On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women's Health Organization, one of the most anticipated cases on the Court's docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
This distinguished panel will review the oral arguments, explore the legal issues involved, and anticipate where the law might be headed.
You can view our pre-argument webinar here.
- Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
- Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame Law School
- Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
- Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
- Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
- Moderator: Jennifer C. Braceras, Director, Independent Women's Law Center, Independent Women's Forum
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Evelyn Hildebrand: Welcome to The Federalist Society’s virtual event. This afternoon, December 6, we discuss the oral argument in Dobbs v. Jackson Women’s Health, which took place last week on December 1. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.
Today we are fortunate to have an excellent panel moderated by Jennifer Braceras. I’ll introduce her briefly, and she will introduce our panel. Jennifer Braceras is a member of The Federalist Society Board of Visitors, and she is the Director of Independent Women’s Law Center. She’s also a former member of the U.S. Commission on Civil Rights, and she’s a frequent political columnist and editor. She also co-hosts At the Bar, a bimonthly virtual happy hour discussion about issues at the intersection of law, politics, and culture.
We’re very pleased that she could moderate this afternoon, and we’re very pleased to have all of our speakers join. After speakers give opening remarks and engage in some discussion, we will, time permitting, answer audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we’ll handle questions as we can towards the end of the program today.
With that, thank you for being with us today. Jennifer, the floor is yours.
Jennifer Braceras: Thank you, Evelyn. And thank you, everyone, for being here. I am excited to learn from our distinguished panelists today, all of whom have been dissecting the oral arguments last week in Dobbs in order to help us make sense of what we heard.
I think it’s fair to say that the entire country, and particularly the media, were fairly captivated by the arguments. Even many people who don’t feel strongly about the underlying issue found reason to tune in as the case says so much about federalism, precedent, and the role of the Supreme Court in a democratic society.
Our panelists today will attempt to read the tea leaves and tell us which way they think the Court may be going and what impact its decision might have on the law but also on our politics and the Court itself.
We will first hear from Mary Zeigler, who is a legal historian and law professor at Florida State University College of Law. After Professor Zeigler finishes her remarks, she will pass the mike to Rick Garnett. Professor Garnett teaches both law and political science at Notre Dame and also serves as director of Notre Dame’s program on church, state, and society. After Professor Garnett, we will hear from Professor Dan Farber, who teaches at Berkeley Law and directs the Center for Law, Energy, and the Environment there. Professor Julia Mahoney from the University of Virginia School of Law will follow Professor Farber. And finally, Professor Richard Re, also of the University of Virginia, will bat cleanup.
Each of the panelists will speak for five minutes, after which they will have an opportunity to react to each other’s comments in the same order in which they originally spoke. Following that commentary, we will open it up for discussion among the panel and questions from the audience. So without further ado, I will hand the mike to Professor Zeigler.
Prof. Mary Zeigler: Thanks, everyone. I expected, going into this argument, that the Court would reverse Roe. I wasn’t sure or confident the Court would reverse Roe in this case. And based on what I heard at the oral argument, I would now be more surprised if the Court did not overrule Roe directly and repudiate it clearly in the Dobbs decision itself.
Obviously, there are some remaining questions. Chief Justice John Roberts, as we’ll discuss, had sort of dangled getting rid of the viability threshold but without saying anything clear on the ultimate fate of abortion rights as potentially some kind of interim step. I didn’t sense particularly a lot of interest from the other justices in that proposition, with maybe the potential exception of Amy Coney Barrett.
And so I think it’s quite likely, based on Brett Kavanaugh’s comments that he’s prepared to overrule Roe and to declare, in his words, that the Constitution is scrupulously neutral, neither pro-choice nor pro-life, and he put it. Justice Barrett seemed quite skeptical that there were reliance interests that women had on abortion, given the availability of adoption as a way of opting out of unwanted parenthood, if not unwanted pregnancy.
So I am curious, I think, both to see how the calculus I saw used by the advocates in the case plays out, ultimately. I think on the abortion rights side, attorneys were hoping that the Court, if it does overrule Roe in whole or in part, would do so clearly, and that that clarity would maximize whatever kind of political fallout we would see from a decision reversing Roe and Dobbs. It’ll be curious to see if we can anticipate that kind of backlash, if there is a backlash, and how much it affects our politics.
I’m also interested, I think, in hoping in this conversation we can touch on some of the considerations social movements have already begun to explore because, of course, so much of our political dialogue in recent years has been about the fate of Roe. I think there’s been less attention paid to what a post-Roe America looks like in detail.
I’m particularly interested in what I imagine will be an arms race between red states and blue states as to people who are traveling out of state to get abortions or people who are obtaining abortion medication from out of state. I think on the abortion rights side, there are going to be logistical questions as to how states make abortion available to folks who are not from there. There will be legal liability questions about people who engage in that activity, whether it’s funding those abortions or performing those abortions.
And I think for people who are in the right to life movement or states that are sympathetic to that movement, there will be interesting questions about how to respond to that, whether it’s efforts to get to the people prescribing those medications or performing those abortions or aiding those abortions, and what happens if that’s difficult to do if there’s going to be, for example, laws directly prohibiting self-managed abortion or crossing state lines for abortion.
And I’m curious to see how those conversations begin to play out because I think we haven’t seen a lot on that to date because we’ve all been -- and I mean people in this room particularly as lawyers who are probably especially fixated on the courts and on Roe, but I think social movements have been to some extent too.
So I’m curious to see the next chapter in these struggles, if, as I predict, the Court overrules Roe, whether it does in this case or later, I think it will. I think it’s over. And so I think we’re really focusing or should be focusing to some degree not just what happens in this case but on what happens afterward.
With that, I will hand it over to Rick.
Prof. Richard Garnett: Great. Well, thank you very much. I should disclose, I suppose, that I’m a co-author on an amicus brief, the main argument of which is that, quote, “Roe and Casey were egregiously wrong and should be overruled.” So that’s my view, and I think, after the arguments, that’s my expectation. It could be wishful thinking, I suppose, but it seemed to me that there’s a good chance that not only a majority but also Chief Justice Roberts will adopt, in a sense, the opinion of Chief Justice Roberts’ boss, the late Justice Rehnquist, that he took in his Casey dissent and make that the new law of abortion for our Constitution.
A few thoughts about the argument. I thought it was interesting that none of the justices, and really none of the litigants, either, seemed to spend much time defending the rationale of the original Roe opinion or, for that matter, of Casey. We didn’t hear much about grounding an abortion right in the doctor-patient relationship or medical privacy. We didn’t hear much about echoing Justice Kennedy’s thoughts about the mystery of life and the meaning of the universe that we had seen in the joint opinion in Casey.
Instead, interestingly, insofar as the pro-abortion rights position was grounded in a rationale, it was more a line of reasoning that I associate with the late Justice Ginsburg, namely that the abortion right is necessary for women’s equality in terms of political, social, and economic equality. That seemed to be the new rationale. So it strikes me that even if a constitutional abortion right were to survive, it would again be retheorized. And it would be interesting to see how that new theoretical framework shaped whatever the particulars of the rule they came up with might be.
A second thing that was interesting to me was that it seemed like the justices who I assume are more likely to be defenders of the abortion right were relying much more on institutional, political, and reputational concerns than on, again, the underlying rationale or Fourteenth Amendment arguments.
I’ll confess that, to me, that kind of argumentation seems a bit off. It struck me that the claim was being made by some of the justices and some of the litigants that precisely because Roe and Casey were so controversial, and have continued to be controversial, and have given rise to social movements that in a sense, it’s precisely that controversial nature and the fact that people think they are so wrong that insulates them from overruling because to overrule a decision, so the argument goes, that so many people have made clear they think is wrong, would appear to be political.
But it just doesn’t seem persuasive to me that the more wrong a precedent it, the more stare decisis weight it’s entitled to. That’s a version of the one-way ratchet argument, but really on steroids, I think.
A third thing is that, unlike some observers, I didn’t take Chief Justice Roberts’ questions about a possible middle ground or compromise or Casey-preserving upholding of the Mississippi law, I didn’t take any of that to be a strong indication that he actually intends for institutional or gradualist reasons to not overrule Casey v. Planned Parenthood.
It seems to me that for a lot of the reasons he gave in his opinion in the political gerrymandering case recently that he’s likely to conclude, in part from the fact that none of the litigants seemed interested in a middle ground, that any kind of new, reworked Roe 3.0 would be judicially administrable -- inadministrable, rather, and that any reworking of Casey that somehow preserved the Mississippi law but also preserved an abortion right would retain all of the defects that Casey and Roe’s critics see in those opinions. They would still be -- this compromised position would still be untethered to the text of the Constitution and to longstanding practice.
And then a final thought, just for now, there was a moment in the argument when Justice Sotomayor made a claim that has sometimes emerged in abortion jurisprudence in this country, but not that often, and that was that the argument that the state has a stronger interest in preserving unborn life is essentially a religious argument. And there was a little bit of a back and forth on that. And again, I guess I saw with some regret that that argument had resurfaced because it strikes me as quite implausible to claim that it’s only a religious reason that could supply doubts about the lines drawn in Planned Parenthood v. Casey.
So that’s my five minutes for now, but thanks, and I’ll hand it on to next in line.
Prof. Daniel Farber: I guess that’s me. I think it’s always risky to make predictions based on oral argument. The death of Roe v. Wade has been often foretold but has yet to come to pass. Still, the odds seem high to me as to the previous two speakers that the Court will scrap Roe and Casey in favor of rational basis review, which traditionally has meant in favor of giving legislatures a blank check.
Maybe that won’t happen. Maybe Roberts will scrape up a second vote for the compromise he floated at oral argument, or for some other gradual transition. And I agree with what Richard Re argued in our previous session that this would be better in institutional terms and maybe jurisprudential terms. I didn’t get the sense, however, from the arguments that the majority felt hesitant about charging ahead.
So with the recognition that things may come out differently than I’m expecting, I’d like to focus on what we should look for in the opinion. Assuming the Court does completely overrule Roe and Casey, how do they get there and why does it matter?
I think the first question is who will write the opinion. I think whether or not he sticks with the compromise position or not, I think he clearly favors upholding the Mississippi law, which puts him in the majority on the disposition of the case. So I think that means he’s entitled to do the assignment even if he doesn’t share the rationale of other majority justices.
I can imagine that if he is reluctant to join a stronger, flat overruling, maybe he would think it would be better to defer and allow Thomas to assign the opinion. Hard to be sure about that. I suspect if, in fact, he himself opts for flat overruling, I would guess that there’s a good chance that he would assign it to himself, but failing that, it seems to me that Justice Alito is the natural next person to assign to.
If Thomas ends up doing the assignment, I would think in some ways it would be very attractive for him to write the opinion himself. After all, this is something he’s crusaded for for decades. This could be the most important case of at least the decade. On the other hand, his views about stare decisis are out of line with some of the other conservative justices, and he may realize that he could have trouble getting five votes for an opinion, in which case, again, it seems to me like Alito is the natural person to turn to. So either way, I think there’s a fair chance of an Alito opinion.
The second thing I would be looking for in the opinion is what it says about precedent and stare decisis. I think a limited approach would be to reject Casey’s effort to make Roe a super precedent, and then move into a very conventional stare decisis analysis, looking at factors like reliance, whether Casey and Roe were hard to apply in later cases, whether they were undercut, etc.
Or the Court could articulate an approach, or at least an emphasis, that gives precedent less weight, that moves closer to Thomas’s view that if a case is wrong, or at least clearly wrong, it should just be overruled. And that, of course, could have repercussions for lots of other established constitutional doctrines. I don’t think that an opinion overruling Roe and Casey would itself indicate that the Court has lost respect for precedent. I think the issues in the abortion context may be distinctive.
A third question will be how the opinion treats substantive due process. Will cases like Griswold, the contraceptive case, and Obergefell, the same-sex marriage case, be called into question? And a more sort of inside baseball question, will the Court apply something like the Glucksberg test, or will it take a more originalist approach?
I think whoever writes the opinion is going to want to have a clear voice coming from the Court. The last thing, I think, that the majority would want would be a plurality opinion accompanied by a concurrence. So the author is going to try really hard, harder than normal, to get everybody to sign on to a single line opinion. And I think that means the majority opinion is going to be a bit of a mish-mash in order to try to make everybody happy and not offend anybody too much, anybody in the majority.
I’m only starting to think ahead to what happens after Roe and Casey are overruled, assuming they are. I think we are going to see some fireworks around travel to other states for abortions. We’ve certainly seen that in jurisdictions like Ireland where, until recently, all abortions were illegal, and there were efforts made to prevent women from leaving Ireland to get abortions. And I think anti-abortion states will do their best to either penalize the travel or go after those providing the services. Correspondingly, pro-choice states are going to be taking steps, I think, to try to assist women in getting abortions in their states.
I think we could also see efforts by anti-abortion states to go after IUDs and the morning after pill, which could be considered contraceptives, and maybe an effort to restrict distribution of contraceptives to minors, pushing back against Griswold. I think in states that would continue to allow abortions and have judicial bypass laws for minors, I think we can expect lawsuits claiming those laws violate parental rights, which would be kind of ironic since those claims will be based on substantive due process.
I have no idea what’s going to happen politically. I can see a bunch of different scenarios, and I think, at least in my view, we’ll just have to wait and find out.
I think I’ve used up my time, and so let me turn over the mike to Julia Mahoney.
Prof. Julia Mahoney: Thank you, Dan. And thanks very much for organizing this. In my remarks, I’m going to look at what a post-Dobbs world may entail, assuming, as most analysts are now predicting, that the Court in Dobbs sustains the Mississippi statute against what amounts to a facial challenge and either explicitly or implicitly overrules Roe and Casey, or at least substantially overhauls them while again sustaining the statute.
I’m going to focus on two issues; first, the ramifications of such an explicit or implicit overruling or overhaul for Obergefell, the same-sex marriage case, and similar substantive due process precedents, picking up on some of the issues that Dan was just exploring, and second, what sort of guidance and decision framework the Court might provide, or not, for the lower courts. Abortion cases are not going away. Courts are still going to have to wrestle with them. And the question of how the outcome, how the opinion or opinions in Dobbs are written is going to be absolutely crucial in terms of how the lower courts handle what is coming.
So first, ramifications for Obergefell and other so-called substantive due process decisions. My preliminary judgement is very little or nothing. True, there’s been a lot of excitement in the Twittersphere about how this is just the first step of a very complex strategy on the part of the cultural right, and that if Roe and Casey fall, that that’s just the down payment, and then Griswold, Obergefell, Lawrence, etc., etc., are all on the chopping block.
Some of the briefs filed in Dobbs, most prominently that of Jonathan Mitchell, the architect of the controversial Texas statute, in fact, doubled down on this point, telling the Court that not only Roe and Casey but also Obergefell, Lawrence, etc., are deeply problematic, and that they are unconstitutional too, and the Court should say so, the sooner, the better.
But that’s not, of course, what we are seeing when it came to the oral argument. Justice Barrett was very careful to ask Scott Stewart about this exact issue. And Scott Stewart, arguing for the constitutionality of the Mississippi statute at issue, was also very specific to say that these cases are not in effect in any way going to be endangered by an adverse outcome in Dobbs. And I think those were very, very, very important colloquies for Scott Stewart to emphasize just how different the restrictions at issue in this case are, that they involve the purposeful termination of life that can be characterized as human.
Next issue, what kind of guidance will the Supreme Court give to lower courts? If abortion issues are going to now come thick and fast, we can expect for there to be all sorts of statutes about six-week limits. Even though Scott Stewart was very careful to point out that the Mississippi statute contains what he calls robust exceptions for the life and health of the woman, we can certainly imagine that there will be as-applied challenges very soon. And what exactly is it that the lower courts are supposed to do when they wrestle with these? In particular, what will it mean if, as Scott Stewart urged the Court, those sorts of restrictions are looked at under the rational basis framework?
This is very difficult, I think, right now to imagine what that framework will look like. For one thing, the Court varies enormously in terms of the sorts of scrutiny that rational basis actually means. We have kind of a muscular rational basis. We also have various sorts of rational basis standards that are, frankly, very little more than rubber stamps. So one thing that will be enormously helpful in an opinion by the Court in Dobbs would be some kind of hint as to what sorts of standards the lower courts are supposed to apply.
Now, the Court varies in terms of how much guidance it gives to lower courts when it hands down seismic decisions. In Heller, the Second Amendment case, the Court did virtually nothing. The Court in effect said, “Look, it’s going to be up to the lower courts to clarify the field. We’re doing a lot in this case. We can’t do everything. Let’s see how things play out.” And in response, the lower courts have tended to craft a kind of intermediate basis scrutiny standard. We might see that on the part of the lower courts. I will watch with interest.
The Court similarly didn’t give much guidance to the lower courts in its Knick v. Township of Scott, a major property rights case. Again, we didn’t see the court in effect explain to the lower courts what it ought to be doing next. So that’s one thing that I’m going to be looking for very carefully, whatever the Court ends up doing in Dobbs.
I have one final point. Regardless of the outcome in Dobbs, even if the Court decides to do, which I don’t expect it to do, but even if the Court decides to do a kind of Roe 3.0 and purports to affirm the central holding in Casey, I can envision that the Court will be very interested in having fewer cases on the abortion docket. And it may be able to reduce its abortion docket by looking at its standing doctrine.
Of particular interest, I believe, will be modifications that limit the ability of abortion providers to assert the rights of pregnant individuals. I think that the litigation in Dobbs, particularly the oral argument, illustrated just how problematic it is to have abortion providers claiming to vindicate the rights of women and to speak for the interests of women.
I’ve run out of time, so I very much look forward to my exchanges with my fellow panelists and to audience questions. And I turn it over to my colleague, Richard Re.
Prof. Richard Re: Thank you so much, Julia. And thanks to everyone for what I’m sure is going to be a fabulous conversation. I’ve already learned a lot from everyone’s remarks.
I’ll just make three remarks under the heading of lamenting that the oral argument seemed to feature a lot of grand, fast claims, even as some justices were trying to find more modest, careful, nuanced, smaller ways of getting their hands around the case.
Let me start with the attempts, especially by the Chief Justice, but also by Justice Kagan and Justice Gorsuch, to find out whether there were any ways of deciding the case that might disrupt the existing viability framework or viability line without completely eliminating all abortion rights under the Constitution under Casey and Roe. And consistent with the filings in the case, the parties were just not really interested in talking about those kinds of more modest or incremental changes.
And in that respect, the oral argument, I think, really resembled the argument in Planned Parenthood v. Casey itself where, likewise, the abortion providers were not at all interested in giving an inch on Roe, and indeed expressly said, as they did here, that any change in the existing abortion framework would be tantamount to overruling everything.
And then, too, there were justices who asked, “Is that really right? Isn’t there something else that’s on the table here?” And in Casey, the three justices who were asking about that, especially Justices Kennedy and O’Connor, but also Justice Souter, ended up, of course, doing just that. They ended up going back and thinking about it and going in a different direction.
And so one big question for me here is, are the justices who got no help thinking about the case in more nuanced terms, are they going to take that as provocation to actually do the thinking themselves and maybe look around for other people who are doing that thinking, or are they going to be content to rest on those representations by the advocates? So that’s, I guess, my point number one about a missing middle or a missing nuance.
And the second one for me was about stare decisis itself, and especially Rick’s comments, I think, foreshadowed the frame of the oral argument here where you kind of have this fairly rigid special factors requirement from Casey itself. You can’t overrule precedent because you disagree with it. You need something special. Maybe even you need a changed circumstance, something that wasn’t present before, before you can overrule precedent. And that’s a relatively rigid, kind of Casey-esque approach to stare decisis, and that was definitely in evidence at the argument.
And then there’s the almost the opposite end of the spectrum, this idea that any egregiously wrong or clearly wrong precedent can be and maybe even must be overruled because it’s so wrong. And that view also had voice, especially from Justice Alito and in a colloquy of the solicitor general. And to my mind, that colloquy and other aspects of the argument really reconfirmed for me that both of those stark positions are really not very compelling. Stare decisis is and has to be quite merit sensitive.
And one way of thinking about that kind of merit sensitivity, not the only way, but one way that I tend to like is the idea of precedent being a permission, that the Court has permission to stick with precedent but may instead decide to rule on the merits. And if you think about the case in those terms, then the question really becomes more like, well, when or why should the Court consider using its permission to at least stick with some precedent that exists here, because there’s so much of it, rather than go all the way down to zero?
And for me, the absolutism and the rigidity in the argument and in the briefing, I think, suggests to me that gradualism is especially warranted, partly for that very reason, that the Court shouldn’t leap to do something big and grand just because the parties on both sides would like a grand settlement. That’s not a reason for the Court to act injudiciously, in my view.
And the third and final point I’d like to make is also very much in keeping with that, which is that part of the grandness or the bigness or the speed of the way the argument was framed resulted in several colloquies that had to do with issues that were clearly not directly presented in the case. So we’re not even talking about whether the cert petition raised a circuit split or an attritional basis for this now. We’re talking about colloquies about the undue burden standard for abortion regulations as opposed to abortion prohibitions, which both advocates again agree were not directly at issue in this case, even though there is a circuit split bearing on that in light of a recent Supreme Court decision from last year.
And it would be really useful, I think, if the justices are interested in making this decision in Dobbs based on their views of the undue burden standard if they had a case that actually was about the undue burden standard in front of them so they could think about that directly, which is, of course, what they normally do in typical cases. And so this strikes me as another way in which this case is proceeding in a way that’s a little procedurally different and maybe procedurally problematic as compared with even the normal case, to say nothing of a case that involves such a potentially grand, disruptive decision.
So those are my three comments. They’re kind of laments, in a way, or cautions. And I look forward to hearing other people’s reactions. Thank you so much.
Jennifer Braceras: Thank you. So now we will go back to the beginning with Professor Zeigler and get her feedback on what she’s heard from her colleagues and proceed in the same order.
Prof. Mary Zeigler: Yeah. I’m interested in talking more about Professor Re’s point about institutional damage or just sort of generally preparing the ground for this. The reason I was surprised by the Court’s questions at argument was not because I didn’t think this is where we were going. I was surprised we were going there this quickly, in part because usually the Court doesn’t take it upon itself to overrule precedents this old this quickly. In part, Mississippi didn’t even seem to have expected that in briefing.
And so I’m curious. I don't know the answer to this, but I’m curious to what extent that would affect how people perceive what the Court is doing, whether they perceive what the Court is doing to be partisan or not. Certainly, I think Justice Sotomayor was trying to frame it that way by raising the point that the Court’s jurisprudence on abortion would be changing quickly because its membership had changed. Now, of course, that’s not just a neutral question. That’s a bid to make people think about partisanship and decision making in a particular way.
But I’m curious to what extent the Court’s haste, if you want to think of it that way, or its desire to take a more maximalist approach would have some affect on how the public would perceive a decision overruling Dobbs, regardless of whether that’s actually anything that’s on any of the justice’s minds.
I also felt during the argument that the justices weren’t particularly concerned about that sort of thing or particularly concerned about the public reception of an opinion. I think Dan made lots of good points about how the Court may want to maximize the appearance of unity, speak as much as possible in one voice, at least within the five, more likely six, justices that would be voting to reverse Roe.
But I also would have anticipated an opinion that tried to potentially manage backlash by appearing empathetic to the concerns on the other side of the abortion question, even if ultimately deciding that those concerns didn’t hold constitutional weight or didn’t make the Constitution speak about a right to abortion that the justices, in what I imagine to be the majority, believe the Constitution recognizes.
So I’m curious about that too, and to what extent this is a Court that sees itself as acting entirely out of principle and not particularly affected by that kind of consideration, which, of course, there are valid arguments that the Court shouldn’t have to or shouldn’t, as a general matter, take into account reaction to its decisions. But it seemed to me that that might have been something that at least defines the Court’s approach in this case, if not its approach in other cases.
Another thing I’d like to hear everyone talk about is something that Julia had spoken about in a previous event with me, a panel for The Federalist Society about where this goes from here. For much of the argument, the solicitor general from Mississippi was quite careful to say that he was not advocating for the recognition of personhood. Brett Kavanaugh was quite careful to say that recognizing that there was no right to abortion in the Constitution would not be tantamount to saying the Constitution was pro-life. In Kavanaugh’s words, it would be tantamount to saying that the Constitution was neutral.
But there are various moments in which the solicitor general from Mississippi certainly used rhetoric that was reminiscent of something you would hear in the pro-life movement. Certainly, Mississippi considers itself to be a pro-life state. And some of the justices asked questions that certainly didn’t close the door on recognition of personhood down the line.
And so I’m curious from a social movement and advocacy standpoint what everyone expects the Court to say in terms of really shutting the door on a personhood theory or not, whether any of the justices seem amenable to that, and whether certainly the right to life movement wants to advance the ball on that point, because obviously allowing the states to make their own policies about abortion I imagine will be ultimately unsatisfying to both the pro-choice and pro-life movements because that’s really not what either one wants.
And so I’m curious from a jurisprudential standpoint how we imagine if the Dobbs opinion goes the way we think it will, either movement advancing toward the more rights recognizing stance it would like ultimately.
Prof. Richard Garnett: Thanks. I think it’s me next. I guess just maybe building on Richard’s point, I think I see this differently than he does. In my view, the institutional concerns and the judicial virtues of humility and modesty weigh entirely in favor of overruling Roe and Casey. In my view, there’s nothing precipitous about doing that. We’ve been talking about it for 50 years.
And for me, the humble thing for the Court to do is confess error and give this controversial question back to the political process where the kinds of delicate balancing of interests that came up during the argument can be engaged in by people who are politically accountable. It’s not only pro-life critics of Casey and Roe who have lamented the fact that it was such an injudicious power grab, really. And it strikes me again that that institutionally, the wiser thing is to undo that error.
Similarly, with respect to the institutional concerns that Justices Breyer, Kagan, and Sotomayor were gesturing at, in some cases more explicitly than others, it seems to me that the Court’s institutional standing and legitimacy are enhanced by declining to insist on preserving this, again, power grabbing mistake and instead on, to the extent possible, recognizing that an issue like this, which might be sort of sui generis in American public law where there’s such deeply felt views about how to weigh the relevant interests and what the relevant interests are that the better course is to return this question to politics.
Now, as Mary pointed out, there’s a lot of questions about what would happen politically were the result that I endorse to happen. And I confess, I don't know.
One thing, just to add to the mix, we haven’t talked much about, I thought it was intriguing, maybe it’s just telling about the nature of constitutional discourse now, this wasn’t true in Casey, I don't think, but there were some efforts on the part of the respondent’s attorneys to connect the abortion right to practice and meaning at either at the time of the founding or the time of the Fourteenth Amendment.
Now, in my view, those efforts were unconvincing. As I saw it, the respondent’s attorneys were trying to move from the fact that not all abortions were prosecuted as criminal homicides to a conclusion that there was a right to abortion. And my reading of the history is that nobody ever thought that the Fourteenth Amendment created a right to abortion, even if it, again, wasn’t always prosecuted as a homicide.
But again, it’s just interesting, perhaps saying something about the changing nature of the kinds of arguments the justices are interested in, that the litigants felt like it was appropriate to make some historical arguments. Again, I think they were unpersuasive, but they were there.
And then, finally, Julia, to your point about substantive due process, I agree with you. I think the Glucksberg opinion, which Justice Thomas and Justice Scalia joined, acknowledged that there is a framework for identifying unenumerated rights that the Constitution might protect. It’s simply that if that framework is applied, some of us think it doesn’t yield the conclusion that there’s a right to elective abortion.
So I’ll pass it on now to Dan and take a pause.
Prof. Daniel Farber: I think the question Julia raised about exceptions for the life and/or health of the woman is likely to be one of the battlegrounds. And I think in Roe, although I didn’t go back to look at it, that Rehnquist’s dissent indicates that due process might require some exceptions along that line. But then the question will be how to articulate -- if, in fact, the Court wants to reinforce that view, the question would be how to articulate that. How broad is the exception?
Before Roe, a lot of states had de facto allowed something close to elective abortion simply by expansive readings of such exceptions relating to health and deference to medical judgement about those. So I think that could turn out to be an area of further litigation. It’ll be interesting to see whether the Court has anything to say about that.
In terms of legitimacy, I think -- it seems to me if there’s a legitimacy issue, it’s about whether to wait for a decent period after the creation of the conservative supermajority before making a move. Does it look precipitous to do it right after you get a 6-3 majority? Does that look too much like these justices were sort of preprogrammed to do this, and they went forth and did it? And I don't know whether people -- I don't know whether in particular Barrett and Kavanaugh are concerned about that at all or not.
I think by and large for the public, my guess is nuances won’t make that much difference. Democrats will view this as a further reason to discount the legitimacy of the Court and view it as a partisan body. And Republicans will think that the Supreme Court’s a little better than they were afraid it was, and they will give it some additional legitimacy.
I think maybe the group that might be more affected by these considerations might be the legal audience for the decision. Will lawyers and judges view this as a principal decision, or just as this is what you get after you control the Senate and the presidency long enough to control the composition of the Supreme Court? And I’m not sure of the answer to that. I think some of the things that Richard was talking about may be relevant there, but I don't think we know.
I do think that this is not going to put the issue of abortion to rest as a source of controversy or litigation. I think my guess is, looking at what’s happened in the gun arena, that there will be competition between Republican politicians to see who can have the most sweeping and draconian bans on abortion and who can go after abortion providers, in state or out of state, the most. And at some point, those are going to push against whatever lines of legality remain, and there will be more litigation. So I’ll stop there.
Prof. Julia Mahoney: Thank you. In terms of the institutional legitimacy point, which I think that all the justices, especially the Chief Justice, think a lot about and ought to think a lot about, it’s a very hard question. I suspect that the Court’s legitimacy has been eroded by the Roe-Casey framework because, as Rick Garnett’s excellent brief in this case, in Dobbs, pointed out, the Court has been taking on a quasi-legislative function. In both Roe and Casey, they, in effect, did what legislators normally do, not what courts normally do.
And that’s one of the things that I think very much distinguishes Roe and Casey from the other substantive due process precedents that we have been discussing. It is very -- in Obergefell and so forth, courts were doing pretty much what courts do. And that’s one reason that I think it is so important that in whatever opinion comes out of the Court in Dobbs that it be very, very clear that the Court is, going forward, going to do what courts excel at, and that it is going to have lower court judges doing what courts excel at, and that the Court is going to step back from acting as a quasi-legislature.
As to Mary’s question about whether or not there are going to be cases that ask courts, that, in effect, force courts to grapple with this question of fetal personhood, is there a point at pregnancy when an as yet unborn fetus becomes a person for the purposes of the Fourteenth Amendment, I think the answer to that question is a big maybe. Even if the Constitution is, quote, “neutral” between pro-choice, pro-life, it doesn’t mean that there can never be such a point. Now, obviously, those cases, if they are going to come, are still a long way off. And my guess is that the justices of the United States Supreme Court hope that those cases never come.
And picking up on some of what Dan just said about how legislatures are going to respond, might respond to outcomes in Dobbs, Dan is suggesting that there will be more grandstanding. He suggested that, for example, some Republicans would compete to have the strictest abortion laws. I’m not so sure. I think that the existence of the Roe-Casey framework has made it quite possible for pro-life and pro-choice legislators to grandstand and to, in effect, call for statutes, have statutes, enact statutes, support statutes, and so on and so forth, that they know are never going to be put into force, especially on the pro-life.
But going forward, in a new regime, I think that grandstanding is going to be far less common. So it may well be that the issue is going to be far more carefully considered and that state legislators are going to have to be more responsive to the moral judgements of their constituents.
Prof. Richard Re: Great. Thanks again to everybody. So one reaction I have to this is that there’s a strange kind of echo, I think, in some of the ways that some of the parties argue about this case, especially the anti-Roe-Casey crowd, even some of Rick’s remarks. There’s a strange echo in the grandeur of them, ironically, I think, with Roe and even Casey itself, which also kind of purported to be these settlements of a grand issue. And I take Rick’s point that Roe and Casey were settlements in creating a right as against the legislative process. I do agree that’s the difference between different types of grandeur. And you might think one is more appropriate in general or a particular case.
But it still seems to me that there is this, I daresay, a temptation present in Dobbs to say, “Well, we’re here, we can solve this. We can solve the legal problem of abortion here,” in a context where they have not given, in my view, adequate deliberation. And the fact that, echoing his excellent brief and other filings in the case, Rick mentioned that Roe has been around for almost 50 years, and Casey has been around for about 30 years. And you might say, well, of course we know what to do now.
But with respect, I think it’s one thing to say as a proposal we know what we want to do. It’s a bit different to actually implement it, execute it, and find out what happens later, largely for reasons that several of you, including Julia, have just discussed. The litigation is not going to end with the snap of a finger. There’s going to be questions on whether you have rational basis applied, and what does that mean, and do you need a health exception?
And I think the idea that we’ve been living with this for a long time so we know exactly how to solve it, it’s a little bit like saying we’ve been building this cathedral for 50 years, and so now we know that we need to tear it down today. And it seems a little precipitous to suppose that we know that just because we’ve been living with it for a long time, and we know exactly what to do, and we’ll never regret taking a big, bold step now.
So that’s kind of my reaction to it. I think of my arguments here as largely being about doing what this Court normally does, and, if anything, erring on the side of being more deliberate. And again, I just worry that we are seeing a temptation not to do that. Thank you.
Jennifer Braceras: Thank you, everybody. It seems like there’s some degree of consensus on the panel that Roe is likely to be overturned. And given that, I’d like to focus a couple of questions on the post-Roe world.
We talked a little bit, although not that explicitly, about some of Justice Sotomayor’s comments during the oral argument, which were picked up a lot on Twitter and the media, and in particular, her comments about the Court’s legitimacy and whether the institution can survive the stench, that this creates a public perception that the Court is just political.
But she also made comments that alluded to the whole slippery slope of if Roe falls, then all these other precedents will fall. I know, Julia, you’ve talked about that a little bit. But I’d like to ask Professor Garnett his view of Sotomayor’s comments, in particular, to whom was she talking? Was she talking to her colleagues, to the public, to the media? And what do you think her end game was? Do you think that those are scare tactics, or do you think she has a legitimate point about the way that other precedents might go if Roe were to fall?
Prof. Richard Garnett: I took a lot of her questions and comments to be directed more at the public, at social media, at commentary circles, and so on, than either at the litigants or at her colleagues, not because the institutional concerns aren’t important. I agree that they are. I thought that they are probably made in a register that was more likely to appeal to, say, the Chief Justice when they came from Justices Breyer and Kagan.
The language about the stench and so on, I guess, as I’ve already remarked, people smell things different ways. I think for a lot of people, the stench was the error of Roe and Casey and the way that it’s distorted law and politics, frankly, for so long. So whether one thought those remarks were cutting and insightful or not I think is going to depend on where one started off.
Jennifer Braceras: And do you think her concern about other precedents, Obergefell and Lawrence and other precedents falling like a domino effect, do you think that that’s a legitimate concern, or do you think --
Prof. Richard Garnett: -- I agree with Julie that one can recognize that there are unenumerated rights protected by the Constitution, but that Roe just isn’t one of them, that Roe might be sui generis involving this other life interest in a way that, say, even the right recognized in Griswold or the right recognized in Pierce do not. So I don’t see such a domino thing, but Julia said it better than I can.
Jennifer Braceras: Okay. We have a question from one of our viewers, which is also aimed at sort of a post-Roe world. And this viewer asks, “If Roe is overturned, to what extent can Congress at the federal level constitutionally enact laws about abortion either to permit or prohibit it?” Julia, why don’t you take a stab at that?
Prof. Julia Mahoney: Congress will have power under its commerce power to regulate the economy in ways that affect abortion rights, no question about that. How much can these be back door regulations that have dramatic effects on the contours of abortion rights? My best guess right now is that abortion regulation will be largely a matter of state, be left to the states. Congress’s commerce power is a limited power, as the Court has emphasized, although it is, of course, a broad power.
Jennifer Braceras: What might some of those Commerce Clause type of regulations look like on either side, either pro-life or pro-choice? What’s an example of what that might look like?
Prof. Julia Mahoney: Well, I’d have to think about that, what you would do if you were -- for example, there could be -- there have been attempts to regulate, of course, certain kinds of abortion procedures. I’ve always been skeptical. Those haven’t generally been subject. I’ve always been skeptical, actually, of those within Congress’s power under the Commerce Clause. So that’s one possibility. And we would just have to see the commerce, with the -- but again, the states will take the lead.
Jennifer Braceras: Does anybody else want to weigh in on that question of what the federal government might do, even in a regulatory capacity?
Prof. Julia Mahoney: Yeah, Dan. You’re muted.
Jennifer Braceras: Oh, you’re muted. There we go.
Prof. Daniel Farber: I don't know. I think Congress has very broad power here. These are commercial transactions. Congress can prohibit the sale of products. These are transactions that involve the medical sphere, that involve using products that travel and interstate commerce -- there will be a fair amount of interstate travel, I think, to get abortions. And so it seems to me that at least as the Commerce Clause has been understood to date that, say, a federal ban on abortions or I would also think federal preemption of state bans would be within Congress’s power.
I agree, though, I don’t think -- I think there may be a lot of, maybe, drama in Congress, but at the end of the day, I don’t see Congress as really wanting to step into this space, which seems to largely have more dangers than potential gains if you’re a politician.
Jennifer Braceras: Anyone else on this point? I know we did -- there was a little bit of conversation about how the U.S. is sort of an outlier compared to peer nations abroad, and how in Europe -- how things are likely to settle out much as they have in Europe with states regulating abortion in the early stages and -- at the later stages, rather, but not so much at the beginning stages. Why do you think that in the United States people are so politically dug in on this issue in a way that they don’t seem to be in European countries?
Prof. Richard Garnett: I’ll take a stab at it. There was a -- my teacher in law school, Robert Burt, had a wonderful book called The Constitution in Conflict. And one of the ideas that he floated was that when the Court constitutionalizes, perhaps in a sweeping way that purports to declare one side the constitutional winner and the other side the constitutional loser, that that tends to dig people in. And Professor Mary Ann Glendon at Harvard had, in her book Rights Talk, made an analogous point with respect to when things are converted all into rights talk, they tend to invite all or nothing, dug in positions.
And it could well be -- we’ll see, as Mary pointed out, that if Roe and Casey were to go, that the political tumult would yield something like the Mississippi position, perhaps augmented with something that I know many pro-lifers would like to see, which is enhanced financial supports for families, enhanced support for paid leave, enhanced support for women in crisis pregnancies, and so on. So I suspect those kinds of measures will be a part of the conversation as well.
Prof. Mary Zeigler: In terms of why the U.S. is an outlier, I think our party politics are part of it. I think if you look at other nations that have comparably divisive politics of abortion, like I would point to Brazil as an example, it’s scenarios where politicians really in both parties have realized that escalating the stakes of the abortion conflict turns people out to vote. I don’t think politicians in either party are innocent in terms of using this issue to get people out to the polls.
I think Roe to some degree played into that by making it possible for politicians to say, “If you vote for me, I will give you this kind of justice who will give you this kind of result.” I do not believe, I think, unfortunately, that Rick is right, that getting -- that eliminating Roe and Casey will put an end to that because I think politicians will then say, “My Supreme Court justices will give you Roe back,” or “My Supreme Court justices will give you personhood.”
And I’ve seen—I’m editing an international collection now—in other places where politicians have realized that you can make political hay by making this kind of promise when it comes to courts or otherwise. We tend to see any kind of sane compromise on abortion eliminated. So I don’t think, in having studied the history of this, I’m not sanguine that Roe and Casey alone are the problem. I think that there are many other systematic problems, in part that have to do with just the broader polarization of American politics, not just on abortion, period.
So I think that while there may be -- and then the only other point I would say is in terms of whether we’ll end up like Europe, I don’t know if we will because many European nations landed on something like what Mississippi has proposed in Dobbs, not what states seem to be proposing in a post-Roe America, which would be something like bans from fertilization in some instances, like we saw in Alabama, which, of course, exist in some parts of Europe but are not the consensus solution.
So I think in a post-Roe world, the U.S. may be an outlier just in sort of different outliers. You would have some states like California that would continue to resemble the kind of world Roe created. You would have other states like Alabama that would be outliers in the other direction. And you may have battleground states that are either pulled into one of those camps or another, or land somewhere in the middle.
So I don't know -- certainly, viability is an outlier, but I don’t know if what will come after Roe will be any different in terms of resembling what we see in a majority of wealthy democracies, especially because our party politics have become toxic in a way that you see in some other places but not so much in large swaths of Europe.
Prof. Daniel Farber: If I could jump in too, I’m not -- I would hope that things work out the way Rick and Julia were talking about with serious moral deliberation about where to draw lines and so forth. I’m not optimistic about that.
One difference between us and Western Europe, at least, is that religion is a much more powerful force in general in America. Religious observance is much higher, and I think that probably makes compromise more difficult. But I think we also have to recognize we live in a situation in which something as minor as whether to wear a mask has become a ground for violent political disagreement. And I just can’t imagine in that world that the abortion issue is going to simmer down if the Court gets out of the way.
Jennifer Braceras: Anyone else have any final thoughts? It’s just about 2:00 now, so if anyone else wants to weigh in before we wrap up, now’s the time to do so.
Okay. Well, on behalf of The Federalist Society and our audience, thank you to all of our panelists for your insight on this important case. And I will hand the mike back to Evelyn.
Evelyn Hildebrand: Thank you so much. I will just echo the thanks of The Federalist Society to our moderator and our panelists for the discussion this afternoon. I want to thank our audience as well for participating and sending in your questions and comments. We welcome listener feedback by email at email@example.com. As always, keep an eye on our website and your emails for announcements about upcoming webinars and virtual events. Thank you all for joining us today. We are adjourned.