Dobbs: Roberts Concurrence

ETA:  My councilwoman with a well-timed hearing on crisis pregnancy centers.  If they ever pass more regulations or something, be careful, given the Supreme Court already had that horrible 5-4 ruling selectively allowing them to mislead the public by striking down basic disclosure rules.

We believe that THE CHIEF JUSTICE’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing States to prohibit abortion from the time of conception.

Such is what the dissent says in response to the twelve-page concurrence in judgment of Chief Justice Roberts. The majority spend more time on it. It argues neither side in the case asked for the more limited decision he settled on. It also argues that the solution is not really principled. No halfsies, dude.

It is appropriate to give short shrift to a path not taken, especially when the official law of the land as handed down by the Supreme Court involves much more.*  We are not (except vaguely) open to hearing internal debates. There might have been one to try to give Roberts' opinion at least one more vote, which failed.  A twelve-page opinion that significantly changes Court precedent itself seems somewhat thin.  As if was not a full effort. 

Regardless, I think the concurrence is worth comment, especially since it probably voices the opinion of many "compromise" types.  And, even though the dissent covers a lot of ground, it does provide an approach not fully covered. Again, this does not mean much here, since the Court just went all the way.  Still, I think it warrants discussion, and probably a few pages on his viability discussion could have been tossed into the dissent.

We granted certiorari to decide one question: “Whether all previability prohibitions on elective abortions are unconstitutional.”

Yes.  In some other case, the state's decision to "go big" once they had that fifth vote might have even led to a "DIG" since the case was not granted for that purpose.  The approach here by the YOLO [as the dissent notes, a Court "not restrained but aggressive, not modest but grasping"] Five encourages abuse of the litigation process.  Breyer flagged that in the gun case -- a fact-laden matter was not allowed to be carefully litigated in the trial court.  

[The question is being applied to a 15-week ban with limited exemptions. So, it is still somewhat open-ended. A "yes" answer doesn't even necessarily help the state, some set of abortions between 15 weeks as applied here and all elective (what exactly does that mean?) abortions before viability existing.  

And, what exactly is a "prohibition"?  Not being able to have an abortion at all?  A sorta safety period that might bring in a few pre-viables? Roberts's test surely is more open-ended than 15 weeks.]

Roberts pushed back on the majority and noted that the state very well (to be clear, as a backup plan) argued that the 15-week ban could be upheld on narrower grounds.  That is somewhat coy, of course, since the state spends most of the time going big.  The proper approach here, if anything, would have been the Citizens United reargument approach, with a question on the wider issues, at least on overturning the viability line. 

viability line "never made any sense"

Roberts points out that the original challenged laws did not draw the line at viability and neither side set forth that as the line.  But, the proper line was a matter of dispute, the final decision necessarily discussing proper purposes and what test to apply.  

The viability line was a result of that.  Roberts takes a shot at the "rigid" trimester scheme, which is old news since Casey disposed of it.  The viability line did "make sense."  You can disagree with it, but upending fifty years of doctrine warrants an honest ("no sense" is not it) accounting of why the old rule is wrong and a new rule is better.  Stare decisis there warrants a strong accounting.  

Roberts argues basically the only thing Casey offered was that it was "workable" and notes that he has an alternative.  He argues the important thing is a reasonable choice to have an abortion; "so long as a real choice is provided," it is okay.  Pregnancy tests generally (or some such qualifier) allow you to determine you are pregnant by six weeks. Most abortions occur in the first trimester.  Fifteen weeks is plenty of time.  

Sort of a weak argument. What about various cases where early discovery of pregnancy does not occur, especially for teens with less reliable cycles and judgment calls?  What of those abortions for purposes of fetal abnormalities?  What of a range of delays? When is the appropriate line? Is it fifteen weeks? Or some time earlier?  

Roberts minimizes the value of the "workability" reason in Casey for upholding the line, but that is a basic value of a line like viability.  Basically, a range of things do occur before viability to make an earlier line problematic.  If a right to choose is granted -- and for now Roberts grants it -- changing the line is problematic.  And, the state does not carefully provide exceptions to deal with this either.

Also, a basic issue here -- cited in Roe too -- is that it is the point where a fetus can survive outside the womb.  As Casey noted: "realistic possibility of maintaining and nourishing a life outside the womb."  The dissent quotes this, though it does not quote the wider discussion on why the viability line was chosen. Both the Casey plurality and Blackmun provide it.  

The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of “potential life.” Roe, 410 U. S., at 162–163. That changed with Gonzales v. Carhart, 550 U. S. 124 (2007). There, we recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Id., at 157–160. The viability line has nothing to do with advancing such permissible goals.  [Also cites fetal pain.]

It is unclear how true all of this is.  The "infanticide" line -- putting aside how useful a so-called partial birth abortion ban is there -- seems to be part of a "potential life" debate.  Also, there was and remains a compelling interest against "infanticide."  What does that add to things?  We still have to determine what an "infant" means, the counteracting interests of the life and health of the woman, and so forth. 

Multiple opinions also did not deny that basic medical regulations are inappropriate.  And, Casey could be interpreted to be basically about determining if there is a substantial effect on abortion rights and "legitimate" state interests.  Something like "societal ethics" is ridiculously overbroad. Anyway, the other decision did not overrule Casey, so it is unclear what difference that makes. 

In short, the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. 

The rule was crafted as a constitutional doctrinal line as is done in many cases. Justice Blackmun covered this in Casey etc.  It was not "completely" unreasoned.  In fact, it has various things going for it. Before you overrule it, it should be subject to careful full argument.  Not handled on the side while most of the argument was spent on the merits of Roe v. Wade overall.  

So, the concurrence leaves something to be desired. It would have removed the viability line (weakly saying why) with some hazy replacement where a mass of state interests (including general social ethics) go against some right to choose with probably six weeks as the bare minimum (maybe).  

Roberts says his is the path of reasonableness, not as extreme as either end.** But, defending the status quo is pretty reasonable for a judge.  Roberts does seem to (though joining the gun ruling, selectively) accept in fashion this philosophy from the dissent regarding changing constitutional analysis:

Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

This is a basic principle that should be continuously defended.  We need to apply the Constitution as current times inform us.  Yes, we can talk about things like fetal pain based on current knowledge.  What that tells us is far from clear and to me won't settle on Roberts's ground.  But, a full, open, directly addressed, approach there would at least have been more honest.

And, I agree with the opening quote, though a few years from now, the difference might not be much between Roberts and the rest.  But, the law should develop over time. As someone noted on Twitter, a Court in a hurry is dangerous.  Some wanted to get the end over with, so in that fashion, they were glad the majority won out.  I'm not really in that camp.

[Roberts cites John Hart Ely Jr.'s famous critique, which was not limited to the viability line.  The dissent was probably negligent to not remind the majority and Roberts that Ely later PRAISED Planned Parenthood v. Casey.]

Finally, having read the dissent more closely now, I have yet to see any allusion to the leak.   

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* Cooper v. Aaron, involving defending Brown v. Bd. (desegregation) provided a strong view of the Court's power:

[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

There has been pushed back on just what this means.  It is unclear how "supreme in the exposition of the law" Marbury v. Madison intended to assert.  The Cooper opinion ended thusly:

The principles announced in [Brown] and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

Again, that is pretty strong, and it is unclear what force it should have in every case.  Is Dobbs really "indispensable" in this sense?  

It is one thing for a state to blatantly ignore the Court (though we were with SB8 apparently that doesn't mean much at times).  But, the meaning of the Constitution is applied in many ways.  

The rhetorical force given the events is fairly unsurprising.  As a basic principle, it is open to abuse.  

** This reminds me of this passage from the dissent:

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

I wonder what Souter and Kennedy (bothered by the house protests) are thinking today.  Souter also was part of the majority in the court of appeals that was overruled in the Maine religious schools funding case.  One of these days, O'Connor will be in the news, the obituary pages.