion unpalatable to the other Justices. I maintain an opinion by Justice Alito is most likely.
The Court issues a split compromise opinion. The Chief Justice delivers the opinion of the court, explaining a “reasonable chance standard”. Justice Barrett joins him in full. Justices Thomas, Kavanaugh, Alito and Gorsuch write separate opinions. One or more of Justices Breyer, Kagan and Sotomayor write strong dissents, to which the others join.
There would doubtless be litigation to test what the standard is. Some states have already set up laws banning abortion at four, six, nine, 12 and 14 weeks to test what exactly a “reasonable chance” constitutes. This will also likely set up a “circuit split”, where appeals courts in California or New York might define a “reasonable chance” differently than appeals courts in Texas or Alabama. As the Supreme Court is the only body that can resolve circuit splits, the issue will inevitably be back in the court after a few years in this scenario. There, they will have to re-decide the case, suffering the publicity blow again. It would be wise for the Court not to take this route.
For what it’s worth, I predict that Roe v. Wade and Planned Parenthood v. Casey will be overturned come June of next year.
And for those interested: the brilliant Professor Sherif Girgis of Notre Dame has written an excellent piece titled “Two Obstacles to (merely) Chipping Away at Roe in Dobbs” in which he goes through just about every fathomable opinion the court could write in this case (and why it doesn’t work). The piece was written before oral arguments, and so it’s not entirely up-to-date, but informative nevertheless.
