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.
In defending its ban on abortions after 15-weeks gestation, Mississippi asks the Court to overrule Planned Parenthood v. Casey and Roe v. Wade, arguing that the cases were egregiously wrong because a right to abortion has no basis in the text, structure or history of the Constitution. Mississippi further argues that the various frameworks have proved hopelessly unworkable; that the cases have inflicted severe damage on democratic self-government, on the country, and on the understanding that the Supreme Court is a neutral arbiter of the law; that they have been overtaken by a better legal and factual understanding; that reliance interests do not support upholding Roe and that accordingly stare decisis principles counsel in favor of overruling them. Respondents argue that the viability standard is the central line that underpins these rulings, and that the Court's decision to retain it in Casey, in the face of repeated requests to abandon it both in the years leading up to Casey and in Casey itself, makes the bar for overruling it particularly high. They further note stare decisis's centrality to the rule of law and to public confidence in the courts. They add that the viability standard is well-grounded in the Constitution and that a right to abortion remains critical to women's equal participation in the workforce.
Our panel explored these and other arguments and considered whether overruling these decisions, maintaining the viability line in some form, or some other approach best serves the rule of law.
- Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
- Prof. Sherif Girgis, Associate 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: Hon. Thomas B. Griffith, formerly U.S. Court of Appeals, D.C. Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Host: Welcome, everyone, to this Federalist Society virtual event as this afternoon, November 18, 2021, we’re having a Courthouse Steps Pre-Argument Webinar on the upcoming Dobbs v. Jackson Women’s Health Organization. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society.
We’re very pleased to be joined by a terrific panel. I’m just going to give a very brief introduction and a couple of housekeeping notes, and then we’ll get right to the discussion.
We’re honored to be joined today by Judge Thomas Griffith. He used to sit on the D.C. Circuit Court of Appeals, and now he’s at Hunton Andrews Kurth. We’re very glad that he’s going to be moderating today. His much longer bio—he has done more than that—is available on our website, so you can check that out.
We’ll be looking to you, the audience, for your questions, especially towards the second half of the call, so please submit those via the chat, and we’ll pull the relevant ones so we can get to all of your questions.
And that’s all I’ve got. Thanks very much for being with us. Judge Griffith, I’ll give the floor to you.
Hon. Thomas Griffith: Great. Thank you very much, Nick. And thank you all for being here. I am not going to give lengthy introductions to our distinguished panel, but I would encourage you to look at their bios. This is a remarkable group of people we’ve collected. But by agreement, they’ve asked that I just identify them by title so that we can leave the maximum amount of time for their discussion.
What we will do is we will first hear from Mary Ziegler, who’s the Stearns Weaver Miller Professor of Law at Florida State University. Professor Ziegler will be followed by Sherif Girgis, who’s Associate Professor of Law at Notre Dame. Following Professor Girgis, we’ll hear from Professor Dan Farber, who is the—I hope I pronounce this right—the Sho Sato Professor of Law at Berkeley Law. Following Professor Farber, we’ll then hear from Professor Richard Re, who is the Joel B. Piassick Research Professor of Law at the University of Virginia School of Law. And he will then hand it off to Professor Julia Mahoney, who is the John S. Battle Professor of Law at the University of Virginia Law School.
We’ve asked each of our panelists to take five minutes to give us some initial thoughts. Once we go through one round of the panelists, we’re going to go through a round again where they get to react to various things that they’ve heard from their fellow panelists, and then we’ll open it up for a free-for-all amongst them. And we’re going to try and reserve ten minutes at the end for questions from the audience.
With that, let me turn it over to Professor Zeigler.
Prof. Mary Ziegler: Hi, everyone. Thanks for having me. I think I was chosen to go first not because I’m in a better position to than my astute colleagues but because I’m a historian, so I’m here partly to set up what Dobbs is about and some of the history that brought us here. So, of course, on a most basic level, Dobbs is about Mississippi’s law that bans abortion at 15 weeks. It’s a type of fetal pain law. Other states have such laws, but most of them focus on 20 weeks at the point at which they say fetal pain is possible. Mississippi and only one other state have staked out that position at week 15.
Obviously, I would assume none of us here today, or few of us are going to even mention fetal pain as a point because, of course, this case has become about viability and about the fate of Roe v. Wade much less so than about fetal pain. So it’s a culmination of, I think, years of social movement organizing around the idea of viability. Both Roe v. Wade and Planned Parenthood v. Casey, as you know, found that there is a right to make a decision about abortion that applies until viability. The precise point of viability varies between 21 and 24 weeks, roughly. But at any rate, it’s definitely before week 15.
Why has viability become a focal point of organizing? It really has been a focal point since the 1980s, in part because bioethicists have criticized it, including some who are pro-choice, in part because polling would suggest that Americans have become less comfortable with the idea of legal abortion as pregnancy progresses, and in part, I think, because it was seen as a weak point by some of the past members of the Supreme Court, including Sandra Day O’Connor, who saw viability as something that was almost inherently unworkable because it would change depending on the timing, depending on where a pregnancy occurred, depending on the physiology of a particular person, and certainly depending on the state of technology at any particular moment in time.
Of course, as many of you know, many are expecting that Dobbs will either be the moment that the Supreme Court overrules Roe, or at least will set us on a path to doing so. And so I think one of the questions that many of us are going to be interested in is whether it’s possible to sever viability from Roe and Casey and have anything left, if the Court can pull off the trick it did in Planned Parenthood v. Casey when it eliminated what many viewed at the time as the core of Roe v. Wade, a trimester framework, and yet preserved what it deemed to be the essential holding.
It’s also the culmination, I think, of years of social movement organizing around the idea of stare decisis. A lot of what we’ll be talking about today will not only be simply about whether Roe was rightly or wrongly decided but whether, for example, Roe has failed to settle the abortion debate in ways that are telling, in ways that we would have expected the Supreme Court to settle the abortion debate, if Roe is responsible, for example, for the politicization of our Supreme Court nominations or federal judicial nominations writ large, if Roe is responsible for the deep partisan divide we face or the negative partisanship that plagues us.
And these are all questions that I think are not something we often associate with social movement organizing and constitutional law. They’re not the stuff of high-flown constitutional rights. But they’ve become something that both pro-life and pro-choice organizers have become very invested in and have exported ideas into other areas of the law about how we think about stare decisis, how we make historical arguments about cause and effect in Supreme Court decisions.
And so I think for all of those reasons, the stakes of Dobbs will be high, not only for, certainly, Roe and Casey, although that’s true, but for other substantive due process decisions for how the Court approaches politically divisive topics, including everything from campaign finance to the right to bear arms, and, finally, in terms of how the Court reflects on partisanship in shaping its own role.
So I’ll try to stop even before five minutes, because then I’ll get plaudits from the judge, and hand it over to Sherif.
Prof. Sherif Girgis: Thank you so much. It’s a great honor for me to be speaking on the panel with Professor Zeigler and everybody else in this group. I’m a baby law prof, as you can tell by the naked office behind me, which I’ve tried to obscure by blurring it. But anyway, I’m really glad to be here to talk about all of this.
My main thesis is just that there is no middle ground in Dobbs. So it’s very hard for me to see -- just going to Professor Ziegler’s question, it’s very hard for me to see how the Court could uphold the 15 week law without entirely eliminating the constitutional entitlement to elective abortions in Roe and Casey. And by that, I don’t mean that I think that a middle ground would be unfound, all things considered, or even that it wouldn’t be originalist. I actually mean it would be impossible to imagine a lawyerly argument for it using any of the traditional tools of legal interpretation, text, history, precedent, even bright line ethical principles, and so on.
So I’ll say something about each of those points. First, can the Court uphold the 15 week law under Casey and Roe as is? Definitely not. The central holding of both cases was that -- the law, again, prohibits pre-viability abortions. And the central holding of those precedents was that until viability, the state’s interests aren’t strong enough to support a prohibition of abortion. So there’s a clear contradiction. So if it wants to uphold the law, they’ll have to scrap Casey and Roe. And if it wants to leave in place some residual right to abortion, it has to draw a new line between 0 and 15 weeks as the point form which states can begin banning abortion.
The question is, will they be able to cite a legal source in the paragraph that says here’s the new line between 0 and 15 weeks. They can’t cite text because the Constitution doesn’t discuss abortion. They can’t cite precedent because there’s no -- there aren’t even hints in any previous case about the relevance of anything between 0 and 15 weeks. Some people will say, well, Roe imposed a trimester framework, so 12 weeks is the end of the first trimester. But Roe said that 12 weeks was when you could start incidental regulations, and only for the sake of protecting the woman’s safety during the procedure. It did not say you could start regulating for the sake of protecting fetal life.
Some people say, well, history will provide a line between 0 and 15 weeks because history may -- in common law, historically, quickening was relevant. And that happens around 15 weeks, give or take, which is when the woman is first able to feel fetal movements within her. And Roe itself said that until quickening, there was a common law right to have an abortion, but that claim was later debunked.
It’s true that at common law, you could only begin to indict for abortions after quickening, but even pre-quickening abortions were subject to all kinds of heavy legal burdens. They functioned as a kind of link to a felony for felony murder purposes if the woman ended up dying, no matter how accidentally.
Even if you thought there was a right at common law, by the time of the ratification of the Fourteenth Amendment, it was irrelevant because by 1858, half of the states, by 1868, three-quarters of the states had expanded abortion bans by statute to apply to make it indictable at all stages. And that was because it was based on -- this is a little bit more arguable, but it seemed to have been based on obsolete reasons about the evidentiary difficulties of establishing a pregnancy or Aristotelian science about exactly what’s happening at what stage of pregnancy. So I don't think quickening will work.
You might say, well, they can just draw a bright line ethical principle somewhere between 0 and 15 weeks, so the emergence of a heartbeat around 5 or 6 weeks. But as we see in Texas, that would almost cut the right down to a right to take the morning after pill. I don't think that’s much more progress from the perspective of people looking for a middle ground over full reversal.
And then Professor Zeigler mentioned pain, and I think she’s right about the reasons it has fallen out of favor, just to say one thing about its relevance here. First, as she mentioned, it’s the most common point from which people think there’s any case to be made that the fetus can feel pain is 20 weeks, not 10 or 15.
And second, it’s black letter law that you can’t ban exercises of a fundamental right for the sake of interest you could achieve by less restrictive means. So Dobbs can’t go on treating abortion as a fundamental right and allow states to ban it to prevent fetal pain that they could also prevent by requiring fetal anesthesia, which some jurisdictions have done. I don’t see any other basis in history or precedent or even bright line ethical principles for drawing a line between 0 and 15 in Dobbs.
Some people say, actually, I’ve misread Casey. They say, actually, you could do it by just tweaking Casey. So Casey really had two rules on this view. One is no prohibitions before viability, and the other is no undue burdens on abortion. And Dobbs could scrap the first thing to save Mississippi’s law but then leave the second part of Casey intact for now because either way, Mississippi’s law stands because it doesn’t impose an undue burden because it leaves you a 15 week window to decide to abort.
I’ve seen that proposal in a few cases, but I think it clearly misreads Casey. And Casey’s undue burden test itself explicitly hinges on viability. It doesn’t say that you shouldn’t leave too narrow a window for aborting. It says that you shouldn’t make abortion too hard to get at a given point in time, any point until viability. So I think if you say, well, we’re going to uphold it as not an undue burden, you really are not just leaving part of Casey intact. You’re replacing Casey entirely with a new rule that just says give the pregnant woman a fair shot at getting an abortion.
And I think in terms of why that might be the rule, why I don’t think they’ll take that route, first, you’ll have to say what a fair shot is, and there will be no legal standard for picking it, no external authority for picking a line. You could be vague or cagey, but then you’re inviting endless relitigation.
Tennessee has a law right now that I imagine it’s going to ask the Sixth Circuit to take en banc. It has cascading severable provisions banning abortions at 6, 8, 10, 12, 15, 18, 20, 21, all the way up to 24 weeks, so that’s coming up the pipe. There’s a Missouri law that does the same thing, an Arkansas law that does the same thing, so the Court would have to pick a line somewhere soon. I don’t see why they would take the heat for overturning Roe, which will be the way that it’s depicted if they do anything significant in this case, only to be faced with the same kind of heat a second time. Better to overturn it once than overturn it several times if they’re looking at the Court’s reputation and its impact in the media.
And then the last thing, I guess, is that if they did draw a line -- and I know my time is almost up, so I’ll just say this last sentence, and it might have a semicolon in it. There is -- if they do draw a line somewhere between 0 and 15 weeks is the point at which you have left enough of a window to abort, it’ll be very hard for them to come back and chip away further at that in the next case, as some people say they would be trying to do because in that case, they would -- in the next case, they wouldn’t just be disagreeing with Roe and Casey if they draw a new line, they’d be disagreeing with their own words in Dobbs. So that’s why I think that, at the end of the day, they will most likely go all or nothing in this case.
And now I hand it over to Dan.
Prof. Daniel Farber: Thanks. I’m really grateful for the opportunity to join this panel today. Briefly, I see three options. One is to overrule Roe entirely and have the abortion issue entirely be relegated to the political process.
A second, which Sherif was just discussing, would be to expand the undue burden test in Casey to include all issues relating to abortion, not merely health-based regulations or similar kinds of regulations of how women are informed about abortion. I agree with Sherif that that is totally untrue to what the Casey Court was saying. On the other hand, I think with five votes, you could -- you might be able to get five votes to say that you’re preserving the core of Casey with the undue burden test. I also agree with Sherif that we would then see, really, a flood of litigation dealing with all kinds of efforts to ban abortions at particular stages or for particular reasons or one thing or another.
And then, the third option is to follow Casey and Roe and strike down the Texas law.
I think one thing we want to be on the lookout for at argument are questions about stare decisis, especially from Roberts and Kavanaugh, the tone of those questions might indicate that they’re looking for arguments to follow precedent, that they want to be convinced that, really, they’re locked in, or the tone of the questions may indicate that they’re looking for arguments to overrule Roe.
I think another thing to look for, and I think [Mary] mentioned this, was signs about whether an opinion overruling Roe will also endanger other decisions like Griswold, which protected the right to use contraceptives, and Obergefell, which protected the right to same sex marriage.
I suppose, at the most extreme, in terms of questions from, say, Barrett, Alito, and Thomas, we might be looking for sentiment to hold that the Constitution itself prohibits abortion by treating fetuses as persons under the Fourteenth Amendment. I really doubt that the Court is ever going to go that way, but I’ve been wrong before.
The choice, it seems to me, is most likely to be between flatly overruling Roe and Casey or going to the other extreme, upholding them both and striking down the Texas law. Between those two options, I think overruling would win the day. Maybe the ultimate question is going to be whether instead the Court will try for a middle ground like applying the Casey test.
As somebody who supports Roe and Casey, I’m actually conflicted about whether I would prefer a complete overruling or the sort of middle approach, which I think would lead ultimately and probably quite quickly to eviscerating any remaining right to abortion. I think the argument for coming out and simply being honest and saying that the Court no longer supports a right to abortion is that that would really tee up the issue in the political process in a way that hasn’t been true before.
We haven’t had voters confronted with actual situations where abortions are almost completely unavailable. And we haven’t had advocates for choice confronted with the knowledge that they have no recourse in the courts. That could be at least a healthier way in some sense politically to deal with the issue.
I also think that the idea of the Court deciding case after case in which they’re again asked to overrule Roe entirely and again result in chopping off some major part of the abortion right, I think that’s a very unedifying possibility. So although I’m a supporter of Roe, I am really not sure, assuming that I can’t get what my preferred outcome from the Court, I’m not quite sure what to hope for here.
And with that, let me turn it over to Richard Re.
Prof. Richard Re: Thank you so much. I’m delighted to virtually be here, and for the thoughts of all the other panelists, and for the questions as well. So I’ll just make three points about the potential challenges to overruling Roe and Casey, assuming that the Court on the merits is inclined to disagree with those holdings, assuming substantive disagreement with the whole against what could be an obstacle.
And the first and most obvious one is stare decisis, especially in light of Casey itself going along on stare decisis. And I guess the comment I’d like to make about that is that it’s easy, I think, to exaggerate the importance the stare decisis analysis would play in the Court’s reasoning. I’m not merely saying that the factors are malleable in a kind of legal realist sense that you can kind of maneuver around them if you want to, although that may also be true. I’m suggesting that the factors themselves are permeated by merits considerations so that depending on your view of the merits, you’re going to view a factor like reliance very differently.
You might think of it in a different context. Southern states’ reliance on separate but equal doctrines seems like monumental reliance from one standpoint, but if you have a view of the merits that separate but equal is a constitutional abomination, then the whole point of overruling the precedent is to eliminate the reliance. And I think likewise here, if you look at the state’s arguments, to the extent the state is making arguments against stare decisis, they seem shot through with merits considerations. So if we are looking for a merits-neutral stare decisis analysis, I don't think the state has really made its case, if that’s what a special factor for overruling is.
But on the other hand, I don’t really think that the practice of the Court descriptively or normatively, what the practice of the Court should be really requires merits-neutral stare decisis analysis.
So all that is to say that precedent might be operating more as a permission, as an authorization for the Court to do things, maybe things to avoid the appearance or actuality of partisanship, for example. I think Mary alluded to that at the end of her remarks. And precedent really is not operating so much as a constraint on merits considerations but rather as a way of expressing merits considerations differently in the context of the question to overrule.
So that’s my first point, that stare decisis is going be very important, obviously, but it’s going to be important more for what it allows courts to do or what it allows courts to express, not so much because it’s a constraint on the merits themselves.
The second possible barrier, I think, would have to do with the rhetoric of a ruling. And a lot of people who are against overruling Roe and Casey have said that the Court rarely and maybe not in a long time has overruled a rights creating precedent. And I think there’s a lot to quibble with about that or interrogate about that, but I went back and looked at what might be an example of the Court doing that, which is West Coast Hotel beginning the process of undoing the locking regime and the right to contract.
And I think there may be a lesson there in that the way I read that opinion rhetorically, it starts in a legalistic, neutral tone, saying, look, this just isn’t the law that you have this right to contract. But then it moves into a more maybe impassioned effort to vilify the rights holders and suggests that capital is exploiting labor, and that’s why the right doesn’t need to be respected in precedent because the right is being abused or is being held by abusive parties.
And it strikes me that that second rhetorical move is just not really plausible in the context of overruling lots of rights and probably not really available for many justices in connection with abortion rights. And I think that lack of a rhetorical tool, I think, may also be something of an impediment to overruling rights creating precedents in general, and maybe especially here.
The last point I want to make is more of an arch procedural set of concerns about how this case got to the Court, how it was briefed, and I think there are some reasons for concern here. One reason for concern is I don’t actually see the facts of this case posing any of the traditional criteria for the Court granting cert at all. There are lots of circuit splits out there about abortion rights and I think a lot of them are cert worthy. I don't think this case is one of them, which makes it a strange decision to grant this case at all.
The second thing is the way the case came before the Court, the idea of overruling precedent in a grand way was in a footnote and was very half-hearted. And now, at briefing, the state has made it this whole -- the main issue now is to overrule all of these cases. And so I feel there’s a bait and switch going on there that helps keep the case maybe below the radar, maybe impaired deliberation, maybe impaired, even, briefing in some ways. And so I think there’s a bait and switch problem.
And the third, that is maybe grander or maybe encompasses the things I’ve already said, I think in general when the Court is going to do something really destabilizing, I think it needs to give notice that it’s going to do that whenever possible and maybe move incrementally, maybe give one last chance to the losing side to make its case. And I think that kind of reasoning cuts opposite of where Dan was, I think, ending his remarks a moment ago, that, to me, the time to raise the salience of, really, any big decision by the Court is before it’s made the decision.
That would seem to me to be a reason for the Court to limit itself to granting -- to answering, rather, what it had actually granted about viability, not reaching the overruling decision, or just DIG-ing this case because this case has become something not that they granted cert on, that they probably shouldn’t have granted cert on at any rate, and wait for a proper context in which the Court could actually signal that it’s considering overruling and making a big disruption, and then having proper public and legalistic deliberation on that question.
Those are my remarks. Thank you so much. I’m going to hand it over to Julia now.
Prof. Julia Mahoney: Thank you. Thank you, Richard, and thank you for having me. This is a fascinating discussion, and I really look forward to our exchanges and questions from the audience.
My chief point is that thinking about the bigger picture, the U.S. Supreme Court is not going to ever be able, at least so far as we can see, to get out of the abortion context, however hard they try. I think it is a mirage, picking up on something of what Dan was saying, to think that the Court can actually be shed of it. The Court is going to continue to wrestle with hard questions concerning abortion, and the justices all know this. Each of the justices is highly adept at thinking a few steps down the road.
Now, for decades, a lot of Roe’s fiercest opponents, and a lot of its supporters too, have argued that the Court could do exactly that, that in effect, the Court could wash its hands of an issue that threatens to undermine the Court’s institutional credibility and turn this whole thing over to the state legislatures.
Justice Scalia was one of the most, I think, prominent proponents of this, and he was tireless. He kept saying things along the lines of, “The states may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” And Scalia also went on to say, “The permissibility of abortion and the limitations upon it are to be resolved, like most important questions in our democracy, by citizens trying to persuade one another and then voting.”
But Scalia, I believe, was wrong. The Court can’t step back and leave this to legislatures. It’s going to continue to have an important role, just as legislatures have an important role. And this relationship is something that I’m quite confident the justices are thinking about, and it’s a very, very complicated relationship. If the Court upholds the Mississippi law at issue in Dobbs, it will face and it must be braced for follow-up cases, some of them with a lot of gruesome and heartbreaking facts that will test the meaning and application of the various carve-outs of the statue, medical emergency, fetal abnormality. What exactly to these mean?
Now, can the Court limit its abortion docket? Yes, it can. And now I’m getting into my colleague Richard Re’s area. I would love to hear his thoughts on this, and all of yours too. I think the Court could take a very hard look at its case law on standing in the abortion context and perhaps normalize its standing case law in the abortion context. That would certainly shrink its docket to a more manageable size.
But it can’t eliminate abortion cases. They’re going to be too many very, very hard fact patterns that come up, regardless of whether the Court DIGs that case, dismisses it as improvidently granted, which I think it not at all impossible for reasons that my colleague Richard Re was just explaining, whether it full-throatedly affirms Roe and Casey, which I don’t expect it to do. It’s already twice taken that poisoned chalice of purporting to settle the case once and for all in favor of a fairly robust abortion right, and that has not worked out well for it.
But, of course, even if the Court ends up striking down this Mississippi law and explicitly reaffirming the Roe-Casey framework again—I don’t think that they will do this—on the horizon, as Dan mentioned, I think, briefly, on the horizon are challenges to abortion laws that are grounded in the conviction that at some point in pregnancy the fetus becomes a person for some constitutional purposes.
These justifications have been well-articulated in briefs in Dobbs by Robert George, John Finnis, and others. And the moral force of at least some of these arguments is likely to resonate, I think, anyway, with a significant portion and maybe even the majority of the U.S. electorate.
I noted with great interest that Yale law professor Cristina Rodriguez, in her Harvard Law Review forward that was just published this month, mentions this in a footnote to her discussion of Dobbs. She writes, “A development that once seemed highly improbable but may be imminent is the recognition that fetal life is to be protected under the Fourteenth Amendment, a recognition that would mean abortion could actually become unconstitutional, or at least would set up a conflict between two incommensurate rights.”
One final consideration that I think may or may not factor into the Court’s deliberations, but it is certainly something that is very much, I think, on people’s minds, is that the United States is now an outlier when compared to its, quote, peer nations, that is, to other rich democracies in terms of the lateness of abortion that is fairly common.
Now, you might say, so what? The United States is exceptional. We’re exceptional when it comes to the First Amendment. We’re exceptional when it comes to the Second Amendment. That’s all true. But, nevertheless, in a lot of areas, the U.S. Supreme Court has shown at least some sensitivity when arguments are advanced pointing out how United States allows things that are, from one perspective, flat out barbarous, and other nations, including a lot of European nations, don’t allow those practices.
Now, there is a certain, entertainment is maybe putting it too strongly, but it certainly is striking that, thanks to Mississippi, the United States may end up looking a lot more like, well, France. But this is true. One of the things that could result if the Supreme Court ends up upholding the statute at issue in Dobbs is that the United States will be drawn so that it looks more like European nations than it did before.
All right, with that, I very much look forward to other’s comments and to audience questions.
Hon. Thomas Griffith: Great. Thank you to all the members of the panel. Now, we’ll go through the panel again in the same order. If there are comments that you’d like to make to respond to your panelists’ points, feel free to do so. Professor Zeigler, we’ll start with you.
Prof. Mary Zeigler: I’ll start with -- I hadn’t ventured a prediction, but I think I see that it would be -- I agree with Sherif that to say anything -- to do anything minimalist would be to invite more litigation. But I’m inclined to think that that would be what the Court would want to do for reasons that Dan outlined. I think, in part if the Court is going to make -- I think would want the opportunity to make the case that Roe should be overruled, as Richard discussed, because the Court hasn’t really telegraphed up until now that the Court was preparing to overrule Roe, which I think was why the cert grant in Dobbs was so, I think, such news to so many people.
And so I think the idea of generating more litigation almost on purpose by doing something vague, for example, saying viability isn’t the line, the lower courts haven’t had the opportunity even to consider Mississippi’s law knowing that viability isn’t the line, so let’s remand and start all over again. That would, of course, intensify what’s already a pretty vigorous process of legislation by states testing the waters to see how far the Court will go and how quickly in undermining Roe. But I would almost expect that that would be a plus for some of the justices on the Court, especially those with institutionalist concerns.
And again, I think, as a historian, I’m always struck by how willing the Court is to do what seems to be jurisprudentially questionable in this arena when it comes to saving what is or is not essential when it comes to Roe. If you had said to someone in 1990 that the trimester framework it just this sort of incidental thing, it was the doctrinal rule that governed for decades. If you had said you can get rid of what some viewed as a strict scrutiny approach to abortion regulations without overruling Roe, people would have looked at you incredulously, which was, in fact, the position taken by pro-choice litigators in the ‘90s.
The initial response to Casey was that the Court had, in fact, overruled Roe. That was not how the court positioned it, and that was ultimately not how we’ve come to interpret it. We’re having a conversation today as if Roe is still a thing that exists that can be overruled with Casey. And so I think, ultimately, the Court’s realpolitik on abortion can have more staying power than we would like to think, even if at the time the Court’s decisions come down, we don’t find them particularly intellectually convincing from the standpoint of what has or hasn’t been preserved.
I’m curious. I want to talk more to Julia about the U.S. being an outlier in part because I’m doing more comparative work now than I usually do. I’m editing a collection on international abortion law. And one of the things that struck me in digging into Europe’s laws, both how in some ways we resemble Europe more than I would have thought because so many European jurisdictions have, in various ways, come to restrictions that exist in most states. For example, parental involvement, very common in the United States now, not something -- and has been sanctioned by the Supreme Court. Informed consent, again, common in lots of jurisdictions in Europe, including ones that have arrived at recent consensus on abortion like Portugal.
And so I think what’s striking to me is that there’s almost no scenario, to Julia’s point, where the Court continues to stay involved in the abortion debate, which I think it will. I think it’s inevitable for the reasons that Julia mentions, and then arrives at something that resembles what we see in other European nations, and also something that, quite frankly, we see in polling in the United States, which would be limits on or flat out bans on abortion later in pregnancy, maybe roughly at the time Mississippi’s law kicks in, with exceptions for certain reasons involving health later in pregnancy. That’s something that would track what we see in a lot of Europe, and frankly, not just in Europe, we see in other nations that are changing their laws recently, including Thailand.
That’s not where we’re going. I think that’s not what we’re going to see pro-life litigators asking for. I don't know if that’s what we -- the Supreme Court justices, I think, to Dan’s point, probably aren’t there yet, but there may be some of them interested in going there. And so I would submit that we’re likely to see a continuing disconnect in our own constitutional jurisprudence in our own state laws and in how we think about this with comparable democracies, really, regardless of what the Supreme Court does.
And so if that’s something that bothers you, I think that there are problems that extend beyond anything the Supreme Court would solve that are likely to continue to push us in that direction, regardless of what happens in Dobbs. But I’m, maybe just because I’m a historian, I’m maybe more inclined to think that the Court will do something cynical but, in its view, maybe reputation enhancing that will leave us with a decision overruling Roe outright more in time for maybe the 50th in 2023, or just to make things really interesting, the presidential election in 2024. I would be looking more for that or would be less surprised by that than with a clean, outright, and explicit overruling in 2022.
Prof. Sherif Girgis: Great. Just a few thoughts. On the last point, I think one reason we’re so primed to expect a, let’s say, ambiguous or less than clear reasoning in defense of a new abortion rule, that the only two times we’ve ever had the Court create a new rule were the Burger Court with Blackmun at the helm writing the opinion, and then the Kennedy Court or the Rehnquist Court where Kennedy and O’Connor were swing votes.
And I think that we’re just night and day of a difference from both of those courts now. And so it’s very hard for me to imagine Justice Kavanaugh or Chief Justice Roberts going along with something that would have to be as either dishonest about what Casey said or as completely inventive an unhinged from legal sources as I think any opinion would have to be to go halfway in this case.
But then, even from a realpolitik perspective, we’re all just guessing here, of course, and I defer to Mary’s sense of the history. But my own intuition is that, given contemporary conditions, the U.S. and the respondent and many of the amici in favor of respondent said if they do anything halfway here, they’re fully reversing Roe. Some of the podcasts and commentaries on this issue have said exactly the same thing. If they do anything halfway, don’t be fooled. They’ve effectively gutted Roe. And so they’re going to get the blowback of gutting Roe once no matter what, unless they uphold the law here. And as I was saying, my prediction would be that they wouldn’t want to get the blowback of overturning Roe several times.
On the question of whether the case was cert worthy, it’s true that there was no circuit split. And the reason there was no circuit split is that it’s clearly impossible to uphold any law that bans abortion this early under Casey, which is very bright line about bans not starting before viability. Judge Ho in his opinion below actually said basically, “I looked not just for another case but for another judicial opinion. I looked through all these conservative judges’ opinions, reviewing anything like this law and did not find a single judge ever saying you could uphold the law like this under Casey or Roe, so my own hands are tied.” And so you’re not going to get a circuit split.
To the extent that you’ve got any opinions where the court is questioning the viability line, I think Gonzales did that. In fact, Justice Ginsburg said in defense that Gonzales represented a dangerous blurring of the relevance of the viability line. So there is some questioning of it already there. But I do think that, actually, all of these points just reinforce the fact that there’s no way that the Court was uncertain about what it was doing or didn’t realize what it was doing when it granted cert.
First of all, there were three questions presented, and it deliberately left aside the two questions that did have circuit splits on them, or, at least, that did have lots of previous opinions questioning them, the ones about third-party standing in these cases and the one about exactly how to understand the undue burden. And it focused exclusively on the question of whether pre-viability bans are unconstitutional. And that’s effectively the central holding of Casey and Roe with a question mark at the end of them, so far from them being far afield from the question of whether Casey and Roe should stay. I think it’s very hard to imagine a way of saying should they stand more clearly short of saying Casey and Roe in the question presented.
And in all the bait and switch cases that any of the parties cited, those were all cases where the Court itself said that what had happened was that a lower court -- that the petitioner had raised arguments in their merits briefings that did not bear on the question presented, whereas here, no one has suggested that they raise questions that didn’t bear on the question presented. They bear directly on the question presented.
As far as whether the Court was on notice, again, I think, after sitting on it for nine months, there’s no way they couldn’t have seen the clear conflict between Casey, Roe, and this law, and then the difficulties of drawing a new line from scratch. But on the same day that the Court granted cert, The New York Times said this is the test case to overturn Roe. NBC News said the next day this signals that the Court is ready to overturn Roe. It lunges at the heart of Roe. But even before that, the BIO, the brief in opposition to the cert petition said there’s no way to uphold this without reversing Casey and Roe. So I don't think there was any issue of fair notice or anything like that.
In terms of ventilation of the issues, like maybe we should wait for the Court to give us a heads up that this is coming and then wait for the issues to be ventilated more fully, you had hundreds of briefs in this case that are overwhelmingly dedicated to just the question of whether to reverse Casey and Roe in full. Seventy percent of the topside briefs asked for full reversal explicitly. The U.S. and the respondent’s briefs not only argue on that central question, they go out of their way to blow up all of the half-hearted off ramps that Mississippi offered in passing. And one of them says explicitly there’s -- both of them say explicitly there are no half measures here.
And then I think that in terms of the -- I think the strongest point in favor of thinking that this was some kind of bait and switch is the massive difference in emphasis between the cert petition and the merits briefing. But even there, the cert petition never says you can uphold this under Casey or Roe as is. It makes clear that you are going to have to change the precedent. You have to reconcile them, as it says in one place. It goes through extensive critiques of Casey and Roe, and it’s main point is to critique and question and ask the Court to erase the viability line which Casey and Roe and Gonzales and every other abortion case has reaffirmed is the central holding of Casey and Roe.
And so if you have all of that, the fair notice, the Court was on notice, the issues have been fully ventilated, as fully as you could imagine them being, almost all the parties agree that there is no middle ground here, including the parties supporting the respondents in this case. The only thing that’s left is the strong shift -- well, and, of course, that the cert petition did tuck in somewhere a footnote basically preserving the ability to argue that they should reverse Roe.
So the only thing left is a kind of argument about emphasis. And the one time I know of where the Court addressed this issue, it was in Madison v. Alabama. And in Footnote 3, Justice Kagan says that she’s addressing the argument that the Court should have DIG-ed because of a bait and switch, but she makes the point that the only question for those purposes is whether the arguments raised in the merits briefing bear on the question presented. She says it clearly does.
And then she says, true, there’s a huge shift in emphasis. And then she says, in any event, the number of words spent on each argument is not what matters. Our rule states that the Court will consider only the questions set out in the petition or fairly included therein. And she was saying the arguments raised in the briefing were fairly included. So I would be very surprised -- I think I would be even more surprised if the Court DIG-ed or failed to get to the question of whether reverse Roe than I would be by maybe any other outcome.
Prof. Daniel Farber: I guess I’m next. This has been a fascinating discussion, and I think I agree with Richard in sort of lawyerly terms, or in what is the most judicious approach, given the law. I think the real question is whether the Court is inclined to be judicious or to go big, and think that’s hard to predict. There are certainly cases where the Court has reached out to go big when it didn’t have to. Citizens United is a big example of that, I think. There are other cases where people expected a big decision, and the Court came up with, I don't know, a standing holding or some other grounds for ducking that might not have been very persuasive to federal jurisdiction scholars but did the trick.
I think, politically, if the Court, I think, despite what the advocates are saying, could probably get away with a decision saying we are reaffirming the core of Casey, which is the undue burden test. And that would be met by outraged dissents from people like Thomas, and those dissents would persuade, I think, the media and the public that the Court had courageously adopted a compromise, just as in Casey. But I don't know if they’re going to want to go there.
I think it’s certainly clear that that would lead to an unending and very -- I shouldn’t say unending, but a whole flood of different cases, some of them already teed up, that would continue to embroil the Court in this issue. And unless the Court is willing at some point to find an abortion law it doesn’t like, then the claim that to have come up with a compromise will simply be a cynical ploy. So I don't know what they’re going to do on those grounds.
I think in some ways they have shown an appetite for reaching out and going big. You see this on the shadow docket where they have jumped into cases they easily could have -- where standard rules about the availability of injunctions from the Supreme Court have been kind of brushed aside, where a case had very little practical significance at the time that the Court jumped in to decide it. And that may be indicative of a Court that’s kind of -- a majority that is eager to go out and do battle.
I can also imagine something -- I think it was in the Philadelphia free exercise case last term where you have clearly a majority that’s prepared to overrule the Smith case, but you also have Barrett saying, “I’m not going to overrule because, at this point, we haven’t found the right substitute. And until we do that, there’s no point in throwing the law into confusion.” Something like that is possible too, or perhaps just nine separate opinions that will leave everybody puzzled over exactly what the effect of the Court’s ruling is.
I don't know. I used to, at one point, have a lot of confidence in my ability to prognosticate about the Court and how it would pull in big cases. And I think any sense I had about that went out the window about 20 years ago. I’m anxiously looking forward to the argument for clues and then to the decision. And of course, whatever they rule is going to have a major effect on the political process, on the lives of many women. And we just have to wait and see what they do, I think, as interesting as it is to speculate about it.
Prof. Richard Re: Okay, yeah. Thank you, everyone, for all these many thoughts. I guess one comment I have is to agree with at least part of what I took Mary to be saying in the beginning of this round in response to Sherif that having an imperfect, unstable, maybe not supported by majority the Court is now suggested holding, is a pretty common move for the Court to make when its facing a difficult issue, when its dealing with transitional problems.
The Fulton case that they had mentioned is a great example of that just from this last term, so I think it’s a technique that’s not just from the Roberts Court just from a few years ago but from the Roberts Court of right now. And so, to me, the idea that there’s no middle ground option, it depends, I guess, on what the standard is. I think Sherif said there’s no lawyerly option in the middle ground. I don't know. I’ve seen a lot of lawyerly behavior and a lot of lawyerly stuff that makes me wonder about that, including from this Court, that you may be interpreting that standard a little bit higher in terms of coherence or principle or normative consistency or with the logic consistency than I perhaps would.
And I think in particular, the example that Dan also gave of Citizens United, I think, is a really probative one because I do think that is in some ways an analogous situation. And I think there was more notice there before Citizens United that there was a potential majority to go big, unlike here, because things have happened so fast here.
And they asked for reargument. And I think that that would be very beneficial in my view. If they had argument, they decided, as Sherif suggests, that maybe they can’t actually answer this question without going big—I don’t necessarily think that’s right at all, but they did conclude that was a possibility—I think a reargument would be very helpful to give notice and allow deliberation, not just because of a realpolitik matching blowback, but because they’re trying to operate in a way that is principled, and that gets all the information on the table, and allows ventilation of the kind that many have mentioned.
And I do think that one thing that somewhat cuts against my worries about procedurals in here, I will say, that I don’t think it’s come up too much in this conversation so far is SB8 because I think what happened off script, as it were, is Texas catapulted abortion rights to the front of the national discussion and the legal discussion in kind of a proceduralistic way but in kind of an unplanned way.
And I actually think the Court majority was surprised by the public response and the academic response to a great extent, but I think that in a way that actually does make it less objectionable for the Court, for example, to ask for reargument because abortion rights have become more ventilated and more salient. And so I think that I should acknowledge that as a reason why some of my procedural points may be not as forceful as they would be in a slightly different situation. Thank you.
Hon. Thomas Griffith: Julia’s going to get her full time, but I just want to let the audience know we’re going to run a little bit over time because we obviously have lots of questions. But, Julia, take your five minutes.
Prof. Julia Mahoney: I’ll be brief and pick up on where Richard just was with SB8. I think SB8 also has the effect of making the Mississippi statute look quite moderate. So, in a sense, an upholding of the Mississippi statute looks now like a middle ground simply because SB8 is now very much out there and very salient in the discussions.
Getting back to what Roe and Casey actually mean, it seems to me that Roe is gone, and it wouldn’t be a very heavy lift for the Supreme Court to explain how Casey had, in effect, enucleated Roe. And then, as for Casey and its viability framework, the viability framework has always been something of an embarrassment because of the fact that -- in part, because viability depends so much on the state of medical technology and also on the happenstance of where a fetus or child, whatever term you wish to use, happens to be treated. There’s such a divergence in terms of the treatment quality.
So it doesn’t seem to me at all to be a stretch for the Court to articulate a kind of viability plus approach, that they’re going to just leave a margin for error because viability can be perhaps as low as 19 or 20 weeks. So going to 15 weeks to have kind of a margin of error built in, that just doesn't seem to me to be such a radical statement.
Anyway, I’ll stop here and await audience questions.
Hon. Thomas Griffith: Great. Thank all of you. Let me start with a question that picks up on something that Dan said. And I hope this isn’t a misrepresentation of what you said, Dan. If it is, you’ll correct me. But the question suggests that you think that the healthiest outcome for the state of the republic would be one that you disagree with personally, but that would be a complete overruling of Roe and Casey and returning this to the political process. First of all, is that an accurate statement of what you were saying, because the question is based on that.
Prof. Daniel Farber: Well, yeah, I think that’s a little bit of an overstatement. I’m not really firmly of that opinion, but I do think that could be the right answer.
Hon. Thomas Griffith: Okay. They question then is to what extent do you think the justices would allow that sort of reasoning to influence their decision; that is, whether this is a good time for this issue to be opened up to the political process more so than it has been? And the question is directed to anyone who wants to take it.
Prof. Daniel Farber: I guess maybe I should answer first. I’m not sure about -- I don't know if there is a good time, but they may feel that this is a time of especially high polarization and that this would add fuel to the fire. And I think, in some sense, it would.
And it would also, to the extent the Court is worried about its political position, rather than getting credit from all sides for doing this, it might simply polarize opinion about the Court more. So from that point of view, I don’t know. Some of the reasons that I think it, in some ways, might be better are reasons that the Court might actually view as negatives about raising the political temperature on this issue even higher than it already is.
Prof. Sherif Girgis: I think that, actually, the reaction to SB8 has made me think that they might think that this is a good time because I think it was a much less powerful and roaring reaction in the popular culture than I expected it to be, and certainly than I expected it to be based on the coverage of it. And McAuliffe made it a strong consideration in the election, and of course, there’s a million factors going on there, but I don't know that he got a ton of -- a boost out of it. And it seems to have just not played a salient role, maybe because of a bunch of other pressing political issues right now.
I also think, though, that the question of how clean an argument they can give for whatever line they draw might bear a little bit on this. So when I was saying I don’t think they can do anything lawyerly here that’s middle ground, I just meant that they can’t -- if they’re going to create a new test to replace Casey, they’re not going to be able to give any legal source to support the text.
Hon. Thomas Griffith: Sherif, let me interrupt you on that because there was one question that was directed to you about this lawyerly argument. Justice O’Connor has famously said that abortion is different. It’s just different. So how much of that attitude might be at play here, that they’re not looking for lawyerly arguments?
Prof. Sherif Girgis: I think, actually, the more heated and radioactive the issue is, the more desperate they will be if they’re upholding a pro-life law to say that their hands were tied by the legal sources. And so if they can’t cite text, or history, or precedent, or even some bright line criterion that sounds bright line enough to be judicial and not legislative, they have nothing to say in the paragraph that sets forth the new test, no legal citation at the end of the paragraph. That would require them to be even less formalist than the Casey plurality, which I think did uphold a part of Roe and could say that it was at least doing that much.
In terms of whether it would be unlawyerly for a different reason because it looks like they haven’t considered all the arguments, I literally cannot think of a single argument or a single issue or sub-issue that wasn’t fully ventilated in the briefs on both sides precisely because they did end up all focusing almost entirely on the question of whether to overturn Casey and Roe.
So if they said, “We’re going to call it a day,” which is unlike what happened in Citizens United where the question of dealing with Austin was something that had to get more briefing, whereas here, almost all the briefing is already on the central question. If they said, “We’re going to all it day here and come back later to revisit the issue so people have more time,” I think nobody would be being a bad lawyer for their clients or for the amicus they’re representing if they just refiled exactly the same brief with all the same analysis.
Hon. Thomas Griffith: Okay, we’ve got a series of questions about stare decisis. Many of you spoke about that. But I want to start with something I think Professor Ziegler said, and if I get this wrong, correct me. But you pointed out the significance of stare decisis in the context of Roe. And here are the questions. Has the discussion surrounding Roe with regard to stare decisis—for example, Senator Specter creating a super duper precedent—has that created a new doctrine of stare decisis that was intended politically just to protect Roe that the Court may not care too much about, recognizing that what has been said about stare decisis may have been just to protect Roe?
Prof. Mary Ziegler: Certainly, yeah. And I think that there’s also, as I mentioned, been years of organizing around this very kind of approach. I would say it’s pretty much -- it wasn’t just Casey. There are other precedents from the ‘90s that Casey cited. And of course, more recently, I think if the Court is thinking about stare decisis, it’s much more likely to be thinking of Justice Kavanaugh’s approach in Ramos than it is Casey’s approach to stare decisis, in any case.
But I think that there is -- certainly, Justice Gorsuch has already articulated that he thinks abortion doctrine has deformed the Court’s approach in other jurisprudential areas. I think there are other justices who share his views on that. That may be true when it comes to stare decisis, but I don’t even think the justices are going to need to do that because as I mentioned, a good amount of organizing and lawyering in this area has been around stare decisis on both sides, really, in ways that are kind of extraordinary.
So to the point that at times when you are talking to people who don’t understand the pro-life movement, for example, people will be surprised that the pro-life movement’s main focus is not Roe and stare decisis, that it’s actually something closer to personhood or fetal rights. That will actually surprise people who don’t know because the organizing has been so intense and so successful. So I don't know if the Court would have to take the abortion exceptionalism tack, although I think that’s available, and I think Justice Gorsuch in particular has telegraphed, I think, his interest in that.
I think it would be more likely that the Court would kind of follow the path, I think, that Justice Kavanaugh was beginning to sketch in Ramos and say essentially that even if the Court takes stare decisis seriously that the political ramifications and doctrinal ramifications of Roe and Casey are so different and so concerning that the Court can cleave those opinions off without, for example, calling into question other substantive due process opinions, even if, by the way, I think, to Julia’s point, those are not settled either.
There are amicus briefs in Dobbs that are already saying, “Well, guess what? While you’re at it, you might as well also overrule Obergefell and Lawrence.” So I think if the Court is to overrule Roe, even if the Court would like that to be the end of the matter when it comes to rethinking substantive due process, those cases will also come before the Court. So I think as much as abortion is not going away anytime soon, this will then, I think, intensify conflicts around other adjacent substantive due process issues. But, yeah, I think, in a nutshell, it’s going to just -- I think we don’t know --
Hon. Thomas Griffith: -- Yeah. There are some questions that seized upon the comment you made, Julia, about the possibility of reaching Obergefell. Would you care to comment on that? Do you think that’s real? How likely is that to happen, and what’s your sense of what the Court might do in response to those arguments that ask for such a broad reach?
Prof. Julia Mahoney: Oh, I would be very surprised if there is anything in any majority opinion that emerges from Dobbs would be an easy hook for revisiting any of these other --
Prof. Sherif Girgis: -- I think it’s not just about what the justices will say in their opinions. It’s about what realistic fights you can imagine from the states. And the fact is that there’s just no serious opposition to or no serious attempt to challenge Obergefell or Lawrence or Griswold or anything like that. Those are as settled as the precedents come, whereas Roe and Casey, as Casey itself admitted, have been completely unsettled and, if anything, more so with every passing decade.
And in terms of whether the Court will then be stuck with other abortion litigation, I think I disagree with Julia on that. If it makes it clear that rational basis means rational basis, then it will be clear that abortion laws, just because they regulate elective abortions, are not for that reason constitutionally problematic. And I don’t know that there’s any real -- there’s a question about how to define what’s an elective abortion, but actually at the time of ratification of the Fourteenth Amendment, the states had remarkably similar rules about that, about requiring permissions for abortion in cases where the woman’s life or serious bodily injury was threatened.
And in any case, there’s no serious political attempt. I’m not aware of any law in our country’s history that eroded that. So assuming there’s not going to be any erosion of that, I think rational basis applied to abortion regulations will, in fact, keep the issue out of the courts.
Hon. Thomas Griffith: Okay. Here’s a question someone asked. What’s the likelihood that the Supreme Court will read into Mississippi’s -- a divergence in the cert petition and the merits petition in the Mississippi? Will they take advantage of that? Will that play out as a factor in any way in the decision? I bungled that question from the audience. Sorry. But do you get the sense of it? Anyone want to take that up? Any likelihood that that will play out in the merits decision at all?
Prof. Sherif Girgis: I guess I don’t think the cert petition -- I didn’t want to speak if someone else is going to, but I guess I don’t think the cert petition will play much of a role here. But there was this passing reference to a DIG in the respondent’s brief and in the U.S. brief, but it was extremely half-hearted and nervous, and they moved on. And 90 percent of the brief -- 99 percent of it is dedicated either to addressing Roe and Casey, a thumbs up, thumbs down, or to blowing up Mississippi’s attempts at alternatives.
And I think that’s why it was awkward for them to say there should be a DIG because they themselves are saying there’s no way to answer the question presented for Mississippi without overturning Casey and Roe, so then it’s hard for them to come back and say but you should really chide Mississippi for asking you to overturn Casey and Roe just to rule for it on the question presented. So I think that, for better or worse, the cert petition is just not going to play any meaningful role or what the cert petition said versus what the merits briefing said.
Hon. Thomas Griffith: Everyone agree with that? Is that the view of the panel?
Prof. Richard Re: I have a partial dissent. I’m not sure, Julia, if you had more to say about the earlier question, but I’d be curious to hear more about that.
Just briefly on this what was given notice and what was not, part of the issue is maybe the briefing could have been better. I’m sure the briefs are good. I’ve read a lot of them. There could be better briefs, frankly. But part of it is also that there are predictions in the briefs that could be empirically tested by experience, such as whether doctrines can be reasonably applied. What would the effects on access be? Would there be political blowback? It was said that’s something that the Court does care about. I’m not saying it should be. So there’s these things that can be learned and that have been learned by SB8 that could be learned by further temporization.
Hon. Thomas Griffith: Here’s a question. If the Court upholds the 15 week ban but reaffirms the undue burden test in some form, would the liberal justices join that part of the ruling, and would they have to in order for there to be a majority?
Prof. Mary Zeigler: I would think they would. I think that there’s -- I think that, generally speaking, one of the reasons that people -- my understanding from having spoken to folks who are litigating on both sides of this is that people who are in groups like the Center for Reproductive Rights agree with Dan that a very clear loss may be the only -- the least bad outcome.
And so I would imagine that for the liberal justices, a decision reaffirming the undue burden test would be surprisingly attractive because, for some of the reasons that Sherif outlines, it may be then hard for the Court to turn around and say, oh, by the way, the undue burden test doesn’t actually make sense as a matter of original public meaning if they’ve just shored it up in Dobbs.
So I would imagine that if the liberal justices are playing the long game, they would be very attracted to that and likely to sign on to that kind of opinion. You may have a majority there. I just think I would be surprised if that happens because I think that if the justices are inclined to overrule Roe sooner or later, which I think they probably are, they would be unlikely to do something in the short term that would make their job harder down the road.
Prof. Sherif Girgis: Yeah, I would be surprised if you got Justice Kavanaugh’s vote for that, and Justice Kavanaugh would be needed for five, I assume, for that, just because it would be a rule that said no undue burden here because it leaves a wide enough window and pretended that the words “before viability” didn’t appear every single time the Court said no undue burden in Casey would be a rule that depended on something that sort of rhymed with something in Casey but not actually was something in Casey.
And I think that Justice Kavanaugh is just extremely on -- I don't know, maybe I’m being naïve or trusting in judges too much, but I can’t imagine a world where Justice Kavanaugh says that that’s upholding anything under Casey rather than just replacing Casey entirely.
And then, if I’m right about that, if he’s going to be honest about the fact that he’s replacing Casey entirely, I just cannot imagine him doing that because then Dobbs becomes the new Casey. Then he has doubled down on whatever residual abortion right he’s created, as Mary was saying. And it’ll be impossible for him to come back and do what would presumably be the motivation for this path anyway, which is try to chip away down the road. So I can’t count to five on that ruling, either.
Hon. Thomas Griffith: Okay. Well, with that, I would draw our discussion to a close and thank our panelists. I tell you, there’s one question on the table that I didn’t get to, and I really wanted to ask Professor Farber for his reaction to Noah Feldman’s new book on Lincoln, but maybe we can have a different panel discussion on that at some time.
But on behalf of the audience, let me thank each of our panelists for a wonderful discussion about a consequential matter. And we will all be listening on December 1 to hear how this plays out in the oral argument. And I believe we’re going to be -- I don't know if we’re reconvening this panel or another panel to discuss Dobbs post-argument, but stay tuned for that announcement. Thank you all very much.
Nick Marr: Just a quick thanks on behalf of The Federalist Society. I know everyone stayed overtime, and we really appreciate your time. And a special thanks to Judge Griffith for moderating this panel, and a round of applause for Richard. He’s muted, but it’s there. I see it. So thank you very much.
We will be reconvening almost this panel, a little bit different, but December 6, mark your calendars. We’ll have a post oral argument coverage. We’ll get the links up on the website, so stay tuned for that. And until next time, we are adjourned.