A Discussion on Dobbs

Dean Reuter:  Welcome to a special practice groups Teleforum webinar, as, today, June 30, 2022, we host "A Discussion on Dobbs." I'm Dean Reuter, Senior Vice President and General Counsel of The Federalist Society. Please be advised that we're recording today's program. It's being live-streamed. It will likely be turned into a podcast and transcribed, as well. Be aware of that as you participate in the program today.

 

      And I want to let you know that we're going to be taking questions, ultimately, from our audience, after opening remarks. We'll be using the Q&A function at the bottom of your screen. So please use that to enter your questions, and our moderator, Judge Griffith, will ask your questions at the appropriate moment.

 

      We're very pleased to welcome three guests to our program. I'm just introducing the moderator, the Honorable Thomas B. Griffith. He's a former circuit judge on the D.C. Circuit Court of Appeals right here in Washington D.C. We're very pleased to welcome him back as a persistent moderator, a return moderator on this same topic, this same case.

 

      I do want to announce before we begin for the audience, a glitch we had. Not only are we getting this program slightly late — I apologize for that — but a program we hosted earlier in the day has not actually aired. And that is a program on "Are We Still One People? Do We Hold These Truths?" That's going to be available on our YouTube channel tomorrow, so be on the lookout for that as well.

 

      With that, our program today, "A Discussion on Dobbs." Very pleased, once again, to welcome Judge Thomas Griffith. Take it away, Judge.

 

Hon. Thomas B. Griffith:  Thank you, Dean. And I'm grateful to be here today, and to introduce our two excellent panelists. Professor Daniel Farber is the Sho Shato Professor of Law at Berkeley Law. He's also a member of the American Academy of Arts and Sciences and a life member of the American Law Institute. He clerked on the Seventh Circuit, and then later clerked on the Supreme Court for Justice John Paul Stevens.

 

      He'll be joined by Carrie Severino, the President of the Judicial Crisis Network, a graduate of Harvard Law School. Carrie clerked for David Sentelle on the D.C. Circuit, and then later for Clarence Thomas on the Supreme Court. Professor Farber, Miss Severino, we're honored to have you here.

 

      We're here today to talk about a momentous decision, the Dobbs decision. Maybe it would be best if we could just start off with asking you all to summarize the Dobbs decision, the key parts of it, just so that -- for those of our audience who haven't yet taken time to read through the 200-plus pages of opinions. Maybe that will give them a solid foundation on which to participate in the rest of the discussion. So, Professor Farber, can we start with you?

 

Prof. Daniel Farber:  Sure.  So, obviously, the most important is the majority opinion. The statute that was specifically challenged in the case involved a 15-week sort of deadline for abortion, and so a preliminary question was whether the Court should limit itself to reviewing that deadline, that 15-week rule, or whether it should reconsider Roe v. Wade entirely. And the majority opinion says that we have to reconsider Roe v. Wade, because both sides agree that if Roe remains the law, then this prohibition can't really stand, that any attempt to -- that because this forbids abortions prior to viability, it's simply inconsistent with Roe.

 

      The opinion by Chief Justice Roberts takes a position that he seemed to be trying to present in oral argument that the Court could limit itself to 15 weeks, overrule that portion of Roe dealing with viability but not go all the way to considering whether there's any constitutional protection for abortion at all. But the Alito opinion rejects that. Now, of course, we'd already seen the first draft of the opinion. So there weren't any big surprises, at least that I could see. There was one place where I think there was a little noticeable change of emphasis, but at least I didn't spot major shifts between the two drafts.

 

      So they're really two separate issues. One is: was Roe wrong when originally decided? And we knew that there was a majority on the Court who believes that. We know that from prior concurring opinions or dissenting opinions in a variety of cases. Plus, of course, it was no surprise to see what Justice Barrett thought about that issue as well. So the result there was not a surprise.

 

      The methodology, I think, was probably also not surprising. The Court might have taken the path of simply rejecting the whole idea of implied or unwritten constitutional rights. It didn't go that route. Instead, it applied what's called the Glucksberg test, which looks at tradition and history to determine whether a right is so deeply rooted in American society that it ought to be recognized. And Justice Alito reviews a lot of early abortion statutes and goes back to the Middle Ages and forward and concludes that abortion was rejected during that whole time period and that it's not firmly rooted.

 

      Now, I know some people take strong issue with this use of history, there. And I don't feel competent to assess that debate, so I'm not going to say anything about it. He decides, in any event, that abortion is not deeply rooted. I think one of the questions, and one that is really raised by the dissent, is level of generality. Should the question be whether abortion is deeply rooted, whether control over reproduction is deeply rooted, or whether autonomy about intimate family decisions -- there are different levels at which you can approach this issue.

 

      Glucksberg talks about defining it in a fairly specific way, and that's the way Alito goes here. And then he criticizes the earlier decisions in Roe and its successors as being weakly reasoned. So that's the first, more or less, half of the opinion, I think. And then the other part is about precedent. And Alito concludes that, because the case is egregiously wrong, and, primarily, because it has not created clear reliance interests that would preclude the Court from reconsidering it, that this is one of those cases where the Court should disregard precedent.

 

      So there are then two -- several concurring opinions, but I'll just say something, briefly, about two of them. Chief Justice Roberts says the Court is going much farther than it needs to to decide this case — it could simply reject the viability line and uphold the statute on that basis — and that, especially in dealing with such a major issue, we should not rush in to decide more than we have to. And he apparently was not able to get additional support for that.

 

      Kavanaugh has what I thought was a rather interesting -- he also has a footnote, I think it's a footnote, in which he points back to Rehnquist's dissent in Roe, where Rehnquist suggests that an exception for the life of the mother may be constitutionally required by due process. So I thought that was rather interesting. I wasn't sure if anyone but me remembered that Rehnquist had said that.

 

      Kavanaugh doesn't find the case as easy on stare decisis, in particular, as the majority does, but ends up joining on that basis. He also addresses and emphasizes, I guess, that he doesn't see this case as necessarily imperiling other cases like Griswold, dealing with birth control, or Lawrence, dealing with same-sex conduct. And, he, in addition, points to an issue that I think is already beginning to arise about whether states can prevent women from traveling to other states for abortions. And he says he thinks the answer is clearly no.

 

      So he's basically on board, I think you could say, but a more cautious voice. And I think the -- while they didn't change the outcome in this case -- or it seems to me that those two concurring opinions might matter in later cases when some of the spinoff issues relating to abortion reach the Supreme Court. I think I've already gone on more than long enough, so [crosstalk 00:11:14] to Carrie.

 

Hon. Thomas B. Griffith:  No, that’s great. Carrie, is there anything about Dan's summary thus far that you'd like to add to? And then, would you also tell us a little bit about Justice Thomas's concurrence and the dissent?

 

Carrie Severino:  Yeah, I think he did a pretty good job summarizing those things. Chief Justice Roberts' opinion -- it's interesting trying to figure out what standard he even would have proposed there. It seems like reasonable opportunity, adequate opportunity. And I think one of the real challenges with that, which the majority points out, is what would that even mean? If you're a lower court judge, how do you even apply that? It seems like it's a brand-new standard we don't have from anywhere else in the law that was being applied.

 

      So I think that it's interesting to try to discern that standard from his opinion, which just seemed to say, "Well, I wouldn't go out this far, but it kind of struck me as I'm hiding the ball," kind of thing like a law professor might do, of, like, "Well, it's not this." Okay, well what is it? It's a little hard to know. We'll never find out, of course, because it's not something the courts are going to have to apply. But it was interesting.

 

      To just address the final two opinions, and, obviously, we can discuss the whole case, then, and respond to any questions. Justice Thomas's concurrence is one that has gotten a lot of attention, because he pointed out -- first of all, I think it's important to notice that Justice Thomas mentions in his concurrence, "I agree, and join the Alito opinion in full," including, as he says, the part that says this opinion only addresses, and only decides what happens with our precedents that respect abortion. This doesn't decide what would happen with Griswold and the idea of a right to contraception, or Obergefell and the right to same-sex marriage, or the numerous other precedents that have been cited, both before, in the leak period before the case came down, and, obviously, subsequently.

 

      So it's important to note that Justice Thomas is actually not saying the case has implications for those. However, he uses his concurrence to make what is I think a very Thomistic, in a Clarence Thomas sense, type of argument. He often is the one who will write a separate opinion and say, "I join the majority, but I'm just going to say that they're resting on a whole line of cases that I think might be -- have real problems and we should go revisit." So he does this in all sorts of cases. And he's done it, I think, with respect to substantive due process before. So, in one sense, this has gotten a lot of news. But it's not really news, because anyone who thought Justice Thomas was a fan of substantive due process obviously hasn't been paying attention.

 

      So his concurrence is mainly to say, "Hey, I think we should go back and just revisit the idea of substantive due process altogether, but whether you look at it that way, or whether -- even if you accept those precedents, it's clear that Roe and Casey need to be overturned." And I think a lot of people are concerned about that, because there are cases that many people like or don't want to see overturned, some of which Justice Kavanaugh pointed out as well, in his concurrence, like the Griswolds, the Obergefells of the world.

 

      But I think it's important to note that, A) Justice Thomas is a single vote here, saying, "Let's reconsider them." And, B) as he clarifies in his opinion, he's not actually even saying those rights aren't in the Constitution. It's simply that stare decisis in an invalid way to get there. And this is something that he has embraced in many other areas of the law. It reminds me a little bit of his McDonald v. City of Chicago concurrence in that case, where he says, "Okay, I don't think the Second Amendment is incorporated through the Fourteenth Amendment. I can't buy into that. But I actually think the privileges and immunities clause can get you there."

 

      Privileges and immunities is sort of one of Justice Thomas's favorite clauses that no one else likes to cite. But I think it's important to remember that, because he doesn't think substantive due process gets you something, doesn't actually mean that he thinks it's not there in some other provision of the Constitution that maybe might be a different route than other justices would take.

 

      And then, quickly, to turn to the dissent, it's interesting, because the dissent was written, or was signed, not by a single justice, but by all three of the liberal justices: Breyer, Kagan, and Sotomayor, which is unusual, but not, obviously, unprecedented, a technique. I think it just -- it was probably their way of adding emphasis and a sense of unity over this dissent. It starts out by arguing that Roe and Casey actually do flow from precedent. I do think it's interesting because they say they're going into the details of how it flows from precedent. I don't know that they actually do clarify in a great deal of detail what that is. They say it comes from a long line of precedents flowing from the Fourteenth Amendment.

 

      The biggest part of their argument is saying, "Hey, all of those precedents that Roe flows from and that Casey flowed from were also precedents that led to Obergefell, Griswold, etc. And so they're continuing to make this argument that if you're willing to reconsider this, then for those same reasons, the Court's going to potentially overturn those, because they have similar problems. And maybe from their perspective they would not say "problems." I think, from the perspective of the majority, you would say those have similar problems with not having the historical precedent that the majority is asking for.

 

      The dissent then goes on to say, "Actually, the historical situation in 1868," which is one of the potential bases the majority based this on. They don't make a decision whether the original understanding of, at the time of the framing, is most crucial, or at the time of the Fourteenth Amendment. They say you'd fail under either one of these. But, the dissent, particularly, says, "Hey, look, it doesn't even matter what people thought at the time these were ratified, because we think that the Constitution should be able to evolve through history," and that you can have, I think their quote there is, "The application of these rights can evolve, while," as they say, "remaining grounded in constitutional principle, constitutional history, and constitutional precedent."

 

       So I think the idea of evolution of the Constitution is one that normally I hear more often in sort of rhetorical context in debating it, but it's interesting to see that that "evolution" term is being used now by the minority, and not just something that's used, often pejoratively, I think, by people arguing against an idea of a living Constitution. So they're embracing this idea of constitutional evolution.

 

      They make an interesting argument in there that one of the reasons we shouldn't care what they thought in 1868 is because only men ratified those amendments to the Constitution. I find that a little problematic, because that casts the entire Constitution, up until the Nineteenth Amendment, into real doubt. I also think it's a little ahistorical, because most of the suffragettes who helped pass the women's right to vote, were, themselves, pro-life. So the supposition that men passing it suggests that women would have done otherwise, women might have included or imagined that the Fourteenth Amendment included a right to abortion, I think is just anachronistic to suppose that, because that isn't historically what the women of the time actually did favor.

 

      They take issue with Justice Kavanaugh's idea of neutrality. They say that it's not neutral for the Court to just take itself out of this issue. A neutral position would be one that defended these rights, the right to abortion, against all comers. That doesn't really track with my understanding of neutrality, but that is their understanding. And then, finally, they talk about stare decisis. They argue that Roe and Casey were correct, and that there would be a huge cascade of problems that would come from overturning those decisions. So, that's -- again, unfortunately, there's no way to shortly summarize a very long opinion. But there's my effort at it.

 

Hon. Thomas B. Griffith:  No, thank you. Thank you very much. Thank you, both of you. Let's turn now to the impact of Dobbs. What's the law of abortion look like now?

 

Prof. Daniel Farber:  Well, we know one thing, which is that laws prohibiting or regulating abortion are subject to the rational basis test. We know from Justice Alito's opinion that there are, I think, four or five goals that he singles out as legitimate, and, therefore providing a possible rational basis, of which protecting fetal life seems to be the broadest and most obviously applicable. But I think we can expect to see a lot of additional issues arising. I think the federal courts are likely to be faced with more abortion-related cases, rather than fewer, as a result of this decision.

 

Hon. Thomas B. Griffith:  Explain that a little bit, Dan. How so?

 

Prof. Daniel Farber:  Because the Court had sort of apposed a uniform national standard for abortion, or, at least, a floor for abortion protection, there were a lot of issues that really didn't have to be confronted. One of them that Kavanaugh specifically mentions is the issue of interstate relations. What happens when abortion is legal in one state and not in another? Can states prohibit women from traveling out of state to get abortions? That used to be true in Ireland, for example — not within the U.S., obviously — where the government made an effort to prevent women from traveling to England to get abortions.

 

      What about advertising abortion services in a state where abortions are prohibited? What about assisting someone to travel out of state to get an abortion? What about assisting with the abortion itself, under, say, a civil liability law that allows lawsuits? So there are all these interstate issues that, I think, will have to be, probably, worked out. And, I imagine, also, other issues, like, to what extent can states prevent interstate transport of abortion pills, for example. Can they ban importation into the state? So that's sort of a commerce clause issue and maybe a preemption issue, although I don't know enough about that to be sure.

 

      If they're going to keep Griswold and get rid of Roe, there are also going to be issues about where the line is between what's covered by the abortion rule and what's covered by the contraception rule. And, so, we've seen some things like: is the morning-after pill a form of abortion, or is it a form of contraception? Some people have raised that question about IUDs. That's going to be an issue. What about IVF as a form of dealing with infertility? And then I think we're going to see some issues about vagueness also arising. I've seen reports of OB-GYN doctors who don't do abortions but are concerned about the difficulty of determining when, during a pregnancy where there is a threat to the woman's life, it satisfies the applicable state standards. How long do you have to wait for an ectopic pregnancy before the risk of death is sufficiently high to justify terminating the pregnancy?

 

      So I think there are going to be a whole bunch of problems along those lines, maybe vagueness attacks on some of these statutes. And I think the Supreme Court will inevitably find itself confronting some of those.

 

Hon. Thomas B. Griffith:  Okay. Carrie, what's your view about what the law of abortion looks like now?

 

Carrie Severino:  Well, yeah, I agree there's definitely a lot of questions to be added. And to the ones that Dan mentioned, I'll add there's kind of this nullification movement, effectively, that's going to be going on, and I don't know if that's something that will come to the Supreme Court. But, within states, the idea of you having state officials who are saying, "I'm not actually going to follow or enforce our state law" -- there might be questions arising of sort of a hierarchy of enforcement. If you have a district attorney refusing to enforce the law, is the attorney general able to do so, or something like that?

 

      There's also issues with some of the proposals the federal government has made. I think a lot of those run into varying degrees of question. What is the constitutionality of some of the -- whether it's setting up abortion camps within Yosemite National Park or something, or anything where the government is paying for this runs into Hyde Amendment questions. Who has standing to even challenge those kinds of things? I think that's going to be a large range of things.

 

      I have to say, I'm not sure it's going to be more questions than what the Court -- the Court was going to have to deal with abortion either way. And even just at the time this decision was taken up, I think there were, like, at least four or five different states' laws that were on petition for cert and were held over this. And it's a range of everything from laws that were from heartbeat and all the way up to the initiation of fetal pain to viability.

 

      In terms of timing things, there were laws that were preventing discrimination, either on the basis of race or sex or disability status, the way that fetal remains were taken care of and addressed. Obviously, there's the classic sort of conscience protections that keep on coming up, or parental notification things. We saw, recently, medical standards that had come up in the Hellerstedt case and the Jude Medical case.

 

      So I just think that we're going to have to deal with abortion-related questions either way. The feature, I guess, of the issues they're dealing with now is instead of trying to interpret a right that I would argue doesn't really have a constitutional foundation, now you're interpreting issues that actually have a real legal basis you can drill back into and get your teeth into, whether it's just regular legal issues, like, again, who has standing to bring these types of claims, who can intervene in a case to defend a state law, like the Court actually decided this term, in some aspect, when state actors aren't defending their own law.

 

      So these are issues that are necessarily going to come up. But I think the biggest bulk of the action is going to, then, develop on state courts. It's going to be interesting to watch how that happens. We're already seeing that. And, as Dan alluded to, there have been vagueness challenges in some of them. I don't think the law is any vaguer than any other law where you have to balance how concerned are you for your safety in exerting self-defense, for example. With all of those, the courts have to deal with sort of these balancing of when life is really at stake and when it isn't. But I think you're going to see state courts having to do that. And I think it's going to be interesting to watch.

 

Hon. Thomas B. Griffith:  Can I ask you to drill down on that a little bit? Because that's a question that several of our audience members have asked. I eventually want to get give both you and Dan a chance to critique Dobbs. But you raised the state court action. A number of people have asked that. Where do we see this playing out? Are we going to see that state courts are going to interpret their state constitutions to protect a right to abortion, or where do you see that headed?

 

Carrie Severino:  Well, we've already seen that, in some cases, like Kansas recently interpreted its state constitution to encompass a right to abortion. And they actually have a constitutional amendment that's now going to be on the ballot to change that. Iowa had interpreted its constitution that way. And that actually has switched and said, actually, it's not in there. Florida just stayed -- a Florida judge just stayed their 15-week ban because there's language in the Florida constitution that talks about natural persons have a right to privacy. Now, the language in the Florida constitution, it doesn't sound like a Griswold giving the right to privacy. It sounds more like a right to not be interfered with, more broadly. And they also have right to -- natural persons have a right to life is also in that constitution.

 

      So I think there's going to be a real question; what is a natural person? How do these things interact with each other? And that's going to be something the Florida Supreme Court, undoubtedly, is going to have to grapple with. But I don't see how that would -- those would stay, generally speaking, at the state level. I think it's also going to shine a real spotlight on state courts, more broadly. I think this is something that a lot of people -- everyone's paying attention to U.S. Supreme Court, but I think very few people are paying as close attention as they probably should to the makeup of their state Supreme Court.

 

      Different states have different selection methods, which often tend to push their courts in different directions. And I think people are going to be much more aware and conscious of do I have a state court that is one that is an originalist court? Or do I have a state court that is much more apt to believe in this sort of evolution of constitutional principles? And I think that's something that's going to be a real battleground going forward, as well.

 

Prof. Daniel Farber:  Which will help sales of Judge Sutton's books. 

 

Hon. Thomas B. Griffith:  Which we should. Let me ask both of you -- go ahead, Dan.

 

Prof. Daniel Farber:  Yeah, I had a couple of other things to add, in terms of later litigation that I -- I think one that we're seeing now, that's going to be especially interesting for this court, are free exercise claims. We've already seen claims that, at least under some interpretation of sort of principles of Judaism, there are claims that abortion may be required in broader circumstances than these laws allow. And that's going to be, I think, interesting, because the court is also fiercely protective of free exercise claims and may have to confront a possible collision there.

 

      I think we also, as we've seen in the past with expansions of sort of government control, we're likely to see enforcement-related issues. Not necessarily legally novel issues, but we'll be seeing Fourth Amendment issues, for example, I imagine, as state governments make an effort to track what pregnant women are up to, and what doctors are up to, and try to police against the possibility of abortions taking place. I think if you're serious about enforcement, it's pretty hard to do that without some fairly intrusive surveillance, at least on occasion.

 

      We see that with any time the law tries to prohibit conduct that people really badly want to engage in. You can easily close down abortion clinics, but, for example, stopping women from covertly buying abortion pills is going to be a lot more difficult. So I think -- and scrutinizing medical records to make sure that treatment for miscarriage isn't being used as a cover for abortions in cases where the pregnancy could have been saved. So I think we're going to not necessarily see novel issues, because these are the kinds of issues that arise in lots of other drug cases and other kinds of cases, but we'll be seeing more of those in a sort of different factual setting.

 

Carrie Severino:  Just to take issue with a little bit of that, there may be some interesting Fourth Amendment issues that come up, but I just find it incredibly unlikely that any state would consider actually criminalizing the woman's behavior. The last time a woman was prosecuted in America for trying to procure an abortion was in 1924, and this is like 50 years before Roe, when the only state that has contemplated doing that was Louisiana. And it immediately got shut down by a host of pro-life groups that said, "This is not a good strategy. Please do not try to criminalize women who are seeking abortions."

 

      And so I predict that we're going to see exclusive enforcement directed at the abortionists themselves, the industry, potentially. We're now seeing an increased number of businesses that are trying to fund women's abortions. You might even see it on that front. But I just think it would be incredibly unlikely to see actual enforcement attempts at women. I think sometimes we're hearing things that strike me as just really hyperbolic fearmongering, like saying, "Oh, what if some state tries to get into my period-tracker app and figure out if I was pregnant and then suddenly wasn't pregnant, and then suspect that it wasn't a miscarriage and try to --." I just think that is really out there. It's trying to drum up fear. And I don't think it's at all based in reality of what is likely to happen. Again, in none of these states are they attempting to criminalize the women's behavior. It's really trying to go against the doctors and the big industry behind the abortions, not the women themselves.

 

Prof. Daniel Farber:  I don't disagree with that, as a sort of political matter, although it seems to me to be illogical to exempt the person who's the prime mover in causing the behavior to happen. But, in any event, even if the women are not prosecuted, that doesn't mean that you wouldn't want to -- that, in building a case, say, against a doctor, that you might not want to obtain information about patients to determine what was going on. It's not only criminals who are subject to searches based on probable cause.

 

Hon. Thomas B. Griffith:  I have an interesting question, back to the opinion. Someone asked why the Court gave no purchase to the John Finnis/Robert George argument, that originalist argument that prenatal life is protected under the Fourteenth Amendment. Any thoughts as to why the Court didn't seem interested in that?

 

Carrie Severino:  I think one good reason they didn't is there was no need to go there. The only person who really discussed it was Justice Kavanaugh, who kind of gave a little advisory -- he gave a few advisory opinions throughout his concurrence which are kind of funny. He gave us his thoughts on fetal personhood, on the right to travel. I don't think any of that was really necessary. And it wasn't -- it was briefed, a little bit, in the amicus brief, but it wasn't something that parties engaged on in any serious way. So that doesn't surprise me, particularly, that they didn't engage on that either.

 

Prof. Daniel Farber:  You know, I would say, I think all of that's right. But I think the Court really would have, in a sense, undone all of the reasoning that is in the opinion, which is about how this in an issue that should be left to elected representatives, that this is a deep clash of values, and that's the sort of thing that courts should not be deciding. And so it seems to me that the implication of the opinion is clearly to reject that kind of intervention.

 

Carrie Severino:  I think that's right.

 

Hon. Thomas B. Griffith:  Your chance to critique the opinion. Let's take on the majority opinion. How do you grade it, and how does it stack up?

 

Carrie Severino:  I don't know who goes first here.

 

Prof. Daniel Farber:  Yeah, I don't know.

 

Carrie Severino:  I don't have a lot to nit-pick about it. I was very relieved to see that the opinion so closely tracked with the leaked draft. I think that was really important, just for integrity of the Court reasons, because, while under normal circumstances you might have various justices saying, "Actually, can you change this thing?" sometimes, which would be more stylistic things, and sometimes which could have some substantive implications. But I think it's helpful to see that the leaked draft did not substantively change the outcome of the decision. Really, the only changes had to do with responses to the concurrences and the dissent, and then an additional reinforcement saying, "Hey, no. I know everyone's really worried about Griswold and Obergefell. This decision's doing nothing with those."

 

      So, even though it was already in the original draft, they just emphasized it further. So I thought it was an outstanding example of clarity, of just working through it in a very workman-like manner. And I was pleased that, while it is often fun to read those more rhetorical flourishes in opinions, I think it was very appropriate, in this case, for Justice Alito to keep it sort of "just the facts, ma'am," in his opinion, because I think this issue is already so fraught that having additional things like that in the opinion would have unnecessarily just raised the temperature even further. There's enough hyperbole around this topic already, and enough rhetorical flourish to just say, "This opinion speaks for itself."

 

Hon. Thomas B. Griffith:  Dan?

 

Prof. Daniel Farber:  Yeah, I think it was a sort of workman-like, very workman-like opinion, and I think all the major arguments have been really developed in previous dissenting opinions over the years. This isn't the first time that the argument for overruling Roe has been made. I thought there were places where, maybe, like Kavanaugh, Alito went out of his way to opine about things that weren't before the Court, like third-party standing and abortion picketing and other related issues, which I think he would have been better to leave out.

 

      I thought the tone of the opinion was fine, although it seemed to me that he didn't go out of his way to express any respect for his predecessors on the bench, who sort of come across as, at best, sort of not very competent in applying the law. I think that his tone is maybe a little more dismissive than I would have liked to see. My own views are more those of the dissent than the majority opinion, but I don't see any point in trying to re-litigate that, at this point. That issue has been settled.

 

Hon. Thomas B. Griffith:  But that's fine. Give us your critique of the majority. I think we'd be interested in hearing that.

 

Prof. Daniel Farber:  So, I think the basic question is whether we should consider abortion as a stand-alone right or whether we should consider the right at issue to be control of whether or not you want to have children. I think if you view the right as being one of reproductive freedom, and, by that, I mean in both directions, I think it's easier to make the argument that that ought to qualify as a fundamental right. And then that gets you, if it is a fundamental right, to the question about what to do about the countervailing state interest. And once you frame it that way, I think it probably lends itself to some kind of intermediate position, maybe Casey -- like, maybe, Roberts -- who knows what.

 

      So that's sort of the direction I would take, I would want to do it. I also think that stare decisis is a more serious issue here than maybe Alito gives it credit for. This is a really drastic change in the law that not only overturns precedents but does it in circumstances where it's absolutely clear that the only thing that has changed is that we have a couple of new justices. And I don't think that's good for the Court. I'm not saying -- obviously, that doesn't necessarily mean it's wrong to overrule. But I think Alito should have, maybe, been more concerned about that than he was.

 

      And, finally, the sort of history and tradition rule. I think he does find that in Glucksberg. And that approach seems to be sort of popular with the Court now. We see it also in the gun case, and elsewhere. But I do think the Court hasn't really thought through how much other cases might have to be re-thought, if you were to apply that rule across the board. It seems to me, for example, that some of what the Court has said about race discrimination might or might not stand up if the standard is what were state legislatures doing in the 1860s and the decades soon thereafter that would establish a specific tradition?

 

      So, anyway, I think I would have gone the other way. Nevertheless, as I say, I think we've crossed that bridge. I don't see the Court going back any time in the next couple of decades, anyway. And I think the more important question is: where do we go from here?

 

Hon. Thomas B. Griffith:  Carrie, your response, your defense?

 

Carrie Severino:  Well, first of all, the argument that merely change in Court personnel somehow undermines the legitimacy of overturning a decision -- I think there's a lot of decisions where that has been. I mean, you think of most of the New Deal-era kind of shift in the Court, a lot of it was driven by change in personnel. And there hasn't been nearly the same amount of handwringing of, "Oh, this is so illegitimate, because the change in personnel." I think it's understandable, when people are looking at the Constitution from a different perspective. The Court gives the example of the Jehovah's Witness in flag-salute cases, where three years intervene.

 

      You don't necessarily have to have a huge time intervening in changes, on top of which, I think the majority does a good job of explaining how things have changed in those intervening years, how things that Casey suggested might be relevant, like the idea that this could put to rest a national debate, clearly didn't do so, and didn't play out the way that they predicted it would. I don't think that's a good basis for upholding or overturning a case, either way. But, if you did, if you were the Casey court and did, then it didn't play out the way they said. The things they predicted didn't come to pass.

 

      So I think that doesn't change the legitimacy of it. I suspect -- I hope we don't have the opportunity to figure this out, but I suspect if the membership of the Court changed overnight, you probably would see the members of the dissent perfectly willing to overturn Dobbs, despite the fact that the change in Court membership was the key factor. Even just looking at the dissent in the Bruen case that many of the same dissenters were on, really calls into question the legitimacy of Heller itself.

 

      And so you have these same people who are arguing that somehow stare decisis is a much more, I would say, it's not really as firm a rule as anyone tries to pretend it is when they're on the receiving end of something being overturned. I think they would be, from the discussions in their dissents, they sound like they'd be very happy and think it was a right thing to do to overturn something like Heller, despite the fact that there has not been intervening real changes. And, certainly, the constitutional analysis would be the same.

 

      Finally, I think one strong point in this case, maybe compared with a couple other cases that just were decided in the last week, is I like how the Court was very clear with what it was doing. I'm glad they said, just straight up, "We are overturning Roe and Casey," and didn't kind of leave it in the mist. Even the Coach Kennedy case that seems to have overturned Lemon, but didn't say it overturned the Lemon test, or the Carson v. Makin test that seems to say it overturns all Blaine Amendments, so that wasn't a Blaine Amendment, but that kind of text, and yet, didn't say it did that.

 

      We've seen so many times when the Court walks up to something and effectively does it. And a lot of courts say, "Well, they just overturned this." And other courts say, "Maybe they didn't. Maybe there's a loophole here." So I think one thing that hopefully will at least cabin some of the potential fallout in the other courts is they were clear about what they were doing and that's one other benefit to this opinion.

 

      And then, just finally — I'm trying to remember some of Dan's points. — I think you're right. The idea that there's a right to reproduction -- you'd have a much better argument making the case that that is somewhere found, if not in substantive due process under Glucksberg, but in the privileges and immunities clause, if you're Justice Thomas. I think the challenge here is this is not about, really, a right to reproduce. The challenge is women who are seeking abortion already have a child, a fetus, a whatever you want to call it, in utero at the time. That might be a better argument for the Griswold line of cases, I would say, because your question of "Do I, or do I not reproduce?" I think, I would say, falls at that point.

 

      After that point, obviously, there are different states and different people take different positions on that, but I would say there's a very strong argument to say, "Look, there's already a human being there." So it's a different question. It's not, "Do I reproduce?" It's, "What do I do with this person who is there but is not yet born?" And I think that makes it not really the parallel of "Do I, or do I not reproduce?" in that question. But, either way, the Court has not yet, at least, embraced that analysis of those rights at issue. But I think that would be one of the responses to that.

 

Prof. Daniel Farber:  I think that question of what's the best way to frame it is always difficult to analyze and somewhat fraught. So I think that would be a longer conversation, and one I would have to do a lot more thinking about. I think I agree with you, not only for the benefit of lower-court judges, but that, for society, it may have been better for the Court to overrule directly. In some of our earlier sessions, before the opinion, I talked about that, because, it seems to me, in terms of the political process, whatever it's going to do — and there's all kinds of speculation about that, but who knows — but, that, at least if there is a clear-cut, sort of up-front position about what the law is, at least people have a basis for deciding what they think about it. And something like the Roberts approach, I think, would ultimately have led to much the same result, but in a way that would have been less visible to the public and less subject to the democratic process. So I think I agree with you about that.

 

Hon. Thomas B. Griffith:  We're coming up against a hard stop at 5:00, and I want to ask, want to combine several questions that we've had from the audience and pose it to you and see if we can get it in. Several people have asked about the impact of the Dobbs decision beyond abortion law, about the methodology that the majority opinion uses. What does that tell us about future challenges brought under substantive due process, or under unenumerated rights? What does litigation look like after Dobbs, if someone wants to bring a claim of an unenumerated right?

 

Carrie Severino:  I would say, if you're arguing unenumerated right, just to cover all your bases, there are some justices who clearly are on board with substantive due process, but I'd throw in a privileges and immunities alternate argument, just to make sure you get everyone on board there.

 

Prof. Daniel Farber:  Yeah, I agree with that. I actually, though I don't often find myself agreeing with Justice Thomas, I actually do think privileges and immunities is the better vehicle, both for incorporation of the Bill of Rights, and for this. I guess we haven't really addressed it, I think, directly, but I don't think that Dobbs actually is going to affect Griswold or Obergefell or the other cases. I think those precedents will stand.

 

Hon. Thomas B. Griffith:  Is that as a matter of prudential judging, or a matter of principle? Do you think that Justice Alito succeeded in making a principle distinction between those cases?

 

Prof. Daniel Farber:  I think the stare decisis argument is different in those cases. For example, with Obergefell, people are married, they own community property. Undoing that is quite different than banning abortions, going forward. I think, also, as a matter of prudence, and, also, although those are controversial decisions in some respects, they have not given rise to the -- as it turns out, although they might have -- to the kind of reaction and divisiveness that Roe involved. It's hard to know about future other kinds of fundamental rights claims without knowing what they are.

 

      And I do kind of wonder, if we get claims that involve really new technologies, for example, the right not to be subject to gene-editing against your will, or something like that, I really have no idea how this particular test would apply. If you're dealing with something that just doesn't have a clear historical parallel, I'm not sure that the Alito analysis will help you. But I don't know, I think we have to wait and see specific claims.

 

Carrie Severino:  Yeah, I think another reason to expect those aren't going to be overturned anytime soon is the Court can't just reach out and overturn them. You need someone, like in the case of Griswold, you need a state to say, "Hey, we're going to outlaw contraception." I just -- again, as Dan was suggesting, there have been people trying to work toward undoing Roe for a long time, and bringing cases specifically designed to challenge that. I just don't see any broad public movement of, "Hey, here's a state where what we're itching to do is limit contraception, so we can bring a test case on that." I don't see that in the cards. And so I think it would be hard to imagine the Court having an occasion, even if it were interested in doing so, to overturn some of those cases.

 

Hon. Thomas B. Griffith:  So, in the last minute, let me throw up a last question for you all. So, for those in the pro-life movement, this has been the culmination of a long battle. And the argument has been this is something that should be left to the democratic process. Well, it's now going to be turned over to the democratic process. Is the democratic process in good enough shape to have the type of debate that we need to have, without it being too terribly divisive? What do you think?

 

Carrie Severino:  It's going to be divisive. That goes without saying. And this case was going to be controversial, whichever way it came out. It's a divisive issue. The democratic process is designed to resolve divisive issues. If there weren't division, we wouldn't need democratic process in the first place. So I don't think this -- it is the culmination of a goal of the pro-life movement, but it certainly doesn't end the question in any way, because there's now 50 different sort of theaters of battle here, instead of just one.

 

      I think this really just opened the door for the possibility to make those arguments, and now it's up to the pro-life movement. If they want to have laws that reflect their values, they're going to need to convince a majority of their fellow citizens that that's the kind of laws they want, and, I think, simultaneously, also ensure that they have judges who are going to, then, abide by those laws as they're passed, but that's not an easy job.

 

Hon. Thomas B. Griffith:  No, not an easy job.

 

Prof. Daniel Farber:  I think it's already intensely divisive. I agree about that. This may force more people to think about their views and not just assume the issue's been handled by the courts. But I think that's healthy, rather than harmful to democracy. And I think people who are pro-choice are going to have to find out whether, in fact, this is something that the majority of women feel is an important part of their autonomy and equality or not. And so we'll see.

 

Hon. Thomas B. Griffith:  My hope is that the debate that we engage in, going forward on this, will be as civil and respectful as the discussion that you two have modeled for us. So thank you very much.

 

Carrie Severino:  Well, we'll see.

 

Prof. Daniel Farber:  Yeah, right.  I only wish it would have as good a moderator.

 

Hon. Thomas B. Griffith:  Thank you. With that, I think we're up against a hard stop.

 

Jenny Mahoney:  Yes, I just wanted to thank our experts for the benefit of their valuable time and expertise, today. And I also want to thank the audience for joining and participating. Our next Courthouse Steps Decision webinar will take place tomorrow, July 1, at noon Eastern, on Denezpi and Ysleta. For our complete list of upcoming webinars, please visit FedSoc.org/Teleforum. We also welcome listener feedback by email at [email protected]. Thank you all for joining us today. We are adjourned.