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Dashed-Off Daily Dobbs upDate: ORAL ARGUMENTS DAY AHHHH (Part I)
Let's set some expectations
Whenever big news breaks in either of 2021’s Supreme Court abortion cases—Dobbs v. Jackson or Women’s Health v. Jackson, and no they’re not the same Jackson—I dash off a quick update. I don’t really check for typos and I rarely add links, because I know you just want to know what’s going on, instead of waiting my usual three days to make it long and pretty.
Okay, it turns out I couldn’t keep myself from doing a Dobbs update before orals actually start. After oral arguments today, I think everyone (on all sides!) is going to be panicked, or at least in a tizzy. So let’s set some expectations now and then you can come back after orals and, like the Foundation admiring Hari Seldon, take solace in my precognition. Or, if I get this completely wrong, you can come back and, like the Foundation admiring Hari Seldon at the end of Foundation and Empire, panic.
The case of Dobbs v. Jackson Women’s Health Organization will be argued this morning at the Supreme Court. It will likely be decided in June 2022. The case is really quite simple, but this feels like a big moment where a lot of people who don’t usually tune in to Supreme Court cases will be paying attention, so I’m going to do a little abortion-law explainer before I get to the predictions.
Abortion law in the United States is controlled by what many people call “the Roe/Casey framework,” named after two Supreme Court decisions.
Roe v. Wade (1973) famously invented a constitutional right to abortion out of thin air. Along with its companion case, Doe v. Bolton, the Supreme Court decreed this abortion right absolute, available through all nine months of pregnancy for any reason. (A “trimester framework” was supposedly introduced in Roe, but Doe eviscerated it the same day. The trimester framework’s only apparent purpose was to make people think Roe was much more moderate than it was, and, to be fair, it worked!) Roe v. Wade instantly destroyed all laws restricting abortion, everywhere, throughout pregnancy. Rarely has the Supreme Court overthrown so many democratically-passed laws at once.
In reality, of course, the Constitution does not guarantee a right to abortion. The Constitution guarantees a right to privacy, but that simply means that the government needs a warrant to search or seize you or your stuff, and it can’t quarter troops in your house. The Constitution guarantees a right to equal protection of the laws, but that simply means the law can’t irrationally treat you differently from someone else who is an identical situation to you. Everyone who knows anything about the law knows this, and wishing for a “constitutional penumbra” so you can have the right to kill a child doesn’t actually give you that right. Slaveholders also wished for a constitutional penumbra that would give them the right to take slaves out of the Southern states into free territory, but—although a Supreme Court using Roe’s “substantive due process” reasoning initially obliged them—that decision was dramatically overturned a few years later.
Roe didn’t last long, either. Less than twenty years after it was proclaimed, Planned Parenthood v. Casey (1992) overturned Roe. Casey eviscerated Roe’s legal reasoning, its constitutional reasoning, and all of its legal conclusions except one. However, despite recognizing the moral and legal bankruptcy of Roe v. Wade, the justices in Casey made a political decision to retain a right to abortion. They believed that the only way to end the abortion debate in the United States was for the unelected Supreme Court (rather than elected officials) to determine a national compromise, so they created one: abortion was still a constitutional right. However, states could now regulate abortion, as long as the regulations did not create an “undue burden.” In particular, the Court decreed, no state could ban abortion outright before fetal viability (roughly 21 weeks after conception at the time; today it’s 19 weeks, thanks to advances in medical technology since 1991).
Of course, since the Constitution does not supply anything remotely resembling a right to abortion, and they’d already gutted Roe’s reasoning, the Casey justices had to invent their own foundation for it, and they replaced Roe’s penumbras with an all-new (and much sillier) justification. After banging on for a bit with some poetic nonsense about the “heart of liberty” and the “sweet mystery of life,” the Supreme Court ultimately decided that it could not overturn the Supreme Court’s decision to invent a right to abortion because admitting that the Supreme Court had been so wrong about something so important would embarrass the Supreme Court, and obviously anything that harms the Supreme Court would be too harmful to America to contemplate, so they’re reaffirming their wrong decision and denying Americans the right to settle abortion democratically… but they’re doing it for our sake, not theirs. Much of the rest of the Casey opinion is a failed attempt to explain why it was okay for the Supreme Court to overturn “separate but equal” racial segregation, but not okay to overturn the right to abortion.
This compromise—I remind you—was intended (by its arrogant, unelected authors) to settle the abortion debate in the United States for all time. How’d that work out? Casey has been rightly called “The Worst Constitutional Decision of All Time,” and its concept of “super stare decisis” does not appear in any of the court’s other jurisprudence. It’s a giant axe buried in the rule of law, an emperor with no clothes urinating in the street.
Nevertheless, Casey (not Roe) currently sets the parameters for abortion law in this country. Roe was effectively overturned thirty years ago (by Casey); it’s long gone. However, by the time Roe went away, it was very common to refer to “American abortion rights” and “Roe v. Wade” as synonyms—and so the name “Roe” stuck around long after the decision stopped mattering. We still see polls every few weeks that ask Americans whether they think the Supreme Court should overturn Roe v. Wade, when clearly discussing legal rules set by Casey. It’s not legally accurate, but the English language is rarely legally accurate. Thus, Supreme Court watchers often refer to “Roe/Casey”.
Now, I have considerable respect for abortion-rights advocates, many of whom are very intelligent, completely sincere, and genuinely believe that they are on the side of the good guys. Judith Jarvis Thomson makes a great (albeit completely wrong) argument for abortion rights; Robin Marty is an activist in the trenches who just tries to do the right thing every day (and fails, but, hey, she’d think the same of me); I could list many other respectable abortion-rights supporters.
But, as you can see, I have neither respect nor patience for Roe or Casey, which are just garbage, not merely because of their bloody consequences for American children, but because of their utter bankruptcy as a matter of constitutional law, and even moreso because of the historic level of moral cowardice on display in the Casey plurality.
…as I was saying… ahem…
…Dobbs is really a very simple case.
Roe/Casey says that no state can create “undue burdens” on the abortion “right,” and, specifically, no state can ban abortion before “fetal viability,” the point when the fetus could potentially survive on its own outside the womb. That’s roughly 19 weeks after conception, or 22 weeks after the mother’s last menstrual period.
Mississippi passed a law several years ago that bans all abortions starting 15 weeks after the mother’s last menstrual period. Democratically speaking, that’s a pretty popular ban, especially in relatively pro-life Mississippi. But, according to Roe/Casey, that’s 7 weeks too early. It’s not just a bad idea, says Roe/Casey, it actually (somehow) violates the Constitution.
The question the Supreme Court has agreed to answer is: can a state ban abortions before viability?
In other words, is the Supreme Court going to uphold the Mississippi law or uphold Roe/Casey? It doesn’t appear that it can do both.
Nor can the Supreme Court simply “move back the goal line” again and say “okay, well, the line used to be viability but we’re making it the first trimester now”… at least, not without significant logical, legal, and political costs, and not without severe damage to their legitimacy. (Sherif Girgis explained why.)
However, the Supreme Court, under the ordinary rules of stare decisis, is supposed to try to prevent statutes from coming into conflict with court precedents, if possible. I fully expect them to try doing that today. In Dobbs, the statute flatly contradicts the precedent, so they’re unlikely to succeed. But they will try. And, hey, if anyone can make Mississippi’s constitutional law and Roe/Casey’s arbitrary judicial decrees pretend to work together somehow, Chief Justice John “the Mandate is a Tax for Constitutional Purposes but Not for Statutory Purposes so the Anti-Injunction Act Does Not Apply” Roberts is the man for the job.
And that’s the main thing I’m going to be watching during oral arguments. We are definitely going to see questions about how the Mississippi law could in theory be made to work within Roe/Casey without overturning Roe/Casey. What really interests me is, who is asking those questions? Who is pushing them hardest? Who is pushing back hardest? And how seriously are the answers taken?
My default expectation is that we’ll see the left side of the court (Justices Breyer, Kagan, and Sotomayor) argue with the right side of the court (Justices Thomas, Alito, and Gorsuch) mainly about stare decisis. (Of course, the justices do not argue directly with each other; they argue by asking the attorneys leading questions.) Both the left side and the right side will start from the (correct) assumption that reconciling the Mississippi law to Roe/Casey is impossible, albeit for different reasons: the left side because they want to use Casey to strike down the Mississippi law and the right side because they want to use the Mississippi law to overturn Roe/Casey. Thus, their argument will be about whether the Supreme Court is allowed to overturn Roe/Casey like it overturned Plessy, or if the Court must follow Casey’s unique “super stare decisis” rule. The left side of the Court, recognizing how weaksauce this argument is, may also try to proffer a new ground for abortion rights under the Constitution. (If anyone says the words, “13th Amendment,” take a drink.)
Meanwhile, my expectation is that the court’s center (Justices Roberts, Kavanaugh, and Barrett) will do their due diligence: they will use their question time to thoroughly explore the possibility of reconciling this law to Roe/Casey, pepper both sides’ attorneys with some tough questions (and fight through some interference from either flank), offer some tentative solutions, and leave the oral argument on an ambivalent note. But I expect they will have privately drawn the obvious conclusion: no, they can’t be reconciled. Mississippi’s lawyer did her job in her excellent brief, so (after making a really good argument for overturning Roe/Casey), she attempted to reconcile them anyway… and it just doesn’t work. (The abortion clinic’s lawyers did not even bother trying to reconcile them in their brief. Quite the contrary!)
If that all plays out as I expect, then some of the media panic about the fall of Roe will be quelled for the next few months. The ambivalent note at the end of orals will feel like real ambivalence from the justices. Some in the media (in the center-left, your Washington Post types) will interpret the search for a compromise as confirmation of their (weirdly widespread) belief that this case is going to end in a compromise—without taking into account whether the search for a compromise was actually in any way successful. (The far left—Elie Mystal, Ian Millhiser—will spend six months screaming at the center-left to knock it off and panic more. They’ll be right this time, but, to be fair, there are no circumstances in which Elie and Ian do anything else.)
In truth, if it plays out this way, it most likely just confirms what most of us already suspect: the left is locked in, the right is locked in, the stakes are Roe/Casey for all the marbles, but Roberts, Kavanaugh, and maaaaaaaybe Barrett aren’t completely committed to either side yet. With any compromise off the table, though, I would expect all three to fall in line with the right side of the Court—Roberts may be a political animal, but I genuinely believe he has enough basic self-respect that he would not write a decision bluntly reaffirming Roe/Casey. He isn’t a great judge, but he’s a better judge than that. (And he doesn’t want to live forever in infamy among the conservative legal movement, either.) I don’t really understand Kavanaugh yet, he’s too new… but I think he has enough principles to do the right thing as well. And I’m actually very confident in Barrett’s vote, because I’ve read her law review articles, but I think she’ll do a very good job being neutral on the bench, and that will make her look more undecided than she is. We only need two of them to win the case. If all goes as I’ve described here, I think it’ll be 65% odds Roe/Casey falls, 30% odds the Mississippi law is somehow upheld without overturning Roe/Casey, and 5% odds the Mississippi law is struck down and Roe/Casey fully reaffirmed.
What if, instead, we see the Court’s left focusing on the reconciliation question as well (instead of just the center)? That would be a very good sign for pro-lifers. Unlike us, the justices likely know right now what the vote count is on this case. And we know from the peanut gallery that Justices Breyer, Kagan, and Sotomayor agree with the abortion clinic and see absolutely no need for a compromise solution; they want to strike down the Mississippi law directly and re-affirm Roe/Casey with a roar. So if they start looking hard for a compromise solution in the oral arguments—if they start saying, “Well, if we uphold this law, then couldn’t that be compatible with Casey if we look at it this way…?”—then that strongly suggests that the Court’s left side knows they don’t have the votes to strike down the Mississippi law. At that point, they have abandoned any hope of stopping the Mississippi law and are now just trying to save Roe/Casey. But, as we’ve seen, saving Roe/Casey without stopping the Mississippi law is going to be almost impossible.
What if, instead, we see the Court’s right focusing on the reconciliation question (instead of just the center)? Well, that would be a very bad sign for pro-lifers, for all the opposite reasons. It would mean that the right side of the Court does not believe there are enough votes to strike down Roe/Casey, so they’re trying to save the Mississippi law. This is probably impossible.
What if the compromise conversation happens, and it actually seems to take off? Either the compromise solution proposed is really good and workable, or Roberts + Kavanaugh + Barrett appear to think it’s really good and workable? Well, then, we may very well end up with that compromise solution next June. Some attenuated form of Roe/Casey would remain on the books, but Mississippi’s law would be upheld. I can’t really say more than that, because I have such a hard time imagining what a compromise like this could even look like. Almost literally nobody, including me, saw Roberts’ “mandate is a tax” maneuver coming, and that issue was actually briefed. There’s nothing like that in this case, so a compromise would be entirely out of left field. But John Roberts loves playing left field.
What if I’m totally wrong about all of this, and the conversation today develops along radically different lines? That’s… honestly probably the most likely outcome. Predicting the outcomes of Supreme Court cases is already extremely hard, and predicting the outcome of oral arguments, where the justices deliberately cut loose a bit, is several times harder. There’s a good reason I’m praying and fasting today, despite all my snug predictions.
But hopefully this gives you at least a few signposts to watch for as we head into today’s oral arguments.
I hope for an update later, after orals, and presumably after I’m done with my actual employed work. And I hope it will be shorter than this. This post is still very sloppily dashed-off, but man it sure took a while to dash it.